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train
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001-76630
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,006 |
MACHUNKA v. SLOVAKIA
| 4 |
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Rastislav Machunka, is a Slovakian national who was born in 1971 and lives in Trenčín. He was represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs A. Poláčková. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 October 1998 the applicant filed an action for protection of his personal rights with the Trenčín District Court. He sued the editor of a daily newspaper which had allegedly made defamatory statements about him. On 14 January 1999 the District Court invited the applicant to pay the court fee. On 3 February 1999 the applicant informed the District Court in writing that he had transferred the sum due on 29 January 1999. As the District Court did not receive the sum, the applicant was heard on 19 October 1999. It was established that the sum had been returned to the applicant’s account. On 21 October 1999 the District Court received the fee. On 16 November 1999 the District Court asked the defendant to submit comments on the action within ten days. According to a note in the case file, the judge dealing with the case had been attached temporarily to a different court starting on 1 January 2000. On 17 July 2000 the Trenčín District Court delivered a judgment against which both parties appealed on 25 August and on 19 September 2000 respectively. After having taken several procedural steps the District Court submitted the case file to the Trenčín Regional Court on 30 January 2001. On 13 March 2001 the Regional Court returned the file to the District Court as there had been shortcomings in serving the first-instance judgment. On 14 March 2001 the District Court sent the judgment to the party concerned. That party filed an appeal on 17 April 2001. On 19 June 2001 the file was re-submitted to the appellate court. On 19 November 2002 the Regional Court quashed the District Court’s judgment of 17 July 2000. The appellate court found that the District Court had committed a serious procedural mistake in that its decision exceeded the scope of the case. The question whether the defendant had standing in the case was also to be clarified and further evidence was to be taken. The file was returned to the District Court on 20 December 2002. The Regional Court’s decision was served on the parties on 20 January and on 7 February 2003 respectively. On 7 February 2003 the applicant withdrew a part of his claim which concerned an apology for the statements in question. He explained that almost five years had lapsed since their publication. The applicant maintained his claim for compensation amounting to the equivalent of approximately 5,000 euros (EUR). On 19 February 2003 the District Court admitted another person as a defendant in the proceedings. The District Court made several inquiries, in accordance with the Regional Court’s instructions, between February and June 2003. On 1 July 2003 the case was assigned to a different judge as the judge dealing with it had been transferred to a different court. On 10 September 2003 the District Court made further written inquiries to which it received replies on 22 and 26 September 2003. On 28 January 2004 the District Court scheduled a hearing for 18 March 2004. It also made inquiries with a view to obtaining further evidence. On 3 March 2004 the applicant asked for the hearing scheduled for 18 March 2004 to be adjourned due to the absence of his lawyer. A hearing was scheduled for 22 April 2004. The defendant asked for its adjournment as his lawyer could not attend. He further requested that no hearing be scheduled for June 2004. On 10 May 2004 the District Court asked the police for assistance in serving a summons on a witness. On 17 June 2004 the police replied that they had been unable to serve the summons. At the hearing held on 13 July 2004 the applicant withdrew his claim against the second defendant. After the decision to discontinue the relevant part of the proceedings had become final on 10 August 2004, the court scheduled a hearing for 30 September 2004. On the last mentioned date the case was adjourned as a witness failed to appear. A hearing scheduled for 11 November 2004 was adjourned as the judge was ill. On 7 December 2004 both the defendant and a witness failed to appear. The court imposed a procedural fine of 5,000 Slovak korunas on the witness. It asked the Bratislava I District Court to hear the witness. On 21 June 2005 the Bratislava I District Court informed the Trenčín District Court that the witness had not appeared before it and that neither the post office nor the police had been able to serve the summons on her. Subsequently the case was assigned to a different judge as the judge originally appointed to deal with it was on maternity leave. The hearing scheduled for 2 November 2005 was adjourned to 30 November 2005 at the request of the applicant’s lawyer. On 30 November 2005 the District Court delivered a judgment in which it granted the applicant’s claim in part. The judgment became final on 18 January 2006. On 10 February 2003 the applicant complained about the length of the proceedings before the District Court to the Constitutional Court. He claimed, inter alia, the equivalent of EUR 1,750 as financial compensation. On 12 March 2003 the Constitutional Court declared the complaint admissible. On 3 December 2003 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay. It instructed the Trenčín District Court to proceed with the case without any further delay and awarded the equivalent of EUR 730 by way of just satisfaction to the applicant, payable within two months. It also ordered the District Court to reimburse the costs of the applicant’s legal representation within fifteen days. The decision stated that the case was of a certain procedural complexity and that what was at stake for the applicant called for the particular attention of the court dealing with it. In the Constitutional Court’s view, the applicant was responsible for the delayed payment of the court fee, as a result of which one year had lapsed before the District Court could start proceeding with the case. On the other hand, several delays occurred subsequently for which the District Court was responsible. In particular, more than seven months had lapsed between 21 October 1999 (when the court fee was paid) and 2 June 2000 (when the District Court effectively started dealing with the case). Undue delay occurred between 30 January 2001 and 19 June 2001 because of the erroneous service of the first-instance judgment. The Constitutional Court found further delays in the proceedings after 20 December 2002 when the Regional Court had returned the case file to the District Court.
| 0 |
train
|
001-68690
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,005 |
O'CARROLL v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
Josep Casadevall;Nicolas Bratza
|
The applicant, Mr Thomas Victor O'Carroll, is a United Kingdom national, who was born in 1945 and lives in Shildon. The applicant was convicted at the Southwark Crown Court on 17 July 2002 of three counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to Section 170(2)(b) of the Customs and Excise Management Act 1979. Each count related to a photograph in an album which had been part of a consignment from Qatar addressed to the applicant in the United Kingdom. The applicant had signed a form declaring that he was not bringing in prohibited material in that way. Each photograph was of a young naked child, engaging in normal outdoor activity such as playing on a beach. The questions put to the jury in respect of each count were: “Considering each count separately, has the prosecution made you sure that: 1. On 5 October 2001 the defendant knowingly brought into this country the photograph of the child that is the subject of the count? 2. The child is under 14 years of age? 3. The photograph is indecent? [A photograph is indecent if in your judgment in offends against recognised standards of propriety] 4. The defendant deliberately failed to disclose his possession of the photograph because he believed that it was or might be indecent? If the answers to all four questions are YES, the defendant is GUILTY. If the answer to any of the above questions is NO, the defendant is NOT GUILTY.” The applicant was sentenced to nine months' imprisonment on 9 August 2002. On 11 October 2002 a single judge granted leave to appeal against sentence as it was arguable that the sentence was too long. Leave to appeal against conviction was refused, the judge considering that the trial judge's direction to the jury had been entirely satisfactory, and that the offence was sufficiently precisely defined so as to comply with the Article 7 of the Convention. In this latter respect he referred to Müller and Others v. Switzerland (judgment of 24 May 1988, Series A no. 133) and the domestic decision of R. v. Perrin ([2002] EWCA Crim 747). The applicant's appeal against sentence was allowed by the Court of Appeal on 26 November 2002. No alternative sentence was passed, although the applicant was still required to register as a sex offender under the Sex Offences Act 1997. A renewed application for leave to appeal against conviction was dismissed by the Court of Appeal on 29 July 2003. The Court of Appeal noted that: “whereas counsel's advice and grounds of appeal are set out in fourteen paragraphs over five pages, those arguments put forward by the applicant himself extend to 94 paragraphs over 27 pages. He is a dedicated enthusiastic and well-researched apologist for what he sees as innocent and non-exploitative pleasure in viewing photographs of juvenile nakedness. He raises many philosophical, social and artistic arguments about that which we regard as irrelevant to the two legal questions for us: (1) Was the conduct of the trial and the summing up correct? (2) Are the convictions safe?” The Court of Appeal dealt with the various grounds of appeal as follows: - The Court of Appeal did not accept that the concept of “indecent” material was too vague to allow a citizen to conduct himself in knowledge of what the law was. It recalled that the test of whether an article was indecent was an objective one, and that the quality of indecency was to be determined by looking at the article alleged to be indecent, and nothing else. To require absolute certainty in advance as to whether an article was or was not indecent would set an impossible task which could only be met in the rare case in which a second set of proceedings was brought in respect of specific material already found to have been indecent. - As to the ground of appeal that the judge was alleged to have dealt wrongly with the “context” of the photographs in that he had suggested that that was relevant to whether the photographs were indecent, and that he misdirected the jury that visibility of genitalia was a relevant consideration in determining whether the material was indecent, the Court of Appeal referred to the questions which the judge had put to the jury, in which he had stated that a photograph was indecent if it offended “against recognized standards of propriety”. As to context, the trial judge had said: “... here what you should do is to ignore context. Forget about context. Just look at the photographs of these young children, ignoring any context, and ask yourselves the question: Are they decent or indecent? The real question is ...: Are we sure they are indecent?” The Court of Appeal added that the extent of the display of genitalia was a factor which one could expect to be considered by the jury, and the judge's reference to it was not surprising. - As to the ground of appeal that in using the four questions put to the jury, the judge had reduced the statutory requirement of “knowingly” being concerned in importation to a belief that the photograph was or may have been indecent, the Court of Appeal considered that the statutory requirement of “knowledge” was met by the fourth question. - As to the ground of appeal that the applicant had been denied the right to silence because the judge had instructed the jury that they could draw adverse inferences from the fact that applicant had not given evidence, the Court of Appeal noted that the judge's direction under Section 35 of the Criminal Justice and Public Order Act 1994 had been absolutely orthodox. The defence had asked the judge to rule in advance that if the applicant gave evidence he could not be cross-examined about a number of matters, in particular matters which would reveal his general attitude to the “philosophical, social and artistic arguments” referred to above, and which could colour the jury's determination of the fourth question. To this, the Court of Appeal replied that the judge was wise to refuse to make any such ruling, as if he had done so, he would have given carte blanche to the defence “to give the sort of proselytising combative assertions which we find in the grounds of appeal through the defendant's evidence” According to Section 170(2) of the Customs and Excise Management Act: "Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion – ... (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; ... he shall be guilty of an offence under this section and may be arrested." As the House of Lords found in the case of R. v Forbes ([2001] UKHL 40): “This provision extends to all cases involving the evasion or attempted evasion of a prohibition or restriction. It requires proof by the prosecutor of two things. First he must prove that the goods in question were the subject of a prohibition or restriction under or by virtue of any enactment which was in force at the time of the evasion or attempt at evasion. This is an essential element in any prosecution, but its proof in many cases is likely to be a formality. In the present case the fact that the video cassettes contained indecent photographs of children, which is prohibited indecent material, was agreed between the defendant and the prosecutor. The second thing which the prosecutor must prove is that the defendant was knowingly concerned in a fraudulent evasion or attempt at evasion of the prohibition or restriction.” A number of provisions create prohibitions on indecent photographs, including Section 1 of the Obscene Publications Act 1959 (obscene publications), Section 1 of the Protection of Children Act 1978 (indecent photographs of a child under the age of sixteen) and Section 42 of the Customs Consolidation Act 1876 (indecent photographs). Section 35 of the Criminal Justice and Public Order Act 1994 provides, so far as relevant, as follows: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” The applicant complained under Article 7 of the Convention that domestic law is not sufficiently precise to enable an individual to know in advance whether his conduct is criminal. He also complained under Article 6 that the trial was unfair for the same grounds as made in his appeal against conviction, that his appeal was refused in an ill-considered way, in particular that his grounds of appeal entitled “misdirection on standard of proof” and “infringement of right to silence” were not properly dealt with.
| 0 |
train
|
001-103739
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,011 |
CASE OF MOLDOVAN AND OTHERS v. ROMANIA
| 3 |
Inadmissible
|
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
|
1. The present applications, concerning the living conditions of Romanian citizens of Roma origin living in the village of Hădăreni, Mureş County, follow two other applications that have been joined (nos. 41138/98 and 64320/01). The said applications were lodged with the Court on 14 April 1997 and 9 May 2000 respectively, by twenty-five Romanian nationals of Roma origin living in the above-mentioned village, as a consequence of the inter-ethnic violent events of 20 September 1993 which led to the killing of three people of Roma origin and the burning of eighteen Roma houses. 2. The two applications mentioned above have resulted in a friendly settlement agreement (see Moldovan and Others v. Romania (no 1) (friendly settlement), 5 July 2005), concerning eighteen of the twenty-five original applicants and in a judgment on the merits concerning the remaining seven applicants (see Moldovan and Others v. Romania (no 2), 12 July 2005, ECHR 2005-VII) where the Court found a violation, inter alia, of Articles 3 and 8 of the Convention in respect of the applicants’ living conditions. 3. The applicants in the present cases, some of them also parties to the proceedings in the cases of Moldovan and Others v. Romania (no 1 and 2), cited above, are eighty-six Romanian nationals of Roma origin. They all used to live in the village of Hădăreni, Mures County. Since the events of September 1993 some applicants have returned to Hădăreni, while others have been living in various parts of the country. Mr Dănuţ Moldovan, Ms Florina Lăcătuş, Mr Ionel-Dafin Lăcătuş, Ms Eleonora Rostaş, Mr Nicolae-Florin Moldovan and Ms Maria Moldovan are currently living in Spain; Mr Petrică-Florin Lăcătuş, Mr Ovidiu-Stelian Lăcătuş and Mr Tarzan-Ferdinand Rostaş are living in Switzerland; Ms Elena Moldovan, Mr Cosmin-Florin Lăcătuş and Mr Bazil Moldovan are living in France; Ms Mariana Moldovan is living in Italy; while Ms Lenuca-Petruţa Moldovan is living in Germany. 4. The name and year of birth of each applicant, the date of the lodging of each application and the blood relationships between the applicants are described in the attached table (see annex below). 5. On 25 February 2009 the applicants, who originally either had no representation or were represented by some of the other applicants, sent powers of attorney authorising Mr Ovidiu-Laurenţiu Podaru to represent them before the Court. 6. Consequently, all applicants in all the applications are currently represented before the Court by Mr Ovidiu-Laurenţiu Podaru, a lawyer practising in Cluj-Napoca. The Romanian Government (“the Government”) are represented by their Agent, Mr RăzvanHoraţiu Radu, from the Ministry of Foreign Affairs. 7. The present cases originate in the events which took place in 1993 in the village of Hădăreni and which are summarised in the judgments of Moldovan and Others, (no 1 and 2), cited above. In so far as they concern the current applicants they may be summarised as follows. 8. The applicants are mainly the children, the grandchildren, the nephews and the nieces of the twenty-five original applicants, victims of the events of 20 September 1993. Many of them were minors at the time of the events and were living with their relatives. 9. In the aftermath of the events they were forced to live in hen-houses, stables, pigsties, windowless cellars or in cold and inappropriate conditions (sleeping on concrete and muddy floors, in crowded conditions or in outhouse kitchens without a proper roof or windows) together with their families. Those conditions lasted for several years and in some cases they have not been fully remedied to date. 10. Many applicants consider that as a result they fell ill and developed a number of medical conditions, in particular heart conditions resulting in heart attacks, meningitis and diabetes. Some of them have now also developed mental disabilities. Although they all had access over the years to treatment provided by the national health care system, their limited financial resources and the alleged discriminatory treatment they were faced with in the hospitals and medical private practices prevented them from curing their illnesses. 11. Only some of the applicants have been party to the domestic proceedings. They include, among others, Maria “Raria” Rostaş (Moldovan), Tiberiu Moldovan, Bazil Moldovan, Gabriela Moldovan, Mariana Moldovan and her brothers Octavian Rostaş, Petru-Doru Lăcătuş and Tarzan-Ferdinand Rostaş (the last four applicants as heirs of their mother Rozalia Rostaş). However, none of the said applicants appealed the judgment delivered by the first-instance court during the course of the civil proceedings brought against the third parties convicted for the destruction of their homes. 12. The applicants, who were minors at that time and were legally represented by their parents or grandparents, were not included as parties to these proceedings. They consider, however, that the Public Prosecutor’s Office had an obligation under Article 45 of the Romanian Code of Civil Procedure, taken in conjunction with Article 173 of the Romanian Code of Criminal Procedure, to represent their best interests and to introduce them as parties to the proceedings. 1) The facts of each application, partly in dispute by the parties, can be summarised as follows: 13. The applicants declared that they had fled the village after they had witnessed the burning and destruction of Iulius Moldovan and Maria “Raria” Rostaş’ houses. They sought refuge in the forest, in the fields, in the neighbouring villages and with relatives. When they attempted to return to the village they were met by an angry mob and chased by the police, who fired on them. They declare that their houses were burned down or destroyed by the mob, together with their belongings. Consequently, they were forced to sleep outdoors for various periods of time with no food or clothing. In the aftermath of the events, they were forced to live in pigsties for years with no furniture and some of them, like Costică Moldovan, were beaten by the police. Călina Rostaş, Nadia Moldovan and Virgil-Sorin Moldovan declared that as a result of the living conditions they became physically or mentally ill. In his letter of 19 August 2008 Costică Moldovan informed the Court that he was not party to the civil proceedings before the domestic courts. He argued that the civil proceedings depended on the outcome of the criminal proceedings, and the latter had been rejected for political reasons. Consequently, he did not have the opportunity to lodge his complaints before the domestic courts. Lenuţa and Claudiu Rostaş declared that only one room of their parental home had been renovated with Governmental funds. Radu-Mihai Rostaş considers that he was never able to graduate from school because he was allegedly discriminated against by his colleagues. 14. The Government submitted that Costică and Loredana Moldovan continued to live in Hădăreni and that Loredana had completed the fifth grade at school. Social welfare visits conducted at Loredana’s home in 2001 showed that her family was living in a two-room house with gas and electricity supply. According to a letter of 11 June 2009 from the Mureş Social and Child Protection Agency (the Child Protection Agency), between 4 April 2001 and 30 April 2002 Loredana was registered as suffering from a medium degree of learning disability. Radu-Cristureanu Rostaş was living with his parents in 1993 and their home was not affected by the events. With the exception of Claudiu Rostaş, who lives in Petroşani and has completed the fourth grade at school, Lenuţa, Cosmin-Sebastian and RaduMihai Rostaş live at no 77 Hădăreni and have completed the fifth, seventh and second grades at school, respectively. Their parents’ home was rebuilt with Government funds. Both Nadia and Virgil-Sorin Moldovan have completed the third grade at school. 15. The applicant declared that on 20 September 1993 part of her house and all her belongings were destroyed by the mob, leaving her and her children without shelter. In the aftermath of the events her children became ill because of the inhuman conditions they were forced to live in. She was party to the domestic proceedings and was awarded damages of 240,000 lei (ROL) for the partial destruction of her house by a judgment of 12 May 2003 of the Mureş County Court. She did not appeal against the judgment. 16. The Government submitted that the applicant was living at no. 157 Hădăreni at the time of the events. The Mureş County Court awarded the applicant six euros (EUR) in damages, on the ground that according to the expert report available in the file only the windows of the applicant’s house had been broken as a result of the events. Moreover, according to the said judgment, the applicant declared before the domestic courts that only the windows of her house, four earrings, four icons, a lamp, an armchair and a bed had been destroyed as a result of the events. This contradicts her statement before the Court, where she declared that her house was burned down together with many of her belongings. 17. The applicant declared that in September 1993 she was forced to abandon her home, together with her daughter, her mother, her partner and her siblings. She declares that both she and her daughter have mental health problems as a consequence of the events, and her belongings were destroyed when her mother’s house was set on fire. 18. The Government submitted that at the time of the events the applicant was living at no. 152 Hădăreni, where she continues to reside to date. She had always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services. 19. The applicant declared that at the time of the events he was serving in the army. In November 1993 he returned to the village and he was threatened and hit with stones thrown by some of the villagers. They followed him to his mother’s house, where they continued throwing stones, which damaged the windows and the roof of the house. Following the incident, the applicant spent the rest of his leave at his sister’s house (Alexandrina Rostaş – application no. 13129/04) located in another village. Because he was afraid for his and his family’s safety, he would return to the village of Hădăreni only at night. Since 2003 the applicant has been living in Spain. 20. The Government submitted that the applicant was not present in the village at the time of the events. At the time of the events his official residence was at no. 76 Hădăreni. However, he has been living in Spain since 2003. 21. The applicant declared that at the time of the events she was visiting her relative, Meneluţa Moldovan, and was alone in her relative’s house together with her relative’s three minor children when she was alerted by her mother, Maria Moldovan, that an angry mob had started burning Roma houses in the village. She gathered her relatives and took them all to her house in the village of Cheţani. The applicant believes that both she and her family were affected by the events, in so far as the police stopped seventeen non-Roma individuals from setting fire to the applicant’s home located at Cheţani no. 3. Moreover, she could sell her house in Cheţani village only for a very low price. 22. The Government submitted that the applicant was living at no. 3 Cheţani at the time of the events. From 2002 the applicant was registered as living in Luduş and she had never lived in Hădăreni. 23. The applicants alleged that their house and belongings had been destroyed by the angry mob. In the aftermath of the events, they had had to live for days in stables with no food, electricity or heating. Later on they had sought shelter with family and friends. They declared that as a result of the stress they were subjected to they had become mentally and physically ill. They are allegedly suffering from various degrees of handicap, diabetes and other ailments they have developed as a result of the events, such as loss of hair in Florina Lăcătuş’ case. Ancuţa-Lucreţia, Petruţa-Maria and Iuliu Lăcătuş consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. Rada-Didina Moldovan, Petruţa-Maria Lăcătuş, Iuliu Lăcătuş and Petru-Valentin Lăcătuş declare that they were discriminated against at school and Florina Lăcătuş stated that she is currently living on a rubbish dump in Spain. In her letter of 29 July 2008 Maria-Gherghina Lăcătuş informed the Court that she was one of the original twenty-five applicants and that she was awarded EUR 13,000 as a result of the friendly settlement agreement. 24. The Government submitted that at the time of the events the applicants were living at no. 114 Hădăreni. With the exception of RadaDidina Moldovan and Florina Lăcătuş, all of them continue to live at the same address. Social welfare visits conducted at the applicants’ home in 2004, 2005 and 2007 showed that the house of the Lăcătuş family had electricity and gas, three rooms, a bathroom and a kitchen and the family’s income consisted of Petru “Gruia” Lăcătuş’ pension and the child allowance awarded by the State for the upbringing of minor children. At the same time Ancuţa-Lucreţia Lăcătuş was living in a house consisting of a room and a kitchen equipped with gas and electricity and located in the same courtyard as her parents’ house, and her income consisted of an allowance for her son. Petruţa-Maria Lăcătuş had completed the eighth grade at school in 1998. On 17 January 2007, 9 April 2008, and 21 and 22 January 2009 Iuliu, MariaGherghina, Petru-Valentin and Ancuţa-Lucreţia Lăcătuş were diagnosed with various degrees of mental disability which they had had since 1976 and 1984. However, they had always had access to adequate medical assistance provided by the general practitioners they are registered with and by the Hădăreni medical assistance services. 25. The applicants alleged that in September 1993 they witnessed the destruction of their house and belongings. They were forced to abandon their house, and sought refuge in a neighbouring village, where they remained for weeks with no food or clothes and slept in the fields. Tiberiu Moldovan declares that he was awarded ROL 1,300,000 in pecuniary damages for the destruction of his house by the Mureş County Court judgment of 12 May 2003. However, he did not appeal against the judgment on the ground that he had left to work abroad and no one was at home to notify him. The judgment has not been enforced to date, although on 25 August 2003 the applicant was informed by the enforcement officer’s office that the judgment had become enforceable and the applicant needed to pay the enforcement fees. They also declare that they had had to borrow money from third parties in order to restore one room of their house and repair their belongings. Moreover, they had developed health problems as a result of the events and the overcrowded living conditions. In a letter of 10 January 2010 Tiberiu Moldovan informed the Court that Petrică-Cidu Moldovan had died by drowning and that he would like to continue his application. 26. The Government submitted that Tiberiu Moldovan, Ţiţo Rostaş, Petrică-Cidu Moldovan, Maria-Gabi Moldovan, Dolfi Rostaş and OlgaMirela Moldovan were living at no. 41 Hădăreni at the time of the events and they continue to live there. They had always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services. Lidia-Sonia Moldovan, Florin Rostaş and Crîşmaru Moldovan were not living in Hădăreni at the time of the events. Between 1981 and 2005 the official legal residence of Lidia-Sonia Moldovan was no. 15 Cuiesd and starting from 2005 no. 32 Crizantemelor Street, Sighişoara. In 1997 Florin Rostaş’ official residence was changed to no. 41 Hădăreni, where he continues to live. In 1995 Florin dropped out of school. Currently the official residence of Crîsmaru Moldovan is no. 3 Tineretului Street in Lupeni. In 1999 Crîşmaru and Petrică-Cidu Moldovan completed the sixth and fourth grades at school respectively. In 2001 Maria-Gabi Moldovan completed the sixth grade, but she no longer lives in the village. In 2002 Dolfi Rostaş had completed the fifth grade and in 2005 he dropped out of school, although he continues to live in the village. Currently Olga-Mirela Moldovan lives in the village of Răuseni. 27. The applicant declared that on 20 September 1993 he was living with his grandmother, whose house was burned down. He allegedly had to live in inhuman conditions for months, was forced to sleep in a pigsty in December, was refused treatment for his illnesses by the doctor, was beaten up by the police and was discriminated against at school. Consequently, he was forced to leave Romania for Spain. He declared that he had become ill as a result of the conditions he was forced to live in for years, and had had to undergo surgery. Moreover, he considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings. 28. The Government submitted that the applicant was living with his grandparents at no 195A Hădăreni at the time of the events. He is currently living in Spain. In 1994 all seven members of his family were living in the kitchen of his parental house, which had been partially destroyed. The applicant and his family received some assistance from the authorities over the years. They were given four blankets in 1993, ROL 4,130,000 in 1994, and their house was rebuilt in 1995. On 19 May 2009, according to the National Authority for Roma (NAR) some more work needed to be done on the applicant’s house: the replacement of six windows and four doors, the reinforcement of the rear wall, paving around the foundations and the installation of drainpipes. 29. The applicants declared that their house and belongings had been burned down or destroyed. They all had to leave the village with no clothes or food. The police refused to help them during the events and they declared that their house had not been rebuilt to date because they did not have title to the house or the land it was built on. Consequently they were all forced to live for four years in a damp cellar. Moreover, they continue to live in overcrowded conditions in another village, sharing two rooms with eight other people. They all suffer from various physical and mental health problems because of the dampness and the cold they were exposed to for several years. The children were discriminated against at school and could not attend school any more. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. 30. The Government submitted that Lucaci Moldovan and his children were living in Hădăreni at the time of the events in a house that was burned down. They all moved to the village of Frata, where they still live. 31. The applicants declared that in September 1993 their parental home was burned down and they were forced to leave the village. For months they lived in the forest with no food or clothes and slept on the ground. Consequently, they became ill with tuberculosis and other lung and kidney diseases. They were allowed to return to the village only in April 1994, but continued to be discriminated against both at school and on the labour market. They consider that the Public Prosecutor’s Office had failed to discharge its legal obligation to protect the interests of the minor children and introduce them as parties to the proceedings. Petrică-Florin and OvidiuStelian Lăcătuş declared that they had left Romania and were currently living in Switzerland on a rubbish dump. 32. The Government submitted that the applicants were living with their parents at no. 115 Hădăreni at the time of the events and were still living in the village. However, only Nicolae-Romică Lăcătuş is still living with his parents at no. 115. Ovidiu-Stelian Lăcătuş is living at no. 116 with his friend and Petrică-Florin Lăcătuş is living at no. 121. They all attended school in Hădăreni, Nicolae-Romică and Ovidiu-Stelian have completed eight grades, while Petrică-Florin has completed only seven. They have always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services. 33. The applicant declared that in September 1993 her parents’ house was burned down. The house was only partially rebuilt and therefore she had to live in the summer house even during the winter. For years she was forced to sleep on the floor and suffered from the cold every winter; she had no money for medication. Consequently, she became ill. Her parental home was still not finished. She was discriminated against at school even though she had successfully completed eight grades and had enrolled in a technical college in Câmpia-Turzii. Here she continued to be subject to treatment contrary to Article 3 of the Convention. She is currently working in Spain to support her family. She considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. 34. The Government submitted that the applicant was living with her parents at no. 78 Hădăreni at the time of the events. She continued to live in the village at the same address. She attended school in the village and completed eight grades in 1992. She had always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services. 35. The applicants declared that Radu-Iţoc Moldovan was dead and his widow Maria Moldovan was continuing his application. Their parents’ and grandparents’ house was burnt down and they were forced to leave the village and live for months in a basement and a shed until their parental home was rebuilt. As a result of the conditions they were forced to live in they became ill. Moreover, they continued to be discriminated against at school and in society. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and introduce them as parties to the proceedings. Elena Moldovan declared that she currently lived in France and earned her living by begging, while Lenuca-Petruţa Moldovan lived in Germany. 36. The Government submitted that all the applicants with the exception of Radu-Iţoc, Geta-Romina and Lenuca-Petruţa Moldovan lived at no. 2 Hădăreni. Sandi-Adrian, Aurica and Elena Moldovan do not attend school. Bazil-Cosmin, Robert-Ştefan and Bobi-Aladin Moldovan have completed the seventh, eighth and first grades, respectively. Geta-Romina, LenucaPetruţa and Crina-Simina Moldovan live at no. 227A Hădăreni and they have completed the eighth, eighth and seventh grade respectively. The applicants’ parental home at no. 2 Hădăreni was rebuilt with Government funds. 37. The applicant declared that she provided shelter in her house located in the village of Mărtineşti for her mother and her mother’s husband after her mother’s house was burned down. Moreover, her mother and her mother’s family lived with her until 1995, when their house was rebuilt. She alleged that as a direct consequence of the events in Hădăreni she had been threatened by her neighbours in Mărtineşti with the burning of her house and her children started being discriminated against at school. They were allegedly also refused medical treatment by the local doctor. 38. The Government submitted that the applicant did not live in Hădăreni at the time of the events and she does not live there now. In 2002 her official place of residence was no. 20 Mărtineşti. 39. The applicants allege that their husband and father died following the events of 20 September 1993. Consequently, they had to leave their home and go to the neighbouring villages. They declare that for days they had to live in the fields with no food or clothes, which caused them to become ill. They are still homeless. 40. The Government submitted that Simona-Cerasela Lăcătuş’ husband was killed on 14 October 1993 by three other Roma citizens (Bazil-Sami, Adrian and Bazil Moldovan) with no causal link between his death and the events of 20 September 1993. The applicants were living, and still live, at no. 111 Mărtineşti. 41. The applicant alleges that following the events in September 1993 he became mentally ill. He declares that he was saved from the flames which burned down his parents’ house by his grandparents. His belongings were destroyed by the fire and his parental home has not been rebuilt to date. He was discriminated against at school and therefore completed only five grades. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and introduce him as party to the proceedings. He is currently living in France. 42. The Government submitted that the applicant was living with his grandmother at no. 1 Hădăreni at the time of the events. The applicant attended school in the village until 2005. He is currently enrolled in sixth grade but he abandoned school. He continues to live with his grandmother, who is also raising him. On 12 July 1996 the Commission for the Protection of Minor Children working within the Mureş County Council (the Child Protection Commission) decided to entrust the applicant to his grandparents on account of his family situation (his father was in prison and his mother had abandoned him), following a social enquiry which examined the living conditions of his grandmother and assessed whether he could be entrusted to her for upbringing. From 1996 he was monitored by the relevant local authorities and offered assistance relevant to his needs. On 4 April 2001 the Medical Commission for Children with Mental Disabilities diagnosed the applicant with “minor mental disability and behavioural problems” and acknowledged that the applicant has a third-degree mental disability. He has always had access to adequate medical assistance provided by the general practitioner he is registered with and by the Hădăreni medical assistance services. On 29 September 2006 the Child Protection Commission decided to discontinue the special support measures awarded to the applicant and the special allowance given to his grandmother. His medical file of 19 July 2007 states that the applicant’s condition was present at his birth. 43. The applicants allege that their parents’ house was burned down in September 1993 and has not yet been rebuilt. Their family sought refuge at their grandparents’ house, but that house was also burned down. They left the village and hid in the woods for three days with no food or clothes. Consequently, as a result of the cold they became physically and mentally ill. The applicants also declare that as a result of the events they were discriminated against at school and were unable to graduate. Eventually, on an unspecified date they moved to the village of Teaca. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. 44. The Government alleges that the applicants, with the exception of Sabina Moldovan, lived with their mother at no. 170 Hădăreni at the time of the events. Between 1997 and 2001 Adrian-Silviu Moldovan attended school in Hădăreni. Currently, Adrian-Silviu and Adriana Moldovan live at nos. 131 and 170 Hădăreni respectively, and they have always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services. Adrian-Silviu Moldovan is being treated for diabetes. Sabina Moldovan was living in the village of Pinticu at the time of the events and she is currently still registered as living in the same village, as a farmer. Moreover, her mother did not mention her in her statement following the events of Hădăreni where she declared that she was living in the village with her other two children. On 30 January and 6 February 2003 the Pinticu local authorities twice visited Sabina’s address at no. 25 Pinticu to check whether she is eligible for social welfare. 45. The applicant declared that at the time of the conflict she was living with her parents at no. 183 Hădăreni. They were forced to leave the village for five months and did not have a proper place to sleep. As a result she developed a heart condition and she continues to have to use special medication. Moreover, for years her family had to share a single room with the roof and the windows covered with cellophane. She stated that she was discriminated against by her school teachers and consequently she had to abandon school. 46. The Government submitted that the applicant was living with her parents at the time of the events. Between 1987 and 1992 she attended school in the village, but in 1996 she stopped going to school. Currently she lives in her own house in the village at no. 212 and is the beneficiary of social aid awarded by the Cheţani Mayor’s Office. She has always benefited from adequate medical assistance provided by the general practitioner she is registered with and by the Hădăreni medical assistance services. 47. The applicants alleged that in September 1993 their house was burned down. They were forced to leave their house and were not allowed by the local police to return to the village. Consequently, they had to sleep outdoors and they became physically and mentally ill. The same local police used mace on them and beat up Adrian “Costică” Moldovan’s wife. She allegedly lodged a criminal complaint against the police with no results. Adrian “Costică” Moldovan declared that his wife, whose application he continues, died as a result of the fear caused by the beating. Nicolae-Florin Moldovan alleges that as a result of the events he started being discriminated against at school and had to abandon school. Moreover, Nicolae-Florin and Maria Moldovan consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. 48. The Government submitted that the applicants lived at no 195A Hădăreni at the time of the events. Their house was rebuilt in 1995 from Government funds. On 19 May 2009, according to the NAR, more work needed to be done on the applicants’ house: the replacement of six windows and four doors, the reinforcement of the rear wall, paving around the foundations and installation of drainpipes. 49. The applicant alleged that as a result of the events of 20 September 1993 her parental home was destroyed and she was forced to sleep on the floor for a long time. Consequently, she developed a number of lung problems. Moreover, at school she was discriminated against by her teachers and classmates and as a result of the stress she had to endure at school she developed psychological problems. She considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce her as party to the proceedings. 50. The Government submitted that the applicant was living with her grandmother at no. 1 Hădăreni at the time of the events. On 12 July 1996 the Child Protection Commission decided to entrust the applicant to her grandparents on account of her family situation (her father was in prison and her mother had abandoned her), following a social enquiry which examined her grandmother’s living conditions and assessed whether the applicant could be entrusted to her for upbringing. Until 29 June 2006 the applicant was granted a special allowance because she had been entrusted to her grandparents to be brought up. From that date the allowance was discontinued by the Child Protection Commission on the ground that the applicant’s father had been released from prison and he was living with her and her grandparents. Starting from 1996 the applicant’s situation was periodically examined by the local social services and followed up by social enquiries, reports and psychosocial investigations, which did not recommend that the applicant be enrolled in a social protection programme. She always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services. At the end of 2006 she graduated from school in Hădăreni and is currently enrolled in a school in Turda. She is living in Hădăreni with her family. According to the information provided by the NAR., the Mureş County Council, the Mureş Prefect’s Office and the United Nations Development Programme (UNDP) the house owned by her grandmother has been restored and repaired. 51. The applicants alleged that on 20 September 1993 their parents’ house was destroyed by the villagers. They were forced to leave the village for months. In the aftermath of the events, their family was forced to live in one damp room covered with cellophane, sleeping on the floor and without electricity. Consequently, they became ill. Moreover, they declared that they were discriminated against at school by their teachers. 52. The Government submitted that the applicants were living in Hădăreni at the time of the events together with their parents. However, they are currently living in Lugoj (Ramona-Paraschiva and Mirela-Geanina) or elsewhere (Gabriel-Marius and Aurel-Matei). 53. The applicant alleged that following the events of September 1993 he had suffered burns in the fire which destroyed his parents’ house and had been forced to live outdoors for months. Moreover, in October 1993 he was chased and beaten by the police. Consequently, he became ill and was left with a disability which prevented him from supporting his family. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings. 54. The Government submitted that the applicant continued to live in the village and was the recipient of social aid from the local Mayor’s Office. 55. The applicant alleged that following the events of 20 September 1993 his parents’ house was burned down. Consequently, he was forced to live outdoors for two months. As a result he developed lung problems and a physical disability which prevented him from supporting his family. Moreover, in October 1993 he was chased and beaten by the police. He declared that he was discriminated against at school by his teachers and colleagues. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings. 56. The Government submitted that the applicant was living with his parents at no. 195A Hădăreni at the time of the events and that he continues to live in the village to the present. 57. The applicants alleged that in September 1993 their house was burned down and they were forced to leave the village. They were not able to take any clothes or food with them. As a result they are currently suffering from a number of physical and mental disabilities, including meningitis and serious eye problems, which they are unable to have treated due to lack of money. They declared that in 2001 they left the village of Hădăreni and they now live in the village of Unirea. Moreover, SibiancaLămîiţa Lăcătuş also declared that she was discriminated against by her school teachers. 58. The Government submitted that the applicants were all living at no. 152 Hădăreni at the time of the events. According to the Mureş Prefect’s Office, in 1994 the members of Valentina Rostaş’ family were housed by one of her sisters. Moreover the applicants were granted some aid by the authorities (two blankets) and in September 1995 their house was rebuilt with Government funds. Apart from Sibianca-Lămîiţa Lăcătuş, none of them now live in Hădăreni. 59. The applicants declared that their house was burned down. They left the village and walked twenty-five kilometres to the village of Unirea, where their relatives live. They alleged that they continued to live with their relatives to date and their house in Hădăreni had not been rebuilt. 60. The Government submitted that while the applicants had been living in Hădăreni at the time of the events they are currently living in Unirea. 61. The applicants alleged that for five years they were unable to return to the village. They declared that they had suffered physical and mental traumas as a result of the events. Moreover, their family has had to sell the house they owned in the village for an unreasonably low price. 62. The Government submitted that the applicants were living with their parents in Hădăreni at the time of the events. Afterwards their family left the village and moved to the village of Unirea. 63. The applicant alleged that his parents’ house was burned down. Consequently, he was forced to raise his children in inhuman conditions. He declared that he was a civil party to the domestic proceedings of 12 January 2001, but did not appeal against that, judgment, on the ground that he was under arrest at the time and was not summoned. He also declared that he had been discriminated against and was unable to find a job. Consequently, he left Romania and is currently living in France on a rubbish dump. 64. The Government submitted that the applicant was in prison for murder at the time of the events and did not own a house. Currently he lives at no. 2 Hădăreni. His parents’ house was burned down and was subsequently rebuilt with Government funds. 65. The applicant alleged that in September 1993 her parents’ house was burned down and she had to leave the village together with her three children. They were forced to live with relatives in inappropriate conditions for five months. Until their house was repaired the entire family lived in one room with no electricity. In so far as her house was renovated with Government funds, the applicant declared that the Government only provided beams, one door and two windows. Moreover, the roof had to be improvised out of nylon and other materials that offered extremely poor insulation. She further declared that she could not send her children to school because of their living conditions. Consequently, her children left Romania and are currently living abroad on rubbish dumps. Moreover, she was a civil party to the domestic proceedings of 12 January 2001, but failed to appeal against the said judgment. 66. The Government submitted that the applicant was living in her parents’ house at the time of the events. Currently she lives at no. 227A Hădăreni. The house was rebuilt with Government funds. On 19 May 2009, according to the NAR, some more work needed to be done on the applicant’s parents’ house: repairs to all the ceilings in the house, the roof and the replacement of three or four windows. 67. The applicants alleged that following the events of 20 September 1993 they were discriminated against at school. Their parents’ home was totally destroyed. For half a year they were forced to live in a field in a hut made of clay. Afterwards they moved into a house with broken windows and a missing roof and were forced to sleep on the floor for three years. Mariana Moldovan declared that she was forced to go to Italy to work in deplorable conditions in order to be able to support her family, while Tarzan-Ferdinand Rostaş left for Switzerland. By a judgment of 12 May 2003 Mureş County Court awarded the applicants jointly ROL 10,000,000 in compensation for the partial destruction of their home. The applicants did not appeal against the said decision. They allege that their parents died of heart attacks as a result of the conditions they were living in. Moreover, Mariana Moldovan herself has the same heart condition. The parental home has not been rebuilt to date. Tarzan-Ferdinand Rostaş considered that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as a party to the proceedings. 68. The Government submitted that the applicants’ house had not been affected by the events. At the time they were all living at no. 49 Hădăreni. In 1989 and 1993 Octavian Rostaş and Petru-Doru Lăcătuş completed the first grade at school, while Tarzan-Ferdinand Rostaş has never attended school. 69. The applicant alleged that his house has not been rebuilt to date, although it was burned down in 1993. He declares that he currently lives in a single room next to a stable and has been living there for the last eighteen years. As a result, he and his children have developed a number of medical conditions and he even had to undergo surgery as a result of the stable flies which invade his room regularly. He considers that the just satisfaction awarded by the Court is also discriminatory, because the amount awarded to him for damages was very small. 70. The Government submitted that the applicant was in prison at the time of the events, following a conflict between Roma families which led to the killing of a third party. His house at no. 1 Hădăreni was burned down during the events and was not rebuilt with Government funds. Currently he lives in Hădăreni with his girlfriend. He has always had access to adequate medical assistance provided by the general practitioner he is registered with and by the Hădăreni medical assistance services. 71. The applicant alleged that following the events of 20 September 1993 his house was burned down and he was forced to sleep outdoors. As a result he suffered a number of health problems and continued to be discriminated against. He considers the present application to be his first one before the Court referring to the burning of his home, which has not been rebuilt to date. He declared that he was beaten up several times because he was of Roma origin but was too afraid to go to the police. 72. The Government submitted that the applicant was living at no. 78 Hădăreni at the time of the events and his house was burned down. He is currently living at the same address and his house has been rebuilt with Government funds. He is a beneficiary of the medical insurance system and receives free or subsidised medicine. 73. In relation to all thirty applications, all applicants consider the statements made by the Government in respect of some of them in order to prove they were not living in the village at the time of the events partial and misleading. In particular, this is because the Government relies mainly on the information provided in the applicants’ identity cards, which may not be entirely accurate, taking into consideration the lack of adequate identity and property papers available for Roma people. 74. The applicants also contest the Government’s allegations that some of their houses have not been affected by the conflict. They claim that all the houses have been affected. 75. On 12 January 2001, following the discontinuance of the criminal investigation against the police officers involved in the incident and the criminal conviction and sentencing of twelve civilians, the Mureş Regional Court delivered its judgment in the civil case. The court noted that the victims had claimed compensation for pecuniary damage resulting from the destruction of the houses and their contents (furniture and so on), as well as compensation for non-pecuniary damage. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts. Basing its decision on an expert report, the court awarded compensation for pecuniary damage for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded compensation for pecuniary damage in respect of the partial or total destruction of the houses of six Roma. The court rejected the other applicants’ request for compensation for pecuniary damage in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same as or higher than the original buildings. It further refused all applicants, including Bazil and Gabriela Moldovan (applications nos. 34568/07 and 48126/07), damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets. 76. The court finally rejected all the applicants’ claims in respect of non-pecuniary damage on the ground that they had not been substantiated, and that the crimes committed were not of a nature to produce such damage. 77. The court ordered the villagers convicted in the criminal trial to pay the damages awarded. 78. Relying on some procedural errors in the Mureş County Court’s judgment, some of the applicants, with the exception in particular of Bazil and Gabriela Moldovan (applications nos. 34568/07 and 48126/07), lodged an appeal with the Mureş Court of Appeal. 79. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş County Court: the hearings had been held in the absence of the accused and their lawyers; one of the applicants had not been summoned; the public prosecutor had not been given leave to address the court and a number of expert reports ordered by the court had not been completed. The Court of Appeal quashed the judgment of 12 January 2001 and ordered a new trial of the case. 80. In the second procedural cycle, the Mureş County Court delivered its judgment in the civil case on 12 May 2003. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the civilians found guilty by the criminal court in respect of the destruction of the applicants’ houses to pay damages to some of the applicants for the destruction of their homes, including the following: (a) Maria “Raria” Rostaş who was awarded EUR 6; (b) Tiberiu Moldovan who was awarded EUR 35; (c) Mariana Moldovan, Octavian Rostaş, Petru-Doru Lăcătuş and Tarzan-Ferdinand Lăcătuş (as heirs of Rozalia Rostaş) who were awarded jointly EUR 287. 81. The courts also ordered that the amounts be revised to take account of any devaluation in the national currency: 82. However, the court rejected all the applicants’ claims in respect of non-pecuniary damage, on the ground that they were not substantiated. 83. None of the above-mentioned applicants appealed against the Mureş County Court judgment of 12 May 2003. 84. The civil proceedings ended with the final judgment of 25 February 2005 of the Court of Cassation, with the domestic courts also awarding the appellants non-pecuniary damages. 85. Following the conclusion of the domestic civil proceedings and of the proceedings before the Court in respect of the twenty-five original applicants, an enforcement file was opened with the Enforcement Officers’ Office for a number of applicants, including Tiberiu Moldovan. 86. The applicant Tiberiu Moldovan was informed by the Enforcement Officers’ Office that the judgment had become enforceable and the applicant needed to pay the enforcement fees. 87. The villagers contested the enforcement proceedings of the said judgments and asked for the temporary suspension of the enforcement proceedings until their action seeking to contest the enforcement of the domestic judgments was examined by the domestic courts. 88. By a final President’s Order of 2 September 2005 the Luduş District Court allowed the villagers action, against, inter alia, Tiberiu Moldovan, seeking the suspension of the enforcement of the judgments delivered by the domestic civil courts. The court grounded its judgment on the potential damage that might be suffered by the third parties in the event the domestic judgments were enforced without first waiting for the outcome of the contestation of the enforcement procedure. Consequently, the court temporarily suspended the enforcement proceedings while the proceedings contesting the enforcement were still pending before the domestic courts. 89. By a final judgment of 19 January 2007 the Mureş County Court allowed in part the third parties’ action contesting the enforcement of the domestic judgments awarding the individuals of Roma origin civil damages following the events of 20 September 1993, on the ground that the said damages had been incorporated into the sums awarded by the European Court of Human Rights as just satisfaction or as part of the friendly settlement agreements accepted by the applicants following the Moldovan and Others judgments, cites above. The applicant Tiberiu Moldovan was not party to the proceedings, which ended on 19 January 2007, and therefore the said judgment is not applicable to him. 90. In a letter of 15 May 2009 addressed to the Government the Enforcement Officers’ Office stated that except for Petru Lăcătuş no other enforcement requests had been lodged by any of the creditors, Tiberiu Moldovan in particular, in the enforcement file no. 66 of 2003 concerning the domestic judgments. Moreover, even in Petru Lăcătuş’ case he withdrew his request and was reimbursed the enforcement fee he had already paid. 91. The Enforcement Officers’ Office also stated that according to Article 399 of the Romanian Code of Civil Procedure and Article 53 of Law No. 188 of 2000 any of the creditors could have brought proceedings before domestic courts against any bailiff refusing to perform his or her duties concerning any act of enforcement. However, no such proceedings were lodged by any of the applicants. 92. The judgment of 12 May 2003 remains unenforced to date. 93. By decision no. 636 of 19 November 1993, the Romanian government allocated ROL 25,000,000 for the reconstruction of the houses destroyed by fire on 20 September 1993. The government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items which were strictly necessary and had been destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance. 94. By a government decision of 30 November 1993, a commission for the coordination of the reconstruction of the houses was created. Members of this commission included the mayor of Cheţani and his deputy. 95. In a letter of 30 June 1994 addressed to the government, the Prefect of Mureş indicated that an additional amount of ROL 53,000,000 was needed to rebuild the remaining ten houses. 96. By decision no. 773 of 25 November 1994, the government granted an additional sum of ROL 32,000,000 from funds which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. However, some of the constructions suffered from building defects. 97. In a letter addressed to the prefect in 1995, the mayor of Cheţani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems”: in particular, one of the houses to be rebuilt was on land near the family of the non-Rom victim (Cheţan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma who had died during the 1993 events. It appeared that after the events the Lăcătuş family had moved to the city of Luduş, so the mayor had proposed that a house be built for them at a place of their choice. 98. On 4 May 2006 the Government published in Official Journal No. 385 the Development Programme for the Community of Hădăreni for 2006-2008 (the Programme) which had previously been adopted. The Programme allocated 3,487,000 new Romanian lei (RON) for a number of areas, such as education (including health and justice education), combating discrimination, prevention of domestic or community violence, professional training, employment, culture, development of infrastructure and so on. 99. On 17 July 2007 the responsibility for the implementation of the Programme was transferred to the United Nations Development Programme (UNDP) which in turn contributed 10% of the total sum allocated for the 2007-08 period. The NAR was charged with the supervision and appraisal of the implementation process. 100. The NAR, the Cheţani Mayor’s Office and a local initiative group discussed the priority task that needed to be performed taking into account the available budget. 101. By the end of 2007 six houses affected by the events of 1993 had been rebuilt inside. 102. According to the report of 6 October 2008 concerning the prospects for the Hădăreni Roma community, Government Decision No. 734 of 11 July 2007 had allocated in 2007 ROL 9,000,000,000 for the implementation of the Programme. The money was used to build twelve kilometres of paved roads, to rehabilitate six houses, to install a heating system for the school and to partially refurbish the school and the local activities centre. 103. Between September 2006 and December 2007 a number of awareness raising campaigns, workshops and training sessions were organised with the involvement of the local Roma community, the authorities, the media and the police force. They focused mainly on combating discrimination, access to public health services and to education, inter-ethnic communication and professional qualification for professions in demand on the labour market. 104. By Government Decision No. 980 of 29 August 2008, the Government allocated RON 2,160,000 to the NAR in order for the Agency to be able to continue the implementation of the Programme. The UNDP also contributed RON 133,488 during 2008. 105. The activities performed over the course of the year included: the complete rehabilitation of six houses; the drafting of building plans for three other houses, a medical centre and an industrial building for those who are economically active; the signing of a contract for the building of a local school and the refurbishment of the local activities centre. 106. According to appraisal reports of 13 and 17 March, 2 and 29 April and 6 and 12 May 2009 the local kindergarten, the local activities centre and the local school have all been entirely rebuilt and all the building defects previously identified repaired. 107. Also, the local authorities have drafted a detailed action plan for the year 2009, which included as a first stage the encouragement of inter-ethnic and social dialogue, of community cooperation and of the development of economic activities in the region. 108. The second stage of the plan concerned the building of three new homes, the rehabilitation of ten others, encouraging profitable activities in the region and the organisation of awareness-raising seminars in respect of themes such as post-ethnic-conflict regions. 109. The above-mentioned action plan for 2009 extended the time frame of the initial Programme until 31 December 2009. The necessary budget was estimated at RON 1,750,045 with the Government and the UNDP providing the financial support, while further information of the implementation of the action plan would be provided to the Committee of Ministers of the Council of Europe as per its latest decision of September 2010. 110. The relevant legal provisions, including the relevant provisions of the Romanian Civil Code, Code on Civil and Criminal Procedure, Law No. 188/2000 concerning enforcement officers, and the relevant case-law, are set forth in the judgments Moldovan and Others v. Romania (nos. 41138/98 and 64320/01, §§ 79-85, 12 July 2005); Ursu v. Romania (no. 58670/00, (dec.), 3 May 2005); Kalanyos v. Romania (no. 57884/00, (dec.), 9 December 2003); Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006). 111. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it. “Against the enforcemnet or any acts of enforcement, any person, including any person who has suffered a damage as a result of the enforcement can contest the enforcement proceedings. At the same time... the enforcement proceedings can be contested ... when the enforcement officer refuses to carry out an act of enforcement as required by the applicable legal provisions.” Case-law of the domestic courts 112. The Government submitted a number of final judgments delivered between 1996 and 2009 by both criminal and civil domestic courts belonging to various territorial jurisdictions. The civil proceedings brought by victims of various unlawful acts committed either by third parties or by state agents whose criminal liability had been established have been allowed and the victims have been awarded compensation. In all the cases the said victims have either joined the criminal proceedings as civil parties or have brought separate actions for compensation on the basis of general tort law, namely Articles 998-999 of the Civil Code.
| 0 |
train
|
001-121167
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,013 |
FEHÉR AND DOLNÍK v. SLOVAKIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
|
1. The applicants belong to the Hungarian minority living in Slovakia and they are currently Hungarian nationals. The applicant in application no. 14927/12, Mr István Fehér (“the first applicant”), was born in 1960 and lives in Komárno. The applicant in application no. 30415/12, Ms Erzsébet Dolník (“the second applicant”), was born in 1940 and lives in Levice. They were represented before the Court by Mr Z. Lomnici, a lawyer practising in Budapest. 3. On 14 November 2011 the first applicant informed the Nitra District Office that he had acquired Hungarian citizenship on 15 September 2011. Referring to Article 5 § 2 of the Constitution, he indicated that he did not wish to give up his Slovak citizenship and wanted to continue living and working in Slovakia as a Slovak citizen respecting the Constitution and the laws of the Slovak Republic. 4. On 22 November 2011 the District Office asked the first applicant to complete and return a notice confirming his loss of Slovak citizenship. 5. On 14 December 2011 he informed the District Office that he was not willing to comply with the above request, as the relevant provisions of the Citizenship Act 1993 were contrary to Article 5 § 2 of the Constitution. 6. On 13 February 2012, in the absence of any reply, the first applicant reiterated his arguments. He also referred to the fact that he had not been formally notified of his loss of Slovak citizenship. 7. On 24 February 2012 the District Office informed the first applicant that the relevant authorities had been notified that he had lost Slovak citizenship on the basis of his letter indicating that he had acquired Hungarian citizenship. He was reminded that his Slovak passport and identity card had become invalid and had to be returned to the authorities. In cases where persons had voluntarily opted for the citizenship of a different State, they lost their Slovak citizenship ex lege. The Slovak authorities were therefore not required to issue a formal certificate to that effect. 8. In a letter the first applicant asked his local authority, the Komárno Municipal Office, why he had not been notified along with the other electors of an upcoming parliamentary election scheduled for 10 March 2012. 9. In its response of 23 February 2012 the Municipal Office informed him that the law obliged it to delete from the electoral register all persons who had lost Slovak citizenship. 10. In a different letter of 23 February 2012 the Municipal Office informed the first applicant that it had been notified by the District Office on 27 December 2011 that he had lost Slovak citizenship. He was advised to address his request for a certificate of his permanent address to the relevant department of the police, who kept a register of foreigners permanently residing in Slovakia. 11. The first applicant’s employer made his continued employment conditional upon his compliance with the statutory obligations imposed on foreigners residing in Slovakia and his adherence to the social security insurance scheme. 12. The first applicant experienced health problems owing to stress resulting from the above. 13. On 25 August 2011 the second applicant informed the Nitra District Office that she had sworn an oath of allegiance and obtained Hungarian citizenship on 18 August 2011. She further declared that she was not renouncing her Slovak citizenship and that she wished to continue living in Slovakia and respecting its laws. 14. On 4 January 2012 the second applicant asked the District Office to issue her with a Slovak citizenship certificate. She reiterated her intention to remain a Slovak national and argued that under the Constitution, no one could be deprived of Slovak citizenship against his or her will. 15. On 16 January 2012 the District Office advised the second applicant that under section 9(1)(b) of the Citizenship Act 1993, persons who had voluntarily acquired a different State’s citizenship automatically lost Slovak citizenship. The District Office therefore issued no certificates in that respect. 16. On 17 February 2012 the second applicant asked her local authority, the Levice Town Office, why she had not been notified along with the other electors of the upcoming parliamentary election. 17. On 20 February 2012 the Town Office informed the second applicant that it had been notified by the District Office that she had lost Slovak citizenship. On that basis, and in accordance with the relevant law, the Town Office had deleted her from the electoral register. She was therefore disallowed from voting in the parliamentary election on 10 March 2012. Her complaint was dismissed as being totally devoid of merit, with reference to the fact that she had lost Slovak citizenship. 18. On 1 March 2012 the second applicant complained to the District Office that she had received no official notification of her loss of Slovak citizenship. She was thereby prevented from seeking redress from the Slovak authorities. 19. On 18 April 2012 the District Office informed the second applicant that, following her letter of 25 August 2011, it had notified the relevant authorities, namely the local authority in which she lived, the police, the tax and customs offices, and the institutions in charge of social and public health insurance, that she had lost Slovak citizenship. The law did not oblige the District Office to issue a certificate confirming loss of citizenship, as it took effect ex lege. 20. The Levice District Police repeatedly informed the second applicant that, following her loss of Slovak citizenship, she was required by law to return her national identity card. She replied that she had received no official notification of her loss of Slovak citizenship and still considered herself to be a Slovak national. She pointed out that a group of members of parliament had initiated proceedings to determine whether the relevant statutory provisions conformed to the guarantees of the Constitution. 21. The police also asked the second applicant to return her Slovak passport, which had become invalid following her loss of Slovak citizenship. Her failure to do so was susceptible of constituting a minor offence, for which a fine up to 33 euros (EUR) might be imposed. 22. The second applicant replied that she considered herself to be a Slovak citizen and therefore saw no reason for returning her identity card and passport. 23. Pursuant to Article 5 § 1, the circumstances under which persons acquire and lose Slovak citizenship are to be stipulated by law. 24. Article 5 § 2 provides than no person may be deprived of Slovak citizenship against his or her will. 25. The Citizenship Act 1993 (Zákon o štátnom občianstve Slovenskej republiky), as amended with effect from 17 July 2010, contains the following relevant provisions. 26. Section 9(1) provides: “Citizenship of the Slovak Republic may only be lost: (a) by means of release upon one’s own request; (b) upon acquiring a foreign State’s citizenship by way of an explicit expression of intent.” 27. Section 9(16) provides that a person loses Slovak citizenship on the same day he or she voluntarily acquires the citizenship of a foreign State by way of an explicit expression of intent such as a request, declaration or any other action directed at acquiring the citizenship of a foreign State. 28. Subsections (17) and (18) of section 9 provide exceptions to the above, namely where a person acquires foreign citizenship (i) by marriage to a foreign national, provided that the person acquires the foreign citizenship during the marriage, or (ii) by birth. 29. Pursuant to section 9(19), persons who lose their Slovak citizenship under section 9(16) are obliged to notify their local district office without delay. 30. Section 9(20) read in conjunction with section 9(14) obliges the relevant district office to notify the following authorities of the person’s loss of Slovak citizenship under section 9(16): the local authority in which the person resides, the police, the tax and customs offices, and the institutions in charge of social and public health insurance. 31. Section 9b(1)(d) provides that a minor offence has been committed if a person fails to comply with the obligation under section 9(19), namely to notify the district office about their loss of Slovak citizenship without delay. 32. Section 9b(2) renders such an offence punishable by a fine of up to EUR 3,319. 33. On 22 September 2011 thirty members of parliament claimed before the Constitutional Court that sections 9(1)b, 9(16), 9(19), 9b(1)(d) and 9b(2) of the Citizenship Act 1993 were contrary to Article 5 §§ 1 and 2 of the Constitution, Article 6 § 1 of the Convention, and Article 11 of the European Convention on Nationality. 34. On 4 July 2012 the Constitutional Court at its plenary session declared the motion admissible. 35. The proceedings on the merits are pending. 36. The European Convention on Nationality (CETS No. 166) entered into force in respect of Slovakia on 1 March 2000. Its relevant provisions read as follows: 1. Each State shall determine under its own law who are its nationals. 2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality. The rules on nationality of each State Party shall be based on the following principles: (a) everyone has the right to a nationality; (b) statelessness shall be avoided; (c) no one shall be arbitrarily deprived of his or her nationality; ... 1. The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. ... 1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: (a) voluntary acquisition of another nationality; ... Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing. Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law. ... The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: (a) its nationals who acquire or possess the nationality of another State retain its nationality or lose it;...” 37. With effect from 26 May 2010 the Hungarian Citizenship Act (Law no. LV of 1993) was amended. Its section 4(3) provides for naturalisation, upon request and on preferential terms, of non-Hungarian nationals with an ascendant of Hungarian nationality or who can plausibly show their Hungarian origins and provide proof of their knowledge of the Hungarian language.
| 0 |
train
|
001-4980
|
ENG
|
NLD
|
ADMISSIBILITY
| 1,999 |
L.N. v. THE NETHERLANDS
| 4 |
Inadmissible
|
Elisabeth Palm;Gaukur Jörundsson
|
The applicant is a Netherlands national, born in the Netherlands in 1956. He is in prison in Heerhugowaard (the Netherlands). He was formerly resident in the town of Alkmaar. He is represented before the Court by Ms Ties Prakken, a lawyer practising in Amsterdam. A.
| 0 |
train
|
001-58136
|
ENG
|
NLD
|
CHAMBER
| 1,998 |
CASE OF BAHADDAR v. THE NETHERLANDS
| 3 |
Preliminary objection allowed (non-exhaustion of domestic remedies)
| null |
6. Mr Shammsuddin Bahaddar is a Bangladeshi national born in 1966. He is currently resident in the Netherlands. 7. Mr Bahaddar arrived in the Netherlands on 7 July 1990. On 13 July 1990 he lodged applications for refugee status or, in the alternative, a residence permit on humanitarian grounds. 8. With the assistance of a Bengali interpreter, Mr Bahaddar was interviewed by an official of the Ministry of Justice (Ministerie van Justitie) on 22 May 1991. He claimed to have been a member of the illegal organisation Shanti Bahini (Peace Troops), the military wing of the Jana Samhati Samiti (People’s Solidarity Association, an organisation seeking autonomy for the inhabitants of the Chittagong Hill Tracts), and to be in danger of persecution on that ground. Mr Bahaddar’s applications for refugee status or, in the alternative, a residence permit on humanitarian grounds were refused on 16 July 1991 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicant then applied to the Deputy Minister for revision (herziening) of this decision. 9. The Deputy Minister refused to grant suspensive effect to Mr Bahaddar’s application for revision of his decision. In order to obtain an injunction against his expulsion pending the revision proceedings, the applicant instigated summary injunction proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague sitting at ’s-Hertogenbosch (nevenzittingsplaats ’s-Hertogenbosch). 10. On 14 November 1991 the President granted the injunction requested. The President found the applicant’s story consistent and credible. 11. The applicant was heard by the Advisory Board on Matters concerning Aliens (Adviescommissie voor Vreemdelingenzaken) on 21 December 1992. 12. On the same day the Advisory Board expressed the opinion that the applicant was not a refugee within the meaning of the 1951 Geneva Convention relating to the Status of Refugees (see paragraph 24 below) and that he was not eligible for a residence permit on humanitarian grounds either. The Advisory Board considered that on essential points the applicant’s account was vague and contradictory. 13. Adopting the Advisory Board’s proposal and reasoning, the Deputy Minister of Justice rejected the application for revision on 26 March 1993. 14. On 31 March 1993 the applicant lodged an appeal against the Deputy Minister’s decision with the Judicial Division (Afdeling Rechtspraak) of the Raad van State, adding that the grounds for the appeal would be submitted as soon as possible. As this appeal was denied suspensive effect, the applicant instigated summary injunction proceedings before the President of the Regional Court of The Hague sitting at Amsterdam. 15. Following a hearing on 22 October 1993 the President of the Regional Court, on 11 November 1993, granted the applicant an injunction against his expulsion pending the proceedings before the Judicial Division. 16. In the meantime, the applicant’s lawyer was informed by the Judicial Division on 28 June 1993 that she had not so far submitted the grounds for the appeal with the Judicial Division and she was given the opportunity to comply with this requirement before 29 July 1993. The applicant’s lawyer submitted grounds for the appeal on 20 October 1993, without providing an explanation for the delay. 17. On 7 March 1994 the President of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak, the successor of the Judicial Division – see paragraph 34 below) in simplified proceedings (vereenvoudigde procedure) declared the applicant’s appeal inadmissible for failure to comply with a formal requirement. The applicant lodged an objection (verzet) against this decision with the Administrative Jurisdiction Division on 11 March 1994. 18. At the hearing of the applicant’s objection, which took place on 22 September 1994, the applicant argued that it had not been possible to submit his grounds of appeal before 20 October 1993 since it had been necessary, given that the Deputy Minister of Justice had disputed the authenticity of documents submitted by him, to try and obtain further proof of his allegations from Bangladesh and that this had taken a long time. 19. The Administrative Jurisdiction Division rejected the applicant’s objection on 29 September 1994, on the grounds that he had been given ample opportunity to submit his grounds of appeal, that he had been informed of the possible consequences of failure to do so and that, even if he considered it impossible to cure that failing in time, he ought to have submitted a request for an extension of the time-limit before it lapsed. 20. Neither the Administrative Jurisdiction Division nor its President in his decision of 7 March 1994 examined the merits of the applicant’s appeal. 21. Mr Bahaddar applied to the Commission on 2 December 1994 (see paragraph 35 below). 22. In the meantime, on 21 July 1994, Mr Bahaddar had lodged a second application for a residence permit, arguing that he had been legally resident in the Netherlands for four years already. On being given notice that he would be expelled from the Netherlands on 1 August, he brought summary injunction proceedings before the President of the Hague Regional Court for a suspension of the expulsion order. A hearing took place on 7 December. 23. At that hearing it transpired that Mr Bahaddar had lodged new applications for refugee status or, in the alternative, a residence permit on humanitarian grounds on 5 December 1994, arguing that the second declaration issued by the Shanti Bahini and the certified copy of the complaint filed against him, as well as information provided by his lawyer in Bangladesh, constituted new facts which the Deputy Minister of Justice had not been able to take into account when deciding on the applicant’s initial applications. In view of this information the representative of the Deputy Minister of Justice promised that the applications of 21 July and 5 December 1994 would be considered together and that the applicant would not be expelled in the meantime. In a single decision of 12 January 1995, the Deputy Minister of Justice rejected both applications. According to the Government, Mr Bahaddar, through his lawyer, appealed against this decision to the Hague Regional Court, but failed to submit any grounds therefor within the time-limits set for that purpose. His appeal was declared inadmissible for that reason on 21 June 1995. The applicant did not lodge any objection against that decision. 24. In so far as it is relevant to the present case, Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (the 1951 Geneva Convention), as amended by the Protocol relating to the Status of Refugees of 31 January 1967, defines the term “refugee” as follows: “… any person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” 25. Article 33 § 1 of the 1951 Geneva Convention prohibits the expulsion or return of a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The Netherlands are party to both the convention and the protocol. 26. Under section 15(1) of the Aliens Act (vreemdelingenwet), aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, may be admitted by the Minister of Justice as refugees. The expression “refugee” in this provision is construed to have the same meaning as in the 1951 Geneva Convention, as amended (see paragraph 24 above; decision of the Judicial Division of the Raad van State of 16 October 1980, Rechtspraak Vreemdelingenrecht – Immigration Law Reports – 1981, no. 1). 27. Aliens, other than refugees, wishing to reside in the Netherlands for any length of time have to hold a residence permit (section 9 of the Aliens Act). Such a permit is applied for to, and granted by, the Minister of Justice (section 11(1) of the Aliens Act). 28. Given the situation obtaining in the Netherlands with regard to population size and employment, government policy is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the above-mentioned Geneva Convention; or (b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; or (c) there are “cogent reasons of a humanitarian nature” (klemmende redenen van humanitaire aard). 29. An alien who does not, or does no longer, qualify for admission to the Netherlands can be expelled (section 22(1) of the Aliens Act). However, aliens who claim that their removal from the Netherlands will compel them to travel to a country where they have reason to fear persecution on one of the grounds set out in section 15(1) (see paragraph 26 above) cannot be expelled except by a specific order of the Minister of Justice (section 22(2)). 30. Prior to the entry into force of the General Administrative Law Act on 1 January 1994, an alien could, in the event of a refusal to grant refugee status or a residence permit, apply in writing to the Minister of Justice for administrative revision of his decision (section 29(1) of the Aliens Act). If such an application was not decided on within six months, it was deemed to have been refused (section 29(2)). Such a request for revision did not suspend the alien’s expulsion unless it was made more than one month before the expiry of the period during which the alien was allowed to remain in the Netherlands (section 32(2)). It was, however, open to the Minister to decide that the request would have “suspensive effect”. If suspensive effect was withheld, the alien could bring summary civil proceedings before the President of the Hague Regional Court for an injunction preventing his or her expulsion pending the Minister’s decision. The latter decision, however, was not prejudged by such an injunction. 31. The advice of the Advisory Board on Matters concerning Aliens had to be obtained if a request was made for revision of a decision to refuse refugee status to an alien who would be compelled as a result of such refusal to return to a country where he or she had reason to fear persecution (section 31(1)(b) of the Aliens Act), or to expel an alien whose main place of residence for three months or more had been in the Netherlands and who had complied with the formalities required by the Aliens Act (section 31(1)(c) taken together with section 29(1)(g)). 32. In the event of a negative decision, or of failure to decide within due time, an appeal lay to the Judicial Division of the Raad van State (section 34(1) of the Aliens Act). However, such an appeal had no suspensive effect if the Minister’s decision was in accordance with the advice of the Advisory Board on Matters concerning Aliens (section 34(2)(a)); in such a case, the alien could seek an injunction preventing his expulsion pending the decision of the Judicial Division in summary civil proceedings before the President of the Hague Regional Court. Like the Minister’s decision (see paragraph 30 above), the decision of the Judicial Division was not prejudged by such an injunction. 33. An alien appealing to the Judicial Division of the Raad van State had to submit grounds of appeal and, if possible, all documents pertaining to the dispute (section 72(1) of the Raad van State Act (Wet op de Raad van State). If this was not done at the time the appeal was lodged, the opportunity would be offered to do so at a later date, within a time-limit to be set by the President of the Judicial Division; failure to comply with that time-limit could lead to a decision declaring the appeal inadmissible (section 74). Such a decision could be given by the President of the Judicial Division in simplified proceedings (section 105(1)). An objection lay, within fourteen days, to a Chamber of the Judicial Division (section 106(1)). 34. The entry into force of the General Administrative Law Act on 1 January 1994 brought extensive changes to the procedural provisions of the Aliens Act. An appeal against the refusal to grant refugee status or a residence permit lies to the Administrative Law Section of the Hague Regional Court (section 8:1 of the General Administrative Law Act; section 33a of the Aliens Act). No further appeal is allowed (section 33e of the Aliens Act). Pending such an appeal the alien will not be expelled if refugee status has been claimed and the claim is not manifestly ill-founded, or if another application for admission has been lodged which is the subject of an objection or appeal that has a prima facie chance of success. It is possible to apply to the Administrative Law Section for an order for interim measures (section 8:81 of the General Administrative Law Act). A transitional provision (section I(3) of the Act of 16 December 1993, Staatsblad (Official Gazette) 1993, no. 250), provides that cases pending before the Judicial Division of the Raad van State prior to the entry into force of the General Administrative Law Act shall be determined according to the former law, but by the successor to the Judicial Division, the Administrative Jurisdiction Division.
| 0 |
train
|
001-61606
|
ENG
|
RUS
|
CHAMBER
| 2,004 |
CASE OF KORMACHEVA v. RUSSIA
| 4 |
Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Christos Rozakis
|
8. The applicant was born in 1952 and lives in Gus Khrustalnyi, a town in the Vladimir Region. 9. Before her removal to Gus Khrustalnyi the applicant lived and worked in Mys Shmidta, a town located in Chukotka, a far-eastern territory adjacent to Alaska. 10. On 31 October 1996 the applicant filed with the Shmidtovskiy District Court of the Chukotka Autonomous Region (the “Shmidtovskiy Court”) an action against her former employer, a local trading office. She wanted the defendant to pay outstanding emoluments, discharge and leave allowances, and to properly formalise her discharge. 11. As the proceedings did not progress, in 1997-1999 the applicant complained several times about the Shmidtovskiy Court to a number of higher judicial and other authorities. 12. On 18 April 1997 the President of the Judicial Qualifications Board, of the Chukotka Autonomous Region (the “Regional Qualifications Board”, “Board”) asked the President of the Shmidtovskiy Court to inform him why it took the court so long to deal with the applicant's case and when the case would be heard. 13. On 24 July 1997 the President of the Chukotka Regional Court (the “Regional Court”) asked the President of the Shmidtovskiy Court to start the proceedings, to fix a hearing and to inform the applicant about the date of the hearing before 20 August 1997. 14. On 1 August 1997 the President of the Civil Section of the Regional Court forwarded the applicant's complaint to the President of the Shmidtovskiy Court. He asked to inform him and the applicant about the state of the proceedings before 25 August 1997. 15. On 13 March 1998 the President of the Regional Court asked the President of the Shmidtovskiy Court to inform the applicant before 15 April 1998 of the date when her case would be heard. He also informed the applicant that the Regional Court could not deal with her case itself because it was understaffed. The President noted that his earlier requests to the Shmidtovskiy Court had remained unanswered. 16. On 30 March 1998 the President of the Supreme Judicial Qualifications Board asked the President of the Regional Court to investigate the applicant's complaint and take measures, if need be. 17. On 20 April 1998 the President of the Regional Court asked the President of the Shmidtovskiy Court to inform him before 20 May 1998 about the state of the proceedings. He noted that the President had not responded to the Regional Court's earlier requests to speed up the proceedings. He also warned the President that he would have to apply to a judicial qualifications board if the procrastination continued. 18. On 18 May 1998 the Shmidtovskiy Court issued a letter rogatory by which it asked a Moscow court to question the applicant. The Moscow court could not execute the request because the applicant had not informed the courts that her address had changed. 19. On 7 July 1998 the President of the Regional Court informed the applicant that her case could not be examined because the Shmidtovskiy Court was understaffed and overloaded with work. 20. On 4 August 1998 the new President of the Regional Qualifications Board asked the President of the Shmidtovskiy Court to forward to the Board before 1 October 1998 copies of procedural documents concerning the case. She noted with displeasure that the Shmidtovskiy Court had been ignoring the applicant's earlier complaints and the Board's requests. She also informed the applicant that the Shmidtovskiy Court had been understaffed since July 1997, and that it was impossible under the law to sue the court or an individual judge for damage caused by delays in proceedings. 21. On 13 January 1999 the President of the Regional Qualifications Board asked the President of the Shmidtovskiy Court to inform the Board and the applicant before 10 February 1999 about the progress of the case. She also asked the President of the Shmidtovskiy Court to submit copies of procedural documents which would prove that the judge responsible for the applicant's case had prepared the case for a hearing. She also informed the applicant that it was impossible to summon the President of the Shmidtovskiy Court to the regional capital for explanations, because Mys Shmidta was located too far away from the capital and because the Board did not receive any financing for such purposes. 22. On 15 February 1999 the Deputy President of the Regional Qualifications Board noted that the President of the Shmidtovskiy Court had still not informed the applicant about the progress of her case despite the earlier orders. He asked the President of the Shmidtovskiy Court to provide this information to the applicant immediately. 23. On 12 April 1999 the President of the Regional Qualifications Board informed the applicant that the Board was going to visit the Shmidtovskiy Court because there had been numerous complaints about its inactivity. The visit was fixed for May-June 1999, provided that the Board would have sufficient funds for it. 24. On 26 April 1999 the President of the Supreme Judicial Qualifications Board asked the President of the Regional Court to verify the applicant's complaints and to pass them to the Regional Board if they proved to be well-founded. 25. On 3 June 1999 the Shmidtovskiy District Court passed a first judgment in the applicant's case by which her claims were granted. The defendant appealed against this judgment. 26. On 12 July 1999 the President of the Supreme Qualifications Board asked the President of the Regional Court to investigate the activity of the President of the Shmidtovskiy Court before 1 September 1999. 27. On 18 August 1999 the President of the Regional Qualifications Board informed the applicant that the Board would investigate the activity of the President of the Shmidtovskiy Court. 28. On 23 December 1999 the Regional Court granted the defendant's appeal and remitted the case to the Shmidtovskiy Court for a fresh examination. 29. On 3 April 2000 the Regional Qualifications Board officially reprimanded the judge of the Shmidtovskiy Court responsible for the applicant's case for breaches of procedural rules. The Board warned the judge that she may be dismissed from service if the breaches re-occurred. 30. On 16 March 2001 the Shmidtovskiy Court granted the applicant's claims in part. 31. On 21 May 2001 a public prosecutor of the Shmidtovskiy District appealed on behalf of the defendant. 32. On 11 October 2001 the Regional Court quashed the judgment and ordered a re-hearing of the case. 33. Meanwhile, on 23 October 2002, the applicant claimed from the Shmidtovskiy Court 200,000 roubles as compensation for the delays in the proceedings. On 10 November 2002 the Shmidtovskiy Court severed this claim from the main proceedings. 34. On 14 November 2002 the Shmidtovskiy Court granted the applicant's main claims in part. 35. On 2 April 2003 the applicant lodged an appeal against the judgment. 36. On 15 May 2003 the Regional Court quashed the judgment in part and passed a new judgment by which the applicant's claims were partly satisfied. 37. On 27 June 2003 the Shmidtovskiy Court closed the proceedings concerning the damage caused by the delays. The court found that there existed no law specifying how such actions should be entertained. 38. On 2 October 2003 the Regional Court quashed this decision on the ground that the Shmidtovskiy Court should not have considered an action directed against itself. The Regional Court decided that it will itself determine the court to deal with the action. These proceedings appear to be still pending. 39. During the proceedings the applicant also made a number of complaints to the Federal Ombudsman, the Ministry of Justice, the Government, the Parliament and the Constitutional Court. These authorities either referred her complaints to the judicial authorities of the Chukotka Autonomous Region or advised the applicant to do it herself. 40. Under Article 99 of the Code of Civil Procedure of 1964 (“CCivP”) in force at the material time, an action must be prepared for trial seven days after the action is lodged. If litigants are not located within the same town or territory, actions between them arising out of labour disputes must be examined by a court of the first instance within twenty days. 41. Under Article 284-1 of the CCivP, an appeal court must examine an appeal ten days after it is filed. 42. Section 18 of the Law “On the status of judges in the Russian Federation” of 26 June 1992, in force at the material time, established the Supreme Judicial Qualifications Board and qualifications boards of regional courts. The qualifications boards had the power to select candidates for judicial posts, to suspend or remove judges from office, to ensure judges' inviolability and to certify judges' professional skills. The functioning and specific powers of the qualifications boards were to be determined in special regulations. 43. On 13 May 1993 the Parliament passed “Regulations on Judicial Qualifications Boards”. The Regulations remained in force until 14 March 2002 when a new law on the same subject was adopted. Under section 12 of the Regulations, a qualifications board could: “5. ... take a decision concerning the institution of criminal proceedings against a judge ..., the detention of a judge or his bringing to a court; 6. warn a judge to stop an activity incompatible with his position; suspend or terminate a judges' powers in cases [established by law]; 7. examine [complaints] about a judge's activity or inactivity undermining the authority of the judicial power...” 44. Pursuant to section 14 of the Regulations, qualifications boards could receive information, necessary for their functioning, from presidents of courts and other judges, from law-enforcement agencies and other State bodies, from non-governmental organisations and public officials. 45. Pursuant to section 15 of the Regulations, if an application submitted to a qualifications board was within its competence, the board had to deal with it within 30 days. Three days after the board gave a decision, an extract from it had to be sent to interested parties.
| 1 |
train
|
001-86043
|
ENG
|
UKR
|
CHAMBER
| 2,008 |
CASE OF CHERVONETS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
|
Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
|
4. The applicant was born in 1940 and lives in Kharkiv. 5. On 23 October 2002 the Dzerzhinsky District Court of Kharkiv (hereinafter “the Dzerzhinsky Court”), upon the applicant’s claim, ordered the Department of the State Pension Fund in Dzerzhinsky District of Kharkiv (Дзержинське районне відділення Пенсійного Фонду України у м. Харків, hereinafter “the Pension Department”) to recalculate in Ukrainian hryvnas the applicant’s salary, which he received in 1985-1989 in Soviet roubles, in order to establish the correct amount of his pension according to the Decree of the Cabinet of Ministers of 13 January 1993 (hereinafter “the Decree”). The defendant was also obliged to pay the applicant the recalculated amount as his regular pension. 6. This judgment became final on 23 November 2002 and the writ of execution was issued on 24 November 2002. 7. On 25 February 2003 the Bailiffs’ Office in Dzerzhinsky District of Kharkiv (hereinafter “the Bailiffs”) issued the warrant for the enforcement of the judgment by 4 March 2003. 8. On 8 April 2003 the Bailiffs re-issued the warrant. 9. As the Pension Department twice submitted calculations of the applicant’s pension which were not based on the Decree, on 17 June and 28 August 2003 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment. 10. In December 2003 the applicant and the Bailiffs requested the Public Prosecutor of the Dzerzhinsky District of Kharkiv (hereinafter “the Public Prosecutor”) to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002. 11. On 13 April 2004 the Public Prosecutor rejected this request for want of proof of a crime. 12. On 4 March 2005 the Dzerzhinsky District Court rejected the applicant’s complaint against this decision. 13. On 23 April 2004, upon the applicant’s request, the Dzerzhinsky Court issued a ruling explaining the judgment of 23 October 2002. It indicated the coefficients that should be used by the Pension Department in order to recalculate the applicant’s pension according to the Decree. 14. The Pension Department did not appeal against this ruling within the statutory time-limit and the same court, by rulings of 14 June and 21 September 2005, returned the Department’s belated appeal without considering it. 15. During 2004-2005, following numerous written requests by the Bailiffs, the Pension Department submitted recalculations of the applicant’s pension, which were not based on the ruling of 23 April 2004. 16. On 6 February 2006 the bailiff personally handed to the official of the Pension Department the ruling of 23 April 2004 and requested him to enforce it by 13 February 2006. The bailiff drew up a written report. 17. On 10 February 2006 the Public Prosecutor, on behalf of the Pension Department, lodged with the Supreme Court a cassation appeal against the rulings of 14 June and 21 September 2005. 18. On 13 February 2006, following the request of the Public Prosecutor, the Bailiffs suspended the enforcement proceedings. 19. On 22 March 2006 the Head of the Bailiffs quashed this decision on the ground that lodging a cassation appeal in itself could not suspend the enforcement of the final judgment. 20. On 24 March 2006 the enforcement proceedings were resumed. 21. On 5 and 19 May 2006 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment of 23 October 2002 and the ruling of 23 April 2004. 22. On 25 May 2006 the Bailiffs requested the Public Prosecutor to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002 and ruling of 23 April 2004. 23. On 11 August 2006 the Public Prosecutor rejected this request for want of proof of a crime. 24. On 30 May 2007 the Higher Administrative Court rejected the Public Prosecutor’s cassation appeal against the rulings of 14 June and 21 September 2005. 25. On 8 August 2007 the Dzerzhinsky Court rejected the Public Prosecutor’s request to review the case in the light of newly disclosed circumstances and to suspend the enforcement proceedings. 26. On 4 October 2007 the Kharkiv Regional Court of Appeal (hereinafter “the Court of Appeal”) upheld this ruling. 27. The judgment of 23 October 2002 remains unenforced. 28. On 5 December 2002 the Public Prosecutor instituted criminal proceedings against the applicant for threatening a judge of the Dzerzhinsky Court (Article 376 of the Criminal Code). The applicant was obliged not to leave his place of his permanent residence. 29. On 26 February 2003, upon termination of the pre-trial investigation, the Public Prosecutor transmitted the criminal case to the Dzerzhinsky Court. 30. On 5 March 2003 the Court of Appeal, following the motion of the President of the Dzerzhinsky Court, transferred the case to the Chervonozavodsky District Court of Kharkiv (hereinafter “the Chervonozavodsky Court”). 31. November 2003 the Dzerzhinsky Court rejected the applicant’s complaint against the Public Prosecutor’s decision of 5 December 2002 as the case was pending before the first instance court. 32. In the course of its examination of the applicant’s appeal against the ruling of 20 November 2003, the Court of Appeal established that the applicant had not been not duly informed about the date of hearing before the Dzerzhinsky District Court and on 13 January 2004 requested the Judicial Administration to investigate this matter. 33. On 16 March 2004 the Court of Appeal upheld the ruling of 20 November 2003. On the same date, it issued a ruling to the Judicial Administration setting out procedural omissions by the judge of Dzerzhinsky Court who had examined the case. 34. On 10 February 2005 the Supreme Court rejected the applicant’s cassation appeal against the ruling of 20 November 2003. 35. On 30 November 2005 the Chervonozavodsky Court terminated the criminal proceedings against the applicant as time-barred. 36. On 5 December 2005 the applicant lodged an appeal seeking to be acquitted. 37. On 16 February 2006 the Court of Appeal quashed the ruling of 30 November 2005 and remitted the case for a fresh consideration. 38. In May 2006 the proceedings were resumed before the Chervonozavodsky Court. 39. Between May 2006 and February 2007 five out of six hearings scheduled were adjourned due to the witnesses’ and the victim’s failure to appear before the court. 40. In February 2007 the case was assigned to another judge. 41. The proceedings are still pending before the first instance court. 42. The relevant domestic law concerning the non-enforcement of the final judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
| 1 |
train
|
001-4802
|
ENG
|
AUT
|
ADMISSIBILITY
| 1,999 |
HEIDEGGER v. AUSTRIA
| 4 |
Inadmissible
| null |
The applicant is an Austrian citizen, born in 1973, and is presently detained in a prison in Salzburg. He is represented before the Court by Mr Hitzenbichler, a lawyer practising in Salzburg. On 8 July 1993 the applicant was arrested under the suspicion of having robbed and killed the taxi driver Claudia D. When questioned by the police at Gmunden the applicant first denied any connection with the crime, but then - on 9 July 1993 - he made a confession before the police at Salzburg. He stated that he had threatened the taxi driver with a firearm described as signalling device (Signalstift), whereby unintentionally a shot had gone off. On the same day he confirmed this confession before a judge on duty (Journalrichter) who had been called in immediately by the police officers. On 11 July 1993 the investigating judge appointed an ex-officio defence counsel for the applicant and ordered for the next day an inspection of the scene of the crime (Lokalaugenschein). On 12 July 1993 the inspection was conducted by the investigating judge in the presence of the applicant, his defence counsel, the public prosecutor, a court expert and several police officers. According to the minutes of the inspection, at the beginning the investigating judge asked the applicant whether he maintained his confession. The applicant again confirmed that he had robbed the taxi-driver, but denied having killed her intentionally. Then the applicant gave a detailed account of the course of the events and his flight until he had met a man at a pizzeria who had brought him to town. Thereafter the “course of the events” was reconstructed with the help of a police officer in the role of the victim, using the original car and the firearm the applicant had allegedly used. The applicant showed how he had threatened the victim by holding the fire arm against her neck, how he had got hold of the victim’s purse, how the victim had tried to get off the car and turned towards the applicant and how the shot had gone off. This reconstruction of the course of events was filmed with a video camera. On 23 July 1993 the applicant withdrew his confession claiming that on 5 July 1993, the day of the crime, he had been at home in Gmunden with his mother. On 16 and 17 May and 10 June 1994 the trial against the applicant took place before the Salzburg Regional Court (Landesgericht) sitting as an Assize Court (Geschworenengericht). When questioned about the events on 5 July 1993, the applicant maintained that on that day he and his girlfriend had been in several bars in Gmunden and that between 10.00 p.m. and 10.30 p.m. his girlfriend had brought him home where he stayed all night. It was therefore impossible that he had committed the crime close to Salzburg (approximately 70 km away) around 11.30 p.m. He claimed that the witnesses who allegedly had seen him had been mistaken. When confronted with his previous confessions he submitted that he had made the first confession because he had been forced to do so by the police and had maintained his confession before the judge on duty and the investigating judge because he had not dared to withdraw it in the presence of police officers. Subsequently the court heard as witness the police officers who had carried out the investigations, the judge on duty and the investigating judge. They were questioned about the course of the investigations and the circumstances of the applicant’s confession. The police offices denied having exerted pressure on the applicant and stated that the applicant had given details which at that time had been unknown to them such as the place where the victim’s purse and documents had been thrown away. The judge on duty stated that he had also questioned the applicant alone, in the absence of the police officers, and the applicant had expressly stated that no pressure had been exercised on him. The court then questioned the managing director of a pizzeria who had identified the applicant as being the person whom he had driven at the relevant time from a bar near to the scene of the crime to the centre of Salzburg, as well as his employee who also had identified the applicant. Moreover, the court heard as witness the applicant’s girlfriend, his mother and several other persons on the question whether it was possible that at the time of the crime the applicant had been in Salzburg. Several witnesses stated that they had seen the applicant in a bar in Gmunden and that he had left the bar with his girlfriend. His mother stated that he had been at home by 22.30 p.m. and had not left the house later. On 10 June 1994 the video-film made in the course of the inspection of the scene of the crime was shown. Neither the applicant, nor his defence counsel raised any objections. When questioned the applicant stated that during the inspection he did have the possibility to consult with his defence counsel. Thereafter the court heard a medical expert. He explained, inter alia, that the victim’s final position did not correspond to the applicant’s account in his confession, namely that the shot had gone off when he was sitting inside the car. According to the medical expert it was more likely that the taxi driver had been shot from the outside. The expert also excluded that an ordinary firearm had been used, a signalling device using ordinary bullets could have been a suitable weapon. The court refused to read out a private expert opinion on the credibility of the applicant’s confession or to hear that expert on this issue. On 10 June 1994 the Assize Court convicted the applicant of aggravated robbery and murder and sentenced him to seventeen years imprisonment. On 16 August 1994 the applicant, represented by a defence counsel of his own choice, filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof). He complained, in particular, that the video-film made in the course of the inspection of the scene of the crime was shown at the trial. The applicant submitted that during this inspection he had been intimidated by the presence of a large number of taxi-drivers and that he did not have any contact with his ex-officio defence counsel before the inspection. The applicant further complained that the Assize Court had refused to admit a private expert opinion on the credibility of the applicant’s confession. The applicant also claimed that in view of numerous inconsistencies and unresolved questions the Assize Court should have taken further evidence on its own motion or to advise the applicant’s defence counsel to do so. On 8 November 1994 the Supreme Court dismissed the applicant’s plea of nullity and increased his sentence to twenty years’ imprisonment. The Supreme Court considered that neither the showing nor the making of the video-film in the course of the inspection of the scene of the crime constituted per se a ground of nullity. Moreover, since the applicant had failed to oppose to the showing of the film at the trial by making a formal request to the court not to do so, he could not raise this matter in the proceedings on the plea of nullity. As regards the Assize Court’s refusal to take accept as evidence the opinion of a private expert the Supreme Court found that the applicant had failed to ask the court to appoint an expert. Private expert opinions only served the purpose to enable an accused to make the relevant requests. As regards the applicant’s complaint that the Assize Court had failed to take of its own motion further evidence or to advise his defence counsel to do so, the Supreme Court noted that the applicant has not filed any request for the taking of further evidence and that it had been up to him to do so. Besides, any inconsistencies between the applicant’s confession made at the stage of the preliminary investigations and the findings of the court experts had been discussed in detail at the trial. The opinions of the experts had been conclusive and without contradictions; thus, there had been no necessity to obtain further expert reports. It had therefore been up to the jury to assess the evidence before it and to evaluate whether the applicant’s initial confession or the statements he had made during the trial were more credible.
| 0 |
train
|
001-99968
|
ENG
|
POL
|
ADMISSIBILITY
| 2,010 |
CZECHOWSKI v. POLAND
| 4 |
Inadmissible
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr Mirosław Czechowski, is a Polish national who was born in 1962 and lives in Dąbrowa Górnicza. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. It appears that from 25 June 1990 to 17 April 2004 the applicant was detained and served various prison sentences for, inter alia, rape. In 1996 the Lubliniec District Court gave a cumulative sentence and sentenced him to ten years' imprisonment of which he apparently served eight years. In January 2002 the applicant's mother brought the applicant, who was in a detention centre, video tapes allegedly belonging to his late father. They were seized by the prison authorities as they turned out to contain pornography involving minors. On 23 April 2002 the Zabrze District Prosecutor decided to treat the tapes as evidence in a criminal investigation into the production and distribution of pornographic materials featuring scenes involving minors. An appeal by the applicant against this decision was dismissed on 28 November 2002. The applicant was notified of this decision on 16 December 2002 at the latest. On 15 May 2003 the applicant applied to the prison authorities for special prison leave to participate in administrative proceedings pending before the City Council concerning his official registration at a flat he had occupied before his detention. Subsequently, he applied for special prison leave in order to visit his stepfather in hospital. His requests were dismissed by the penitentiary judge. His appeals were dismissed by the Gliwice Penitentiary Court on 9 July and 24 September 2003. On 25 June 2002 the applicant was transferred to Cieszyn Prison, where he remained until 9 August 2002. On that date he was transported to Rzeszow Prison. According to the Government at that time the applicant was serving a sentence of ten years' imprisonment. In Cieszyn Prison the applicant was qualified as a “detainee requiring reinforced protection” (osadzony wymagajacy wzmocnionej ochrony). He was placed in a “protected cell” (cella chroniona) normally intended for persons detained pending trial. On an unspecified date he requested the Cieszyn district prosecutor to initiate an investigation into his allegations that he had been ill-treated in Cieszyn Prison between 25 June and 9 August 2002. The applicant submitted that the prison officers had been illegally monitoring and eavesdropping on phone calls he had made using a telephone booth installed in the prison. He further alleged that the prison officer M.S. had ordered him to strip naked and do knee bends each time he wanted to use the phone. He complained about the manner in which those searches had been conducted by prison officer M.S., alleging that the latter had tormented and humiliated him. On 16 October 2002 the Cieszyn District Prosecutor (Prokurator Rejonowy) discontinued the investigation into the allegations made by the applicant, finding that the prison officer had not breached his duties. The prosecutor established that the applicant had been transferred from Brzeg Prison because of his conflictual relations with other detainees. In Cieszyn Prison he had been placed in a special cell normally intended for persons detained pending trial, which offered him protection and isolated him from convicted prisoners. The prosecutor stated as follows: “In accordance with section 144 of the [2001 Ordinance of the Head of the Prison Service] [the applicant], as was the case for other detainees, was subjected to a personal check (kontrola osobista) when leaving the sleeping unit and after returning to it, as well as before individual meetings in the sleeping unit with the representatives of the prison authorities or other bodies. Moreover, [the applicant] was subjected to personal checks for security reasons each time he left or returned to his cell on the basis of a security instruction given to all prison officers working in the unit, namely, the “WWO Card” [Wymagający Wzmocnionej Ochrony – detainee requiring reinforced protection]. In such cases the officers working in Unit 1A were obliged to perform, in a separate room, a meticulous check of Mr Czechowski and of his clothes and belongings. The control of Mr Czechowski consisted of checking the inside of his mouth, armpits and anus. For this purpose Mr Czechowski, after undressing, was required to open his mouth, hold up his hands and do a knee bend (przysiad).” The prosecutor confirmed that detainees were authorised to make one phone call per day for up to a maximum duration of six minutes and that the applicant had often used the phone. Thus, on each occasion, as well as each time he left the unit, he had been subjected to a personal check. The applicant appealed against the decision. On 9 May 2003 the Cieszyn District Court (Sąd Rejonowy) dismissed his appeal. The court established that the applicant's complaints about being hindered when using the phone had already been examined and had been found to be manifestly ill-founded. The court did not find any shortcomings in the procedure allowing the applicant to use the phone and considered that the internal prison rules had been complied with. Further, the court stated that the applicant's further allegation that an offence had been committed “had not been confirmed in the course of the investigation.” The court did not make any direct reference to the applicant's complaints about being subjected to personal checks before using the phone. On 4 September 2004, after the applicant was released from prison, the police conducted a search of the applicant's flat and seized, inter alia, several video tapes, CDs and DVDs and a personal computer. On 4 September 2004 the applicant was arrested by the police in connection with this set of criminal proceedings against him. On 7 September 2004 the Dąbrowa Górnicza District Court decided to remand the applicant in custody in view of the reasonable suspicion that he owned films containing child pornography and had shown such films to a minor. He was also charged with having threatened, in the presence of a police officer, to blow up an apartment block. On 1 December 2004 the District Court extended the applicant's detention finding that there was a risk that he would interfere with the proceedings and that the investigation was ongoing. An appeal by the applicant against that decision was dismissed on 5 January 2005. On 2 March 2005 the applicant's detention was further extended. The court reiterated the grounds given previously and relied on the likelihood that a severe sentence would be imposed on the applicant and on the complexity of the case. The court further considered that there was a risk of the applicant interfering with the proper course of the proceedings given the nature of the offences he had been charged with. On 20 April 2005 the Katowice Regional Court (Sąd Okręgowy) dismissed an appeal lodged by the applicant. On 20 May 2005 the applicant was indicted before the Dabrowa Gornicza District Court on three charges: owning pornographic films featuring scenes involving minors, showing them to a minor and uttering threats. On 24 May and 5 September 2005 the trial court extended the applicant's detention in almost identically reasoned decisions. The court considered that there had been no exceptional personal or health reason to release the applicant from detention or to change the preventive measure imposed on him. On the latter date the first hearing was held. Subsequently, the applicant's detention was extended on 9 December 2005, 21 February and 13 June 2006. In addition to the existence of a reasonable suspicion against the applicant that he had committed the offences the court relied on the risk that he would interfere with the course of the proceedings, in particular by influencing witnesses. The court also underlined that the probability that a severe sentence would be imposed on the applicant was high as he had been a recidivist offender. Appeals by the applicant against those decisions were dismissed. On 7 June 2006 the Katowice Regional Court dismissed a complaint lodged by the applicant on 28 February 2006 alleging a breach of the right to have his case heard within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki). The court found that since the indictment the trial court had been diligent and had acted speedily. In particular the first hearing was held as soon as it had been practicable and the trial court held hearings once a month. On 31 August 2006 the District Court convicted the applicant of possession of pornographic films featuring scenes involving children under the age of 15, showing such films to a minor under the age of 15 and uttering threats. The court sentenced him to two years and six months' imprisonment and ordered the seizure of the pornographic video tapes, CDs and DVDs as well as of his computer. Both the applicant and the prosecutor appealed against the judgment. On 17 November 2006 the Katowice Regional Court granted the applicant's request to attend the appeal hearing scheduled for 15 December 2006. On 30 March 2007 the Katowice Regional Court dismissed the appeals as manifestly ill-founded. The court also decided to release the applicant from detention. On 13 February 2008 the Supreme Court examined a cassation appeal lodged by the applicant. It acquitted the applicant of the charge of having uttered threats and remitted the remaining part of the judgment regarding the charges of possession of pornographic films and showing them to a minor to the lower court. The criminal proceedings regarding the last two charges are pending. Under section 116 of the 1997 Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) and rule 7 of the 1998 Rules on Serving Sentences (Regulamin wykonywania kary pozbawienia wolności), in force at the material time, a personal check of prisoners could be ordered if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. A personal check was permissible in particular when convicts or detainees left or returned to their cell. The Government submitted that the issue of personal search in the present case was also governed by the provisions of the unpublished Ordinance of the Head of the Prison Service. Section 143 stipulated that a strip search could be ordered in order to search for dangerous and prohibited items or in other justified circumstances. Section 144 provided that a strip search could be ordered, in particular, before leaving and after returning to the sleeping unit or work place. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
| 0 |
train
|
001-60158
|
ENG
|
LTU
|
CHAMBER
| 2,002 |
CASE OF SIPAVICIUS v. LITHUANIA
| 3 |
No violation of Art. 6-3-a or 6-3-b
|
Georg Ress
|
8. The applicant is a Lithuanian national, born in 1950 and living in Kaunas. 9. The applicant, a police commissioner, was suspected of involvement in a conspiracy to smuggle non-ferrous metals in view of his alleged failure to investigate properly the activities of certain smugglers in 1994. He was arrested on 18 August 1995 in the context of criminal proceedings instituted in 1992. There were eight co-accused in the case, including the applicant. 10. On 22 August 1995 he was charged with obtaining property by deception (sukčiavimas) under Article 274 of the Criminal Code, abuse of office (piktnaudžiavimas tarnyba) under Article 285 of the Code, and official forgery (tarnybinis suklastojimas) under Article 289 of the Code. On 29 November 1995 the prosecution dropped the last charge. 11. From 1 December 1995 to 18 January 1996 the co-accused had access to the case-file. On 14 February 1996 a prosecutor confirmed the bill of indictment whereby the applicant was indicted for offences under Articles 274 and 285 of the Criminal Code. On 20 February 1996 the case was transferred to the Vilnius Regional Court. 12. On 17 May 1996 a judge of the Vilnius Regional Court ordered additional investigations and requested that the prosecution supplement the charges under Articles 274 and 285 of the Criminal Code. On 26 June 1996 the Court of Appeal quashed the decision, finding that the Regional Court was able to consider the question of committal for trial without further investigation measures. The Court of Appeal also ordered the applicant’s release on bail. He was released in open court. On 9 July 1996 the Court of Appeal remitted the case to the Vilnius Regional Court. 13. On 20 September 1996 the judge of the Vilnius Regional Court committed the applicant for trial on the charges under Articles 274 and 285 of the Criminal Code. 14. During the trial hearing on 24 April 1998 the judge stated: “... the charge of cheating may be supplemented ... [and] the charge under Article 285 [of the Criminal Code] may be amended by adding the ‘selfish interest’ ... .” During the trial hearing on 11 May 1998 the judge said: “... the charge under Article 285 may be supplemented ... with alleged breaches of [the specific provisions] of the Police Act ... .” During that hearing the trial judge informed the parties that she would pronounce the judgment on 22 May 1998. 15. On 22 May 1998 the Vilnius Regional Court acquitted the applicant on the count of obtaining property by deception under Article 274 of the Criminal Code. In connection with the charge under Article 285 the court held: “the charge of abuse of office cannot be sustained... . However, [the applicant], being a State official, improperly performed his functions because of negligence” in that he had failed to ensure proper investigation and control of the smuggling case. Since this failure amounted to a breach of certain provisions of the Police Act, the judge found the applicant guilty of official negligence (tarnybos pareigų neatlikimas dėl nerūpestingumo) under Article 288 of the Criminal Code. He was sentenced to one year’s imprisonment and deprived of the right to occupy an official position in the system of law enforcement. The judge reduced the custodial sentence by one third pursuant to an amnesty law, and found that the applicant had completed the sentence on account of the time spent in detention on remand. 16. The applicant appealed against the judgment of 22 May 1998, stating that the Vilnius Regional Court had convicted him of an offence not covered by the initial charges and in respect of which he had not been in a position to defend himself. He noted in particular that during the trial the judge had in no way indicated that the charge of abuse of office could be replaced by one of official negligence. 17. On 9 September 1998 the Court of Appeal held an appeal hearing on questions of fact and law in the presence of the applicant and his defence lawyer. The appeal court heard addresses by the applicant and a prosecutor. The Court of Appeal dismissed the applicant’s appeal on the ground inter alia that: “the allegation that the reclassification was not permitted is unfounded. Both Articles [285 and 288 of the Criminal Code] punish offences against State office. The [first instance court] court only established that [the applicant] improperly performed his functions as an officer because of negligence, but that he did not deliberately take advantage of his official position contrary to the interests of his office. The [original] charge did not refer to breaches [by the applicant] of specific provisions of the Police Act. In accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure, the court warned [the applicant] that the charge could be supplemented with breaches of [the specific provisions] of the Police Act. An adjournment was offered for the preparation of the defence, but the parties did not request such an adjournment ... . The allegation that [the applicant] could not defend himself against the charges is therefore dismissed.” 18. The applicant filed a cassation appeal with the Supreme Court, complaining inter alia that the reclassification of the charge had breached his right to defend himself. On 2 March 1999 the Supreme Court dismissed the appeal, upholding the decisions of the lower courts. The cassation court held inter alia that the first instance court had reclassified the offence of abuse of office with that of official negligence in accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure as the appeal court had replaced the initial charge with a lesser one, merely drawing the legal conclusions consistent with the facts laid before it. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. Article 285 creates liability for deliberate abuse of office which may be punished by up to 5 years’ imprisonment or a fine. Article 288 punishes improper performance by State officials of their functions because of negligence with a custodial sentence of up to 4 years’ imprisonment or a fine. Disqualification from holding certain public offices may also be imposed as a supplementary penalty for these offences. 20. At the material time, Article 279 § 2 allowed a court to replace a charge with another one during the trial. Pursuant to Article 280 § 1, a court was entitled to replace a charge with a less severe one, provided that the facts on which the new charge was based did not, in principle, differ from those of the initial one. Under Article 280 §§ 2 and 6, the court could also replace a charge with a more severe one. In the latter case, on the defendant’s request, the court could adjourn the trial to enable a revision of the defence. On 5 February 1999 the Constitutional Court ruled that the provisions of Article 280 § 1 of the Code were compatible with the principles of a fair trial and defence rights guaranteed by the Constitution. The Constitutional Court also ruled that Article 280 §§ 2 and 6 of the Code, to the extent that it permitted the court to replace a charge with a more severe one, was incompatible with the Constitution. 21. Pursuant to Article 398 § 2 of the Code, if an appeal is filed against a judgment of the first instance court, the judgment becomes effective upon the determination of the appeal. In accordance with Articles 374-377, the competence of the appeal court extends to all questions of fact and law established by the first instance court, and the appeal court has the power to take a decision quashing or amending the conviction, or to pronounce a new judgment. Under Article 376 an appeal hearing is obligatory, and it must be conducted in the presence of the parties. Articles 398 § 4 and 399 § 4 provide that the decision of the appeal court becomes effective when it is pronounced. 22. Under Articles 416-423 of the Code, a cassation appeal can be submitted to the Supreme Court against a judgment which has become effective. The competence of the cassation court extends to questions of fact and law, and it has the power to quash or amend lower decisions.
| 0 |
train
|
001-57721
|
ENG
|
GBR
|
CHAMBER
| 1,990 |
CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM
| 2 |
Violation of Art. 5-1;No violation of Art. 5-2;Violation of Art. 5-5;Not necessary to examine Art. 5-4 and 13;Just satisfaction reserved
| null |
8. The first and second applicants, Mr Bernard Fox and Ms Maire Campbell, are husband and wife but separated. Both reside in Belfast, Northern Ireland. 9. On 5 February 1986 they were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary ("RUC") station, where a full search of the vehicle in which they were travelling was carried out. Twenty-five minutes after their arrival at the police station, at 3.40 p.m., they were formally arrested under section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act"; see paragraph 16 below). They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists. They were also told that they could be detained for up to 72 hours. They were taken to Castlereagh Police Office, where they were separately interviewed by the police on the same day between 8.15 p.m. and 10.00 p.m. 10. During their detention Mr Fox and Ms Campbell were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army ("Provisional IRA"). They were also questioned about their suspected membership of this organisation. According to the Government, the information underlying the suspicion against them was already known to the police when they stopped their car. No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes. 11. On being arrested both Mr Fox and Ms Campbell were shown the notice drawn up for persons held in police custody which explained their rights. They were not brought before a judge or given any opportunity to apply for release on bail. On 6 February they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge. 12. Mr Fox had been convicted in 1979 of several explosives offences, for which he received concurrent sentences of 12 years’ imprisonment, and of belonging to the IRA, for which he received a concurrent sentence of 5 years. Ms Campbell received an 18 months’ suspended sentence in 1979 after being convicted of involvement in explosives offences. 13. The third applicant, Mr Samuel Hartley, resides in Waterfoot, County Antrim, Northern Ireland. On 18 August 1986 he was arrested at his home, in his parents’ presence, at 7.55 a.m. He was informed at the time of his arrest that he was being arrested under section 11 (1) of the 1978 Act as he was suspected of being a terrorist. He was taken to Antrim police station where, on arrival, he was shown a copy of the notice for persons held in police custody. He was interviewed there by the police between 11.05 a.m. and 12.15 p.m. 14. Mr Hartley was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men. Those involved in the kidnapping were thought to have connections with the Provisional IRA. The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to 3 years’ imprisonment. The Government said at the Commission hearing that their record of the first interview with Mr Hartley showed that he was questioned about terrorist activities in a specific small, geographical area, and about his involvement with the Provisional IRA. The record is not more detailed than that, but the area in question was where the kidnapping took place. The applicant Hartley denied any involvement in the kidnapping incident but he has not contradicted the Government’s assertion that he was asked about it. No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention. 15. For the past 20 years the population of Northern Ireland, which totals 1.5 million people, has been subjected to a campaign of terrorism (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9-31, §§ 11-77, and the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 21, § 25). More than 2,750 people, including almost 800 members of the security forces, have been killed and 31,900 more have been maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe. Special legislation has been introduced in an attempt to deal with this situation in Northern Ireland. Thus, the 1978 Act and its predecessors, the Northern Ireland (Emergency Provisions) Act 1973 ("the 1973 Act") and the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 ("the 1975 Act"), were enacted to enable the security forces to deal more effectively with the threat of terrorism. 16. Section 11 of the 1978 Act conferred, inter alia, a power of arrest. The relevant parts of section 11, which was repealed in 1987, provided as follows: "1. Any constable may arrest without warrant any person whom he suspects of being a terrorist. ... 3. A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates’ Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates’ court not later than forty-eight hours after his arrest) shall not apply to any such person." Sub-section (2) gave a power to enter and search premises where a suspected terrorist was or was suspected of being. Under sub-section (4) persons arrested under section 11 could be photographed and their finger prints and palm prints taken by a constable. 17. Section 31 (1) of the 1978 Act defines "terrorist" and "terrorism". A terrorist is "a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism". Terrorism is defined as "the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear". Under section 21 of, and Schedule 2 to, the 1978 Act, certain organisations - one of which is the IRA, the Provisional IRA included - are proscribed organisations. It is an offence to belong to or profess to belong to such an organisation, to solicit or incite support for any such organisation, knowingly to make or receive any contribution to it, to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation. 18. The powers of arrest and detention under section 11 of the 1978 Act were originally an integral part of the scheme of interim custody introduced by the 1973 Act to replace internment (see the Ireland v. the United Kingdom judgment previously cited, Series A no. 25, pp. 38-39, § 88). By 1980 this scheme (as re-enacted in the 1975 and 1978 Acts) had been repealed with the exception of section 11 and the power was thereafter used as a free-standing power of arrest and detention for up to 72 hours. Since its enactment in 1973 the legislation conferring this power was subject to periodic renewal by Parliament. Thus, under the 1978 Act (section 33) the relevant provisions became renewable, and were renewed, every six months until their repeal in 1987. 19. In 1983 the Secretary of State for Northern Ireland invited Sir George Baker, a retired senior member of the judiciary, to examine the operation of the 1978 Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime. There followed a number of recommendations in a report which was published in April 1984 (Command Paper, Cmnd. 9222). In his report Sir George Baker made the following remarks: "263. Generally I find it unhelpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention sections of the [1978 Act] it is useful to note that Regulation 10 of the Special Powers Act (Northern Ireland) 1922 provided: ‘Any Officer of the RUC for the preservation of the peace and maintenance of order, may authorise the arrest without warrant and detention for a period of not more than 48 hours of any person for the purpose of interrogation.’ (My emphasis). This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was re-worded and to some extent re-enacted in the [1978 Act] and PTA [the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976]. But nowhere in these acts do the words ‘for the purpose of interrogation’ appear. That is left to be inferred. There is widespread criticism of the alleged illegal use of arrest for ‘information gathering’ or low grade intelligence and harassment. It might be better if the power of the RUC were expressly spelled out in the Act linked of course to appropriate controls. That the police have such a power under the PTA was accepted by Lawton LJ in the English Court of Appeal (Criminal Division) in R. v. Houghton (1987) Criminal Appeal Reports 197. 264. In contrast to the provisions of the [1978 Act] which deal with the trial of terrorist offences and do not require derogation from Article 6 (art. 6) of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5 (art. 5). Consequently the United Kingdom entered a notice of derogation under Article 15 (art. 15). Article 5 § 1 (c) (art. 5-1-c) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court. Section 11 [of the 1978 Act] requires neither, nor is an offence necessary. ... Any action which can be taken to avoid the United Kingdom having to rely on the notice of derogation to excuse breaches of the Convention is desirable. ... Suspicion or reasonable suspicion 280. Only a lawyer or a legislator would suspect (or reasonably suspect?) a difference. But there is one because, say the judges, with whom I agree, Parliament by using the two phrases must have so intended. The test for Section 11 is a subjective one: did the arrestor suspect? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause. Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case. Hearsay may justify reasonable suspicion but may be insufficient for a charge. 281. The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest. Against this there is the requirement of reasonable suspicion in Section 12 PTA which the RUC have used more extensively in 1982 and 1983. The figures for arrests are: Under S.11 Under S.12 PTA [of the 1978 Act] 1982 1,902 828 1983 (to 1 October) 964 883 ... The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held. ... 283. No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use Section 11 in preference to Section 12 and indeed some senior police officers have told me it would not influence them. I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences. I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for Section 11(1) and in Section 13(1). ... 285. There is no need to name a specific offence when arresting under section 11 or to inform the suspect of the grounds on which he is being arrested as would be required by the common law, which is that ‘a citizen is entitled to know on what charge or suspicion of what crime he is seized’. It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist. ..." 20. The exercise of the power of arrest in section 11 (1) has been considered by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1-4. In that case the House of Lords held that the proper exercise of the power of arrest in section 11 depended upon the state of mind of the arresting officer. It was necessary that the arresting officer suspected the person he was arresting to be a terrorist; otherwise the arrest was unlawful. He could form that suspicion on the basis of information given to him by his superior officer, but he could not arrest under section 11 on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion. Lord Roskill, with whom the other Law Lords agreed, stated that the suspicion need not be a reasonable suspicion but it had to be honestly held. The requirement of a suspicion in the mind of a constable was a subjective test. That being so, the courts could only enquire as to the bona fides of the existence of the suspicion. The only issues were whether the constable had a suspicion and whether it was honestly held. 21. In addition, an arrest without warrant is subject to the common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person arrested must in ordinary circumstances be informed of the true grounds for his arrest, in a language which he understands, at the time he is taken into custody, or, if special circumstances exist to excuse this, as soon thereafter as it is reasonably practicable to inform him. A person is validly arrested under section 11 (1) of the 1978 Act if he is informed that he is being arrested under this provision as a suspected terrorist (in re McElduff [1972] Northern Ireland Reports 1 and McKee v. Chief Constable, loc. cit.). 22. Section 11 (1) of the 1978 Act was replaced by section 6 of the Northern Ireland (Emergency Provisions) Act 1987, which came into effect on 15 June 1987, subsequent to the facts of the present case. This new provision is confined to conferring a power of entry and search of premises for the purpose of arresting persons under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (now section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 - see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 22, § 30). These latter provisions expressly limit powers of arrest without a warrant to cases in which there are "reasonable grounds" for suspicion. 23. A person who believed that his arrest or detention under section 11 was unlawful had two remedies, namely (a) an action for writ of habeas corpus, whereby a detained person may make an urgent application for his release from custody, and (b) a civil action claiming damages for false imprisonment (see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 25, §§ 39-41). In either action the review of lawfulness would have encompassed procedural questions such as whether the arrested person has been properly informed of the true grounds for his arrest (Christie v. Leachinsky, loc. cit.); and whether the conditions for arrest under section 11 (1) had been complied with. As noted above, a court would not have enquired into the reasonableness of the suspicion grounding the arrest but rather whether the suspicion of the arresting officer was an honest one (McKee v. Chief Constable, loc. cit.).
| 1 |
train
|
001-81372
|
ENG
|
MDA
|
CHAMBER
| 2,007 |
CASE OF FLUX v. MOLDOVA (No. 2)
| 3 |
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
|
Gheorghe Ulianovschi;Nicolas Bratza
|
5. On 19 June 2002 Flux published on its first page the title of an article due to appear in a future issue together with a summary of the article. The title of the summary was “The red millionaires” and it was accompanied by a big picture of the leader of the Communist Party parliamentary group, Victor Stepaniuc, wearing a top hat. 6. The summary read as follows: “The Communists want to sell off piece-meal the Anenii Noi canned food plant The Anenii Noi plant is the only undertaking in the region which is still alive. The rest of the plants have been sold off piece-meal. Since the Communists came to power, a campaign to liquidate this plant has commenced. Certain members of the Parliament of Moldova wish to dismantle it and sell it off piece-meal. Sources from the plant told our newspaper that the member of Parliament M.A., who is responsible for Anenii Noi County, with the support of the main creditors ... is behind this dirty affair. Having great influence and parliamentary immunity, he wants to fill his pockets following the sale of the plant. At present the plant is not operating and is making substantial losses, and this situation is being used to maximum advantage by this MP. Since the plant is not operating and is not profitable, the shareholders want to liquidate it. The problem is that the plant could operate if the shareholders did not hinder the plant's staff. (A detailed article about this affair will be published in the Friday issue on page 5)”. 7. The next day, on 20 June 2002, Mr Stepaniuc brought civil defamation proceedings against the newspaper and against the author of the article. He argued, inter alia, that: “... the defendants disseminated information which is defamatory of me as a citizen, an MP and as the leader of the Communist Party parliamentary group ... ... the article, which is accompanied by my picture, contains the following defamatory statements: 'The Communists want to sell the Anenii Noi canned food plant off piece-meal' ... 'Since the Communists came to power, a campaign to liquidate this plant has commenced. Certain members of the Parliament of Moldova wish to dismantle it and sell it off piece-meal'. By publishing this article, the defendants, acted in bad faith, misinforming public opinion about my actions in my capacity as MP and also about the activity of the Communist Party parliamentary group which I represent, accusing us of destroying an enterprise which is part of the national economy.” 8. On 21 June 2002 Flux published the article announced in its 19 June issue. The article was based on the account of V.N., the deputy Chief Executive Officer of the Anenii Noi canned food plant, and reported on events concerning alleged attempts by a Communist parliamentarian (M.A.), to have the plant declared bankrupt and sold off. It stated, inter alia, that the parliamentarian had made use of the Tax Authority and other State bodies for that purpose and that he (M.A.) had told V.N. that his actions were supported by the Communist Party parliamentary group. According to V.N., three other plants from the region had already been declared bankrupt and sold off in the same manner. 9. On 1 August 2002 Judge I.M., who was also President of the Buiucani District Court, ruled in favour of Mr Stepaniuc, relying on the following grounds: “From the content and meaning of the article [of 19 June 2002] it is clear that Flux and the author made defamatory and false accusations against Mr Stepaniuc, in particular to the effect that he, in his capacity as MP and leader of the Communist Party parliamentary group, had engaged in actions directed at destroying enterprises within the national economy of the Republic of Moldova for personal gain. In addition, the article was accompanied by a picture of the plaintiff. The defendants did not present in the article any proof of the truthfulness of their accusations. In such circumstances, the court considers it necessary to note that any article should be sincere, correct and contain only truthful revelations which correspond to reality and are not based on rumours, anonymous letters or inadequately checked information from unreliable sources. The defendants, however, did not abide by common sense and unjustly defamed the plaintiff. Accordingly, the defendants clearly overstepped the limits of constructive criticism of public persons necessary in a democratic society. In the court's view, the fact that the plaintiff's name was not given in the article is not conclusive, since his picture and the meaning and content of the article make it clear that it is directed against him. Consequently, he was exposed to mental and moral suffering which should be remedied by the defendants. In establishing the compensation to be paid for non-pecuniary damage, the court shall take into consideration the considerable vehemence of the attack against Mr Stepaniuc, the large readership of the newspaper and the degree of suffering endured by the plaintiff. The court should also take into consideration the public functions occupied by Mr Stepaniuc, that of MP and leader of a parliamentary group, which should increase the award for moral damage. Therefore the court considers it necessary to award the plaintiff the maximum amount of compensation provided for by the law.” 10. The court found the statement: “The Communists want to sell the Anenii Noi canned food plant off piece-meal” to be defamatory and ordered the newspaper and the author to pay the plaintiff 3,600 Moldovan Lei (MDL) (the equivalent of 270 euros (EUR) at the time) and MDL 1,800 respectively. It further ordered the newspaper to issue an apology within fifteen days. The defendants were also ordered to pay the court fees. 11. The newspaper lodged an appeal against the judgment in which it argued, inter alia, that the article had been directed against M.A., another MP from the Communist Party parliamentary group and not against Mr Stepaniuc. The latter's picture had been published in order to make it easy to identify the Communist Party parliamentary group, since he was its President. 12. The applicant also argued that the impugned article was only an abstract of an article to be published subsequently and that the statement found by the first-instance court to be defamatory was merely a subjective conclusion drawn by the author based on the information published in the main article. The applicant further submitted that M.A. had also instituted defamation proceedings against the newspaper and requested that the two actions instituted by Mr Stepaniuc and by M.A. be joined and examined together. 13. The applicant finally argued that Judge I.M. lacked independence and impartiality because he was a friend of Mr Stepaniuc and had been appointed President of the Buiucani District Court by the Communist Party parliamentary group. The majority of the defamation cases between Flux and Mr Stepaniuc were examined by him personally and his decisions were stereotyped. In other defamation cases between Flux and representatives of the Government, Judge I.M. had always ruled in favour of the latter and had awarded them the maximum amount provided for by law. 14. On 6 February 2003 the Chişinău Regional Court dismissed the appeal as being unfounded. It did not take into consideration the article published on 21 June 2002. 15. The newspaper lodged an appeal on points of law, relying on the same grounds as in its appeal and added, inter alia, that the impugned article merely reproduced the opinion of the management of the Anenii Noi canned food plant. 16. On 1 April 2003 the Court of Appeal dismissed the appeal. It stated, inter alia, that it was clear that the information published in the article about Mr Stepaniuc did not correspond to reality; moreover, his picture had been attached to the article. 17. It appears that the defamation action brought by M.A. against Flux was struck out due to M.A.'s failure to appear before the court. 18. The relevant provisions of the Civil Code in force at the material time read: Article 7. Protection of honour and dignity “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality. (2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” Article 7§ 1. Compensation for moral damage “(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life, without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 month's minimum wages if the information has been circulated by a natural person.” 19. The Freedom House Organisation 2003 country report for Moldova, insofar as relevant, reads as follows: “... In 2002, the principle of the rule of law was under challenge in Moldova. This was evidenced by the rising number of cases filed by Moldovan citizens in the European Court of Human Rights and actions taken by the Parliament and government to suppress judicial independence. Also affecting the fragile balance of power among the legislative, executive, and judicial branches of government in 2002 were a series of judicial nominations based on loyalty to the ruling party, the dismissal of the ombudsman, and attempts to limit the independence of the Constitutional Court. ... In April, the Moldovan Association of Judges (MAJ) signaled that the government had started a process of “mass cleansing” in the judicial sector. Seven judges lost their jobs, including Tudor Lazar, a member of the court of appeals, and Gheorghe Ulianovschi, the chairman of the Chisinau Tribunal. In the case of Lazar, the move was likely revenge for decisions by the court of appeals that favored the Basarabian Metropolitan Church and local oil importers over the government. The situation worsened when President Voronin refused to prolong the mandates of 57 other judges. The MAJ conveyed a statement on the matter to COE rapporteurs who were in Chisinau at the time on a fact-finding mission. The government instructed the Ministry of Justice to delay court decisions related to the payment of material damages by state institutions. In October, Gheorghe Susarenco, chairman of the Moldovan Association of Judges, stated at a press conference that senior government officials were pressuring judges to issue rulings that favored government bodies. In December, President Voronin promulgated a constitutional amendment giving him the right to appoint judges. Under the amendment, the head of state will appoint the chairs of courts, their deputies, and lower-ranking judges for four-year terms at the recommendation of the Higher Council of Magistrates. Parliament will appoint for four-year terms members of the Supreme Court of Justice, including the chief of the Supreme Court of Justice, the prosecutor-general, and the minister of justice. These changes provide evidence that the country's Communist leaders are weakening judicial independence and subordinating this branch of governance to their authority...” 20. The United States Department of State 2003 country report on Moldova read as follows in its relevant parts: “... The Constitution provides for an independent judiciary; however, official pressure and corruption of judges remained a problem. There continued to be credible reports that local prosecutors and judges extorted bribes for reducing charges or sentences. Following a major reorganization in May, the judiciary consists of three levels: lower courts, courts of appeals, and the Supreme Court. A separate Constitutional Court has exclusive authority in cases regarding the constitutionality of draft and final legislation, decrees, and other government acts. While the Constitutional Court was generally regarded as fair and objective, observers frequently charged that other courts were corrupt or politically influenced. The Constitution authorizes the President, acting on the nomination of the Superior Court of Magistrates, to appoint judges for an initial period of 5 years. Before being reappointed, judges must undertake specialized judicial training and pass a test evaluated by the Superior Council of Judges. Political factors have played a large role in the reappointment of judges.”
| 1 |
train
|
001-57615
|
ENG
|
NLD
|
CHAMBER
| 1,989 |
CASE OF KOSTOVSKI v. THE NETHERLANDS
| 2 |
Violation of Art. 6-1+6-3-d;Just satisfaction reserved
|
C. Russo;J.A. Carrillo Salcedo;N. Valticos
|
9. Mr Slobodan Kostovski is a Yugoslav citizen born in 1953. He has a very long criminal record, including convictions for various crimes in the Netherlands, notably armed robbery at a jeweller’s shop in 1979 for which he was sentenced to six years’ imprisonment. In November 1980 the Amsterdam District Court (arrondissements- rechtbank) had declared admissible a request by Sweden for his extradition to stand trial for serious offences committed in Stockholm in September 1979, namely two armed robberies and assisting in an escape from a court building, involving in each case attempted manslaughter. On 8 August 1981 the applicant escaped from Scheveningen prison together with one Stanley Hillis and others; he remained on the run until the following April. 10. On 20 January 1982 three masked men conducted an armed raid on a bank in Baarn and made off with a substantial amount of currency and cheques. Police suspicions centred on Stanley Hillis and his associates because, being on the run, they probably needed money and because some years previously Stanley Hillis had been directly involved in a robbery carried out at the same bank with exactly the same modus operandi as the 1982 raid. These suspicions were strengthened on 25 January, when the Amsterdam police received an anonymous telephone call from a man who said: "A few days ago a hold-up took place at a bank in Baarn. Those responsible for the hold-up are Stanley Hillis, Paul Molhoek and a Yugoslav. Stanley Hillis and the Yugoslav escaped from prison in The Hague in August last year." 11. On 26 January 1982 a man visited the police in The Hague. The reporting officer drew up, on 18 March, the following account of the interview: "On 26 January there appeared before me a man who for fear of reprisals desired to remain anonymous but whose identity is known to me. He stated as follows: ‘A few months ago four men escaped from the remand centre (huis van bewaring) in The Hague, among them a Yugoslav and an Amsterdamer. They are now living with an acquaintance of theirs in Utrecht. I do not know the address. They are also in touch with Paul Molhoek of The Hague. The Yugoslav and the Amsterdamer sometimes spend the night at Aad Denie’s home in Paul Krugerlaan in The Hague. Paul Molhoek sleeps there almost every night. The Yugoslav and the Amsterdamer now drive a blue BMW car; I do not know the registration number. Paul Molhoek drives a new white Mercedes sports car. The Yugoslav, the Amsterdamer and Paul Molhoek carried out a hold-up a few days ago on a bank in Baarn, in the course of which the staff of the bank were locked up. Aad Denie, who otherwise had nothing to do with the affair, takes Paul Molhoek to the two men in Utrecht every day because Paul Molhoek does not have a driving licence. Aad Denie drives a silver-grey BMW car, registration mark 84-PF-88.’ I wish to add that, after being shown various photographs included in the police file, he picked out photos of the following persons: Slobodan Kostovski ... as being the Yugoslav to whom he had referred; Stanley Marshall Hillis ... as being the Amsterdamer in question." 12. On 27 January the Utrecht police, acting on information received that Stanley Hillis was hiding with a brother of Paul Molhoek at an address in that town, conducted a search there. Whilst they found no one, they did find fingerprints of Stanley Hillis and Paul Molhoek. 13. On 23 February 1982 a person visited the police in The Hague. The two reporting officers drew up, on 22 March, the following account of the interview: "On Tuesday 23 February 1982 there appeared before us a person who for security reasons wishes to remain anonymous but whose identity is known to us. He/She stated that he/she knew that Stanley Hillis, Slobodan Kostovski, Paul Molhoek and Aad Denie, who were known to him/her, were guilty of the armed raid on a branch of the Nederlandse Middenstands Bank at Nieuwstraat 1 in Baarn on or about 19 January 1982. According to the said person, the first three of the aforementioned persons had carried out the raid and Aad Denie had acted as driver or at least he had picked them up in a car after the raid. The said person also stated that the proceeds of the raid, amounting to about Fl. 600,000, had been divided into more or less equal parts by Hillis, Kostovski and Molhoek and that Aad Denie had received a small part thereof. From what he/she said, this would have been about Fl. 20,000. The said person also stated that Hillis, Kostovski and Molhoek knew each other from when they were detained in Scheveningen prison. Hillis and Kostovski escaped from the said prison on 8 August 1981 and Molhoek was released at a later date. The said person stated that Paul Molhoek lived most of the time with Aad Denie at Paul Krugerlaan 216 in The Hague. Hillis and Kostovski were said to have lived for a while at Oude Gracht 76 in Utrecht, which they had rented in another name. A brother of Paul Molhoek also lived there; he was called Peter. The said person stated in this connection that the Utrecht police had raided the said premises but had not found the above-mentioned people. He/she said that Hillis, Kostovski and Molhoek were in a room on a higher floor of the same building in the Oude Gracht at the time of the police raid. The police had not searched that floor. The person in question also stated that Hillis was now believed to be living in Amsterdam. Paul Molhoek and Hillis were said to meet each other quite regularly there, near Amstel Station, which was their usual meeting place. According to the person in question, Hillis, Kostovski and Molhoek were in possession of powerful weapons. He/she knew that Hillis and Kostovski each had a Sten gun among other things and that Paul Molhoek had a revolver, possibly a Colt 45. The person interviewed by us stated that he/she might later be able to provide more details about the above-mentioned persons and the offences they had committed." 14. On 1 April 1982 Stanley Hillis and Slobodan Kostovski were arrested together in Amsterdam. They were in a car driven by one V., who had helped them to escape from prison and had had various contacts with them in and after January 1982. On his arrest Slobodan Kostovski was in possession of a loaded revolver. Subsequently, firearms were also found in the home of Paul Molhoek, who was arrested on 2 April, in the home of V. and in another room in the house previously searched in Utrecht. Like the applicant, Stanley Hillis, Paul Molhoek, Aad Denie and V. all have very long criminal records. 15. A preliminary judicial investigation (gerechtelijk vooronderzoek; see paragraph 23 below) was instituted in respect of Stanley Hillis, Slobodan Kostovski, Paul Molhoek and Aad Denie. On 8 April 1982 Mr Nuboer, the examining magistrate (rechter-commissaris), interviewed, in the presence of the police but in the absence of the public prosecutor and of the applicant and his counsel, the witness who had made a statement to the police in The Hague on 23 February (see paragraph 13 above). The magistrate, who did not know the person’s identity, considered his/her fear of reprisals to be well-founded and therefore respected his/her wish to remain anonymous. His report on the hearing recorded that the witness made the following sworn statement: "On 23 February 1982 I made a statement to the police in The Hague which was included in a report drawn up on 22 March 1982. You read out that statement to me. I declared that it is the truth and that I stand by it, on the understanding that I was not aware that the bank in Baarn was at No. 1 Nieuwstraat. My knowledge stems from the fact that both Stanley Hillis and Paul Molhoek, as well as Aad Denie, had all told me about the hold-up. They said that they had taken not only cash, but also American travellers’ cheques and Eurocheques. I myself saw a number of the Eurocheques." 16. On 2 June 1982 the examining magistrate wrote to the lawyers acting for those concerned, enclosing copies of the official reports, including the statements of the anonymous person he had seen. He indicated that they could submit written questions on the basis of the statements made, pointing out that they would not be invited to the hearing before him. Amongst those who responded was Mr Kostovski’s lawyer, Mrs Spronken, who submitted fourteen questions in a letter of 14 June. On 22 June, as a result of those questions, the anonymous witness whom Mr Nuboer had heard was interviewed again, this time by Mr Weijsenfeld, an examining magistrate deputising for Mr Nuboer. The police were present but neither the public prosecutor nor the applicant or his counsel. The magistrate’s report of the hearing recorded that the witness - whose anonymity was respected on this occasion also - made the following sworn statement: "I stand by the statement which I made on 8 April 1982 to the examining magistrate in Utrecht. My answers to the questions posed by Mrs Spronken are as follows. I am not the person who telephoned anonymously to the police communications centre in Amsterdam on 25 January 1982, nor the person who made a statement on 26 January 1982 at the police station in The Hague. I did not state to the police that I knew that the bank was at Nieuwstraat 1 in Baarn. I knew that it was in Baarn, but not the street. I learned the latter from the police and it was included as being part of my own statement by mistake. Although Mrs Spronken did not ask this, I would add that I did not inform the municipal police in Utrecht. As regards the questions posed by Van Straelen, I would in the first instance refer to the statement I have just made. I am acquainted with Hillis, Kostovski, Molhoek and Denie and have no doubts as to their identity." In the event, only two of Mrs Spronken’s fourteen questions, most of which concerned the circumstances in which the witness had obtained his/her information, were answered. In this connection Mr Weijsenfeld added the following in his report: "The questions sent in, including those from S.M. Hillis, which have not been answered were either not asked by me, the examining magistrate, in order to preserve the anonymity of the witness, or not answered by the witness for the same reason." 17. The cases against Stanley Hillis, Slobodan Kostovski and Paul Molhoek came on for trial before the Utrecht District Court on 10 September 1982. Although for procedural reasons each case was dealt with separately and was the subject of a separate judgment, the court held a single sitting, so that the statements made thereat applied to all three suspects. The witnesses heard in court included the examining magistrates Mr Nuboer and Mr Weijsenfeld (see paragraphs 15-16 above) and Mr Weijman, one of the police officers who had conducted the interview on 23 February (see paragraph 13 above). They had been called at the applicant’s request, but the court, pursuant to Article 288 of the Code of Criminal Procedure (see paragraph 25 (b) below), did not allow the defence to put to them certain questions designed to clarify the anonymous witnesses’ reliability and sources of information, where answers would have revealed the latter’s identity. Mr Nuboer stated that he believed the witness he had heard on 8 April 1982, who had "made a favourable impression" on him; that he did not know the witness’s identity and considered the fear of reprisals advanced in support of his/her wish for anonymity to be a real one; that he believed the witness had made his/her statement to the police voluntarily; and that he had refused an offer by the police for him to interview the man they had seen on 26 January 1982 (see paragraph 11 above) as he could not guarantee the latter’s anonymity. Mr Weijsenfeld stated that he considered to be "not unreliable" the witness - whose identity he did not know - whom he had interviewed on 22 June 1982 (see paragraph 16 above); and that he too regarded the witness’s fear of reprisals as well-founded. Mr Weijman stated that, in his view, the person he had interviewed with a colleague on 23 February 1982 (see paragraph 13 above) was "completely reliable" because he/she had also given information on other cases which had proved to be correct. He added that certain parts of that person’s statement had been omitted from the official report in order to protect his/her identity. 18. The anonymous witnesses themselves were not heard at the trial. Contrary to a defence submission, the official reports drawn up by the police and the examining magistrates on the hearings of those witnesses were used in evidence. Also the sworn statements made by one of them to the magistrates were read out and designated as statements by a witness made at the trial, in accordance with Article 295 of the Code of Criminal Procedure (see paragraph 26 below). In its judgments of 24 September 1982 the Utrecht District Court recognised, with regard to the use of the statements of the anonymous witnesses, that their sources of information could not be checked, that it could not form an independent view as to their reliability and that the accused were deprived of the possibility of being confronted with them. By way of justification for its decision nevertheless to use this material in evidence the court stated that it had been convinced of Mr Kostovski’s guilt, considering that the statements strengthened and partly complemented each other and having regard to the views it had heard as to the reliability of one of the anonymous witnesses (see paragraph 17 above). Having also noted that the applicant had previously been found guilty of similar offences, the court convicted him and his co-accused of armed robbery and sentenced each of them to six years’ imprisonment. 19. Mr Hillis, Mr Kostovski and Mr Molhoek - who have always denied any involvement in the bank raid - appealed to the Amsterdam Court of Appeal (Gerechtshof), which set aside the Utrecht District Court’s judgments as it arrived at a different assessment of the evidence. However, after a retrial, at which the three cases were dealt with together, the Court of Appeal, by judgment of 27 May 1983, also convicted the applicant and his co-accused and imposed the same sentences as before. On 13 May the Court of Appeal had heard a number of the witnesses previously heard at first instance, who stood by their earlier testimony. Like the Utrecht District Court, it had not allowed certain questions by the defence to be answered, where this would have revealed the identity of the anonymous witnesses. The following statement had also been made to the Court of Appeal by Chief Superintendent Alferink of The Hague municipal police: "Consultations take place before anonymous witnesses are interviewed. It is customary for me to ascertain the identity of the witness to be interviewed in order to assess whether he or she could be in danger. In this case the anonymous witnesses were in real danger. The threat was real. Both witnesses decided to make statements on their own initiative. The public prosecutor was contacted, but I cannot remember who it was. The testimony of anonymous witnesses is offered to the examining magistrate after consultation with the public prosecutor. Both anonymous witnesses made a reliable impression on me." The Court of Appeal likewise did not hear the anonymous witnesses but, again contrary to a defence submission, considered the official reports of their interviews with the police and the examining magistrates to be admissible evidence. The court found that the witnesses, who had made their statements on their own initiative, had good reason to fear reprisals; noted that they had made a reliable impression on Mr Alferink and a reasonably reliable one on Mr Nuboer; and took into account the connections between, and the mutual consistency of, the statements in question. 20. On 25 September 1984 the Supreme Court (Hoge Raad) dismissed an appeal by the applicant on points of law. It found that the Amsterdam Court of Appeal had adduced sufficient reasons for admitting the reports in question (see paragraph 32 below). It also stated that Article 6 (art. 6) of the Convention did not prevent a judge, if he deemed it necessary in the interest of the proper administration of justice, from curtailing to some extent the obligation to answer questions and, notably, from allowing a witness not to answer questions about the identity of persons. 21. On 8 July 1988, by which time he had served 1,461 days of his prison sentence, Mr Kostovski became due for release on parole. However, on that day he was extradited from the Netherlands to Sweden, to serve there a sentence of eight years’ imprisonment. 22. The Netherlands Code of Criminal Procedure ("CCP") came into force on 1 January 1926. The citations appearing in the present judgment are taken from the CCP as it stood at the time of the applicant’s trials. 23. Article 168 CCP provides that each District Court has one or more examining magistrates to whom criminal cases are entrusted. They are nominated, for a term of two years, by the competent Court of Appeal from amongst the members of the District Court. It is open to the public prosecutor, under Article 181 CCP, to request what is called - in order to distinguish it from the subsequent investigation at the trial - a "preliminary investigation", which it is the task of an examining magistrate to conduct. In that event the latter will hear the suspect, witnesses and experts as soon as possible and as often as is required (Article 185 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Articles 185 § 2 and 186) and, even if they are absent, to give notice of questions they wish to have put. The preliminary investigation provides a basis for a decision with regard to the further prosecution of a suspect and also serves to clarify matters which cannot properly be investigated at the trial. The magistrate must act impartially, by collecting also evidence which might exculpate the suspect. If the public prosecutor is of the opinion that the results of the preliminary investigation justify further prosecution, he will notify the suspect and refer the case to the court. The investigation at the trial will then follow. 24. Under Article 338 CCP, a finding that the accused has been proved to have committed the acts with which he is charged may be made by a judge only if he has been so convinced through the investigation at the trial, by the contents of "legal means of evidence". The latter consist, according to Article 339 CCP, exclusively of (i) what the judge has himself observed; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents. Evidence in the third category is defined in Article 342 CCP, which reads: "1. A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced. 2. The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness." 25. Articles 280 and 281-295 CCP contain various provisions concerning the examination of witnesses at the trial, of which the following are of importance in the context of the present case. (a) The president of the court must ask the witness to state, after his first names and surname, his age, occupation and address (Article 284 § 1 CCP); the same obligation is also laid, by Article 190 CCP, on an examining magistrate when he is hearing witnesses. (b) Articles 284, 285 and 286 CCP make it clear that the accused is entitled to put questions to a witness. As a general rule witnesses are examined first by the president of the court; however, a witness who has not been heard during the preliminary investigation and has been called at the request of the defence will be examined first by the accused and only afterwards by the president (Article 280 § 3 CCP). In any event, Article 288 CCP empowers the court "to prevent a question put by the accused, counsel for the defence or the public prosecutor being answered". (c) Article 292 CCP enables the president of the court to order an accused to leave the court-room so that a witness may be examined out of his presence. If such an order - for which reasons do not have to be given - is made, counsel for the defence may question the witness and "the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed" (Article 292 § 2 CCP). Thus, on returning to the court-room the accused may avail himself of his right, under Article 285 CCP, to put questions to the witness. 26. Article 295 CCP provides for an exception to the rule in Article 342 CCP (see paragraph 24 above) that witnesses should be heard at the trial. It reads: "An earlier statement by a witness who, having been sworn in or admonished to speak the truth in accordance with Article 216 § 2, has died or, in the opinion of the court, is unable to appear at the trial shall be considered as having been made at the trial, on condition that it is read aloud there." In connection with witnesses unable to appear at the trial, Article 187 CCP provides: "If the examining magistrate is of the opinion that there are grounds for assuming that the witness or the expert will not be able to appear at the trial, he shall invite the public prosecutor, the defendant and counsel to be present at the hearing before him, unless, in the interest of the investigation, that hearing cannot be delayed." 27. The fifth category of evidence listed in Article 339 CCP (see paragraph 24 above) is defined in Article 344 CCP which, so far as is relevant, reads: "1. By written documents is understood: 1o ...; 2o official reports and other documents, drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced; 3o...; 4o...; 5o all other documents; but these are valid only in conjunction with the content of other means of evidence. 2. The judge can accept as proven that the defendant has committed the act with which he is charged, on the official report of an investigating officer." An anonymous statement contained in an official police report falls within the scope of sub-paragraph 2o of paragraph 1 of this Article. 28. In the Netherlands, the procedure in a criminal case follows in actual practice a course that is markedly different from that suggested by the provisions referred to in paragraphs 23 to 27 above. This is to a considerable extent due to a leading judgment delivered by the Supreme Court on 20 December 1926, the year in which the CCP came into force. That judgment (Nederlandse Jurisprudentie (NJ) 1927, 85) contains the following rulings, each of which is of importance in the context of the present case: (a) for a statement by a witness to be considered as having been made at the trial under Article 295 CCP (see paragraph 26 above), it is immaterial whether or not the examining magistrate has complied with Article 187 CCP (ibid.); (b) a deposition by a witness concerning what he was told by another person (hearsay evidence) may be used as evidence, albeit with the utmost caution; (c) it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter’s official report. 29. These rulings permit the use, as "legal means of evidence" within the meaning of Articles 338 and 339 CCP (see paragraph 24 above), of depositions made by a witness not at the trial but before a police officer or the examining magistrate, provided they are recorded in an official report which is read aloud in court. The rulings have had the effect that in practice the importance of the investigation at the trial - which is never conducted before a jury - has dwindled. In the great majority of cases witnesses are not heard at the trial but either only by the police or also by the examining magistrate. 30. The law does not make the presence of counsel for the defence obligatory during the investigation by the police. The same applies to the preliminary investigation by the examining magistrate (but see paragraph 23 above). Nowadays, however, most examining magistrates invite the accused and his counsel to attend when they are hearing witnesses. 31. The CCP contains no express provisions on statements by anonymous witnesses. However, with the increase in violent, organised crime a need was felt to protect those witnesses who had justification for fearing reprisals, by granting them anonymity. In a series of judgments the Supreme Court has made this possible. 32. A precursor to this development was a judgment of 17 January 1938 (NJ 1938, 709) in which the Supreme Court held that hearsay evidence (see paragraph 28 (b) above) could be admitted even if the witness did not name his informant. Decisions to the same effect have been handed down in the 1980’s. In a judgment of 5 February 1980 (NJ 1980, 319), concerning a case where the examining magistrate had granted anonymity to and had heard a witness without the accused or his counsel being present, the Supreme Court held - following its judgment of 20 December 1926 (see paragraph 28 above) - that non-compliance with Article 187 CCP (see paragraph 26 above) did not prevent the magistrate’s official report being used in evidence, "albeit with the caution called for when assessing the probative value of such evidence". The same ruling was made in a judgment of 4 May 1981 (NJ 1982, 268), concerning a case where the witness had been heard anonymously by both the police and the examining magistrate; on that occasion the Supreme Court also held - in accordance with its above-mentioned judgment of 17 January 1938 - that the mere fact that the official reports of the hearings did not name the witness was not an obstacle to their utilisation in evidence, subject to an identical proviso as to caution. It may be inferred from a judgment of 29 November 1983 (NJ 1984, 476) that the caution called for does not necessarily imply that anonymous witnesses must have been heard by the examining magistrate also. The next judgments in the series are those given by the Supreme Court on 25 September 1984 in the cases of Mr Kostovski and his co-accused, one of which is published in NJ 1985, 426. They contain the following new elements: (a) the mere fact that the examining magistrate did not know the identity of the witness does not prevent the use in evidence of the official report of the hearing he conducted; (b) if the defence contests at the trial the reliability of depositions by an anonymous witness, as recorded in the official report of the hearing of the witness, but the court nevertheless decides to admit them as evidence, it must give reasons justifying that decision. These principles were confirmed in a judgment of 21 May 1985 (NJ 1986, 26), which makes it clear that the Supreme Court’s review of the reasons given to justify the admission of anonymous statements as evidence is only a marginal one. 33. In their submissions preceding certain of the Supreme Court’s judgments referred to in paragraph 32 above, various Advocates-General, whilst recognising that the granting of anonymity to witnesses could not always be avoided and sometimes had to be accepted as the lesser evil, nevertheless voiced concern. The learned writers who annotated the judgments did likewise, stressing the need for the courts to be very cautious indeed. The judgments have, however, also been criticised. 34. In 1983 the Association of Judges expressed disquiet at the increase in cases in which witnesses were threatened and at the growing number of witnesses who refused to testify unless they were granted anonymity. The Association recommended that the legislature should direct its attention to the question of anonymous witnesses. The Minister of Justice consequently set up in September 1984 an external advisory committee, called "the Commission on Threatened Witnesses", to examine the problem. In its report of 11 June 1986, which was later submitted for advice to several bodies concerned with the application of the criminal law, the Commission concluded, with only one member dissenting, as follows: "In some cases one cannot avoid anonymity of witnesses. Reference is made to the fact (which was also pointed out by the Minister) that at present there are forms of organised criminality of a gravity that the legislature of the day would not have considered possible." The Commission added that "in a society governed by the rule of law the interference with, or more accurately the frustration of, the course of justice resulting [from this situation] cannot possibly be accepted". The Commission proposed that the law should in principle forbid the use as evidence of statements by anonymous witnesses. It should, however, be possible to make an exception where the witness would run an unacceptable risk if his or her identity were known. In such cases an anonymous statement might be admitted as evidence if the witness had been examined by an examining magistrate, the accused being given a right of appeal against the latter’s decision to grant anonymity. The report contains a Bill making the necessary modifications to the CCP (with draft explanatory notes) and comparative data. According to the Government, initiation of legislation in this area has been deferred pending the Court’s decision in the present case.
| 1 |
train
|
001-88775
|
ENG
|
HUN
|
CHAMBER
| 2,008 |
CASE OF EVA MOLNÁR v. HUNGARY
| 2 |
No violation of Art. 11
|
András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky
|
5. The applicant was born in 1954 and lives in Engelskirchen, Germany. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 7 (first round) and 21 (second round) April 2002 legislative elections took place in Hungary. The coalition which had governed the country from 1998 and, therefore, had been in charge of organising the elections, lost their majority. 8. The official results of the elections were established by the local and regional electoral commissions following the second round. After the courts had ruled on certain complaints concerning the legality and outcome of the voting procedure, on 4 May 2002 the National Election Committee made a public statement in the Official Gazette, according to which the result had become final. As in previous Hungarian elections, they were virtually identical to the results of the exit poll carried out on the day of the second round and to the preliminary results announced by the Committee on the evening of 21 April 2002. Nevertheless, views were subsequently voiced in certain sections of the media that the elections had been “rigged”. 9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian election system had provided the basis for a generally transparent, accountable, free, fair and equal process. 10. A period of two months elapsed during which a new government, in a coalition of the ex-opposition parties, was formed which took up its functions on 27 May 2002. On the morning of Thursday, 4 July 2002 several hundred demonstrators started to protest against the statutory destruction of the ballots, scheduled for 20 to 22 July. They blocked the centrally located Erzsébet Bridge in Budapest with their cars. Their objective was to force a recount of the election votes. Since they brought the traffic to a complete standstill and had not given prior notice of their gathering to the police, as required by Act no. 3 of 1989 on Freedom of Assembly (“the Assembly Act”), the demonstration was dispersed after several hours. 11. Shortly afterwards, at around 1 p.m., more demonstrators, again without any prior notification, assembled at Kossuth Square in front of the Parliament building demanding a recount of the votes and expressing their support for the participants in the morning’s events at the Erzsébet Bridge. 12. According to the applicant’s submissions of 14 February 2005 and the Government’s observations, these demonstrators had been at the Erzsébet Bridge and then relocated to Kossuth Square. However, in her submissions of 23 December 2007, the applicant stated that they had merely been supporters of those who had blocked the Erzsébet Bridge. 13. Having learnt of these events from the news, the applicant joined the demonstration at around 7 p.m. By that time, traffic and public transport – including the circulation of trams and trolley-buses – had become seriously disrupted in the area of Kossuth Square. The estimated number of demonstrators ranged from several hundred to two or three thousand. The police initially attempted to allow the circulation of traffic to continue but eventually had to close some streets nearby. Finally, faced with an unmanageable situation, they broke up the demonstration at about 9 p.m. without using any force. The applicant participated in the demonstration until it was dispersed. 14. The Hungarian media reported in detail on the events, and the affair was the leading news in the country. In an official communiqué, the President of the Republic condemned the events of 4 July 2002, declaring them illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner. 15. The applicant sought judicial review of the actions of the police before the Budapest Central District Court. She asserted that the dispersal of the demonstration had been unlawful. 16. On 1 October 2003 the District Court dismissed the applicant’s claim. It established that the duty to inform the police about planned assemblies was applicable to every type of demonstration, including spontaneous ones. Since the applicant did not deny that the demonstration in question had not been notified to the police, as required by section 14 of the Assembly Act, the latter had not had any other choice but to break it up. 17. Moreover, the court found that the duty to inform the police in advance about assemblies held in public served the protection of the public interest and the rights of others, namely the prevention of disorder and the undisturbed circulation of traffic. Therefore, it concluded that the measures taken by the police had been in compliance with the law. 18. The applicant appealed. On 13 July 2004 the Budapest Regional Court upheld the first-instance decision. Its judgment was served on the applicant’s lawyer on 31 August 2004. 19. The Constitution of the Republic of Hungary (Act no. 20 of 1949 as amended) provides, in so far as relevant, as follows: “The Republic of Hungary acknowledges the right to peaceful assembly and secures its free exercise.” 20. The relevant provisions of Act no. 3 of 1989 on Freedom of Assembly (“the Assembly Act”) read as follows: “(3) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime; moreover, it should not result in the infringement of the rights and freedoms of others.” “The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event, and in Budapest to the Budapest Police Headquarters, three days prior to the planned date of the event. The obligation to notify the police lies with the organiser of the event.” “(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or results in a disproportionate hindrance of the circulation of traffic, the police may ban the holding of the event at the place or time indicated in the notification, within 48 hours from the receipt of the notification by the authority.” “(1) No appeal shall lie against the decision of the police, but the organiser may seek judicial review of the administrative decision within three days of its notification.” “(1) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph 3 of section 2 or if the participants appear at the event ... in possession of arms, or if an event subject to prior notification is held without notification, ... or despite a decision banning the event. ... (3) If an event is dispersed, the participants may seek judicial review within fifteen days with a view to the establishment of the illegality of the dispersal.”
| 0 |
train
|
001-59864
|
ENG
|
TUR
|
CHAMBER
| 2,001 |
CASE OF HASAN YAGIZ v. TURKEY
| 4 |
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
|
Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson
|
9. On 17 April 1985 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way). 10. On 6 February 1985 the Ankara Martial Law Court (sıkıyönetim mahkemesi) ordered the applicant’s detention on remand. 11. On an unspecified date in 1985 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant. The Public Prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. It was further decided that this indictment should be joined to the indictment of 26 February 1982 lodged against 722 other Dev-Yol defendants. 12. On 11 May 1988 the Ankara Martial Law Court ordered the applicant’s release pending trial. 13. In a judgment of 19 July 1989 the Martial Law Court convicted the applicant on account of his involvement in the Dev-Yol. It sentenced the applicant to six years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code. 14. The applicant appealed to the Military Court of Cassation (askeri yargıtay). 15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it. 16. On 27 December 1995 the Court of Cassation upheld the above judgment. 17. Article 146 §§ 1 and 3 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty. ... Accomplices to the crime specified in paragraph one, other than those specified in paragraph two, shall be punished by heavy imprisonment for not less that fifteen years and be disqualified to hold public office for life.”
| 1 |
train
|
001-23446
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,003 |
KORNILOV and OTHERS v. UKRAINE
| 4 |
Inadmissible
| null |
The first applicant, Vladimir Sergeyevich Kornilov, is a Ukrainian national, who was born in 1944. The second applicant, Victor Yegorovich Lyekontsev, is a Ukrainian national, who was born in 1948. The third applicant, Nikolay Vasilievich Kravchuk, is a Ukrainian national, who was born in 1947. The fourth applicant, Nikolay Dmitrievich Samoylenko, is a Ukrainian national, who was born in 1950. All the applicants reside in the village of Naberezhny, Odessa Region, Ukraine. They were represented before the Court by Valeriy Valeriyevich Sudakov, a lawyer practising in Odessa, Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. All the applicants are retired military servicemen. In March 1999, they retired from the Armed Forces and were entitled to certain financial assistance. However, this aid was only partially paid. The first applicant was entitled to 7683,55 UAH, but received only 3714,90 UAH, 3968,65 UAH remaining unpaid. The second applicant was entitled to 9642,40 UAH, but received only 4524,80 UAH, 5117,60 UAH remaining unpaid. The third applicant was entitled to 9457,60 UAH, but received only 4166,40 UAH, 5291,20 UAH remaining unpaid. The fourth applicant was entitled to 5490,90 UAH, but received only 2625,15 UAH, 2865,75 UAH remaining unpaid. The applicants each instituted separate proceedings in the Odessa Garrison Military Court against the Military Unit A-0958, seeking recovery of the unpaid part of their allowances. The first applicant On 17 December 2001 the Odessa Garrison Military Court (Решения Военного местного суда Одесского гарнизона) found in favour of the first applicant and awarded him 4019.65 UAH, including 3968.65 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 6 March 2002, the Military Appellate Court of the Southern Region (Определения Военного апелляционного суда Южного региона) upheld the decision of the first instance court. On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region (Отдел Государственной исполнительной службы Беляeвского районного управления юстиции Одесской области). On 21 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 4511 UAH, including 4500 UAH for unpaid allowances and 111 UAH in court costs. On 25 April 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. On 24 May 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 12 September 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 8630.65 UAH. The second applicant On 17 December 2001 the Odessa Garrison Military Court found in favour of the second applicant and awarded him 5168.60 UAH, including 5117.60 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 14 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. In January 2002 the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 12 September 2002, the judgment in the applicant’s favour was fully enforced and the applicant was paid 5168.60 UAH. The third applicant On 17 December 2001 the Odessa Garrison Military Court found in favour of the third applicant and awarded him 5342.20 UAH, including 5291.20 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 19 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 12 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 5064 UAH, including 5004 UAH for unpaid allowances and 60 UAH in court costs. On 23 May 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. On 5 June 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 12 September 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 11705.20 UAH. The fourth applicant On 17 December 2001 the Odessa Garrison Military Court (Решения Военного местного суда Одесского гарнизона) gave decisions in favour of the fourth applicant and awarded him 2865.75 UAH for unpaid allowances and the delay in payment. On 5 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 12 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 3768 UAH, including 3708 UAH for unpaid allowances and 60 UAH in court costs. On 16 May 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court. On 9 August 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region. On 3 October 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 6635.75 UAH. 1. Civil Code of Ukraine Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim by the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period. 2. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings” Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 3. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service” Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.
| 0 |
train
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001-100693
|
ENG
|
BGR
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CHAMBER
| 2,010 |
CASE OF DEYANOV v. BULGARIA
| 3 |
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
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Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
5. The applicant was born in 1956 and lives in Sofia. 6. On an unspecified date he married Ms Y.C. Their son, Savestin Todorov Deyanov, was born on 22 September 1988. In 1992 the applicant and Ms Y.C. divorced. The custody of Savestin was allocated to the applicant. 7. In the afternoon of 6 May 1997 Savestin went out to play with another boy, B. However, in the evening he did not return home. The applicant called the police and later visited a police station to report that his son had gone missing. 8. On 7 May 1997 several police officers visited Savestin's school and found B. The boy explained that in the afternoon of the previous day he and Savestin had played with a ball by a small lake in the neighbourhood and Savestin had fallen in the water. However, when the police visited the place, they found that there was very little water in the lake. After they questioned B. again, he explained that in fact he and Savestin had taken a bus and had gone to the city centre, in the area where a large market was located. There they had played with a ball alongside a small canal dividing the two carriageways of a busy main road. Savestin had dropped the ball into the water and, in trying to retrieve it, had fallen into the water too. B. had tried to help, but Savestin had been carried away by the water current. B. had returned home. 9. A passer-by questioned subsequently said that in the evening of 6 May 1997 he had seen a ball floating in the canal. 10. On 7 or 8 May 1997 the police searched the canal, which, at the place indicated by B., was 60-70 centimetres deep. The reservoir into which the canal emptied was searched by divers. All alluviums along the canal were also searched. No trace of Savestin's body was found. 11. Hospital emergencies were also checked but Savestin had not been admitted to any of them. 12. On 9 and 12 May 1997 Savestin was officially declared missing. On 15 May 1997 and the following days a photograph of him was shown on national television and published in other media. 13. In the following days the police gathered information on Savestin's parents and on B.'s family. They visited Savestin's mother, who was at the time living in Targovishte. On 15 May 1997 they questioned Ms O., a friend of the family, who alleged to have received an anonymous telephone call concerning Savestin. Later on, the police investigated at least five other anonymous calls, which did not reveal anything as to Savestin's whereabouts and were most likely hoaxes provoked by the wide publicity which the case had attracted. 14. On 23 July 1997 a friend of B.'s explained that the latter had told him that Savestin had not drowned but had in fact been taken away by two men in a yellow car. Apparently, B. had also mentioned this version earlier but it is unclear in what circumstances. 15. In 1998 or early 1999 B. was questioned in the presence of psychiatrists and psychologists from the Ministry of Internal Affairs' Institute of Psychiatry. The Court has not been provided with the experts' conclusions, which apparently stated that B. had lied when he had said that Savestin had fallen in the canal. However, on other occasions B. was examined in the presence of other experts who considered that he was telling the truth. 16. On 17 January and 21 December 2000 and on 6 December 2001 B. was questioned in relation to the criminal proceedings concerning Savestin's disappearance (see paragraphs 25-26 below). He repeated that Savestin had fallen in the canal and admitted to having lied when he had said that his friend had been taken away by two men in a yellow car. 17. On unspecified dates the police questioned B.'s mother and grandmother and the parents of other friends of Savestin. Apparently, B.'s mother and grandmother explained that everything the boy had shared with them indicated that Savestin had indeed fallen in the canal. Also, the police investigated but found untenable a theory that Savestin had been abducted by mistake, instead of B., whose stepfather had had unpaid debts. 18. In November 1997 the Bulgarian bureau of Interpol initiated an international search for the applicant's son and issued a description and photos of the boy. In 2000, at the applicant's request, the description was amended. 19. On an unspecified date in 1998 the police carried out an experiment aiming at establishing whether B.'s version that Savestin had fallen in the canal was tenable. Apparently, the experiment corroborated that version. 20. In 1999, by order of the Minister of Internal Affairs, the National Service for Combating Organised Crime also investigated the case. Like the police initially, it considered that Savestin had most likely fallen in the canal. 21. Through the intermediary of the Ministry of Internal Affairs' Research Institute of Forensic Science and Criminology, an age-progression portrait of Savestin was prepared by the United States Department of Justice in 2003. It was published on the website of Interpol. Through the intermediary of the Ministry of Foreign Affairs, it was also published in some foreign media, apparently free of charge. However, other media refused to publish the image without payment. 22. On several occasions in 2004 the applicant requested the Government to pay for the dissemination of the portrait by the foreign media. Although the Ministry of Justice and the State Agency for Child Protection considered that the finances could be provided as Savestin was “a child in risk”, in a letter of the Ministry of Foreign Affairs dated 18 January 2005 the applicant was informed that “it was not practice” for the Ministry to finance such campaigns. On an unspecified date a Government press officer also informed the applicant that it was not their practice to finance media campaigns and that, as concerns expenditure, the Government had to comply with their budget, which was set by Parliament. 23. In 2005 the police provided to the prosecuting authorities information concerning boys born between 1987 and 1989 who had left Bulgaria between 6 May and 31 December 1997 and had not returned. Apparently, the data contained no clue as to Savestin's whereabouts. On an unspecified date the police examined data concerning unidentified bodies found in Bulgaria and abroad, but concluded that none of them had been Savestin's. They investigated uncorroborated data that Savestin had been sighted in Iraq. 24. The Court has not been informed in more detail about the efforts of the police to establish Savestin's fate. The boy has never been found. 25. A criminal investigation against unknown perpetrators for abduction was opened on 8 June 1998 by the Sofia city public prosecutor's office. The prosecuting authorities questioned the applicant and some witnesses who had already been examined by the police. 26. In November 2001 the criminal proceedings were stayed. They were resumed in October 2004 for the questioning of a new witness and stayed again in December 2005, apparently because the police investigation had not yielded any particular results. 27. In relation to the disappearance of his son, the applicant initiated several sets of civil proceedings. 28. On 25 January 2002 the applicant brought an action before the Sofia City Court seeking damages from the prosecuting authorities, the police and the Ministry of Internal Affairs for failing to react in an adequate, timely and effective manner to his son's disappearance. 29. Between 2002 and 2006 the Sofia City Court held ten hearings, scheduled at intervals of three to nine months. It examined several witnesses and admitted written evidence. On 12 March 2003 it decided that the examination of the case was to continue behind closed doors, as it concerned classified information about operative methods of the police. However, this decision led to the almost complete blocking of the case because the applicant and the other parties' representatives experienced difficulties in obtaining the relevant authorisations allowing them access to classified information; most of the hearings scheduled after 12 March 2003 were adjourned for that reason. 30. On 21 September 2005 the applicant lodged a complaint about delays (see paragraph 44 below), arguing that the proceedings had been unnecessarily protracted. In a decision of 13 October 2005 the Sofia Court of Appeal, finding that the proceedings had indeed lasted too long, instructed the Sofia City Court to accelerate them. 31. On 24 March 2006, finding that it was not competent to examine the case, the Sofia City Court transferred it to the Sofia District Court. At the District Court the case was separated into two. It appears that at least some of the evidence gathered by the City Court was joined to the two new cases. They were registered under nos. 7150/06 and 11664/06. 32. In those proceedings the Sofia District Court examined under sections 45 and 49 of the Obligations and Contracts Act (see paragraph 43 below) a claim by the applicant against the Sofia Investigation Service and the Chief Public Prosecutor's Office. According to the applicant, the Sofia Investigation Service had failed to take timely action to investigate the disappearance of his son, had failed to identify any suspects and to gather the necessary evidence and had failed to cooperate effectively with the police. As to the Chief Public Prosecutor's Office, the applicant alleged that it had failed to open criminal proceedings immediately upon being informed of Savestin's disappearance and had then failed to supervise duly those proceedings and to inform the applicant of their course. 33. In a judgment of 28 June 2007 the Sofia District Court allowed the applicant's claim and awarded him the full amount of damages sought, which was 700 Bulgarian levs (BGN), the equivalent of approximately 360 euros (EUR). It found that the defendants had failed to cooperate duly with the police and to take timely action to investigate Savestin's disappearance and had not duly notified the applicant of the course of the criminal investigation. It considered that the defendants had not acted in accordance with their obligations under Article 3 of United Nations Convention on the Rights of the Child to have the best interests of the child as their primary consideration. 34. On appeals by the defendants, on 7 November 2008 the Sofia City Court upheld the District Court's judgment. In so far as the judgment concerned those appeals, it was final. Furthermore, the Sofia City Court found inadmissible a request by the applicant to have the value of his claims increased. The applicant appealed on points of law against this part of the judgment but on 23 February 2009 his appeal was dismissed by the Supreme Court of Cassation. 35. In those proceedings the applicant's claims were directed against the National Police Directorate, the Sofia Police Directorate and the Ministry of Internal Affairs. The Sofia District Court examined the claims under section 1 of the State and Municipalities Responsibility for Damage Act (see paragraph 42 below). The applicant alleged that the police had not been sufficiently prepared to work on cases such as Savestin's, had not reacted in a timely manner to the information that the boy had gone missing, and had failed to take necessary measures to find him, whereas the Minister of Internal Affairs had not adopted the secondary legislation necessary for the effective search of abducted children. 36. In a judgment of 17 August 2007 the Sofia District Court dismissed the claim. It found that the applicant had failed to establish that he had suffered damages as a direct result of the actions of the police and the Minister of Internal Affairs; he had suffered as a result of the disappearance of his son, for which the defendants had not been responsible. 37. On an appeal by the applicant, on 12 February 2009 the Sofia City Court upheld the Sofia District Court's judgment, finding, in addition, that the police had done “with very small exceptions, everything within their powers” to find Savestin. 38. In July 2009 the applicant lodged an appeal on points of law. On 5 November 2009 the Supreme Court of Cassation declared the appeal admissible. A hearing on the merits is scheduled for 21 October 2010. 39. In 2004 the applicant brought an action for damages against the Government of Bulgaria, the Ministries of Finance, Justice and Internal Affairs and the State Agency for Child Protection alleging that they had unlawfully failed to finance the publication of Savestin's age-progression portrait in the foreign media (see paragraphs 21-22 above). 40. In 2005 the Sofia District Court allowed the applicant's claim against the Government and dismissed his claims against the remaining defendants. Referring to the State's obligations under the Constitution of Bulgaria and the United Nations Convention on the Rights of the Child, it found that the Government was under an obligation to ensure that Savestin was being afforded the necessary protection and care. Therefore, the Government had had to consider the applicant's request to provide financing and to verify whether it had been possible to allow it. The Government had had the necessary financial resources and the procedural possibility to allot them. They had, moreover, been approached with numerous requests by the applicant. They had failed to react in a meaningful way, which had been unlawful. 41. On 17 August 2006 and 5 November 2007 the judgment of the Sofia District Court was upheld respectively by the Sofia City Court and the Supreme Court of Cassation. The courts awarded the applicant BGN 10,000, the equivalent of approximately EUR 5,100. 42. State liability for damages is provided for in the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”). Section 1 of that Act provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by State bodies or civil servants, committed in the course of or in connection with the performance of their duties. 43. In certain cases, where the domestic courts consider that the provisions of the SMRDA are inapplicable, they examine claims against State bodies under the general law of tort, laid down in the Obligations and Contracts Act of 1950. Section 45 of that Act provides that everyone is to make good any damage which they have caused to another. By section 49, a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. One of the prerequisites of liability in tort under those provisions is the wrongfulness of the impugned conduct. 44. Complaints about delays were provided for in Article 217a of the Code of Civil Procedure of 1952, in force until 1 March 2008. The provision was introduced in July 1999. Complaints about delays were to be examined by the president of the higher court, who could order specific measures to be taken to speed up the proceedings. 45. Under Articles 255-257 of the Code of Civil Procedure of 2007, in force since 1 March 2008, parties to civil proceedings can lodge a request for fixing a timelimit in the event of delay. The request is to be examined by a judge from the respective higher court.
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train
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001-104145
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ENG
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POL
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CHAMBER
| 2,011 |
CASE OF POTOMSKA AND POTOMSKI v. POLAND
| 3 |
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Just satisfaction reserved
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Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
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5. The applicants were born in 1937 and 1939 and live in Darłowo. They are a married couple. 6. On 25 November 1970 the Board of the Sławno District National Council (Prezydium Powiatowej Rady Narodowej) informed the Board of the Darłowo Municipal National Council (Prezydium Gromadzkiej Rady Narodowej) that pursuant to the decision of the Minister of Municipal Economy (Minister Gospodarki Komunalnej) of 25 September 1970 a cemetery located in Rusko was to be closed. The closure was to be carried out on the basis of the 1959 Cemeteries Act. 7. On 12 September 1973 the Sławno District National Council issued a preliminary decision in which the applicants were informed of the conditions subject to which they could build a house on plot no. 59 located in Darłowo Municipality, Rusko settlement. 8. On 15 March 1974 the Head of Darłowo Municipality (Naczelnik Gminy) issued a decision in which he named Mr Potomski as the buyer of plot no. 59, owned by the State Land Fund (Państwowy Zasób Ziemi). 9. On 14 November 1974 the applicants bought from the State a plot of land with a surface area of 12 acres. The plot, no. 59, was classified as farming land. The applicants intended to build a house and a workshop on it. 10. On 4 May 1987 the Koszalin Regional Inspector of Historic Monuments (Wojewódzki Konserwator Zabytków) issued a decision adding the applicants’ property to the register of historic monuments (rejestr zabytków) on the grounds that a Jewish cemetery had been established on it at the beginning of the nineteenth century. It was one of the few remnants of the former Jewish culture in the region. The Inspector found that the layout of the cemetery was discernible and that certain parts of the cemetery were intact (the foundations of a house of prayer, a stone wall and some gravestones). The applicants were advised as to the scope of their obligations deriving from the 1962 Protection of the Cultural Heritage and Museums Act (ustawa o ochronie dóbr kultury i o muzeach). They were prohibited from developing their property unless they obtained a permit from the Regional Inspector of Historic Monuments. The applicants did not appeal against the decision. 11. On 30 May 1988 the applicants requested the Governor of Koszalin to offer them an alternative plot of land on which they could construct a house. On 15 June 1988 the Koszalin Regional Inspector of Historic Monuments requested the Mayor of Darłowo to grant the applicants’ request. On 5 July 1988 the Mayor of Darłowo informed the applicants that the exchange of plots requested by them would be possible only in the event of the Mayor receiving a subsidy from the Governor of Koszalin. 12. On 30 September 1988 Darłowo Municipality adopted a local development plan. The plan provided that the applicants could build a house on their property (zabudowa zagrodowa). 13. On 28 January 1991 the Mayor of Darłowo (Burmistrz) requested the Koszalin Governor’s Office to expropriate the applicants’ plot. On 12 March 1991 the Koszalin Governor’s Office transmitted that request to the Koszalin District Office (Urząd Rejonowy) as the competent authority in the matter. 14. On 4 May 1992 the Governor of Koszalin requested the Koszalin Regional Inspector of Historic Monuments to apply to the Head of the Koszalin District Office (Kierownik Urzędu Rejonowego) to institute expropriation proceedings pursuant to section 46(2)(2) of the 1985 Land Administration and Expropriation Act. The Governor considered that expropriation and payment of compensation would enable the applicants to buy another plot for the construction of their house. 15. On 14 May 1992 the Regional Inspector requested the Head of the Koszalin District Office to institute expropriation proceedings in respect of the applicants’ property. On 14 August 1992 the Head of the District Office decided to discontinue the proceedings, finding that no entity was interested in purchasing the cemetery. The Head of the District Office further found that the applicants, who had been aware in 1974 that they were purchasing a Jewish cemetery, were obliged to protect the site until they could find an entity interested in its purchase. The applicants appealed and requested that the issue be resolved. They stated that they were not interested in the maintenance and protection of the site. 16. On 2 October 1992 the Governor of Koszalin quashed the decision and remitted the case. He held that the lower authority had to examine a number of issues, in particular whether the property could be expropriated following negotiations with the applicants. No information was provided to the Court about the follow-up to that decision. 17. On 13 February 1995 the applicants requested the Head of the Koszalin District Office to provide Darłowo Municipality with an alternative plot of land which could then be offered to the applicants. On 7 March 1995 the Koszalin District Office replied that it did not have any such plots. On 25 April 1995 the Head of the District Office informed the applicants that it did not have any plot which could be the subject of an exchange. He further advised them to lodge a request with the Mayor of Darłowo. 18. On an unspecified date in 2000 the applicants wrote to the Minister of Culture and National Heritage about the problem with their property. Their letter was dealt with by the National Inspector of Historic Monuments. 19. On 1 August 2000 the National Inspector informed the applicants that the Sławno District Office (starostwo powiatowe) was the competent authority to deal with the matter. Furthermore, the Regional Inspector of Historic Monuments could request the Sławno District Office to commence expropriation proceedings under sections 33 and 34(1) of the Protection of the Cultural Heritage Act. They were informed that section 33 of that Act provided that a monument of particular historic, scientific or artistic value could be acquired by the State if the public interest so required. The National Inspector informed the applicants that the former Jewish cemetery in Rusko belonged to that category of monuments, being one of the few remnants of Jewish culture in the Middle Pomerania Region. The applicants were advised to contact the Sławno District Office as the representative of the State Treasury, whose duty it was to resolve their problem. 20. On 17 October 2000 Darłowo Municipality informed the applicants that there was no legal basis for the municipality to acquire their plot or to offer them another plot in exchange. They were further informed that they could request the Mayor of Sławno District (Starosta powiatu) to expropriate their land pursuant to the Protection of the Cultural Heritage Act. A request could also have been submitted by the Regional Inspector. 21. On 26 January 2001 the Koszalin Regional Inspector of Historic Monuments requested the Mayor of Sławno District to initiate expropriation proceedings. The Regional Inspector stated that in 1974 the applicants had bought the property as a construction plot. Subsequently, following the 1987 listing decision, the applicants had been prevented from developing their land in any manner. The Regional Inspector expressed the opinion that the expropriation of the plot and its ensuing transfer to the Jewish community would be consistent with the provisions of the 1997 Act on Relations between the State and the Jewish Community (ustawa o stosunku Państwa do gmin wyznaniowych żydowskich) and the policy concerning the Jewish monuments agreed between Poland and Israel. 22. On 23 September 2002 the applicants informed the Mayor of Darłowo that they would be prepared to exchange their plot for a plot situated in Bobolin or Dąbki. 23. On 24 March 2003 Darłowo Municipality requested the Sławno District Office to provide it with a plot of land which would in turn enable the municipality to arrange for an exchange of plots with the applicants. 24. On 19 May 2003 the Sławno District Office informed the Mayor of Darłowo that the State Treasury’s Property Resources did not have plots situated in Bobolin suitable for such an exchange. However, there was one plot in Dąbki that could be exchanged. By a letter of 14 July 2003 the Mayor of Darłowo informed the Sławno District Office that Mr Potomski had refused to exchange his plot for the plot situated in Dąbki. He further requested the District Office to initiate expropriation proceedings with a view to resolving the issue of the applicants’ plot. 25. On 7 August 2003 the Mayor of Darłowo again requested the Sławno District Office to commence expropriation proceedings with a view to resolving the applicants’ case. It reminded the District Office that in accordance with section 6 of the 1997 Land Administration Act the protection of properties classified as part of the cultural heritage was in the public interest. The Mayor also noted that the 1987 decision unambiguously excluded any development of the applicants’ plot. 26. On 14 August 2003 the Sławno District Office informed the applicants of the possibility of exchanging their plot of land for a plot situated in Rusko, the village where they lived. The proposed plot was designated in the local development plan for housing and services. They were further informed that in the event of a refusal on their part the only solution would be the institution of expropriation proceedings at the request of the Regional Inspector of Historic Monuments. However, that procedure could be set in motion only if the Inspector had secured a subsidy from the Governor for the purpose. Accordingly, the applicants were informed that it was not possible to specify when their case might be finally resolved. 27. By a letter of 22 August 2003 the applicants refused the exchange, stating that the proposed plot did not satisfy their expectations. They expressed their preference for expropriation. 28. On 30 September 2003 the Mayor of Sławno District informed the Regional Inspector that the negotiations concerning the exchange of plots had failed. In his view, the only solution to the problem consisted in expropriation of the applicants’ property in accordance with the Land Administration Act 1997, and having regard to its section 6(5). Under the 1962 Protection of the Cultural Heritage Act the expropriation could be requested by the regional inspector or the district Mayor. However, the district Mayor did not have the necessary funds to pay compensation in the event of expropriation. Consequently, he informed the Regional Inspector that he could institute the expropriation proceedings only once the Inspector had secured an amount corresponding to the appropriate level of compensation. 29. On an unspecified date the Union of Jewish Communities in Poland (Związek Gmin Wyznaniowych Żydowskich w RP) requested the Regulatory Commission (Komisja Regulacyjna ds. Gmin wyznaniowych żydowskich) to transfer ownership of the property owned by the applicants to it on the grounds that the land had formerly been used as a Jewish cemetery. On 30 March 2005 the Commission discontinued the proceedings concerning that application as the property in question had been owned by private individuals (the applicants). 30. In April 2005 the Governor of the Zachodniopomorski Region (Wojewoda Zachodniopomorski) informed the Mayor of Sławno District that it would not be possible to grant a subsidy with a view to purchasing the applicants’ property. On 14 October 2005 the Mayor of Sławno District apprised the applicants of that decision. He informed them that there was no possibility as matters stood of resolving the issue of their property. 31. Poland signed this Convention on 18 March 2010 but has not yet ratified it. The relevant parts of the Convention provide: “Each Party undertakes: 1. to take statutory measures to protect the architectural heritage; 2. within the framework of such measures and by means specific to each State or region, to make provision for the protection of monuments, groups of buildings and sites.” “Each Party undertakes: ... 2. to prevent the disfigurement, dilapidation or demolition of protected properties. To this end, each Party undertakes to introduce, if it has not already done so, legislation which: ... (d) allows compulsory purchase of a protected property.” 32. At the material time issues relating to protection of the country’s heritage were regulated by the Protection of the Cultural Heritage Act of 15 February 1962 (Ustawa o ochronie dóbr kultury – “the Protection of the Cultural Heritage Act”). A decision on listing a real property in the register of historic monuments was taken, in principle, by the Regional Inspector of Historic Monuments (section 14(1)). Following such a decision no work could be carried out on the historic monument unless a permit was granted by the regional inspector (section 21). Section 25 of the Act imposed various obligations on the owners of listed monuments; in particular a duty to protect them against any damage. Section 33 provides, in so far as relevant: “...ownership of a monument of particular historic, scientific or artistic value may be acquired by the State with a view to making it accessible to the general public where the public interest so requires.” Section 34 provided that the acquisition of ownership took place at the request of the district Mayor or the regional inspector, in accordance with the Land Administration Act 1997. 33. On 17 November 2003 the Protection of the Cultural Heritage Act was repealed and the Protection and Conservation of Monuments Act of 23 July 2003 (Ustawa o ochronie zabytków i opiece nad zabytkami) came into force. In contrast to the former Act, section 50(4) of the Protection and Conservation of Monuments Act provides that immovable monuments may be expropriated at the request of a regional inspector only where there is a risk of irreversible damage to the monument. 34. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and the municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (“the Land Administration Act 1985”). On 1 January 1998 the Land Administration Act 1985 was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act 1997”) came into force. Section 6(5) of the Act, which was introduced by the Protection and Conservation of Monuments Act, stipulates that the protection of real properties classified as monuments within the meaning of the Protection of the Cultural Heritage Act is a public-interest aim. Under section 112 of that Act, expropriation consists in taking away, by virtue of an administrative decision, ownership or other rights in rem. Expropriation can be carried out where public-interest aims cannot be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil-law contract. Section 113(1) stipulates that expropriation can only be carried out for the benefit of the State Treasury or the local municipality. Section 114(1) of the Act provides that the institution of expropriation proceedings is to be preceded by negotiations on acquisition of the property under a civil-law contract between the State, represented by the district Mayor, and the owner. In the framework of those negotiations the State may propose an alternative property to the owner. Section 115(1) of the Act stipulates that expropriation proceedings for the benefit of the State Treasury are to be instituted of the latter’s own motion. The expropriation proceedings for the benefit of the local municipality are instituted at the request of the latter. Only where the request is submitted by the local municipality does refusal take the form of an administrative decision (decyzja; section 115(4)).
| 0 |
train
|
001-88363
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,008 |
SIMONJAN-HEIKINHEIMO v. FINLAND
| 4 |
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Ms Loretta Simonjan-Heikinheimo, is a Finnish national who was born in 1951 and lives in Vantaa, Finland. She was represented before the Court by Ms S. Rautio, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows. The applicant moved to Russia in 1991. She returned to live in Finland in 1994, bringing with her a Mercedes-Benz 600 SE, which was cleared through customs on 26 July 1994. The car was brought into Finland tax free, because the applicant completed a declaration to the effect that she had lived abroad for over a year and that, during this time, she had spent less than 72 days in Finland. On 4 May 1995, the applicant was questioned by the police on suspicion of aggravated tax fraud. On the same day, customs officials temporarily confiscated her car as security. On 13 June 1995, the Lahti District Court, in connection with the criminal proceedings, ordered that it be kept until further notice. On 10 October 1995, the Lahti City Customs Office (tullikamari, tullkammaren) reassessed the circumstances and levied a duty on the car, ordering the applicant to pay customs duty, car tax, value-added tax, and a surcharge on these amounts, to a total of FIM 920,662 (EUR 154,844). It noted that the applicant had not been in possession of the car abroad for the required period of one year. Also, she had not limited her stays in Finland to the 72 days allowed during the year before the move, but had stayed in Finland for a total of 117 days. She had informed the customs authorities that she had spent 70 days in Finland. The customs office noted that practice regarding the number of days allowed was flexible. However, by law, attention had to be paid to the length of and reason for the stays. Holidays and stays in order to prepare for the move were acceptable, but the applicant had also stayed in Finland for her work for several days at a time, which could not be regarded as an acceptable reason. On 27 September 1996, the Uusimaa County Administrative Court (lääninoikeus, länsrätten), on an appeal by the applicant, upheld the decision, but reduced the amount payable On 23 June 1997, again on an appeal by the applicant, the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) quashed the previous decisions. It noted that the applicant had lived in Russia from 1991 until her move to Finland on 26 July 1994 and that there had been an acceptable reason for her stays in Finland. Meanwhile, the public prosecutor had brought charges against the applicant for aggravated tax fraud. On 14 August 1997, the District Court (käräjäoikeus, tingsrätten) discontinued the confiscation measure and the car was subsequently returned to the applicant. On 21 August 1997, due to the Supreme Administrative Court’s decision, the District Court rejected the charge for aggravated tax fraud. On 16 August 1999 the applicant instituted proceedings against the State. Relying on the Tort Liability Act and the Execution Act and alleging that the customs office’s decision, and as a consequence the confiscation, had been erroneous since they were based on a wrong interpretation of the law, she claimed compensation for various items such as loss of the use of the car, repair costs, depreciation, expenses and so on to a total of some FIM 533,000 (EUR 89,644). On 14 April 2000, the Lahti District Court, under Chapter 3, section 2, of the Tort Liability Act, ordered the State to pay the applicant a total of FIM 302,089 (EUR 50,808) on the ground that the customs office had failed to observe due thoroughness in examining a case which involved such a large amount of money and was consequently of great importance to the applicant. On 20 December 2001, the Kouvola Court of Appeal (hovioikeus, hovrätten) quashed the District Court’s decision, exonerating the State from any liability. Contrary to the District Court, it held that the actions of the customs authorities had met the reasonable requirements set and therefore the State was not responsible under the Tort Liability Act for the damage alleged. As to the Execution Act, it found that the applicant had introduced her claims after the statute of limitations had expired and thus too late. On 27 August 2002, the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. Chapter 3, section 2, of the Tort Liability Act (vahingonkorvauslaki; skadeståndslagen, Act no. 412/1973) provides that a public corporation is vicariously liable for damages for injury or damage caused through an error or negligence in the exercise of public authority. The same liability also applies to other corporations performing a public task under an Act, a Decree or an authorisation given in an Act. However, the liability of the corporation arises only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements set. Article 15 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and in consideration of full compensation, are laid down by an Act. Article 118(3) provides that everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task has the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation, official or other person in charge of a public task be held liable for damages, as provided in more detail by an Act. In a Supreme Court precedent (no. 2002:78) it was held that Chapter 3, section 2(1), of the Tort Liability Act does not give rise to liability for damages on the sole ground that a decision based on a judicial assessment is subsequently overturned as erroneous following reassessment by an appellate body. In order for a judicial assessment to be considered so wrong as to give rise to liability for damages, regard must be had to various factors, in particular to the nature of the legal provisions, the application of which is the subject of the case. The clarity and unambiguous nature of the provisions is to be assessed, as are the complexity of the case and whether the case leaves room for discretion. Section 14 of the Customs Tax Act (tulliverolaki, tullskattelagen; Act no. 575/1978 in force at the relevant time) provided that the private property of a person immigrating to Finland was exempt from duty on the condition that the immigrant had, immediately before the immigration, stayed abroad for at least one year continuously. In addition it was required, inter alia, that an imported vehicle had been in the ownership, or in the possession leading to ownership, of the immigrant or his or her spouse or in the immigrant’s use abroad for at least one year prior to the immigration. Exemption from duty was granted when the immigrant had, prior to the immigration, stayed temporarily in Finland in order to look for work or a dwelling or for a reason which, considering his or her circumstances, was deemed compelling, or because of an ordinary holiday or comparable short stay. When applying this provision, the authorities paid attention to both the duration of the immigrant’s stays and their reason. Although the provision did not explicitly provide for a maximum duration of temporary stays, the authorities took account of the so-called “72 days rule” applied in cases of income taxation. Although the wording of the provision did not permit actual work-related visits, short working visits were permitted in practice and were not as such deemed to interrupt the stay abroad. Section 35 of the Customs Act (tullilaki, tullagen; Act no. 1165/1987) provides that if customs duties have not been paid or have been paid only in part because the declarant has entirely or in part failed to comply with the obligation to declare goods, or has intentionally or unintentionally provided a defective, misleading or false customs declaration or other information or documents for customs taxation, or if too much duty has been repaid for a similar reason, the relevant customs office shall charge the duty not paid or the duty repaid in excess for the aforementioned reasons (post-clearance duty). Chapter 3, section 14, of the Execution Act (ulosottolaki; utsökningslagen; Act no. 389/1973 in force at the material time) provided that when a judgment was reversed, the applicant had to cover all damage caused by the implementation of, inter alia, a confiscation. Chapter 3, section 37, provided that any request for compensation for costs and damage caused by a reversed implementation must be brought within one year of the date on which the judgment on the matter to which the implementation related gained legal force and the implementation was completed or reversed.
| 0 |
train
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001-94088
|
ENG
|
RUS
|
CHAMBER
| 2,009 |
CASE OF ZABIYEVA AND OTHERS v. RUSSIA
| 4 |
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);Violation of Article 3 - Prohibition of torture (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
6. The applicants are: (1) Ms Tamara Zabiyeva, born in 1937; (2) Ms Eset Kotiyeva, born in 1973; (3) Mr Khamzat Zabiyev, born in 2000; and (4) Mr Belan Zabiyev, born in 2002. They live in the village of Galashki, in the Republic of Ingushetia. 7. The first applicant is the mother of Mr Ali Zabiyev, Mr Musa Zabiyev and Mr Umar Zabiyev, who was born in 1972. Umar Zabiyev was the second applicant's husband; they are the parents of the third and fourth applicants. 8. On 10 June 2003 the first applicant and her sons, Ali and Umar Zabiyev, were working in a field outside the village of Galashki. At some point they noticed a helicopter flying in circles above them. 9. At about 7 p.m. they rode home in a ZIL-130 lorry; Umar Zabiyev was driving. When they were within 4 kilometres of the village of Galashki, their vehicle came under heavy gunfire. Apparently the shots were fired from machine guns and came from the nearby forest. The first applicant was wounded in the back, neck and head. Umar Zabiyev lost control of the lorry, which crashed into a roadside tree. The Zabiyev brothers took the first applicant, unconscious, out of the vehicle. Then Ali Zabiyev ran to the village for help; Umar Zabiyev stayed with his mother. At some point the lorry exploded. Then the gunfire ceased. 10. About forty minutes later Ali Zabiyev, accompanied by Musa Zabiyev, policemen and fellow villagers, arrived at the scene of the incident to find the first applicant lying on the ground and no trace of Umar Zabiyev. The first applicant was then transported to hospital; two bullets were extracted from her body. 11. Having heard about Umar Zabiyev's disappearance, the villagers started searching for him. At about 10 p.m. on 10 June 2003 two of them, Mr D. and Mr O., met in a forest a group of around thirty or forty armed men speaking unaccented Russian. The armed men forced the two villagers to the ground and questioned them. Then they contacted someone via a portable radio transmitter, ordered the villagers to lie still for another half an hour and left. 12. In the morning of 11 June 2003 a group of Russian servicemen, under the command of an officer with the rank of major-general, arrived at the scene of the incident. The major-general suggested that the Zabiyevs had been attacked by unknown Chechen insurgents and denied any possible involvement of Russian military personnel. 13. At 12 noon on 11 June 2003 Umar Zabiyev's dead body, with gunshot wounds and bruises, was found around two kilometres from the scene of the incident and some twenty metres from the place where Mr D. and Mr O. had met the armed men the night before. The corpse was partly covered with soil. 14. At about 7.10 p.m. on 10 June 2003 unidentified persons were hiding in the forest on the left side of the road leading from the village of Dattykh at a distance of 4 kilometres from the village of Galashki. They fired from machine guns at the ZIL-130 lorry in which the first applicant, Umar Zabiyev and Ali Zabiyev were travelling. As a result of the shooting the first applicant suffered injuries to her neck and back, Ali Zabiyev received tangential soft-tissue wounds and Umar Zabiyev went missing. 15. On 11 June 2003 the dead body of Umar Zabiyev was found buried at a distance of 1.7 kilometres from the scene of the incident. The body bore traces of numerous gunshot wounds to the head and body. 16. On 16 July 2003 Human Rights Watch released a paper entitled “Russia: Abuses Spread Beyond Chechnya. Neighboring Ingushetia Now Affected”, which described the Zabiyevs' case as follows: “On June 10, three Ingush civilians – sixty-five-year-old Tamara Zabieva and two of her sons, Ali and Umar Zabiev – were returning from their potato field near the village of Galashki, when their truck came under heavy machinegun fire, injuring Zabieva in the back, neck, and head. The brothers took their mother out of the car and Umar stayed with her while Ali ran to the village for help. Local Ingush police who arrived about an hour later found Zabieva unconscious and sent her to the local hospital, but were unable to find Umar. His body, bearing clear marks of torture and gun shot wounds, was discovered the next morning in a nearby forest. The Ingush police said that evidence suggests involvement by federal servicemen, but the military procuracy has refused to take over the case. While Galashki has in the past been the scene of clashes between Russian federal forces and Chechen rebel fighters, Human Rights Watch has no indication that any such activity took place in the area that day.” 17. Later, Human Rights Watch gave a more detailed description of the Zabiyevs' case in its article entitled “Spreading Despair: Russian Abuses in Ingushetia”, issued in September 2003. 18. In the afternoon of 11 June 2003 investigators examined the scene of the incident. They found many used cartridges and an empty machine-gun cartridge belt, used bandages, empty water bottles, canned pork and plastic bags bearing the Russian Ministry of Defence logo. The investigators took fingerprints from the bottles and tins. Then Umar Zabiyev's dead body was transported to the morgue. 19. At 5.20 p.m. on 11 June 2003 a forensic expert commenced a post-mortem examination of Umar Zabiyev's body. According to the forensic report, there were numerous gunshot wounds to the body, namely three perforating wounds to the head; one penetrating, two perforating and two non-penetrating wounds to the chest; three perforating wounds to an arm; a wound to a shoulder joint and a wound to a buttock. It was also established that Umar Zabiyev's lower jaw had been broken by a blunt hard item. The expert concluded that Umar Zabiyev's death had been caused by the penetrating and perforating wounds to the head and chest and that the lethal shots had been fired from machine guns aimed at Umar Zabiyev while he had been either standing or lying down. The death had occurred some eighteen to twenty-four hours before the beginning of the autopsy. 20. On 12 June 2003 Umar Zabiyev was buried. His family received 100,000 Russian roubles (RUB) from the President of Ingushetia as a burial allowance, which was a common practice at the material time. 21. On an unspecified date the head of the local administration confirmed in writing that there had been no armed clashes between the federal troops and rebel fighters in the area around the village of Galashki between 9 and 11 July 2003. 22. On 25 June 2003 Musa Zabiyev wrote to the Prosecutor General of Russia, the Prosecutor of Ingushetia and the military prosecutor of the United Group Alignment (UGA), complaining about the military attack on his relatives and the murder of his brother. 23. On 14 July 2003 the prosecutor's office of the Sunzhenskiy District of the Republic of Ingushetia (“the district prosecutor's office”) informed Musa Zabiyev that his complaint concerning the events of 10 June 2003 would be examined within the course of the investigation in case no. 23600032. 24. On 17 April 2004 the Ministry of the Interior of Ingushetia informed the second applicant that the investigation into the murder of Umar Zabiyev in case no. 03600032 had been commenced by the district prosecutor's office. It noted, in particular, the following: “As a result of the investigative measures taken it was established that the crime had been committed by the servicemen of military intelligence unit no. 194 KTG («разведрота 194 КТГ») with the direct involvement of the head of that unit, [S.P.], nicknamed 'the Snake' («Змей»), who is unable to leave the location of the unit in the village of Dattykh in the Sunzhenskiy District of Ingushetia as the military prosecutor's office has charged him with another crime and instituted criminal proceedings on that account.” 25. On 7 July 2006 a member of the Parliament of Ingushetia received a letter from the Prosecutor General's Office stating that the investigation into Umar Zabiyev's killing had been suspended on 19 June 2004 and resumed on 2 February 2006. 26. On 11 June 2003 the district prosecutor's office instituted an investigation into the killing of Umar Zabiyev under Article 105 § 1 (murder) and Article 222 § 1 (unlawful acquisition and possession of firearms) of the Russian Criminal Code. The case file was assigned the number 23600032. 27. On 11 June 2003 the crime scene was inspected and a post-mortem examination of Umar Zabiyev's body was ordered. 28. On 12 June 2003 the first applicant was granted victim status and questioned. She stated that at about 7 p.m. on 10 June 2003, while she had been travelling with her two sons in the ZIL-130 lorry, unidentified persons had opened fire. As a result she had suffered wounds to her neck and back. Ali and Umar Zabiyev had taken her out of the car and brought her into the forest. Ali had gone to the village for help, while Umar had dragged the first applicant to a hill. At some point she had lost consciousness. The first applicant had recovered her senses after the arrival of the police and the villagers of Galashki. Umar Zabiyev had not been seen anywhere around. The first applicant had not heard any voices and did not know who had shot at the car. 29. On 12 June 2003 Ali Zabiyev was granted victim status and questioned. He stated that at 7.10 p.m. on 10 June 2003 their ZIL-130 lorry had been fired at from machine guns. The vehicle had hit a tree and stopped. Ali and Umar had taken their wounded mother out of the lorry and brought her into the forest. Umar had asked Ali to go searching for help, which Ali had done. Having returned to the scene of the incident, Ali, the police and the fellow villagers had found the first applicant, who had then been transferred to hospital. Umar Zabiyev had disappeared; on 11 June 2003 his dead body had been found. 30. On 13 June 2003 Mr D. and Mr O. were questioned. They stated that at about 8 p.m. on 10 June 2003 Ali Zabiyev had run towards them and told them that the ZIL lorry had been fired at. They had reported the shooting to the police and gone to the scene of the incident. There they had found the first applicant unconscious; Umar Zabiyev had disappeared. While searching for Umar Zabiyev, Mr D. and Mr O. had stumbled across a group of armed men. The men had pointed their firearms at Mr D. and Mr O., verified whether they had had any weapons and checked their identity papers. Then they had questioned Mr D. and Mr O. about their reasons for being in the forest and left in the direction of the village of Dattykh. On the following day Umar Zabiyev's dead body had been found buried some 20 or 30 metres from the place where the witnesses had met the armed men. 31. The investigators verified Mr D.'s and Mr O.'s statements. Within 20 metres from Umar Zabiyev's grave they found an area with eight sleeping berths and the following items: empty plastic mineral water bottles, empty plastic bags, empty tin cans marked “Boiled Buckwheat”, “Cooked Rice”, “Liver Pâté with Pork Fat” and other items bearing the stamp “Military Supply of Provisions” («Оборонпродкомплект»), a pair of worn socks, a piece of bandage with traces of blood and a portable remote-control detonator PM-4 No. 3144 1-99 («переносная подрывная машинка ПМ4»). 32. The items found at the scene of the incident, the ZIL-130 lorry and a bullet extracted from Umar Zabiyev's body were subjected to forensic, ballistic, dactylographic, medical, olfactory and biological expert examinations carried out in July and August 2003. 33. The ballistic expert examinations established that the bullet extracted from Umar Zabiyev's dead body had been fired from a Kalashnikov machine gun of 7.62 mm calibre. 217 cartridge cases presented for examination had been parts of cartridges of 7.62 mm calibre produced in Russia according to the 1981 standards and suitable for Mosin and Dragunov sniper rifles, as well as for Kalashnikov machine guns. The cartridge cases in question had been fired from two firearms. Cartridge belts presented for examination had been additional parts for a Kalashnikov machine gun of 7.62 mm calibre. 34. The forensic expert examination established that the ZIL-130 lorry had had 112 penetrating bullet holes that could have been fired from a firearm of 7.62 mm calibre. 35. The medical forensic expert examination found no traces of shots fired from short range on Umar Zabiyev's clothes. 36. On 16 June 2003 a dactylographic expert examination of servicemen of military intelligence unit no. 194 KTG was ordered. 37. On 1 July 2003 the district prosecutor's office requested the military commander of the Leninskiy District of Grozny to submit a list of servicemen who had participated in search activities in the vicinity of the villages of Galashki and Dattykh between 8 and 10 June 2003 and to carry out investigative measures in respect of them. 38. The dactylographic expert examinations established that fingerprints left on the items found at the scene of the incident were not identical to those of the servicemen who had been checked regarding their possible involvement in the crime, including S.P. 39. The biological expert examination of saliva left on the cigarette butts found at the crime scene and the olfactory expert examination of the socks and the piece of bandage produced no significant results. 40. The investigators requested information on the portable remote-control detonator from the UGA. On 7 June 2004 the head of engineer troops of the North Caucasus Circuit replied that portable remote-control detonators PM-4 No. 3144 issued in 1999 had not been supplied to the North Caucasus Circuit armouries and had not been sent to its military units. 41. The medical expert examination of the first applicant established that she had sustained mildly severe bodily injuries inflicted by hand-held firearms. 42. On an unspecified date an investigation into the infliction of bodily injuries on the first applicant was instituted under Article 112 § 1 of the Russian Criminal Code. It is unclear what number the case was assigned and whether any progress was made in the investigation. 43. On 7 and 10 July 2003 the district prosecutor's office sent unspecified orders to the Sunzhenskiy District Department of the Interior and to the UGA military prosecutor respectively. 44. On 23 July 2003 the district prosecutor's office sent an unspecified order to the Ingushetia Department of the Federal Security Service. 45. On 8 December 2003 the district prosecutor's office sent an unspecified order to the prosecutor of the North Caucasus Circuit. 46. In January and February 2004 ballistic and dactylographic expert examinations were carried out. 47. On 3 February 2004 the fingerprints of S.P. and sixteen servicemen of military intelligence unit no. 194 KTG were taken and compared with the fingerprints detected on the cans found near the scene of the incident. None of the fingerprints left on the cans corresponded to those of the servicemen in question. 48. On an unspecified date the firearms used by the servicemen of military intelligence unit no. 194 KTG were subjected to a ballistic expert examination. 49. On 13 February 2004 the district prosecutor's office sent an unspecified order to the Sunzhenskiy District Department of the Interior. 50. On 20 May 2004 the district prosecutor's office sent an unspecified order to the UGA military prosecutor. 51. On 19 June 2004 the investigation was suspended. 52. According to the Government, it follows from the investigation file that on 10 June 2003 there was an armed confrontation between federal servicemen and a group of around ten insurgents in the vicinity of the village of Galashki, as a result of which two insurgents were killed and three wounded. An intelligence squad under the command of Lieutenant S.P. participated in the confrontation. In their submissions of 25 December 2007 the Government submitted that it had been impossible to either prove or refute the involvement of S.P. or other federal servicemen in the killing of Umar Zabiyev. 53. Lieutenant-Colonel N.B. was questioned as a witness and stated that the information on the armed confrontation of the federal troops with the group of around ten insurgents, as a result of which two insurgents had been killed and three wounded, had been based on a report made by a duty officer of the UGA information centre and then issued as a press release. No other sources of that information had been found and its veracity was being checked. 54. In their submissions of 12 May 2008 the Government stated that no reliable evidence had been obtained by that time to prove the involvement of S.P. or other federal servicemen in Umar Zabiyev's killing. 55. The investigation was resumed and suspended a number of times. It failed to find any evidence to support the involvement of the Russian federal military in the crime but was pending. Investigative measures were being taken to solve the murder of Umar Zabiyev. 56. Despite specific requests by the Court the Government did not disclose any material from the investigation file in case no. 2360032. Relying on the information obtained from the Prosecutor General's Office, 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. 57. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
| 1 |
train
|
001-86588
|
ENG
|
RUS
|
CHAMBER
| 2,008 |
CASE OF MARUSEVA 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
|
6. The applicant was born in 1962 and lives in Smolensk. 7. The applicant’s 6 year old son, Sergey, suffered from a serious congenital heart disease. On 8 February 1995 he died during heart surgery in a State-owned clinic. The applicant requested the Smolensk town prosecutor’s office to investigate her son’s death. She suspected that he had died as a result of medical negligence. On several occasions the case was opened and then closed by the prosecutor’s office on the ground that no fault on the part of the doctors had been established. The conclusions of the investigative authorities relied, in particular, on the results of the forensic examination carried out after the death of Sergey Marusev. The applicant challenged the refusal to prosecute the doctors in court, but to no avail. On 12 February 1997 the Zadneprovskiy District Court of Smolensk (“the District Court”) upheld the prosecution’s decision to discontinue the criminal proceedings. That judgment was upheld by the Smolensk Regional Court on 11 March 1997. 8. On 23 August 1995 the applicant brought a civil action for negligence against Dr M., who had performed the operation, and Hospital no. 1 of Smolensk, in which the operation had been carried out (“the hospital”). She sought compensation for pecuniary and non-pecuniary damage. 9. On 23 December 1996 the District Court rejected her claim, holding that her son had died of natural causes. On 11 February 1997 that judgment was upheld by the Smolensk Regional Court. 10. On an unspecified date the applicant requested the Supreme Court of the Russian Federation to examine her case by way of supervisory review (see the “Relevant Domestic Law” part below). 11. On 23 February 1999 the Vice-President of the Supreme Court brought an extraordinary appeal (протест), pointing to numerous errors of fact and law in the lower courts’ decisions. On 18 March 1999 the Presidium of the Regional Court examined the case, allowed the extraordinary appeal and quashed the impugned judgments of 23 December 1996 and 11 February 1997. The case was remitted to the first-instance court. 12. According to the Government, on 21 March 1999 the District Court received the case file from the Supreme Court. The judge invited the parties to an informal preliminary meeting, which took place on 11 May 1999. The first hearing was held on 20 May 1999. The judge decided to summon additional witnesses and the case was adjourned to 8 July 1999. 13. On 9 July 1999 the District Court dismissed the applicant’s action, holding that the defendants could not be held responsible for the death of Sergey Marusev. On an appeal by the applicant, on 21 October 1999 the Regional Court quashed that judgment, pointing out that the first-instance court had failed to assess important medical aspects of the case. It also recommended that certain additional steps be taken. The case was remitted to the first-instance court. 14. On 17 November 1999 the District Court again dismissed the applicant’s action. On 28 December 1999 the Regional Court overruled the first-instance court and remitted the case to it for a fresh examination. The Regional Court noted that the first-instance court had failed to take certain procedural steps, breached procedural rules and failed to establish and analyse all the pertinent facts of the case. 15. On 19 January 2000 the District Court received the case file from the Regional Court. According to the Government, after having received the case file the judge tried to initiate a supervisory review of the decision of the Regional Court, but to no avail – on 30 March 2000 his request for supervisory review was rejected. 16. On 8 April 2000 the judge invited the parties to an informal preliminary meeting. The first hearing took place on 29 May 2000. On that date the judge decided that an additional forensic examination was needed to establish the cause of death of Sergey Marusev. He formulated eighteen questions to be answered by medical experts and transferred the documents from the case file to a clinic based in the Moscow Region. It took the court several months to obtain the results of that examination. 17. The next hearing was held on 21 December 2000. On that date the court decided to examine two more witnesses – Mr B., the director of the Scientific Centre of Cardiovascular Surgery of the Russian Academy of Sciences, and Mr P., his deputy. 18. On 11 January 2001 the District Court sent a rogatory letter to the Zamoskvoretskiy District Court of Moscow, requesting the questioning of those witnesses. The rogatory letter was received by the Zamoskvoretskiy District Court on 12 March 2001. Mr B. and Mr P. were summoned to the court but failed to appear. On several occasions the court bailiffs tried to reach them at their home and professional addresses, but to no avail. 19. In 2002 the applicant complained about the court’s inactivity to the Administration of the President of Russia and to the Federal Ombudsman’s Office. Her complaints were forwarded to the Moscow City Court. Finally, on 11 February 2002 the judge of the Zamoskvoretskiy District Court of Moscow questioned Mr B. and Mr P. and sent the transcript of their testimonies to the Zadneprovskiy District Court of Smolensk. It was received on 4 March 2002. 20. On 14 March 2002 the Zadneprovskiy District Court set the date for the next hearing at 15 May 2002. On 17 May 2002 it dismissed the applicant’s action against the hospital and doctor M. The applicant appealed. On 15 October 2002 the Regional Court quashed the first-instance judgment and remitted the case to the first-instance court. 21. On 26 December 2002 the District Court delivered a new judgment. This time the court found that there had been certain counter-indications to performing the surgery and that the hospital had not obtained the relevant medical information before the operation. The court concluded that the surgical team and the hospital had therefore been responsible for the death of the applicant’s son due to negligence and satisfied the applicant’s claims in part, awarding her 15,000 Russian roubles (“RUB”, approximately 457 euros) in compensation for non-pecuniary damage and 16,430 RUB ( 500 euros) for pecuniary damage. The court held that the above sums should be paid by the hospital, exonerating Doctor M. from any liability. The remaining part of the applicant’s claims (248,569 RUB in compensation for non-pecuniary damage) was rejected. 22. On 4 January 2003 the applicant appealed. By a decision of 11 March 2003 the Regional Court increased the award for non-pecuniary damage to 100,000 RUB. As regards compensation for pecuniary damage, the judgment of 26 December 2002 was quashed and the case remitted to the first-instance court. 23. On 25 April 2003 the District Court awarded the applicant RUB 6,304 for pecuniary damage. On 24 June 2003 that judgment was quashed by the Regional Court. 24. On 22 August 2003 the District Court examined the case again. It partly satisfied the applicant’s claims, awarding her RUB 43,984 in compensation for pecuniary damage. On 21 October 2003 that judgment was upheld by the Regional Court.
| 1 |
train
|
001-68922
|
ENG
|
BGR
|
CHAMBER
| 2,005 |
CASE OF I.D. v. BULGARIA
| 3 |
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
9. The applicant was born in 1948 and lives in Rouse. 10. In 1976 the applicant started working for the Cargo Railway Station in Rouse and until 1989 she formally occupied the positions of dormitories supervisor and facilities and social activities coordinator. In fact, throughout this period the applicant was working – under the instructions of her manager – as a typist at the local section of the Bulgarian Communist Party. This scheme had apparently been devised because the staff tables did not provide for a typist position. 11. Accordingly, the applicant's employment agreements and job descriptions did not mention her actual duties, which included mostly typewriting. This arrangement was apparently never called into question by the applicant or her employer. 12. Between 1989 and 1996 the applicant worked as an inspector at the human resources department of the Station. 13. In late December 1995 or in early January 1996 the applicant's employer, acting pursuant to a medical recommendation on the nature of work she was fit to perform, moved her to a different position – internal mail carrier. 14. In 1979 the applicant started experiencing pain in her hands and arms. Initially she was losing the sensitivity in her fingers and could not hold objects. With the passage of time the pain got stronger and her hands started to swell and tremble, especially after long periods of typing. 15. In December 1994 the applicant was examined by the Diagnostic Expert Commission (“the DEC”) at the Rouse Regional Hospital. In a decision of 15 December 1994 the DEC found that the applicant was suffering from vegetative polyneuropathy of the upper limbs, a disease which features on the Table of Occupational Diseases. However, the DEC, relying solely on the applicant's job descriptions, concluded that the positions she had occupied (dormitories supervisor, facilities and social activities coordinator) did not entail increased strain on her upper limbs. Accordingly, it qualified her disease as non-occupational, finding no causal link between the conditions of work and the disease. Apparently the DEC refused to examine evidence (including affidavits) submitted by the applicant to prove her actual duties. 16. The applicant appealed to the Central Diagnostic Expert Commission (“the CDEC”), arguing that her de facto duties were different from the ones enumerated in her job descriptions. As no witness testimony was admissible, she again submitted affidavits from her managers to the effect that she had actually worked as a typist. On 15 March 1995 the CDEC dismissed the appeal, fully endorsing the reasons of the DEC. Apparently it refused to take into account any other evidence purporting to establish the actual duties of the applicant. 17. In October 1995 the applicant was admitted for treatment at the Medical Institute for Transport Workers in Sofia. On 19 December 1995 the DEC at the Institute examined the applicant and found that she suffered from osteohondrosis cervicalis. It also reached the conclusion that the disease was not an occupational one, being unrelated to the duties of the applicant as set out in her job descriptions. 18. The applicant appealed against this decision to the CDEC. By a decision of 13 February 1996 it upheld the ruling as to the non-occupational character of the applicant's disease and fully endorsed the DEC's reasons. 19. On 19 March 1996 the applicant brought an action against her employer under Article 200 of the Labour Code of 1986. She alleged that the disease of her hands had developed as a result of her work. In fact, between 1976 and 1989 she had worked as a typist, even though her job descriptions did not reflect that. The rulings of the DEC and the CDEC that her disease was not workrelated were based solely on these job descriptions; the commissions had not inquired into the reality of the situation. She requested the court to summon witnesses to testify about her real duties and to appoint an expert to establish the occupational character of her disease. 20. Two witnesses – former managers of the applicant – testified during the trial. They stated that the applicant had in fact worked as a typist, in accordance with the orders of her employer, and provided details about her workload. 21. Two expert witnesses were appointed by the court to give conclusions about the applicant's state of health and about the occupational or nonoccupational character of her disease. The first expert concluded that the applicant was suffering from vegetative neuropathy of the hands. The second expert submitted a report in which she stated that the cause for the applicant's disease could be her conditions of work, as described by her managers. Both experts confirmed their conclusions at a public hearing on 23 October 1996. 22. The Rouse District Court gave judgment on 30 October 1996, dismissing the applicant's action. It stated, inter alia: “... the court considers the action to be ill-founded. The prerequisites for finding the employer liable under Article 200 of the Labour Code ... are a valid employment agreement and a convincingly established occupational disease. The occupational character of the disease is determined by the special medical commissions ... The existence of a finding [made by the DEC and ascertaining the occupational character of the disease] is an absolute precondition for holding the employer liable under Article 200 of the Labour Code. The specific character of the [subjectmatter of the inquiry] has led the legislature to establish specialised medical bodies to give a conclusion as to the type [of the disease] and as to the causal link between the conditions of work and the disease. In the case at hand the [DEC and the CDEC] have concluded that the [applicant's] disease was not occupational and was not related to her conditions of work ... [T]he court examining the dispute under Article 200 of the Labour Code may rule as to the occupational character of the disease only if no medical documents have been issued by the [DEC].” 23. The applicant appealed to the Rouse Regional Court. On 27 December 1996 that court upheld the lower court's judgment in the following terms: “The [District Court's] judgment is well-founded. After assessing the collected and relevant evidence, the District Court correctly concluded that the occupational character of the [applicant's] disease, ... which is one of the prerequisites for holding her employer liable under Article 200 of the Labour Code, has not been convincingly established. The firstinstance court has correctly decided that the occupational character of the disease may be established by the court only if no documents have been issued by the specialised medical bodies ... The District Court has taken into account that in the case at hand these bodies have reached the categorical conclusion ... that the disease of the [applicant] was not related to her working conditions and was thus not occupational.” 24. The applicant lodged a petition for review with the Supreme Court. That court dismissed the petition in a final judgment of 18 November 1997. It held: “The acts issued by the specialised medical bodies indicate that [the applicant's] disease was not occupational, i.e. no causal link was found between the disease and the working conditions. The expert witnesses' conclusions do not alter this finding. The [first expert] concluded that the disease “vegetative polyneuropathy of the hands” features on the table of occupational diseases. This fact is not at issue, but the [employer's] liability under Article 200 of the Labour Code presupposes not only the existence of the respective disease, but also the establishment of a causal link between the disease and the conditions of work. This causal link has not been established by the [second] expert either. In her report she found that activities related to type-writing are a prerequisite for the development of vegetative polyneuropathy. However, the fact that typewriting is in general a prerequisite for this disease does not prove the existence of a causal link between the [applicant's] conditions of work and [her] disease. ...The specialised medical bodies are the administrative organs empowered by law to ascertain the existence of an occupational disease and the causal link between the disease and the [conditions of] work. The [lower] courts correctly held that the circumstances that [these organs] are authorised to examine may be examined by the court having cognisance of the action under Article 200 of the Labour Code only in the absence of findings made by these organs. The [applicant] has not established before the specialised medical bodies the existence of a causal link between [her] disease and the conditions of work as a typist ... Therefore the conclusions of the [lower] courts that her action is unfounded are correct.” 25. Article 200 of the Labour Code of 1986, which regulates the liability of the employer toward the employee for damage which has occurred as a result of an occupational accident or disease, reads as follows: “1. The employer shall be liable for damage [resulting from] an occupational accident or disease which has caused a temporary or permanent disability or death of the employee, irrespective of whether it has been brought about through fault [of the employer] or of another employee. ... 3. The employer shall owe compensation amounting to the difference between the quantum of the damage – pecuniary and nonpecuniary, including lost profits, – and the [amount of the] benefits and/or pension [provided to the employee] by the social security.” 26. At the relevant time occupational diseases were defined by Regulation No. 23 of the Minister of Health (State Gazette (“SG”), issue 5 of 1985, amended, SG, issues 34 and 87 of 1994) and by the Table of Occupational Diseases (SG, issue 5 of 1958, amended, SG, issue 18 of 1964 and issue 61 of 1974). The Regulation defined occupational diseases as “impairments of the health arising exclusively or predominantly from the harmful factors of the conditions of work or of the work process and which have been listed in the Table of Occupational Diseases” (section 1(1)). The Table listed the diseases, the conditions of work causing them, and the types of work in the performance of which they could occur. For a disease to be regarded as occupational, it had to (a) be listed in the Table; (b) stem from the exposure to certain dangerous conditions of work (e.g. noise, vibrations, radiation), exhaustively enumerated in the Table; and (c) the types of work (e.g. typist, miner, driver) involving exposure to these conditions had to be enumerated in the Table, the enumeration not being exhaustive. 27. The DECs and the CDEC were established by the abovementioned Regulation No. 23 under the authority of the Minister of Health. The DECs were responsible for determining the occupational character of a disease (section 9(1) of the Regulation). Their members were appointed by the medical directors of the respective hospitals (section 9(5) of the Regulation). The CDEC heard appeals against decisions of the DECs; its members were appointed by the Minister of Health (section 13a(2) of the Regulation). The findings of the CDEC in respect of the occupational character of the disease were binding on other medical bodies dealing with occupational expertise issues (section 14(3) of the Regulation), but the Regulation did not provide that they were binding on the courts. 28. The members of the commissions – who were exclusively medical professionals – were remunerated under privatelaw service contracts with the Ministry of Health (sections 9(3), 13a(1) and (4) of the Regulation). 29. There were no detailed rules regulating the procedure before the commissions. The Regulation provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents (section 12 of the Regulation), making no provision for witness testimony or other evidence. No hearings were held. 30. Article 120 of the Constitution provides: “1. The courts shall review the lawfulness of the administration's acts and decisions. 2. Physical and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save in the cases expressly specified by statute.” 31. The Administrative Procedure Act (“the APA”) governs the procedure for issuing “administrative acts” and for judicial review of such acts. Section 2(1) of the Act defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the Act, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review. The application for judicial review must be lodged within a specified timelimit, which varies depending on whether the “administrative act” was an express act or a tacit refusal and on whether before being appealed against before a court it was appealed against before a higher administrative authority (section 37(1), read in conjunction with sections 22, 29 and 31 of the Act). Only if it is alleged that the “administrative act” is null and void, the application for judicial review is not limited by time (section 37(2) of the Act). 32. In its interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (SG, issue 99 of 1995) the Constitutional Court gave a binding interpretation of Article 120 § 2 of the Constitution. It held, inter alia, that that Article's provision encompassed all administrative acts regardless of their character or theoretical qualification. The exclusion of a given administrative act from judicial review could only be done by statute. “All administrative acts” meant “without exception”. Only internal acts which did not affect in any way physical or legal persons outside the respective administration were not covered by the constitutional provision. 33. The former Supreme Court has held that the decisions of the special medical commissions were not “administrative acts” within the meaning of the APA, which could be appealed against before a court, but rulings of special bodies subject only to a hierarchical appeal within the respective administration (опред. № 304 от 1 юли 1992 г., ВС, III г.о.). 34. In a series of decisions and judgments starting with a reported decision of 4 February 1999 in which it quashed a decision of the Sofia City Court declaring an appeal against the decision of a special medical commission inadmissible, the Supreme Administrative Court, which succeeded the Supreme Court after the reform of 1997, started allowing judicial appeals against the decisions of special medical commissions. In contrast with the holding of the former Supreme Court, it held that the commissions' decisions were affecting the rights of the persons examined and were therefore “administrative acts” within the meaning of the APA. The general rule under Article 120 § 2 of the Constitution being that administrative acts were subject to judicial review unless otherwise provided by statute, the commissions' decisions were appealable before a court. In a number of those decisions and judgments the court also relied on Article 6 of the Convention and, in particular, its “access to a court” requirement (опред. № 1580 от 4 февруари 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; опред. № 3450 от 30 май 2000 г. по адм. д. № 7347/1999 г, ВАС, І о.; реш. № 351 от 25 януари 2001 г. по адм. д. № 5358/2000 г., ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав).
| 1 |
train
|
001-57467
|
ENG
|
BEL
|
CHAMBER
| 1,970 |
CASE OF DELCOURT v. BELGIUM
| 2 |
No violation of Art. 6-1
| null |
9. The purpose of the Commission’s request is to obtain a decision from the Court as to whether the facts of the case do or do not disclose a violation by the Kingdom of Belgium of the obligations binding on it under Article 6 para. 1 (art. 6-1) of the Convention. 10. The relevant facts of the case as they appear from the Commission’s Report and memorial, the Government’s memorial, the documents produced and the addresses of the representatives appearing before the Court may be summarised as follows: 11. Emile Delcourt, a Belgian citizen, born on 28th December 1924, and a company director, has his residence at Waterloo. At the time of lodging his Application with the Commission (20th December 1965), he was imprisoned in the central gaol at Louvain. 12. Proceedings having been instituted against him by the Procureur du Roi at Bruges for obtaining money by menaces, fraud and fraudulent conversion, the Applicant was arrested on 23rd November 1963 and subsequently charged with a number of offences of fraud, fraudulent conversion, forgery and uttering forged documents, issuing uncovered cheques and fraudulent bills as well as obtaining credit by false pretences. On 21st September 1964, he was found guilty by the Bruges Court of Summary Jurisdiction on thirty-six out of forty-one counts and sentenced to a year’s imprisonment and a fine of two thousand Belgian francs. On 17th March 1965, the Court of Appeal in Ghent modified this judgment against which both Delcourt and the prosecution had appealed on 25th and 26th September 1964. It found all the charges to be established including those on which Delcourt had been acquitted at first instance, stressed the seriousness of the offences and referred to his previous convictions. It accordingly increased his principal sentence to five years’ imprisonment and further decided that on serving his sentence he should be "placed at the disposal of the Government" for ten years thus granting an application by the prosecution which had been rejected by the Bruges Court. On 17th and 23rd March 1965, the Applicant appealed to the Court of Cassation against the judgment of the Court of Appeal and against that of the Court at Bruges. He lodged a memorial on 20th May 1965. The Procureur général’s department (parquet) at the Court of Appeal did not avail itself of its right to file a counter-memorial. A public hearing took place before the second chamber of the Court of Cassation on 21st June 1965; the Applicant himself was present at that hearing but not his counsel. The Court of Cassation heard the report of Judge De Bersaques, its rapporteur, and then the submissions of the Avocat général, Mr. Dumon, to the effect that the two appeals should be dismissed. In its judgment delivered the same day, after deliberations held in private the Court dismissed the two appeals. 13. In the Application which he lodged with the Commission on 20th December 1965 (No. 2689/65), Delcourt complained of the judgment of 21st September 1964 and the judgments on appeal of 17th March and 21st June 1965. Protesting his innocence and alleging the violation of Articles 5, 6, 7 and 14 (art. 5, art. 6, art. 7, art. 14) of the Convention, he presented numerous complaints almost all of which were declared inadmissible by the Commission on 7th February and 6th April 1967. On this last date, however, the Commission accepted one complaint which related to the question whether the presence of a member of the Procureur général’s department at the deliberations of the Court of Cassation was compatible with the principle of "equality of arms" and hence with Article 6 para. 1 (art. 6-1) of the Convention. In fact, the Advocat général, Mr. Dumon, was present at the Court’s deliberations in accordance with Article 39 of the Prince Sovereign’s Decree of 15th March 1815 which provides "... in cassation proceedings the Procureur général has the right to be present, without voting, when the Court retires to consider its decision". It may be observed that this Decree has recently been replaced by certain provisions of the new Judicial Code (Act of 10th October 1967) which was not yet in force when the Belgian Court of Cassation dismissed Delcourt’s appeals. The above-mentioned provision of the 1815 Decree has been re-enacted, in substance, in Article 1109 of this Code. 14. Following the decision of 6th April 1967 declaring this complaint admissible, a Sub-Commission ascertained the facts of the case. 15. Before the Commission and the Sub-Commission, the Applicant maintained that the presence of a member of the Procureur général’s department at the Court of Cassation at the deliberations of 21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the Convention. Without disputing that there is a considerable difference between the respective functions of the Procureur général’s department at the Court of Cassation and the Procureur général’s department at the courts below, he stressed that in accordance with the law the former does sometimes appear as a party even though this did not happen in this case. Furthermore, the Procureur général’s department at the Court of Cassation does, in the view of the Applicant, exercise supervision over the Procureurs généraux at the Court of Appeal (section 154 of the Act of 18th June 1869); a very strong statutory tie, therefore, links him with them, his subordinates, even if in practice the supervision in question is nowadays rather discreet. Again, the Procureur général’s department at the Court of Cassation was, in the great majority of cases, the opponent - at any rate potential - of the convicted persons who appealed to the highest court in Belgium: the Procureur général usually submitted that their appeals should be dismissed and his opinion was nearly always adopted - as in this case - by the judges. Then the Applicant stressed that the Procureur général, after having developed his submissions at the end of the hearing in open court, also participated in its private deliberations from which the parties are excluded. This caused a violation of the rights of the defence and, particularly, of the principle of "equality of arms", as it was defined in the opinions given by the Commission in the Ofner, Hopfinger, Pataki and Dunshirn cases (Applications Nos. 524/59, 617/59, 596/59 and 789/60, Yearbook of the Convention, Vol. 6, pp. 696 to 706 and 730 to 732). The Applicant specified that he did not mean, however, to raise the slightest doubt as to the absolute conscientiousness with which the Court of Cassation fulfils its function or to suggest that the Procureur général’s department might attempt unduly to influence the court in any direction other than that of strict justice. In other words, Delcourt was not criticising persons but rather the institution which gave an advantage to the Procureur général’s department. Admittedly, the legislation in issue dated back for more than a century and a half and the Belgian Parliament had decided on two occasions that it did not need to amend it. The legislation, however, dated from a time of absolute monarchy and carried that stamp; furthermore, the incorporation of the Convention into the domestic law of a Contracting State necessarily "kept bringing to light new controversial points which had not been noticed by the national legislature". In his observations of 8th December 1967, almost two years after the lodging of the Application, Delcourt further complained that he had not been able to reply to the submissions of the Procureur général’s department at the Court of Cassation: he had not been informed of this submission before the hearing of 21st June 1965 nor did he have the right to the last word at that hearing. The Applicant applied for the repeal of the legislation under attack and claimed pecuniary damages. 16. On the failure of the attempt made by the Sub-Commission to arrange a friendly settlement, the plenary Commission drew up a Report as required under Article 31 (art. 31) of the Convention. This Report was adopted on 1st October 1968 and transmitted to the Committee of Ministers of the Council of Europe on 5th December 1968. The Commission expressed therein, by seven votes against six, the opinion that Article 6 para. 1 (art. 6-1) of the Convention was not violated in the present case. Two members of the majority expressed a joint concurring opinion and the six members forming the minority expressed their dissent in a joint opinion. 17. After the case was referred to the Court, the Applicant returned to and developed some of his earlier arguments in a document which the Commission appended to its memorial. As regards his main complaint, the Applicant stated that he associated himself with the opinion of the minority of the Commission. Arguments of the Commission and the Government 18. Unlike the Government, the Commission considers unanimously that Article 6 para. 1 (art. 6-1) of the Convention is applicable in the present case to the proceedings in cassation. In the view of the majority of the Commission, however, the presence of a member of the Procureur général’s department attached to the Court of Cassation at the deliberations of 21st June 1965 was not incompatible with this text. In actual fact, this highest court in Belgium does not deal with the merits (fond) of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832); save in certain exceptional matters, irrelevant to this case, the Court of Cassation’s sole function is to decide questions of law. The Procureur général’s department is confined to assisting the Court in the exercise of its functions. That department does not, ordinarily, conduct prosecutions and it has not the character of a party (Article 37 of the Prince Sovereign’s Decree of 15th March 1815). In almost all cases it is completely independent of the Minister of Justice and has no right of direction over the Procureur général’s department which is attached to the courts of first instance and appeal and which is the prosecuting authority in normal cases. The participation of the Procureur général’s department at the deliberations of the Court of Cassation does not, therefore, conflict with the principle of "equality of arms", even when it is examined in the light of the precedents set by the Commission (Ofner, Hopfinger, Pataki and Dunshirn cases). The Delegates of the Commission brought to the attention of the Court the joint dissenting opinion of six members of the Commission: these members of the Commission were of the opinion that the participation of the Procureur général’s department at the deliberations of the Court of Cassation did not comply with the requirements of Article 6 para. 1 (art. 6-1). The Commission did not deem it necessary to express an opinion on the "new" complaints which appeared in Delcourt’s above-mentioned observations of 8th December 1967 (paragraph 15 above); in the Commission’s view, the Applicant presented them only as special aspects of the principle of "equality of arms" which the majority of the Commission did not consider to be violated. In its memorial of 22nd May 1969 and at the hearing held on 29th September 1969, the Commission requested the Court: "to decide whether or not, in the course of the proceedings before the Belgian Court of Cassation in the Delcourt case on 21st June 1965, there was a violation of Article 6 para. 1 (art. 6-1) of the Convention, insofar as this provision requires a fair trial, by reason of the participation of the representative of the Procureur général’s department in the deliberations of the Court of Cassation". 19. The Government does not dispute that a member of the Procureur général’s department at the Court of Cassation, after submitting in open court that the Applicant’s appeals should be refused, was present in a consultative capacity at the deliberations of 21st June 1965, but maintains that this did not involve any violation of the right guaranteed by Article 6 para. 1 (art. 6-1) of the Convention. That highest court in Belgium does not deal with the merits of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832). In spite of its judicial nature, which has been developed through a long evolution, the Court of Cassation fulfils a function which has never ceased to have some relation with the work of the legislature. Established in the interests of the law itself, the Court of Cassation judges judgments and not persons, save in certain exceptional matters which are irrelevant to the present case. It is not therefore the function of that Court to decide disputes concerning civil rights and obligations or to determine criminal charges (décider, soit des contestations sur ses droits et obligations de caractère civil, soit du bien-fondé de toute accusation en matière pénale) within the meaning of Article 6 para. 1 (art. 6-1), as that provision has been interpreted in a series of decisions by the bodies set up to ensure the observance of the Convention. As regards the Procureur général’s department at the Court of Cassation, it must be distinguished fundamentally from the Procureur général’s department attached to the courts below. As a general rule, it has not the character of a party (Article 37 of the Decree of 15th March 1815); in the very rare cases where under the relevant law the department assumes the position of a party and institutes prosecutions the Procureur général is not present at the deliberations (Article 39 of the Decree of 15th March 1815). As the Procureur général is not concerned with the question of the guilt of the accused, he is neither their adversary nor the tool of the prosecution. For example, there is nothing to prevent him from submitting to the Court that an appeal in cassation brought by the Procureur général’s department at the Court of Appeal should be dismissed or from putting forward on his own initiative grounds for setting aside a conviction; and there are statistics to show that this is often the case. The Procureur général’s department attached to the Court of Cassation is not, therefore, in alliance with the Procureur général’s department attached to the courts below; besides, the Procureur général at the Court of Cassation exercises, in practice, over that department supervision of a purely doctrinal and scientific nature without the least power of direction (Section 154 of the Act of 18th June 1869). Furthermore, the Procureur général at the Court of Cassation is entirely independent in his relations with the Minister of Justice. In short, the role of the Procureur général is of the same kind as the functions of the Court of Cassation itself: it consists, ordinarily, in no more than giving technical and objective assistance to the Court in order to ensure the observance of the law, consistency in judicial precedent and good drafting of the judgments. To sum up, the Procureur général attached to the Court of Cassation "forms part of, and is identified with", the Court like the judges. In these circumstances, the presence of one of the members of the Procureur général’s department at the deliberations did not upset the "equality of arms" to the detriment of the Applicant. There was some inequality in this case but it worked to the advantage of Delcourt; unlike him, the Procureur général’s departments attached to the lower courts whose decisions were challenged in cassation did not have an opportunity to put forward their arguments in open court on 21st June 1965 (Article 34 of the Decree of 15th March 1815); those departments did not even avail themselves of their right to reply in writing to the memorial filed by the appellant on 20th May 1965. In the Government’s view, the Delcourt case cannot be compared with the Pataki and Dunshirn cases; the present case is closer to the Ofner and Hopfinger cases in which the Commission and the Committee of Ministers did not find any violation of Article 6 (art. 6). For the rest, the legislation in dispute is more than a century and a half old, in which time it has never been subjected to criticism in Belgium by writers or the Bar who are, however, most attentive to everything which relates to the rights of the defence. On two occasions, Parliament decided explicitly to maintain this legislation, the first time without any change (at the time of the passing of the Act of 19th April 1949), the second time in substance and after examination of the question from the point of view of the Convention (Article 1109 of the 1967 Judicial Code). These circumstances raise something like a presumption in favour of the compatibility of the legislation in question with Article 6 para. 1 (art. 6-1); they also show that the participation of the Procureur général’s department at the deliberations of the Court of Cassation does not open the door to abuse. As to Delcourt’s "new" complaints, they are inadmissible because they were not included in the original Application. The Government considers that they are in any event unsustainable; in its view, it is just because the Procureur général’s department is not a party that its submissions are made at the end of the oral proceedings without being communicated in advance to the parties. In its memorial of 17th July 1969 and at the oral hearing held on 30th September 1969, the Government asked the Court: "to hold that, having regard to the role which Belgian law confers on the Procureur général attached to the Court of Cassation and to his special position in Belgian judicial procedure, his presence in a non-voting capacity at the Court’s deliberations as expressly provided for in that legislation is not of such a nature as to violate the principle of ‘equality of arms’ where, as in the present case, the Procureur général is not himself a party to the proceedings as applicant; to decide in consequence that, in the proceedings which took place in the Delcourt case before the Court of Cassation of Belgium on 21st June 1965, there was no violation of Article 6 para. 1 (art. 6-1) of the Convention by reason of the presence of the representative of the Procureur général’s department, Mr. Dumon, Avocat général, at the deliberations of the judges".
| 0 |
train
|
001-76639
|
ENG
|
FIN
|
CHAMBER
| 2,006 |
CASE OF ESKELINEN AND OTHERS v. FINLAND
| 3 |
No violation of Art. 6-1
|
Nicolas Bratza
|
7. The applicants were born in 1943, 1956, 1958 and 1944 respectively and live in Lappeenranta. 8. A Finnish company called Hackmann Sisustus Oy (hereinafter “HCS”) and an Estonian company called Viisnurkka A/S (hereinafter “VIS”) agreed that they would gradually switch production of coated decorative panels known as “Halltex-panels” from Finland to the VIS factory in Estonia, so that HCS would eventually become responsible for their marketing only. HCS had a monopoly over Halltex-panels in Finland. At the beginning of 1993 HCS and VIS signed another contract, according to which HCS would buy wind-block panels from VIS. The cooperation between the two companies covered, as a result, all the marketing rights of VIS products in Finland, Sweden and west-European countries. HCS, which was still producing Halltex-panels of its own, later allegedly ignored the above-mentioned cooperation contracts, causing VIS financial difficulties. VIS considered that the agreements had been terminated and decided to build its own production line to make coated decorative panels. The production line was ordered through Oy Finnhallex Ltd, a Finnish company apparently owned by the first, second and fourth applicants, from a company called Lappeenrannan Konemetalli Oy, owned by the third applicant. 9. On 10 August 1994 the managing director of HCS, Mr H.H., requested the police to investigate whether there had been a disclosure of their business secrets, alleging that their exclusive rights to the design of a production line to make coated decorative panels had been used without their permission to build the VIS production line in Estonia. 10. The investigations were carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which appointed Mr L.T., a mechanical engineer, as their expert in the case. He had worked for a company called Hackman Wood Oy, which belonged to the same consolidated group as HCS. The National Bureau of Investigation also requested expert statements from Professor H.K. in respect of technical questions, and from Professor M.C. in respect of the legal aspects of the protection of business secrets. Professor M.C. was asked to address in particular whether the first and second applicants had provided Oy Finnhallex Ltd with information covered by business secrecy. Further, he was asked to give an opinion on the third applicant’s activities in the planning of the production line, whether he had possessed information covered by business secrecy and whether he had availed himself of such information. Professor M.C. was provided with the pre-trial statements of the applicants and six others. On 9 November he submitted his opinion comprising 25 pages of which some 15 pages concerned his assessment of the nature of the applicants’ alleged actions. 11. The applicants requested that an Estonian citizen, Mr K.P., also be heard as a witness in the pre-trial investigation, but the National Bureau of Investigation made no attempt to call him as a witness. The applicants were not able to appoint their own expert as the HCS production line, with which the VIS production line was to be compared, was protected by the exclusive business secrecy of HCS. According to the applicants, their expert was therefore prevented from examining the HCS production line. The VIS production line went into operation only after the Kouvola Court of Appeal (hovioikeus, hovrätten) proceedings had come to an end. 12. The public prosecutor brought charges against the applicants for, inter alia, disclosure of a business secret. In the indictment, he alleged that the applicants had undertaken to carry out a project for the production of coated decorative panels on the basis of information they had on the production and marketing of a similar product known as Halltex-panels of HCS, in cooperation with VIS. Oy Finnhallex Ltd had been established for the purposes of the project, which was to provide VIS with the production line for the panels corresponding to Halltex-panels and otherwise to take care of the supply of equipment, training and know-how. According to the indictment, the information used for carrying out the project constituted a business secret of HCS. Although the third applicant had no association with HCS, he was allegedly aware of the fact that the project in which he had participated was to a large extent based on the business secrets of HCS. 13. On 30 May 1995 the Lappeenranta District Court (käräjäoikeus, tingsrätten) began its examination of the charges. The applicants pleaded not guilty, arguing, inter alia, that HCS had deliberately given up its allegedly exclusive right to any secrets as it had handed over all the relevant information to VIS anyway. They also argued that the design was a matter of common knowledge and was not protected in any way, as the patent for Halltex-panels had already expired at the time of the events in question and the HCS factory had been accessible to anyone. They also noted that a similar panel was produced in Lithuania. According to the applicants, HCS intended to exploit its monopoly status with the help of the court proceedings. 14. The applicants called K.P., among others, as their witness. They also requested that the former members of HCS’s board of directors, Mr H.H. and Mr J.L., called by HCS, should not be heard as witnesses as their real status was that of a complainant given their close relationship with the company. The District Court rejected their claims and took evidence from H.H. and J.L. The District Court also heard oral evidence from the applicants, from ten witnesses called by the prosecution and from seven witnesses for the defence. One witness for the complainant company was also heard. 15. In September 1995, during a three-day hearing, the fourth applicant requested that two engineers, both witnesses for the defence, should be allowed to acquaint themselves with HCS’s production line. However, he withdrew the request during the hearing. At no stage during the proceedings did anyone request that Professor M.C., who had given a written expert opinion during the pre-trial investigation, be heard as a witness before the District Court. Nor was there any objection to the inclusion of the opinion in the case file. 16. On 30 November 1995 the District Court found the applicants guilty as charged and fined them. Professor M.C.’s written expert opinion was quoted several times in the judgment. 17. The parties appealed. The applicants were each represented by different counsel and therefore lodged separate writs of appeal. The second applicant explicitly requested that Professor M.C., among others, be called as a witness before the Court of Appeal, as the applicants had not had an opportunity to put questions to him. The first and fourth applicants for their part drew the court’s attention to the fact that Professor M.C. had given his written opinion in the course of the pre-trial investigation, having had at his disposal only limited knowledge about the facts of the case. Thus, no weight should be given to his written opinion. The applicants also complained that the District Court had failed to take into account any of the statements made by the witnesses called by them. Some of these arguments were advanced by all of the applicants, others by only one of them. 18. On 16 December 1996 the Court of Appeal held an oral hearing. However it refused to hear any witnesses, finding that the allegation that the evidence had been wrongly assessed did not warrant a rehearing since the credibility of the evidence in question had not been challenged. It also considered that the taking of witness evidence would not produce any new information relevant to the case. 19. In its judgment of 5 June 1997 the Court of Appeal upheld most of the District Court’s reasoning. It did not give any reasons for its decision not to hear Professor M.C. even though the second applicant had explicitly requested that he be heard. It upheld their conviction and increased their sentences to suspended terms of imprisonment. 20. The applicants requested leave to appeal, alleging, inter alia, that the principle of equality of arms between the public prosecutor and the defence had been violated. The applicants had not been able to appoint an expert who could have examined the production line in question, nor had they been allowed to put questions to Professor M.C. at an oral hearing, even though the District Court’s judgment had essentially been based on the expert opinion he had submitted to the police during the pre-trial investigation. On 22 January 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 21. The rules of evidence are laid down in Chapter 17 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 571/1948). In criminal proceedings, the forms of submission of evidence are 1) examination of witnesses, 2) hearing of experts, 3) hearing of parties under oath (in criminal proceedings only the injured party can be heard under oath and only about the establishment of losses suffered by him or her), 4) hearing of parties without an oath, 5) submission of documentary evidence, and 6) inspection in situ. 22. Section 3 (1) provides that a fact that is a matter of common knowledge or known to the court ex officio need not be proven. In addition, evidence need not be presented on the content of domestic law (jura novit curia). If the court does not know the foreign law applicable to the case, it is for the parties to submit evidence on it. 23. Section 44 (1) provides that if an expert witness with special professional knowledge is deemed necessary, the court can obtain an opinion on the matter from, for example, a public official or an expert in the relevant field who is known to be honest and competent. Section 49 provides that an expert who is heard before the court must take an oath. 24. Section 50 (Act no. 1052/1991) provides that an expert must give a detailed account of the findings in his or her investigation and, on the basis of the account, a substantiated opinion on the questions put to him or her. The opinion shall be compiled in writing, unless the court deems it necessary that the opinion be presented orally. An expert witness who has given a written opinion shall be heard orally in court, if a party so requests and the hearing of the expert witness is not clearly irrelevant or if the court deems the hearing of the expert witness to be necessary. If there are several expert witnesses, one or more of them may be called to be heard. 25. Section 55 (Act no. 571/1948) provides that if a party to the proceedings relies on an expert not appointed by the court, the provisions on witnesses apply. However, such an expert may be ordered to give a substantiated opinion, as mentioned in section 50.
| 0 |
train
|
001-103332
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,011 |
VAJNAI (II) v. HUNGARY
| 4 |
Inadmissible
|
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
|
The applicant, Mr Attila Vajnai, is a Hungarian national who was born in 1963 and lives in Budapest. He was represented before the Court by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 March 2007 the applicant, at the material time Vice-President of the Workers’ Party (Munkáspárt), a registered left-wing political party, was convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn a totalitarian symbol in public. The court observed that the applicant had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance. The applicant was sentenced to a criminal fine of 120,000 Hungarian forints (HUF) and ordered to pay another HUF 45,000 in criminal costs. On 10 June 2008 the Budapest Regional Court upheld this judgment. On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by the applicant on account of a previous conviction similar in nature (Vajnai v. Hungary, no. 33629/06, 8 July 2008). The Court held that prosecution for having worn a red star amounted to a violation of the applicant’s freedom of expression enshrined in Article 10 of the Convention. In pursuit of this judgment, on 10 March 2009 the Supreme Court acquitted Mr Vajnai in review proceedings holding that his incriminated act no longer represented danger to society. Act no. IV of 1978 on the Criminal Code provides: “(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment. (2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.” “(1) Any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine. (2) The conduct prescribed under paragraph (1) is not punishable if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events. (3) Paragraphs (1) and (2) do not apply to the insignia of States which are in force.” Act No. XIX of 1998 on Criminal Procedure provides: “(1) [... R]eview proceedings may be initiated ... if ... (a) a person ... was convicted ... in breach of the substantive provisions of criminal law ...” “(1) The rules of third-instance proceedings (Chapter XV) shall be applicable to the conduct of the review proceedings ...” “(1) The third-instance court may reverse the second-instance court’s judgment and adopt a lawful decision if the second-instance court gave its judgment in breach of the [substantive] provisions of criminal law ... provided that the findings of fact are well-founded or their deficiency could be rectified before the third-instance court.” In case no. Bhar.II.2/2010/4 (judgment of 5 March 2010) which concerned the prosecution of a Mr F. for having displayed a red star, the Pécs Court of Appeal examined in detail whether or not Mr F.’s conduct represented any danger to society – an element inherent in the notion of a crime within the meaning of section 10 of the Criminal Code (see above) – and this in particular in the face of the Vajnai judgment cited above.
| 0 |
train
|
001-88558
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008 |
WATKINS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicant, Mr William Watkins, is a British national who was born in 1944 and lives in Salford. The applicant’s wife died on 7 June 1993. They had three children from the marriage, born in 1964, 1966 and 1981. In August 1993 the applicant applied for widows’ benefits and was informed that he was not entitled to these benefits as he was a man. He again claimed widows’ benefits in May 2003. His claim was rejected on 22 May 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant was not entitled to child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0 |
train
|
001-115621
|
ENG
|
MKD
|
GRANDCHAMBER
| 2,012 |
CASE OF EL-MASRI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 1 |
Preliminary objection dismissed (Article 35-1 - Six-month period);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (the United States of America);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
|
Dean Spielmann;Elisabeth Steiner;Erik Møse;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Vincent A. De Gaetano
|
15. The applicant was born in 1963 and lives in Senden, Germany. 16. In the application, the applicant referred to his declaration made on 6 April 2006 for the purpose of the proceedings before the US District Court for the Eastern District of Virginia (see paragraphs 62 and 63 below). 17. On 31 December 2003 the applicant boarded a bus in Ulm, Germany, with a view to visiting Skopje in order, as he stated, “to take a short vacation and some time off from a stressful home environment”. At around 3 p.m., he arrived at the Serbian/Macedonian border crossing at Tabanovce. A suspicion arose as to the validity of his recently issued German passport. A border official checked his passport and asked him about the purpose of his trip and the length and location of his intended stay. A Macedonian entry stamp dated 31 December 2003 was affixed to his passport. On that occasion, his personal belongings were searched and he was questioned about possible ties with several Islamic organisations and groups. The interrogation ended at 10 p.m. Accompanied by men in civilian clothes who were armed, he was driven to a hotel, which later research indicated was the Skopski Merak Hotel in Skopje (“the hotel”). Upon his return to Germany, the applicant recognised, through photographs available on the hotel’s website, the hotel building, the room where allegedly he had been held and one of the waiters who had served him food during his detention in the hotel. 18. The applicant was taken to a room on the top floor of the hotel. During his detention at the hotel, he was watched by a team of nine men, who changed shift every six hours. Three of them were with him at all times, even when he was sleeping. He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened with being shot. After seven days of confinement, another official arrived and offered him a deal, namely that he would be sent back to Germany in return for a confession that he was a member of al-Qaeda. 19. On the thirteenth day of his confinement, the applicant commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the remaining ten days of his detention in the former Yugoslav Republic of Macedonia. A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany. 20. On 23 January 2004 at around 8 p.m., the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany. Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport. 21. Upon arrival, still handcuffed and blindfolded, he was initially placed in a chair, where he sat for one and a half hours. He was told that he would be taken into a room for a medical examination before being transferred to Germany. Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus. As stated by the applicant’s lawyers at the public hearing of 16 May 2012, of all the acts perpetrated against the applicant that had been the most degrading and shameful. According to the applicant, a suppository was forcibly administered on that occasion. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in an adult nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. The aircraft was surrounded by armed Macedonian security guards. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. An anaesthetic was also administered over his nose. He was mostly unconscious during the flight. A Macedonian exit stamp dated 23 January 2004 was affixed to the applicant’s passport. 22. According to the applicant, his pre-flight treatment at Skopje Airport, “most likely at the hands of the special CIA rendition team”, was remarkably consistent with a recently disclosed CIA document describing the protocol for the so-called “capture shock” treatment (see paragraph 124 below). 23. Upon landing, the applicant disembarked. It was warmer outside than it had been in the former Yugoslav Republic of Macedonia, which was sufficient for him to conclude that he had not been returned to Germany. He deduced later that he was in Afghanistan and that he had been flown via Baghdad. 24. After landing in Afghanistan, the applicant was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow. Through a window at the top of the cell, he saw the red, setting sun. Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the “Salt Pit”, a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects. 25. During his confinement, he was interrogated on three or four occasions, each time by the same man, who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German government were ignored. 26. In March 2004 the applicant, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charge. As a consequence of the conditions of his confinement and his hunger strike, the applicant’s health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested it on several occasions. 27. On 10 April 2004, the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it. After this procedure, the applicant was given some canned food, as well as some books to read. 28. Following his force-feeding, the applicant became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days. Around that time, the applicant felt what he believed to be a minor earthquake. In this connection, the applicant submitted the “List of significant earthquakes of the world in 2004”, issued by the US Geological Survey on 6 October 2005. According to this document, there was one earthquake on 5 April 2004 in the Hindu Kush region, Afghanistan. 29. On 16 May 2004 the applicant was visited by a German speaker who identified himself only as “Sam”. The latter visited the applicant three more times prior to his release. 30. On 21 May 2004 the applicant began his second hunger strike. 31. On 28 May 2004 the applicant, blindfolded and handcuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje. He was told to change back into the clothes he had worn upon his arrival in the former Yugoslav Republic of Macedonia and was given two new T-shirts, one of which he put on. He was then taken to the waiting aircraft, wearing a blindfold and earmuffs, and was chained to his seat there. “Sam” accompanied him on the aircraft. He said that the plane would land in a European country other than Germany, but that the applicant would eventually continue on to Germany. 32. When the aircraft landed, the applicant, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. The applicant was aware of men getting out of the car and then of men getting in. All of the men had Slavic-sounding accents, but said very little. Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia. The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed the applicant’s long hair and long beard and told him that he looked like a terrorist. He was then driven to Mother Teresa Airport in Tirana. He was guided through customs and immigration control without inspection and put on a plane to Frankfurt, Germany. An Albanian exit stamp was affixed to the applicant’s passport. 33. On 29 May 2004 at 8.40 a.m. the applicant arrived at Frankfurt International Airport. He was about eighteen kilograms lighter than when he had left Germany, his hair was long and unkempt, and he had not shaved since his arrival in the former Yugoslav Republic of Macedonia. Immediately after arrival in Germany, the applicant met Mr M. Gnjidic, a lawyer practising in Ulm. 34. In his written submissions, the applicant stated that he had not undergone any medical examination apart from the isotope analysis of his hair follicles (see paragraphs 56 and 57 below). At the public hearing, the applicant’s lawyers specified that the results of some medical examinations carried out upon his return to Germany had been submitted by the German public prosecutor to the European Parliament’s Fava Inquiry (see paragraphs 47-51 below). However, those results had not been submitted to the Court since they had not been conclusive as to the presence of any physical injury, given the long time that had elapsed since the incident at Skopje Airport. Furthermore, the applicant stated that he had been subjected to sophisticated interrogation techniques and methods, which had been specifically designed not to leave any evidence of physical ill-treatment. 35. The 2007 Marty Report (see paragraph 46 below) noted that the applicant had asked for treatment at the treatment centre for torture victims in Neu-Ulm shortly after his return to Germany in 2004. However, it took until 2006 for Mr Gnjidic to obtain the required health-insurance funding agreement to start a course of limited treatment (seventy hours) at the centre, which had been considered insufficient both by Mr Gnjidic and by the therapist herself (see paragraph 296 of the 2007 Marty Report). 36. The applicant also submitted a written statement of 5 January 2009 by Dr Katherine Porterfield, a senior psychologist at the Bellevue/NYU Program for Survivors of Torture, in which she had confirmed that the applicant had suffered from post-traumatic stress disorder and depression “most likely caused by his experience of capture and extensive maltreatment and abuse”. Dr Porterfield’s opinion was based on several telephone calls and two follow-up discussions with the applicant. She also advised him to visit a clinician in his community with the requisite expertise to help him. The applicant did not comply with that instruction. 37. On 13 December 2005 the President of the Parliamentary Assembly of the Council of Europe asked the Assembly’s Committee on Legal Affairs and Human Rights to investigate allegations of “extraordinary renditions” in Europe. Senator Dick Marty of Switzerland was appointed as Special Rapporteur. On 12 June 2006 the Assembly published the 2006 Marty Report. It set out, on the basis of meetings that took place between 27 and 29 April 2006, the position of the Macedonian authorities regarding the applicant’s case. It stated, inter alia: “3.1.3.1. The position of the authorities 106. The ‘official line’ of the Macedonian Government was first contained in a letter from the Minister of Interior ... to the Ambassador of the European Commission ... dated 27 December 2005. In its simplest form, it essentially contains four items of information ‘according to police records’: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4 p.m. on 31 December 2003; second, he was interviewed by ‘authorised police officials’ who suspected ‘possession of a falsified travel document’; third, approximately five hours later, Mr El-Masri ‘was allowed entrance’ into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo. ... 108. The President of the Republic ... set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: ‘Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth.’ 109. On Friday 28 April the official position was presented in far greater detail during a meeting with ... [the] Head of the UBK, Macedonia’s main intelligence service, at the time of the El-Masri case. [He] stated that the UBK’s Department for Control and Professional Standards had undertaken an investigation into the case and traced official records of all Mr El-Masri’s contact with the Macedonian authorities. The further details as presented by [the Head of the UBK] are summarized as follows: Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year’s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents. Upon examining Mr El-Masri’s passport, the Macedonian border police developed certain suspicions and decided to ‘detain him’. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey. The objective of holding Mr El-Masri was to conduct an interview with him, which (according to [the Head of the UBK]) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as ‘Integrated Border Management and Security’. UBK officials participated in the interview of Mr El-Masri. The officials enquired into Mr El-Masri’s reasons for travelling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. [The Head of the UBK] explained: ‘I think these were all standard questions that are asked in the context of such a routine procedure – I don’t think I need to go into further details.’ At the same time, Macedonian officials undertook a preliminary visual examination of Mr El-Masri’s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait, yet claimed to possess German citizenship. A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol’s network, so the information had to be transmitted to Skopje, from where an electronic request was made to the central Interpol database in Lyon[s]. A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out. When it was established that there existed no Interpol warrant against Mr El-Masri and no further grounds on which to hold him, he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior ... said: ‘we’re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we’re not in a position to know how he traveled further.’ The Ministry of Interior subsequently established ... that Mr El-Masri had stayed at a hotel in Skopje called the ‘Skopski Merak’. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the guest book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004. The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo. When asked whether Mr El-Masri had received a stamp to indicate his departure by this means, [the Head of the UBK] answered: ‘Normally there should be a stamp on the passport as you cross the border out of Macedonia, but I can’t be sure. UNMIK [United Nations Administration Mission in Kosovo] is also present on the Kosovo border and is in charge of the protocol on that side ... My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn’t receive a stamp on either occasion.’ ... 116. What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis ... did the person in question have contact with terrorist movements, in particular with [al-Qaeda]? Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he could be handed over to the CIA for transfer.” 38. On 21 November 2005 the Secretary General of the Council of Europe invoked the procedure under Article 52 of the Convention with regard to reports of European collusion in secret rendition flights. Member States were required to provide a report on the controls provided in their internal law over acts by foreign agents in their jurisdiction, on legal safeguards to prevent unacknowledged deprivation of liberty, on legal and investigative responses to alleged infringements of Convention rights and on whether public officials who had allegedly been involved in acts or omissions leading to such deprivation of liberty of detainees had been or were being investigated. 39. On 17 February and 3 April 2006 the Government replied to this request. In the latter submission, the Government stated their position as regards the applicant’s case. They stated, inter alia: “... As far as the case of Mr Khaled El-Masri is concerned, we would like to inform you that this case was examined by the Ministry of Internal Affairs, and the information about it was sent to the representatives of the European Commission in the Republic of Macedonia, to the Director for Western Balkans in the DG [Directorate General] Enlargement of the European Commission in Brussels and to members of the European Parliament as early as June 2005. ... [T]he Ministry of Internal Affairs of the Republic of Macedonia informs that, based on the police records on entry and exit at the State border of the Republic of Macedonia, Mr Khaled El-Masri arrived, by bus, at the Tabanovce border crossing from the State Union of Serbia and Montenegro on 31 December 2003 at 4 p.m. presenting a German passport. Suspecting possession of a forged travel document, the competent police officers checked the document and interviewed Mr Khaled El-Masri at the border crossing. A check in the Interpol records was also carried out which showed that no international arrest warrant had been issued for Mr El-Masri. Mr Khaled El-Masri was allowed to enter the Republic of Macedonia on 31 December 2003 at 8.57 p.m. According to the police records, Mr Khaled El-Masri left the Republic of Macedonia on 23 January 2004 at the Blace border crossing to the State Union of Serbia and Montenegro (on the Kosovo section).” 40. The Government confirmed their version of events as outlined above (see paragraphs 37 and 39 above). They denied that the applicant had been detained and ill-treated by State agents in the hotel, that he had been handed over to CIA agents, and that the latter had ill-treated him at Skopje Airport and transferred him to a CIA-run prison in Afghanistan. In their submission, the applicant had freely entered, stayed in and left the territory of the respondent State. The only contact with State agents had occurred on 31 December 2003, on the occasion of his entry into the respondent State, when enquiries had been undertaken regarding the validity of his passport. There had been no other contact with State agents during his entire stay in the respondent State. The enquiries by the Ministry of the Interior demonstrated that the applicant had stayed in the respondent State by his own choice and free will between 31 December 2003 and 23 January 2004, when he had freely left the State through the Blace border crossing. 41. In support of their argument, they submitted a copy of the following documents: extracts from the official border-crossing records for Tabanovce and Blace; an extract from the hotel guest book in which the applicant had been registered as a guest occupying room number 11 between 31 December 2003 and 22 January 2004; and two letters of February 2006 in which the hotel’s manager, firstly, had communicated to the Ministry of the Interior the names of six persons who had been on duty in the hotel at the relevant time and, secondly, had denied that any person had ever stayed in the hotel involuntarily. It was further specified that the person whose photograph was on the hotel’s website (see paragraph 17 above) was Mr Z.G., who could be found in the hotel. They also produced a letter of 3 February 2006 in which the Macedonian Ministry of Transport/Civil Aviation Administration had informed the Ministry of the Interior that on 23 January 2004 a Boeing 737 aircraft flying from Palma de Mallorca (Spain), registered as flight no. N313P, had been given permission to land at Skopje Airport, that the same aircraft had received permission (at 10.30 p.m.) to take off on the same day to Kabul (Afghanistan), and that at 2.25 a.m. on 24 January 2004 permission had been given for that aircraft to fly to Baghdad (Iraq). Furthermore, the Government filed a copy of the applicant’s hotel bills which, according to them, he had paid in cash. Lastly, they provided a copy of a police record of the applicant’s apprehension at the Tabanovce border crossing on 31 December 2003. As specified in the record, the applicant had been held between 4.30 p.m. and 9.30 p.m. The record does not state the reasons for his apprehension, but it contains an incomplete handwritten note that he was apprehended on the basis of “tel. no. 9106 of 8 December 2003”. 42. There have been a number of international inquiries into allegations of “extraordinary renditions” in Europe and the involvement of European governments. The reports have referred to the applicant’s case. 43. The 2006 Marty Report (see paragraph 37 above) stated, inter alia: “A. Draft resolution ... 7. The facts and information gathered to date, along with new factual patterns in the process of being uncovered, indicate that the key elements of this ‘spider’s web’ have notably included: a worldwide network of secret detentions on CIA ‘black sites’ and in military or naval installations; the CIA’s programme of ‘renditions’, under which terrorist suspects are flown between States on civilian aircraft, outside of the scope of any legal protections, often to be handed over to States who customarily resort to degrading treatment and torture; and the use of military airbases and aircraft to transport detainees as human cargo to Guantánamo Bay in Cuba or to other detention centres. ... 11. Attempts to expose the true nature and extent of these unlawful operations have invariably faced obstruction or dismissal, from the United States and its European partners alike. The authorities of most Council of Europe member States have denied their participation, in many cases without actually having carried out any inquiries or serious investigations. ... C. Explanatory memorandum ... 2.7.1. CIA methodology – how a detainee is treated during a rendition ... ... Collectively, the cases in the report testify to the existence of an established modus operandi of rendition, put into practice by an elite, highly-trained and highly-disciplined group of CIA agents ... ... 11. Conclusion ... 287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-State transfers have taken place in Europe. ... ...” 44. Skopje Airport was categorised in the 2006 Marty Report as a “one-off pick-up point”, that is, a point from which one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systemic occurrence. 45. As to the applicant’s case, the 2006 Marty Report stated, inter alia: “3. Specific examples of documented renditions 3.1. Khaled El-Masri 92. We spoke for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months. ... 3.1.2. Elements of corroboration for Mr El-Masri’s account 102. Mr El-Masri’s account is borne out by numerous items of evidence, some of which cannot yet be made public because they have been declared secret, or because they are covered by the confidentiality of the investigation under way in the office of the Munich prosecuting authorities following Mr El-Masri’s complaint of abduction. 103. The items already in the public domain are cited in the afore-mentioned memorandum submitted to the Virginia court in which Mr El-Masri lodged his complaint: • Passport stamps confirming Mr El-Masri’s entry to and exit from Macedonia, as well as exit from Albania, on the dates in question; • Scientific testing of Mr El-Masri’s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri’s account that he spent time in a South-Asian country and was deprived of food for an extended period of time; • Other physical evidence, including Mr El-Masri’s passport, the two T-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors; • Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case [a US-based corporation, Premier Executive Transportation Services, Inc., and operated by another US-based corporation, Aero Contractors Limited], then registered by the FAA [US Federal Aviation Administration] as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at ... Skopje Airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital [a database of aircraft movements, compiled on the basis of information obtained from various sources, was attached to the 2006 Marty Report]; • Witness accounts from other passengers on the bus from Germany to Macedonia, which confirm Mr El-Masri’s account of his detention at the border; • Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr El-Masri has identified both his actual room and a staff member who served him food; • Geological records that confirm Mr El-Masri’s recollection of minor earthquakes during his detention in Afghanistan; • Evidence of the identity of ‘Sam’, whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services; • Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognisable to another rendition victim who was detained by the US in Afghanistan; • Photographs taken immediately upon Mr El-Masri’s return to Germany that are consistent with his account of weight loss and unkempt grooming. ... 113. One could, with sufficient application, begin to tease out discrepancies in the official line. For example, the Ministry of Interior stated that ‘the hotel owner should have the record of Mr El-Masri’s bill’, while the hotel owner responded to several [e]nquiries, by telephone and in person, by saying that the record had been handed over to the Ministry of Interior. ... 125. All these factual elements indicate that the CIA carried out a ‘rendition’ of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same ‘rendition circuit’. The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA’s systematic ‘rendition methodology’ described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the ‘spider’s web’. ... 127. It is worth repeating that the analysis of all facts concerning this case points in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning of the term established by the case-law of the United Nations Committee against Torture ...” 46. In his report of 11 June 2007, Senator Marty stated, inter alia: “5. Some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of ‘State secrets’. Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences ... The same approach led the authorities of the former Yugoslav Republic of Macedonia to hide the truth and give an obviously false account of the actions of its own national agencies and the CIA in carrying out the secret detention and rendition of Khaled ElMasri. ... 273. We believe we have now managed to retrace in detail Mr El-Masri’s odyssey and to shed light on his return to Europe: if we, with neither the powers nor resources, were able to do so, why were the competent authorities unable to manage it? There is only one possible explanation: they are not interested in seeing the truth come out. ... 275. ... We were able to prove the involvement of the CIA in Mr El-Masri’s transfer to Afghanistan by linking the flight that carried him there – on the aircraft N313P, flying from Skopje (the former Yugoslav Republic of Macedonia) to Baghdad (Iraq) to Kabul (Afghanistan) on 24 January 2004 – to another known CIA detainee transfer on the same plane two days earlier, thus establishing the first ‘rendition circuit’. ... 276. Upon Mr El-Masri’s arrival in Afghanistan, he was taken to a CIA secret detention facility near Kabul and held in a ‘small, filthy, concrete cell’ for a period of over four months. During this period the CIA discovered that no charges could be brought against him and that his passport was genuine, but inexplicably kept Mr ElMasri in his squalid, solitary confinement for several weeks thereafter. ... 279. Today I think I am in a position to reconstruct the circumstances of Mr ElMasri’s return from Afghanistan: he was flown out of Kabul on 28 May 2004 on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called [Bezat-Kuçova] Aerodrome. ... 314. The ‘official version’ of Mr El-Masri’s involuntary stay in the former Yugoslav Republic of Macedonia has definitely become utterly untenable ...” 47. On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as Rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States of America, Germany, the United Kingdom, Romania, Poland and Portugal. 48. It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and the end of 2005. During its visit to the former Yugoslav Republic of Macedonia, the Inquiry met with high-ranking officials. 49. On 6 July 2006 the European Parliament adopted a Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2027(INI), doc. P6_TA(2006)0316), which stated, inter alia: “19. [The European Parliament] condemns the abduction by the CIA of the German national, Khaled [El-Masri], who was held in Afghanistan from January to May 2004 and subjected to degrading and inhuman treatment; notes further the suspicion – not yet allayed – that Khaled [El-Masri] was illegally held before that date, from 31 December 2003 to 23 January 2004, in the former Yugoslav Republic of Macedonia and that he was transported from there to Afghanistan on 23-24 January 2004; considers the measures that the former Yugoslav Republic of Macedonia claims to have taken to investigate the matter to be inadequate; ... 42. Condemns the fact that the German national, [Khaled] El-Masri, was held illegally in Afghanistan for more than four months in 2004; deplores the reluctance of the authorities of the former Yugoslav Republic of Macedonia to confirm that ElMasri was in Skopje and was probably being held there before his rendition to Afghanistan by CIA agents; ...” 50. On 30 January 2007 the final Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI), doc. A6-0020/2007) was published. Noting the lack of thorough investigation by the respondent State, the Report stated, inter alia: “136. [The European Parliament] condemns the extraordinary rendition of the German citizen Khaled El-Masri, abducted at the border crossing Tabanovce in the former Yugoslav Republic of Macedonia on 31 December 2003, illegally held in Skopje from 31 December 2003 to 23 January 2004 and then transported to Afghanistan on 23-24 January 2004, where he was held until May 2004 and subjected to degrading and inhuman treatment; ... 138. Fully endorses the preliminary findings of Munich Public Prosecutor Martin Hofmann that there is no evidence on the basis of which to refute Khaled El-Masri’s version of events; ...” 51. The Report also emphasised that “the concept of ‘secret detention facility’ includes not only prisons, but also places where somebody is held incommunicado, such as private apartments, police stations or hotel rooms, as in the case of Khaled El-Masri in Skopje”. 52. In the course of the periodic review of the respondent State’s compliance with the International Covenant on Civil and Political Rights conducted by the United Nations Human Rights Committee during its March to April 2008 session, the latter “noted the investigation undertaken by the State Party and its denial of any involvement in the [applicant’s] rendition notwithstanding the highly detailed allegations as well as the concerns [raised by the Marty and Fava Inquiries]”. The United Nations Human Rights Committee made the following recommendation: “14. ... the State Party should consider undertaking a new and comprehensive investigation of the allegations made by Mr Khaled El-Masri. The investigation should take account of all available evidence and seek the cooperation of Mr [ElMasri] himself ...” 53. This recommendation was supported by the Commissioner for Human Rights of the Council of Europe in his report published on 11 September 2008 (Council of Europe Commissioner for Human Rights, Thomas Hammarberg, “Report on visit to the former Yugoslav Republic of Macedonia, 25-29 February 2008”). 54. On 9 April 2008 the applicant filed a petition with the Inter-American Commission on Human Rights. On 23 August 2009 the Commission transmitted the petition to the US government for comments. No further information has been provided in respect of these proceedings. 55. On an unspecified date in 2004 the Munich public prosecutor’s office opened an investigation into the applicant’s allegations that he had been unlawfully abducted, detained, physically and psychologically abused and interrogated in the former Yugoslav Republic of Macedonia and Afghanistan. According to the applicant, a number of investigative steps were taken, including an examination of eyewitnesses who confirmed that the applicant had travelled to the former Yugoslav Republic of Macedonia by bus at the end of 2003 and that he had been detained shortly after entering that State. 56. Furthermore, a radioactive isotope analysis of the applicant’s hair was carried out. An expert report of 17 January 2005 stated, inter alia: “... it is very likely that the changes observed in the enclosed isotopic signatures [of the applicant’s hair] indeed correspond to [the applicant’s] statements ...” 57. According to the First Committee of Inquiry of the German Bundestag (see paragraphs 59-61 below), the radioisotope analysis also confirmed that the applicant had undergone two hunger strikes. 58. On 31 January 2007 the Munich public prosecutor issued arrest warrants for thirteen CIA agents on account of their involvement in the applicant’s alleged rendition. The names of the people sought were not made public. The identities of the CIA agents were allegedly given to the German prosecutor by the Spanish authorities, which had uncovered them in the course of their investigation into the use of Spanish airports by the CIA. 59. On 7 April 2006 the German Bundestag (Federal Parliament) appointed the First Committee of Inquiry of the Sixteenth Legislative Period (“the Committee of Inquiry”) to review the activities of the secret services. Over a period of investigation of 3 years, the Committee of Inquiry held a total of 124 sessions, 7 areas of investigation were addressed and a total of 141 witnesses were heard, including the applicant. The findings of the Committee of Inquiry were made public on 18 June 2009. 60. The Committee of Inquiry’s report, which runs altogether to 1,430 pages, stated, inter alia: “... Khaled El-Masri’s report on his imprisonment in Macedonia and in Afghanistan is credible as to the core facts of his detention in Macedonia and his transfer to Afghanistan, as well as his confinement there by United States forces. Doubts remain, however, about some specific aspects of his account. The police investigations conducted by Swabian law-enforcement authorities and supported by the BKA [Bundeskriminalamt – German Federal Criminal Police] reaffirm Mr El-Masri’s account. His trip to Macedonia on 31 December 2003 was corroborated by witnesses. El-Masri’s account of the transfer from Macedonia to Afghanistan by United States forces is consistent with subsequent reports from other victims of the excesses of the ‘war on terror’ by the United States government at the time. The recorded movement of an American Boeing 737 of the presumed CIA airline ‘Aero-Contractors’ that flew from Majorca to Skopje on 23 January 2004 and continued on to Kabul matches the temporal information that Mr El-Masri provided on the duration of his confinement at a Macedonian hotel ... All this supports the Committee’s profound doubts about the official Macedonian version of the events ... The Macedonian government continue to deny his detention at the hotel and his transfer to Afghanistan, calling this a defamatory media campaign. This official account of the events by Macedonia is clearly incorrect. Rather, it must be concluded that convincing evidence exists for El-Masri’s account of the course of his arrest and transfer outside the country ...” (p. 353) 61. According to the report, doubts remained about the actual purpose of the applicant’s trip to Skopje and significant discrepancies were noted in his statements concerning his questioning in the former Yugoslav Republic of Macedonia and Afghanistan, in particular his suspicion as to the German background of “Sam”. 62. On 6 December 2005 the American Civil Liberties Union (ACLU) filed a claim on behalf of the applicant in the US District Court for the Eastern District of Virginia against a number of defendants, including the former CIA Director George Tenet and certain unknown CIA agents. The claim alleged that the applicant had been deprived of his liberty in the absence of legal process and included a claim under the Alien Tort Statute (ATS) for violations of international legal norms prohibiting prolonged arbitrary detention and cruel, inhuman or degrading treatment. 63. In May 2006 the District Court dismissed the applicant’s claim, finding that the US government had validly asserted the State secrets privilege. The District Court held that the State’s interest in preserving State secrets outweighed the applicant’s individual interest in justice. That decision was confirmed on appeal by the US Court of Appeals for the Fourth Circuit. In October 2007 the Supreme Court refused to review the case. 64. In 2005 an internal inquiry was carried out into the applicant’s claims by the DCPS within the Ministry of the Interior. The applicant was not invited to produce any evidence before the DCPS, nor was he informed of the outcome of the investigation. The results of this inquiry were not communicated to him, but to the representatives of the European Union in the respondent State (see paragraph 39 above). 65. After having been given notice of the instant case, the Government submitted a copy of two reports issued on 20 March 2006 and 10 April 2008 by the DCPS. Both reports were drawn up at the request of the Public Prosecutor’s Department of Organised Crime and Corruption, which had acted on two separate legal assistance requests, dated 9 May 2005 and 13 November 2007 respectively, from the Munich public prosecutor investigating the applicant’s criminal complaint in Germany. These reports reiterated the Government’s version of events as described above. They specified that the applicant, after having arrived at the Tabanovce border crossing on 31 December 2003, had been held between 4.30 p.m. and 9.30 p.m. in the official border premises and interviewed by the Macedonian police in connection with the alleged possession of a forged passport. After he had been released, he had stayed in the hotel, occupying room number 11. He had paid the hotel bill and had left the respondent State, as a pedestrian, at 6.20 p.m. on 23 January 2004 at the Blace border crossing. It was further specified that the then Head of the UBK, which had operated within the Ministry of the Interior, had never been rewarded by any foreign agency, including the CIA. It was concluded that no one, including the applicant, had ever been held in the hotel and interrogated by agents of the Ministry of the Interior. 66. In the course of these inquiries, the Ministry of the Interior submitted to the Macedonian public prosecutor the documents indicated above (see paragraph 41). 67. On 6 October 2008 the applicant, through his legal representative Mr F. Medarski, lodged a criminal complaint with the Skopje public prosecutor’s office against unidentified law-enforcement officials on account of his unlawful detention and abduction, offences punishable under Article 140 of the Criminal Code. The complaint also alleged the crime of torture or other inhuman or degrading treatment or punishment, punishable under Articles 142 and 143 of the Criminal Code. In support of his complaint, the applicant submitted a copy of his affidavit prepared for the purposes of his lawsuit in the United States of America and produced the following evidence: a copy of his passport; relevant extracts from the 2006 and 2007 Marty Reports and the Fava Inquiry; a copy of the aviation logs; a letter from the Skopje Airport authorities issued on 18 June 2008 (in reply to the applicant’s request for information) attesting that on 23 January 2004 a Boeing 737 aircraft registered by the FAA as N313P had landed at Skopje Airport without any passengers and that it had taken off on 24 January 2004 carrying only one passenger; a translated version of the expert report on the applicant’s hair; and sketches of the hotel room where the applicant had allegedly been detained. The photograph of the waiter who had allegedly served the applicant with food was not included in the submission to the public prosecutor because “the applicant had been unable to preserve a copy at the relevant time and the photograph was no longer available on the hotel’s website”. The applicant further complained that, while being held at the Tabanovce border crossing and in the Skopski Merak Hotel, he had been denied the right to contact his family, a lawyer of his own choosing or a representative of the German embassy. 68. On 13 October 2008 the public prosecutor requested the Ministry of the Interior to investigate the applicant’s allegations, and in particular to provide concrete information regarding the events at the Tabanovce border-crossing point, the hotel and Skopje Airport in order to establish the truth. 69. On 7 November 2008 the DCPS confirmed its previous findings and reiterated that all documents had already been submitted to the public prosecutor’s office (see paragraphs 41 and 65 above). 70. On 18 December 2008 the public prosecutor rejected the applicant’s criminal complaint as unsubstantiated. Relying on the information submitted by the DCPS, the public prosecutor found no evidence that unidentified officials had committed the alleged crimes. According to the applicant, he was notified of that decision on 22 November 2010. 71. The Government confirmed that, during the investigation, the public prosecutor had taken oral evidence from neither the applicant nor the personnel working in the hotel at the relevant time. Furthermore, no steps had been taken to establish the purpose of the landing of the aircraft mentioned in the letter issued by the Skopje Airport authorities on 18 June 2008 and attached to the applicant’s criminal complaint (see paragraph 67 above). In the Government’s view, this was because the inquiries made by the Ministry of the Interior had rebutted the applicant’s implausible allegations. Furthermore, during the 2006 inquiries the Ministry had already interviewed the persons working in the hotel at the time (see paragraphs 41 and 65 above). They had produced consistent evidence. However, there had been no record of those interviews. 72. On 24 January 2009 Mr F. Medarski, on behalf of the applicant, brought a civil action for damages against the State and the Ministry of the Interior in relation to his alleged unlawful abduction and ill-treatment. The claim was based on sections 141 and 157 of the Obligations Act (see paragraphs 91 and 92 below). The applicant claimed 3 million Macedonian denars (equivalent to approximately 49,000 euros) in respect of the non-pecuniary damage resulting from his physical and mental pain and the fear that he would be killed during his detention. He reiterated his complaints that he had been denied the right to establish any contact with the outside world. The fact that his family had had no information about his fate and whereabouts had added to his mental suffering. That had amounted to a separate violation of his family life under Article 8 of the Convention. He further argued that such actions by State agents amounted to a violation of Articles 3, 5 and 8 of the Convention. Besides the evidence submitted in his criminal complaint (see paragraph 67 above), the applicant requested that the civil courts hear oral evidence from him and that a psychological examination be carried out. 73. The Government informed the Court that sixteen hearings had so far been scheduled before the Skopje Court of First Instance. Many adjournments had been ordered owing to the absence of the applicant, who was imprisoned in Germany in relation to another offence. The case is still pending before the first-instance court. 74. Mr H.K., who was the Macedonian Minister of the Interior between November 2002 and May 2004 and Prime Minister between June and November 2004, gave a written statement, certified by a notary public on 4 March 2010, in which he stated, inter alia: “... 5. I can affirm that it was during my tenure as Minister of the Interior, in December 2003 and January 2004, that Macedonian agents belonging to the UBK, acting under my authority as Minister and under the direct supervision of the then UBK Director, were engaged in detaining a man who was travelling with a German passport under the name of Khaled El-Masri. 6. Mr El-Masri attempted to enter Macedonia on a bus from Germany on 31 December 2003. Macedonian police officials stopped him at the Tabanovce border crossing with Serbia. He was taken off the bus and held at the border crossing because the police suspected that his identity might be fraudulent. 7. Our UBK liaisons told their US intelligence partners about Mr El-Masri’s arrival and were told that this man was suspected of involvement in Islamic terrorism. Macedonia received a valid international warrant from the US bearing Mr El-Masri’s name and an official request to detain this man. 8. Acting in compliance with the US request, the Macedonian government agreed to hold Mr El-Masri until he could be handed over to the US authorities for further interrogation. As Minister of the Interior I was kept informed of the UBK’s actions and authorised them from the very beginning, although I was not involved at the operational level. I also liaised with our US counterparts on behalf of the Macedonian government. 9. Mr El-Masri was held for a certain period in a location in Skopje, secretly and without incident, under the constant supervision of UBK agents. 10. Mr El-Masri was not regarded as a threat to Macedonia and held no intelligence value for Macedonia’s purposes. If the decision had been ours alone, we would have released him. However, we acted faithfully on the warrant of our US counterparts, who indicated that they would send an aircraft and a team of CIA agents to Macedonia to take custody of Mr El-Masri and fly him out of the country. As time passed I indicated to our US counterparts that Macedonia would have to release Mr El-Masri if this rendition could not take place quickly. 11. Ultimately, some time on 23 January 2004, Mr El-Masri was handed over to the custody of a CIA ‘rendition team’ at Skopje Airport and was flown out of Macedonia on a CIA-operated aircraft. 12. The entire operation was thoroughly documented on the Macedonian side by UBK personnel in the Ministry of the Interior. This documentation was kept securely and ought to be available in the Ministry’s files. I cannot state exactly what the files contain but I know that the relevant materials were not destroyed while I was the Minister of the Interior. 13. Some days after Mr El-Masri had been flown out of the country, I received a final report on the operation through the appropriate line of reporting in the Ministry of the Interior. In my recollection, the final report indicated that Macedonia had adhered exactly to the terms of a legitimate international warrant regarding Mr ElMasri. Macedonia acted according to its domestic laws and procedures regulating the activities of the Ministry of the Interior. 14. Macedonia’s status as a reliable partner in global counterterrorism was strengthened by the way we carried out this operation. Our US partners expressed great appreciation for Macedonia’s handling of the matter. 15. I am aware that the US authorities ultimately released Mr El-Masri, without charge, after several further months of detention. I understand that Mr El-Masri’s situation resulted from a mistake. I maintain that if any mistake was made in Mr ElMasri’s case, it was not Macedonia’s mistake, and I do not believe there was any intentional wrongdoing on the part of the Macedonian authorities. 16. I am aware that Mr El-Masri has now taken his case to the European Court of Human Rights in Strasbourg. My statement is expressly and solely for the purposes of this Court’s deliberations on the application of Mr El-Masri, and may not be used in the pursuit of any investigations against individuals. ... 18. I solemnly declare upon my honour and conscience that the evidence contained in this statement is the truth, the whole truth and nothing but this truth. ” 75. Mr J.G.S. is a citizen of the United Kingdom. He works as a lawyer and investigator. Appointed as an adviser to Senator Dick Marty in the context of the Marty Inquiry and a member of the Fava Inquiry, he took part in fact-finding missions in the respondent State, attended meetings with the highest-level officials and contacted sources close to the Government and the intelligence services. He further discussed the applicant’s case with other relevant domestic and foreign government officials and non-governmental representatives. He also interviewed the applicant on several occasions in 2006, as well as other witnesses. At the Open Society Justice Initiative’s request, on 28 March 2011 he submitted an expert report running to sixty-two pages in which he detailed the factual findings of his investigations into the applicant’s case. The report was based on a “considerable amount of original testimonial, documentary and other physical evidence related to the applicant’s case”, most of which was obtained from people who had requested anonymity given the confidential and sensitive nature of the matter. According to the expert, “the Government has classified as ‘Top Secret’ all the documentation in its files that might help to shed light on the case” (see paragraph 21 of the report). He made repeated site visits of the Tabanovce border crossing, the hotel and Skopje Airport and interviewed “witnesses and other sources who participated in or experienced the[se] events at first hand”. In the report, the expert gave detailed information about: the applicant’s arrival in the respondent State; the chronological sequence of events at the Tabanovce border crossing and the actions taken by the Macedonian border officials with respect to the applicant; the UBK’s deployment to Tabanovce and the on-site interrogation of the applicant; the UBK’s liaison with the CIA; and the landing, route and timing of a CIA-operated flight which had been used for the applicant’s transfer from Skopje Airport. As noted in the report, after the arrival of the UBK agents at the Tabanovce border crossing, “the Macedonian authorities took meticulous and wide-ranging measures ... to conceal from scrutiny anything out of the ordinary – including deviations from Macedonian law and procedures – that might happen to Mr ElMasri while held in Macedonian custody. I have been struck by the attention to detail I have learned about on the part of the Macedonian authorities, as they sought to cover up or interfere with almost every avenue of independent investigation into the truth of what happened” (see paragraph 141 of the report). 76. The applicant submitted two reports containing the ECCHR’s observations on the report of the First Committee of Inquiry of the German Bundestag (see paragraphs 59-61 above), cables sent by the US embassy (see paragraph 77 below) and the arrest warrants issued by the Munich public prosecutor’s office (see paragraph 58 above). 77. The applicant submitted several diplomatic cables in which the US diplomatic missions in the respondent State, Germany and Spain had reported to the US Secretary of State about the applicant’s case and/or the alleged CIA flights and the investigations in Germany and Spain (cable 06SKOPJE105, issued on 2 February 2006; cable 06SKOPJE118, issued on 6 February 2006; cable 07BERLIN242, issued on 6 February 2006; cable 06MADRID1490, issued on 9 June 2006; and cable 06MADRID3104, issued on 28 December 2006). These cables were released by WikiLeaks (described by the BBC on 7 December 2010 as “a whistle-blowing website”) in 2010. 78. Under Article 12 §§ 1, 2 and 4 of the Constitution, the right to liberty is irrevocable. No one may be deprived of his liberty except by a court decision and in the cases and under a procedure prescribed by law. Everyone detained must be brought immediately, and in any event no later than twenty-four hours from the detention, before a court that must decide on the lawfulness of the detention without any delay. 79. Pursuant to Article 107 § 1 (4) of the Criminal Code, prosecution of offences subject to a prison sentence of more than three years becomes statute-barred five years after the offence was committed. 80. Under Article 108 § 3, any procedural step taken with a view to prosecuting the perpetrator interrupts the running of the time bar. 81. Article 140 of the Criminal Code provides that a person who unlawfully detains, holds in custody or otherwise restricts another’s freedom of movement is to be fined or punished by a term of imprisonment of one year. An official who unlawfully deprives another of his or her liberty is to be punished by a term of imprisonment of six months to five years. 82. Article 142 of the Criminal Code punishes acts of torture, providing for a prison term of three months to five years. 83. Article 143 of the Criminal Code provides that a person who, in the performance of his or her official duties, mistreats, intimidates, insults or generally treats another in such a manner that his or her human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years. 84. Section 3 of the Criminal Procedure Act provided that anyone who was summoned, arrested or detained had to be informed promptly, in a language which he or she understood, of the reasons for the summons, arrest or detention and of his or her statutory rights. He or she could not be forced to make a statement. A suspect, that is, a person accused of an offence, had to be clearly informed from the outset of his or her right to remain silent, to consult with a lawyer, to have a lawyer of his or her choice present during questioning, and to inform a third party of his or her detention. A detainee should be brought promptly or, at the latest, twenty-four hours after the detention, before a judge who would decide on the lawfulness of the detention. 85. Section 16 of the Act provided that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to prosecution by the State proprio motu or on an application by the victim, the authorised prosecutor was the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor was the private prosecutor. If the public prosecutor found no grounds for the institution or continuation of criminal proceedings, his or her role could be assumed by the victim, acting as a subsidiary prosecutor under the conditions specified in the Act. 86. Section 56(1), (2) and (4) provided, inter alia, that where the public prosecutor found that there were no grounds for prosecuting an offence subject to State prosecution, he or she was to notify the victim of that decision within eight days. The public prosecutor also had to inform the victim that the latter could conduct the prosecution. The victim could take over the prosecution within eight days from the receipt of the prosecutor’s notification. A victim who was not informed of the public prosecutor’s decision could make a written application to the competent court to take over the prosecution within three months after the prosecutor rejected his or her complaint. 87. Under section 144, the public prosecutor was to reject a criminal complaint if, inter alia, there were no grounds to conclude that a crime had been committed. The public prosecutor had to notify the victim of the rejection and the reasons therefor within eight days (section 56). An amendment to that provision, enacted in October 2004, specified that the public prosecutor should submit a copy of the decision rejecting the criminal complaint in which the victim was to be advised that he or she had the right to take over the prosecution within eight days. Where there was insufficient evidence or a complaint had been lodged against an unknown perpetrator, the public prosecutor would seek information from the Ministry of the Interior. The public prosecutor could also seek information from the complainant or any other person who could contribute to establishing the facts. 88. Section 184 specified the grounds for pre-trial detention. 89. Under section 185, pre-trial detention was ordered by an investigating judge. The person detained could appeal against that order within twenty-four hours before a three-judge panel, which was required to determine the appeal within forty-eight hours. 90. Section 188(2) provided that officials of the Ministry of the Interior could arrest, without a court order, anyone suspected of committing an offence prosecutable by automatic operation of the law. The arrested person had to be brought promptly before an investigating judge. In accordance with section 188(3) and as an exception to the general rule, Ministry officials could detain a person if it was necessary to determine his or her identity, to verify his or her alibi or if there were other grounds requiring the collection of information to enable proceedings to be brought against a third party. Subsection (4) required the arrested person to be given the information referred to in section 3 of the Act. Section 188(6) provided that detention pursuant to section 188(3) could not exceed twenty-four hours. The Ministry official was required either to release the arrested person or to proceed in accordance with section 188(2). 91. Section 141 of the Obligations Act defines different grounds for claiming civil compensation. 92. Under section 157, an employer is liable for damage caused by an employee in the performance of his or her duties or in relation to them. The victim can claim compensation directly from the employee if the damage was caused intentionally. The employer may seek reimbursement from the employee of the compensation awarded to the victim if the employee caused the damage intentionally or negligently. 93. The relevant parts of Article 36 of the Vienna Convention on Consular Relations read as follows: “1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: ... (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph ...” 94. The relevant provisions of the ICCPR, which was adopted on 16 December 1966 and came into force on 23 March 1976, read as follows. “... 2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. ...” “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” 95. The relevant provisions of the above-mentioned Convention, which was adopted on 20 December 2006, came into force on 23 December 2010, and has been signed but not ratified by the respondent State, read as follows. “1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.” “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” “Each State Party shall take appropriate measures to investigate acts defined in Article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.” “Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.” 96. The relevant passage of this manual reads as follows: “80. Alleged victims of torture or ill-treatment and their legal representatives must be informed of, and have access to, any hearing as well as to all information relevant to the investigation and must be entitled to present other evidence.” 97. The relevant parts of the Articles, adopted on 3 August 2001 (Yearbook of the International Law Commission, 2001, vol. II), read as follows: “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. ...” “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” “1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act. 2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.” “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” 98. The relevant passage of this report reads as follows: “35. Finally, the Special Rapporteur would like to appeal to all States to ensure that in all appropriate circumstances the persons they intend to extradite, under terrorist or other charges, will not be surrendered unless the Government of the receiving country has provided an unequivocal guarantee to the extraditing authorities that the persons concerned will not be subjected to torture or any other forms of ill-treatment upon return, and that a system to monitor the treatment of the persons in question has been put into place with a view to ensuring that they are treated with full respect for their human dignity.” 99. The relevant parts of this Resolution read as follows: “7. On the basis of an extensive review of legal and factual material from these and other reliable sources, the Assembly concludes that the circumstances surrounding detentions by the United States at Guantánamo Bay show unlawfulness and inconsistency with the rule of law, on the following grounds: ... vii. the United States has, by practising ‘rendition’ (removal of persons to other countries, without judicial supervision, for purposes such as interrogation or detention), allowed detainees to be subjected to torture and to cruel, inhuman or degrading treatment, in violation of the prohibition on non-refoulement ...” 100. The relevant parts of this Resolution read as follows: “1. ’Enforced disappearances’ entail a deprivation of liberty, refusal to acknowledge the deprivation of liberty or concealment of the fate and the whereabouts of the disappeared person and the placing of the person outside the protection of the law. 2. The Parliamentary Assembly unequivocally condemns enforced disappearance as a very serious human rights violation on a par with torture and murder, and it is concerned that this humanitarian scourge has not yet been eradicated, even in Europe.” 101. The relevant part of this Resolution reads as follows: “The General Assembly, ... 11. Reminds all States that prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment, and urges all States to respect the safeguards concerning the liberty, security and dignity of the person ...” 102. The relevant parts of the Venice Commission’s Opinion read as follows. “30. As regards the terminology used to refer to irregular transfer and detention of prisoners, the Venice Commission notes that the public debate frequently uses the term ‘rendition’. This is not a term used in international law. The term refers to one State obtaining custody over a person suspected of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of such a person to custody in the first State’s territory, or a place subject to its jurisdiction, or to a third State. ‘Rendition’ is thus a general term referring more to the result – obtaining of custody over a suspected person – rather than the means. Whether a particular ‘rendition’ is lawful will depend upon the laws of the States concerned and on the applicable rules of international law, in particular human rights law. Thus, even if a particular ‘rendition’ is in accordance with the national law of one of the States involved (which may not forbid or even regulate extraterritorial activities of State organs), it may still be unlawful under the national law of the other State(s). Moreover, a ‘rendition’ may be contrary to customary international law and treaty or customary obligations undertaken by the participating State(s) under human rights law and/or international humanitarian law. 31. The term ‘extraordinary rendition’ appears to be used when there is little or no doubt that the obtaining of custody over a person is not in accordance with the existing legal procedures applying in the State where the person was situated at the time. ... 159. As regards inter-State transfers of prisoners (f) There are only four legal ways for Council of Europe member States to transfer a prisoner to foreign authorities: deportation, extradition, transit and transfer of sentenced persons for the purpose of their serving the sentence in another country. Extradition and deportation proceedings must be defined by the applicable law, and the prisoners must be provided appropriate legal guarantees and access to competent authorities. The prohibition to extradite or deport to a country where there exists a risk of torture or ill-treatment must be respected.” 103. In this Report, the Special Rapporteur noted the following. “38. ... The Special Rapporteur is concerned about situations where persons are detained for a long period of time for the sole purpose of intelligence-gathering or on broad grounds in the name of prevention. These situations constitute arbitrary deprivation of liberty. The existence of grounds for continued detention should be determined by an independent and impartial court. Without delay, the continued detention of such a person triggers a duty for the authorities to establish whether criminal suspicions can be confirmed and, if this is the case, to bring charges against the suspect and to put him on trial. ... ... 51. The Special Rapporteur remains deeply troubled that the United States has created a comprehensive system of extraordinary renditions, prolonged and secret detention, and practices that violate the prohibition against torture and other forms of ill-treatment. This system required an international web of exchange of information and has created a corrupted body of information which was shared systematically with partners in the war on terror through intelligence cooperation, thereby corrupting the institutional culture of the legal and institutional systems of recipient States. ... 60. The human rights obligations of States, in particular the obligation to ensure an effective remedy, require that such legal provisions must not lead to a priori dismissal of investigations, or prevent disclosure of wrongdoing, in particular when there are reports of international crimes or gross human rights violations. The blanket invocation of State secrets privilege with reference to complete policies, such as the United States secret detention, interrogation and rendition programme or third-party intelligence (under the policy of ‘originator control’ ...) prevents effective investigation and renders the right to a remedy illusory. This is incompatible with Article 2 of the International Covenant on Civil and Political Rights. It could also amount to a violation of the obligation of States to provide judicial assistance to investigations that deal with gross human rights violations and serious violations of international humanitarian law.” 104. The relevant part of the above Resolutions read as follows: “... recognised the right of the victims of gross violations of human rights and the right of their relatives to the truth about the events that have taken place, including the identification of the perpetrators of the facts that gave rise to such violations ...” 105. The Guidelines address the problem of impunity in respect of acts or omissions that amount to serious human rights violations. They cover States’ obligations under the Convention to take positive action in respect not only of their agents, but also in respect of non-State actors. According to the Guidelines, “impunity is caused or facilitated notably by the lack of diligent reaction of institutions or State agents to serious human rights violations. ... States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system”. They provide, inter alia, for the general measures that States should undertake in order to prevent impunity, the duty to investigate, as well as the adequate guarantees for persons deprived of their liberty. 106. This case concerned Mr Feroz Ali Abbasi, a British national who had been captured by US forces in Afghanistan and transported in January 2002 to Guantánamo Bay in Cuba. He had been held captive without access to a court or any other form of tribunal or to a lawyer. He contended that the right not to be arbitrarily detained had been infringed. The court found that Mr Abbasi’s detention in Guantánamo Bay, which it referred to as “a legal black hole”, had been arbitrary “in apparent contravention of fundamental principles recognised by both [English and American] jurisdictions and by international law”. 107. On 18 December 2003, in a case involving a Libyan national (Mr Falen Gherebi) held as an “enemy combatant” at Guantánamo Bay, the US Court of Appeals described what the US government had argued before it: “... under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantánamo, the US government has never before asserted such a grave and startling proposition. Accordingly, we view Guantánamo as unique not only because the United States’ territorial relationship with the [b]ase is without parallel today, but also because it is the first time that the government has announced such an extraordinary set of principles – a position so extreme that it raises the gravest concerns under both American and international law.” 108. Both these cases were discussed in the 2006 Marty Report (see paragraphs 150-61 of the Report), the relevant parts of which read as follows. “153. In short, the facts occurred in the following manner: on 18 December 2001, Mr Agiza and Mr Alzery, Egyptian citizens seeking asylum in Sweden, were the subject of a decision dismissing the asylum application and ordering their deportation on grounds of security, taken in the framework of a special procedure at ministerial level. In order to ensure that this decision could be executed that same day, the Swedish authorities accepted an American offer to place at their disposal an aircraft which enjoyed special over flight authorisations. Following their arrest by the Swedish police, the two men were taken to Bromma Airport where they were subjected, with Swedish agreement, to a ‘security check’ by hooded American agents. 154. The account of this ‘check’ is especially interesting, as it corresponds in detail to the account given independently by other victims of ‘rendition’, including Mr ElMasri. The procedure adopted by the American team, described in this case by the Swedish police officers present at the scene, was evidently well rehearsed: the agents communicated with each other by gestures, not words. Acting very quickly, the agents cut Agiza’s and Alzery’s clothes off them using scissors, dressed them in tracksuits, examined every bodily aperture and hair minutely, handcuffed them and shackled their feet, and walked them to the aircraft barefoot. ... 157. Prior to deportation of the two men to Egypt, Sweden sought and obtained ‘diplomatic assurances’ that they would not be subjected to treatment contrary to the anti-torture convention, would have fair trials and would not be subjected to the death penalty. The ‘assurances’ were even backed up by a monitoring mechanism, regular visits by the Swedish Ambassador and participation by Swedish observers at the trial.” 109. The relevant United Nations committees found Sweden responsible under Article 7 of the ICCPR, concluding that the treatment to which Mr Alzery had been subjected at Bromma Airport had been imputable to the State Party and had amounted to a violation of Article 7 of the Covenant; that Sweden had breached its obligations to carry out a prompt, independent and impartial investigation into the events at Bromma Airport; and that the prohibition of refoulement, set out in that Article, had been breached in respect of both Mr Agiza and Mr Alzery. 110. USA Today reported that the Swedish government had paid 450,000 United States dollars (USD) to Mr Alzery in compensation for his deportation. The same amount had been agreed to be paid to Mr Agiza (“Sweden Compensates Egyptian Ex-terror Suspect”, USA Today, 19 September 2008). 111. The applicant and third-party interveners submitted a considerable number of articles, reports and opinions of international, foreign and national bodies, non-governmental organisations and media, which raised concerns about alleged unlawful secret detentions and ill-treatment in USrun detention centres in Guantánamo Bay and Afghanistan. A summary of the most relevant sources is given below. 112. The United Nations High Commissioner for Human Rights stated as follows: “All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.” 113. In this memorandum, Amnesty International expressed its concerns that the US government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention. 114. This report included the following passage: “... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-US citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.” 115. This report referred to The Washington Post’s article “U.S. Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation center at Bagram air base in Afghanistan [were] being subject to ‘stress and duress’ techniques, including ‘standing or kneeling for hours’ and being ‘held in awkward, painful positions’”. 116. It further stated: “The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.” 117. The relevant passage of this report reads as follows: “Many ‘special interest’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates.” 118. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles”) and the conditions of detention (“they were held without charge or trial or access to courts, lawyers or relatives”). It further stated: “A number of suspected members of [al-Qaeda] reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.” 119. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the ICCPR. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina, which had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6. 120. The relevant passage of this report reads as follows: “Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘irregular renditions’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections.” 121. The relevant passage of this report reads as follows: “Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘rendering’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law.” 122. The ICRC expressed its position as follows: “Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization’s current detention work in Guantánamo and Afghanistan.” 123. The United Nations Working Group on Arbitrary Detention found that the detention of the persons concerned, held in facilities run by the US secret services or transferred, often by secretly run flights, to detention centres in countries with which the US authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing. 124. The applicant submitted to the Court the above-mentioned CIA memo, parts of which are no longer classified. The document “focuses strictly on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade High-Value Detainees (HVD) to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic, and cumulative manner to influence HVD behavior, to overcome a detainee’s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... [T]he interrogation process can be broken into three separate phases: Initial Conditions; Transition to Interrogation; and Interrogation”. As described in the memo, the “Initial Conditions” phase concerned “capture shock”, “rendition” and “reception at Black Site”. It reads, inter alia: “Capture ... contribute to the physical and psychological condition of the HVD prior to the start of interrogation ... (1) Rendition ... A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods ...” 125. The “Interrogation” phase included descriptions of “detention conditions”, “conditioning techniques” and “corrective techniques”. 126. The applicant further submitted copies of numerous articles published in Macedonian newspapers. The most relevant are cited below: (1) “Hunger Strike of the Taliban in Guantánamo”, 4 March 2002; “Secret Agreement with Serious Shortcomings”, 5 June 2003; “Four Frenchmen in Guantánamo under Torture”, 16 October 2003; “In Guantánamo Torture is Performed”, 27 November 2003; and “Prisoners without Charges or Rights”, 12 January 2004 (all published in the newspaper Utrinski Vesnik); and (2) “CIA Tortures Captured Islamists in Afghanistan”, 27 December 2002; “USA Forgets about Human Rights in the Course of the Anti-terrorism Campaign”, 16 January 2003; and “Oblivion for 140 Prisoners of Guantánamo”, 2 December 2003 (all published in the newspaper Dnevnik). 127. He also provided copies of articles published in US newspapers, which reported on “stress and duress” techniques employed by the US in interrogating detainees at the US air base at Bagram in Afghanistan (“Army Probing Deaths of 2 Afghan Prisoners”, The Washington Post, 5 March 2003, and “Questioning Terror Suspects in a Dark and Surreal World”, The New York Times, 9 March 2003). Other articles from US and British newspapers reported on the rendition to US custody of individuals suspected of terrorist-related activities prior to January 2004 (“A CIA-Backed Team Used Brutal Means to Crack Terror Cell”, The Wall Street Journal, 20 November 2001; “U.S. Behind Secret Transfer of Terror Suspects”, The Washington Post, 11 March 2002; “Chretien Protests Deportation of Canadian: Prime Minister Calls U.S. Treatment of Terror Suspect ‘Completely Unacceptable’”, The Washington Post, 6 November 2003; “The Invisible”, The Independent, 26 June 2003; and “Missing Presumed Guilty: Where Terror Suspects Are Being Held”, The Independent, 26 June 2003. 128. The applicant submitted articles in which journalists reported that the US Ambassador in Germany at the time had informed the German authorities in May 2004 that the CIA had wrongly imprisoned the applicant. They further reported that German Chancellor Angela Merkel had stated that the US Secretary of State Condoleezza Rice had admitted to her, in a private discussion, that the US had mistakenly abducted and detained the applicant. According to those articles, US representatives had declined to discuss anything about the case with reporters (“Wrongful Imprisonment: Anatomy of a CIA Mistake”, The Washington Post, 4 December 2005; “German Sues CIA, Alleging Torture – [E]l-Masri Seeks Damages after Mistaken-identity ‘Rendition’ Case”, NBC News, 6 December 2005; “Merkel Government Stands By Masri Mistake Comments”, The Washington Post, 7 December 2005; and “Germany Weighs if It Played Role in Seizure by US”, The New York Times, 21 February 2006). The latter article made reference to an interview with Mr H.K. in which he stated: “There is nothing the Ministry has done illegally. The man is alive and back home with his family. Somebody made a mistake. That somebody is not Macedonia.” 129. Lastly, in 2007, the Canadian Broadcasting Corporation (CBC) reported that the Canadian Prime Minister was to announce a settlement of USD 10,000,000 and issue a formal apology to a Mr Arar, a Canadian citizen born in Syria, who had been arrested in 2002 by US authorities at New York’s John F. Kennedy International Airport and deported to Syria. The Prime Minister had already acknowledged that Mr Arar had suffered a “tremendous injustice” (CBC, “Ottawa Reaches $10M Settlement with Arar”, 25 January 2007). In 2010 The Guardian published an article about the alleged role of the United Kingdom in the rendition of suspects in which it was announced that former detainees of British nationality in Guantánamo Bay might receive a very large payout from the United Kingdom government, in some cases at least one million pounds sterling (The Guardian, “Torture and Terrorism: Paying a High Price”, 17 November 2010).
| 1 |
train
|
001-110156
|
ENG
|
POL
|
CHAMBER
| 2,012 |
CASE OF CHMURA v. POLAND
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence)
|
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
5. The applicant was born in 1973 and lives in Skarżysko-Kamienna. He was suspected of having participated in an organised criminal gang. 6. On an unspecified date NA, who was a Bulgarian national allegedly involved in procuring prostitution, filed a criminal complaint concerning his abduction and robbery. 7. On 19 April 1999 NA was heard by the prosecutor. He testified that he had been abducted, severely beaten and robbed by several men who had demanded protection money based on the income of foreign prostitutes working under his supervision. NA had identified the applicant as one of his attackers from a photograph. 8. On 23 April 1999 NA identified the applicant during an identity parade. On the same day the applicant and NA were confronted. During the confrontation NA reiterated that he had been severely beaten and robbed by the applicant and his accomplices who had demanded protection money from him. The applicant claimed to be innocent. He stated that he knew NA because he had seen him several times in front of a bar frequented by prostitutes. 9. On 16 July 1999 NA was summoned to testify as a witness in the case. The summons sent to his Bulgarian address was returned with the information that NA was resident in Poland. It appears that subsequently the authorities were unable to locate NA. The investigation was adjourned in order to obtain evidence from another Bulgarian national (ZA) by means of legal assistance from the Bulgarian authorities. 10. On 12 February 2002 the applicant was arrested on suspicion of having kidnapped and robbed NA in November 1998, while acting in an organised criminal gang led by LC. He was charged accordingly and detained on remand on the same day. 11. On 20 February 2002 the applicant was served with the written grounds for his statement of charges. The document stated that in light of the evidence gathered during the investigation, particularly the testimonies of PK (another victim) and NA, there was a reasonable suspicion that the applicant had participated in the abduction and robbery of NA. 12. Simultaneously, in February 2002, the police were still trying to trace NA in order to summon him for further questioning. It appears that he had not returned to Bulgaria and that he had changed his place of residence in Poland. An arrest warrant had been issued for him in a different criminal case in which he was a suspect. On 18 March 2002 the Kielce Regional Prosecutor decided to summon NA for questioning. On the same date NA was arrested and transported for questioning. 13. On 18 March 2002 the applicant’s counsel submitted his power of attorney to the Kielce District Court. On the following day a copy of that document was transmitted to the Regional Prosecutor. 14. On 19 March 2002 the Regional Prosecutor heard NA. NA undertook to appear before the Kielce Regional Court on 11 April 2002 to give evidence. 15. On 19 March 2002 the Kielce Regional Prosecutor requested the Kielce Regional Court to hear NA, pursuant to Article 316 § 1 of the Code of Criminal Procedure (“the CCP”). The prosecutor justified his request by the risk that it might not be possible to hear NA at the trial and submitted that the latter’s testimony would be important for the outcome of the case. NA had been heard by the prosecutor on several occasions during the investigation. However, his whereabouts were not established until 18 March 2002. NA had not been residing at the address indicated to the authorities in 1999 and his current address in Poland remained unknown. The prosecutor’s request also contained a list of suspects and their defence counsel, including the applicant’s counsel. 16. On 20 March 2002 the Kielce Regional Court granted the prosecutor’s request to hear NA on 11 April 2002 and decided to notify the applicant, the other co-accused and their counsel of the hearing. 17. On 2 April 2002 the Kielce Regional Prosecutor informed the applicant’s counsel that he and his client could consult the case file of the investigation from 12 April 2002 and that the date for the final consultation was fixed for 22 April 2002. 18. The applicant submitted that his counsel had not been notified about the hearing scheduled for 11 April 2002 but that he had learned about it by chance and had appeared at it. The Government maintained that the applicant’s counsel had been duly informed. 19. On 11 April 2002 a judge of the Kielce Regional Court heard NA. The hearing was video recorded. The applicant’s counsel requested that the hearing be adjourned on the grounds that he had not had the opportunity to consult the case file of the prosecution, at least as regards the part concerning the previous statements of NA. The prosecutor opposed those requests and submitted that the case file had not been made accessible due to the need to protect the witness. The prosecutor acknowledged that the case file would be made accessible to all authorised persons as from the following day. The court refused the request for adjournment since it was not competent to decide on the issue of access to the case file of the investigation without the prosecutor’s prior permission. The counsel maintained that hearing the witness without his having consulted the case file would in effect prevent him from defending his client. The court decided to proceed with the hearing of NA. The applicant, his counsel and some of the other co-accused left the courtroom in protest. 20. During the hearing NA described the events in which the applicant and his associates had been allegedly involved. He stated that he recognised the applicant as one of the persons who had committed the alleged offences. Subsequently, he replied to questions put by the prosecutor and two of the accused. 21. On 26 April 2002 the prosecution filed a bill of indictment with the Kielce Regional Court. The applicant was charged with having participated in a criminal gang and with having abducted, deprived of liberty and robbed NA on 2 November 1998. Other members of the same criminal gang were charged with extortion, robbery, kidnapping and profiting from prostitution. 22. The trial started in July 2002 and the court held in total twelve hearings up to 28 May 2003. The trial court made several attempts to summon NA to the hearings with the assistance of the police. It also sought the assistance of the Bulgarian embassy in Poland in tracking down NA. All efforts failed. At the hearing held on 13 May 2003 the trial court decided to show the video recording of the hearing of 11 April 2002 at which NA had given his testimony. 23. On 4 June 2003 the Kielce Regional Court convicted the applicant of having participated in an organised criminal group and of having abducted, deprived of liberty and robbed NA. LC and other members of the gang were also convicted. The applicant was sentenced to four years’ imprisonment and a fine. The court based its judgment to a decisive extent on the testimony of NA, who had identified the applicant and the other coaccused as the persons who had abducted him. 24. The trial court underlined that NA had been heard at the preparatory stage of the proceedings pursuant to Article 316 § 3 of the CCP at the prosecutor’s request, having regard to the risk that it might not be possible to hear him at the main hearing. NA was a Bulgarian national and did not have a permanent abode in Poland. The court had unsuccessfully attempted to summon him to appear at the main hearing, but the police’s efforts to locate him had been in vain. The court noted that the applicant’s counsel had requested permission to consult the case file and to adjourn the hearing of NA; however that request was refused in view of the prosecutor’s objection. In this respect the trial court found that the applicant and his counsel had freely forfeited the opportunity to put questions to NA. In the court’s view, even without knowledge of the case file, they could have put questions to the witness in relation to the content of his testimony. 25. On 23 October 2003 the applicant’s counsel lodged an appeal against the judgment. He complained, relying on Article 6 § 1 of the Convention, that the applicant’s defence rights had been breached in that the trial court and the prosecutor had deprived him of the opportunity to have access to the case file of the prosecution prior to the only hearing of the main witness. He maintained that he could not have put questions to the witness without knowing the content of the file, in particular the witness’ previous testimony. In that way he was deprived of a possibility to pinpoint major differences in the statements of NA given at various stages of the investigation. The applicant’s counsel submitted that the case file had been ready before 11 April 2002, as all investigative actions, except for the hearing of NA, had already been completed. The applicant’s counsel argued that this had made the whole trial unfair and that the prosecutor’s actions had amounted to a deliberate hindering of his procedural rights. Moreover, the authorities had allowed NA to leave the country by releasing him and returning his passport although he had committed other offences. Lastly, the applicant’s counsel pointed to certain factual inconsistencies in the statements of NA related, inter alia, to the date of the alleged abduction as well as the applicant’s role in it. 26. On 26 February 2004 the Kraków Court of Appeal dismissed the appeal. It noted that the testimony of NA was the key evidence for the applicant’s conviction. With regard to the allegations that the applicant’s defence rights had been breached, the Court of Appeal established that the applicant and his counsel had been duly summoned and had appeared at the hearing of NA. It reiterated that the decision whether to allow access to the case file at the investigation stage of the proceedings lay with the prosecutor, and that ensuring the confidentiality of the materials at that stage had been important for the outcome of the investigation. It was for this reason that the CCP authorised the applicant’s counsel to examine the case file only at the final stage of the investigation. The fact that the applicant and his counsel were to take part in the hearing of the witness did not make it obligatory for the prosecutor to allow them access to the case file. The prosecutor had noted during the court session on 11 April 2002 that the accused would be progressively allowed to examine the case file as from the following day. 27. The Court of Appeal further noted that it transpired from the minutes of the hearing that the applicant’s counsel had requested the adjournment of the hearing with a view to consulting all the evidence in the case file. However, granting such a request would have resulted in a significant delay. It was therefore reasonable for the prosecutor to have refused leave on account of concerns for NA’s safety, having regard to the fact that some members of the gang were still at large and that the testimony of that witness was the key evidence in the case. In those circumstances the Court of Appeal found that the court had not acted in bad faith when it went ahead with the hearing of NA in accordance with Article 316 § 3 of the CCP. 28. The Court of Appeal observed that had the applicant’s counsel considered it necessary to consult the statements of NA made during the investigation prior to the hearing of NA, and knowing the date fixed for that hearing, he should have filed the relevant request in advance in order to enable the prosecutor to rule on the request. However, the applicant’s counsel failed to do so and thus deprived himself of the possibility to appeal against the prosecutor’s refusal. Moreover, had the applicant’s counsel been present at the hearing of NA, nothing would have prevented him from putting questions to the witness on the basis of the information he had obtained from his client or with respect to the contents of the witness’ testimony given at the hearing. The Court of Appeal concluded that there had been no violation of Article 6 § 1 of the Convention in the case, and the trial court had correctly found that the counsel and the accused had the right, but not the obligation, to participate in the hearing of a witness carried out under Article 316 § 3 of the CCP. By leaving the courtroom they had waived their right to participate in the hearing of the witness. Further, the Court of Appeal considered in detail the issue of the alleged lack of consistency in NA’s statements with regard to the applicant’s role in the abduction; however, it rejected them as illfounded. 29. On 22 July 2004 the applicant’s counsel lodged a cassation appeal with the Supreme Court. He raised similar complaints to those set out in his appeal, maintaining that his lack of knowledge of the content of the case file had made the applicant’s defence illusory. 30. On 8 December 2004 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 31. Article 316 § 3 of the 1997 Code of Criminal Procedure reads as follows: “If there is a danger that the witness cannot be heard at the hearing, a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court.” 32. Article 156 § 5 of the Code concerns access to the file during investigation. It provides: “Unless otherwise provided by law, during the preparatory proceedings parties, defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings. With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person.”
| 0 |
train
|
001-23392
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,003 |
NAGY v. HUNGARY
| 4 |
Inadmissible
|
Gaukur Jörundsson
|
The applicant, a national of Hungary and the United States, was born in 1943 and lives in Los Angeles, California. The respondent Government are represented by Mr L. Höltzl, Agent. The facts of the case, as submitted by the parties, may be summarised as follows. In 1991 criminal proceedings on charges of fraud and other offences were initiated against the applicant and five other suspects. On 3 December 1991 the applicant was arrested. On 6 December 1991 the Pest Central District Court ordered his detention on remand. This decision was upheld on appeal. After extensions of his detention on 2 January, 3 March, 2 June, 22 July and 30 October 1992, the applicant was released on 6 January 1993. He alleges that between that date and 18 April 1998 he stayed at his mother’s home in Csömör, Hungary. On 12 March 1993 the case-file was transferred to the public prosecutor’s office. On 27 December 1993 a bill of indictment was preferred in the case. The applicant was charged with the offences of fraud and forgery and manipulation of documents. On 25 January 1994 the Pest Central District Court’s mail to the applicant, which included the bill of indictment, was returned as the addressee was unknown. On 26 February 1994 the Budapest VI/VII District Police Department confirmed that the applicant could not be located at his last known address. Having received information about the applicant’s last address before his emigration to the United States, in August 1994 the District Court unsuccessfully attempted to serve the bill of indictment on him at that address. On 4 January 1995 the U.S. Embassy in Budapest issued a passport to the applicant. According to the stamps in this passport, during the period until April 1998 the applicant travelled to and from Hungary on numerous occasions. On 14 March 1995 the Budapest Police Department informed the District Court that the search for the applicant had been unsuccessful. On 31 March 1995 an arrest warrant was issued. A hearing was held on 27 June 1995. Observing that some defendants had absconded, the District Court suspended the proceedings. Subsequently, the case was transferred to the Budapest II/III District Court. On 8 September 1997 the applicant lodged an application for a passport with the Passport Office in Hungary. On 4 November 1997 the Passport Office refused to renew his Hungarian passport on account of the criminal proceedings pending against him. On 2 February 1998 the Minister of the Interior dismissed his administrative appeal. Subsequently, the District Court was informed of these administrative proceedings. Using the address indicated by the applicant in his passport application, the court again attempted to serve the bill of indictment on him, but without success. In response to the court’s request, the competent Gödöllő Police Department found out about the applicant’s address in Csömör on 12 June 1998. Meanwhile, apparently on 18 April 1998, the applicant left Hungary and returned to the United States where he has remained ever since. On 22 June 1998 a summons to a hearing scheduled for 7 June 1998 was served on the applicant’s wife. At the hearing, however, neither the applicant nor his formerly authorised legal counsel showed up. On 21 July 1998 the counsel informed the District Court that he was no longer representing the applicant. The court’s renewed summons could not be served on the applicant as he was not available at his last known address. The next hearing was held on 21 October 1998. The applicant’s whereabouts remained unknown until March 1999 when he wrote to the Ministry of Justice from Los Angeles. On 26 March 1999 the District Court again issued an arrest warrant. Its further attempts to summon the applicant using his last known addresses in Hungary and Los Angeles remained unsuccessful. Another hearing took place on 15 July 1999. On this occasion, the court considered the possibility of seeking the applicant’s extradition. On 15 November 1999 the District Court again suspended the proceedings, having regard to the fact that the applicant and other defendants had absconded. On 13 March 2000 the District Court resumed the proceedings. It held a hearing on that day and another hearing on 10 April 2000. On the latter date, it issued an order discontinuing the criminal proceedings against the applicant on the ground that the charges had become time-barred on 31 March 2000. According to section 35 § 2 of the Code of Criminal Procedure, as in force in the relevant period, a period of suspension is included in the prescription period if the proceedings are suspended because the perpetrator’s whereabouts are unknown.
| 0 |
train
|
001-68832
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,005 |
BENAMAR v. THE NETHERLANDS
| 4 |
Inadmissible
|
David Thór Björgvinsson;Mark Villiger
|
The applicants are four siblings, Latifa, Hanan, Abdelouahab and Abdelhak Benamar, and their mother Mrs Rachida Boudhan. The latter was born in 1961 and the other applicants in 1979, 1981, 1983 and 1985, respectively. All applicants are Moroccan nationals and live in Oosterhout. They were represented before the Court by Mr J.M.M. Verstrepen, a lawyer practising in Oosterhout. On 12 September 1978, Mrs Boudhan (the fifth applicant) married Mr Benamar in Morocco, where both of them were living and continued to live after their marriage. The first four applicants were born out of this marriage. On 3 August 1988, Mrs Boudhan's marriage with Mr Benamar was dissolved in Morocco. Mrs Boudhan waived her rights and obligations visà-vis her husband and the four children. The court that pronounced the divorce entrusted the care and custody of the four children to Mr Benamar. On 4 June 1991, Mrs Boudhan remarried in the Netherlands. Her new husband, Mr Airaki, is a Moroccan national living in the Netherlands and holder of a permanent residence permit. On the basis of this marriage, Mrs Boudhan was granted a Netherlands residence permit. On 22 June 1997, Mr Benamar died in Morocco. On 12 July 1997, after a Moroccan court had entrusted her with the care and custody of the four children, Mrs Boudhan travelled to Morocco and, on 30 August 1997, returned to the Netherlands with the four children. On 13 September 1997, the four children applied for a Netherlands residence permit for the purpose of stay with their mother. In four separate decisions taken on 21 November 1997, the head of police (korpschef) of the Middle and West Brabant region rejected these requests. The head of police noted at the outset that the four children did not hold the required provisional residence visa (machtiging tot voorlopig verblijf) issued by the Netherlands authorities in Morocco. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. The head of police further held that a number of requirements for a residence permit for the purpose of (extended) family reunion were not met. On this point, the head of police concluded that it had not been established that – between June 1991 and 30 August 1997 – there had been close family ties (gezinsband) between the children and Mrs Boudhan, since the children had been living in another family unit, i.e. that of their father, and Mrs Boudhan had been unable to demonstrate that, during that period, she had financially contributed to the children's care and upbringing. Furthermore, Mrs Boudhan did not comply with the requirement of having adequate housing. The head of police further considered that the children's presence in the Netherlands did not serve an essential national interest, that there were no grounds for granting their request for compelling reasons of a humanitarian nature, and that no obligation for the Netherlands authorities to allow family reunion on its territory could be derived from Article 8 of the Convention. On 24 December 1997, the four children filed an administrative appeal with the Deputy Minister of Justice (Staatssecretaris of Justitie). On 9 February 1998, after the Deputy Minister had decided that they were not allowed to remain in the Netherlands pending the determination of their appeal, the children requested the President of the Regional Court (arrondissementsrechtbank) of The Hague to issue an interim measure to the effect that they would not be expelled pending the proceedings on their appeal. On 7 December 1999, the President of the Regional Court granted the children's request for an interim measure. Having noted that twenty-two months had elapsed since the administrative appeal had been filed and that it was still pending, the President considered that the Deputy Minister apparently did not attach great importance to an expulsion at short notice whereas it was plausible that the children had a great interest in being allowed to remain in the Netherlands pending the determination of their appeal. On 29 May 2001, the first applicant and Mrs Boudhan – who were assisted by their lawyer – were heard before an official commission (ambtelijke commissie) on the appeal filed against the decisions of 21 November 1997. In the course of this hearing, Mrs Boudhan stated inter alia that, after she had moved to the Netherlands, she had remained in contact with her four children in Morocco, both through annual visits and through telephone conversations. Her ex-husband had been an alcoholic and had died as a consequence thereof. He and the children had lived in the house of a sister of her ex-husband who had also lived there. Her oldest daughter had cooked and cared for the other three children. Her parents, who also lived in the Netherlands, owned a house in Morocco and she had stayed in that house during her visits to Morocco. Six of her seven siblings were living in the Netherlands; one sister still lived in Morocco but not near the place where her ex-husband had been living. She had also contributed financially and materially to the children's care and upbringing, by sending them money and clothes via friends and relatives. On 1 November 2001, the Deputy Minister rejected the administrative appeal brought by the four children. The Deputy Minister found that the criteria for family reunion had not been met given that the factual close family ties (feitelijke gezinsband) between the children and Mrs Boudhan had to be regarded as having been severed, at least since 1991 when Mrs Boudhan – leaving the four children with her ex-husband in Morocco – had moved to the Netherlands where she had founded a new family unit with Mr Airaki of which the four children did not form a part, whereas this situation had been intended as being a permanent arrangement. The Deputy Minister further considered that it had not been established that close family ties had been maintained by Mrs Boudhan after 1991, either through financial support or parental decisions. The Deputy Minister also found that it had not been established that it had been impossible for Mrs Boudhan to have custody of the children transferred to her sooner and that, for this reason, it had not been possible to seek reunion earlier. As to the children's argument that, since their arrival in the Netherlands, they had formed a part of Mrs Boudhan's family unit there, the Deputy Minister held that admission for family reunion was only possible if the actual close family ties between a parent and a child had never been severed. The Deputy Minister therefore concluded that the four children were not eligible for a residence permit for family reunion under the domestic immigration rules. As to the question whether a refusal to admit the children to the Netherlands would entail disproportionate hardship, the Deputy Minister noted that the first applicant was born and raised in Morocco where she had lived for eighteen years before coming to the Netherlands, and considered that she could be expected to fend for herself independently in Morocco. The Minister further held that it had not appeared that she had integrated into Netherlands society and become alienated from Moroccan society to such an extent that it could not be asked of her to return to Morocco, or that prior to her arrival in the Netherlands she had encountered such problems that it would be unreasonable to expect her to return to Morocco. On this point, the Deputy Minister noted that, although her father had died, it had appeared during the hearing before the official commission that the first applicant – without any help from her father – already regularly had had to assume the care for herself and her siblings, and found that it had not been established that she would not have, according to local standards, acceptable future prospects in Morocco. As regards the other children, the Deputy Minister held that they could return to Morocco together with their oldest sister who could – like she had already done prior to their arrival in the Netherlands and in so far as necessary – provide them with (a part of) the necessary care. The Deputy Minister further considered that her brothers Hanan and Abdelouahab – given their age – would be less and less dependent on their oldest sister as regards their actual daily care and would to an increasing degree be able to fend for themselves independently. In this context, the Deputy Minister further pointed out that financial support for the children's living expenses could be provided by transferring money from the Netherlands. Although the children's situation in Morocco would be less favourable than in the Netherlands, the Deputy Minister did not find this a reason to deviate from the applicable immigration rules. In so far as the children relied on Article 8 of the Convention, the Deputy Minister held, as regards the first applicant, that she had already come of age when she applied for a residence permit. As her relationship with Mrs Boudhan was one between adult relatives, and having found no indication that this relationship comprised more than the normal emotional ties that exist between parents and adult children, the Deputy Minister held that their relationship did not constitute family life within the meaning of Article 8. On this point, the Deputy Minister did not find it established that the care provided by Mrs Boudhan to the first applicant had been of such a nature that it could not be regarded as the normal care with which parents should provide their children. The Deputy Minister further considered it of importance that their separation had resulted from Mrs Boudhan's free choice to settle in the Netherlands, and that another indication for the absence of a special relationship of dependency between them was formed by the fact that Mrs Boudhan had been living in the Netherlands since 1991 whereas it was not until 1997 that she had made demonstrable efforts to be reunited with the first applicant in the Netherlands. As regards the other three children, the Deputy Minister accepted that there was family life within the meaning of Article 8 between them and Mrs Boudhan, but that the interests of the Netherlands authorities in maintaining a restrictive immigration policy outweighed the children's interests in exercising their family life with Mrs Boudhan in the Netherlands. On this point, the Deputy Minister considered that a refusal to admit the children to the Netherlands did not prevent them from exercising their family life with Mrs Boudhan in the way they had before they came to the Netherlands and that Mrs Boudhan had made a conscious decision at the time to leave Morocco and to leave her children behind. Consequently, their separation had not been caused by any public authority's involvement. The Deputy Minister held that in a situation like that of the applicants, where family life had been voluntarily reduced to the present level, it could not be required from the Netherlands authorities to make provisions allowing to deepen and intensify family life. The Deputy Minister further considered that no objective obstacles had appeared to the family life at issue being exercised outside the Netherlands. On 23 November 2001, the four children filed an appeal with the Regional Court of The Hague. In its ruling of 1 July 2004, following a hearing held on 1 June 2004, the Regional Court of The Hague rejected the children's appeal. It did point out that the Deputy Minister had incorrectly found that there was no family life within the meaning of Article 8 of the Convention between Mrs Boudhan and the first applicant, but did not conclude that this constituted a ground for declaring the appeal well-founded in view of the reasons stated by the Deputy Minister for holding that Article 8 had not been violated. No further appeal lay against this decision. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act. 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 (machtiging tot voorlopig verblijf). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit. The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. The admission policy for family reunion purposes was laid down in the Aliens Act Implementation Guidelines. The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law only partly overlaps 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 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. The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner. it residence in the Netherlands.
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001-111553
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CHAMBER
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CASE OF A.A. AND OTHERS v. SWEDEN
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No violation of Article 2 - Right to life (Article 2 - Extradition) (Conditional) (Yemen);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Yemen)
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André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
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7. The first applicant is born in 1966, the second applicant is her oldest daughter, born in 1988, the third and fourth applicants are her sons, born in 1989 and 1990, and the fifth and sixth applicants are her youngest daughters, born in 1993 and 1999. They are currently in Sweden. 8. On 14 February 2006 the first and fifth applicants arrived in Sweden and, two days later, they applied for asylum and residence permits. The second, third, fourth and sixth applicants arrived in Sweden on 17 August 2006 and applied for asylum and residence permits on the same day. The Migration Board (Migrationsverket) held three interviews with the first applicant and two interviews with the fifth applicant. The applicants’ legal representative was present at the third interview with the first applicant and at the second interview with the fifth applicant. The legal representative also submitted written submissions to the Board concerning all of the applicants. 9. During the three interviews held by the Migration Board on 16 February, 6 March and 5 October 2006, the first applicant essentially told the Board the following. She was from Sana’a in Yemen where she had lived with her husband, X, and their five children. She and X came from the same clan and he worked in industry. In her view, they had been poor. Her mother, one brother and two sisters lived in Yemen and another brother lived in London. Her father was deceased. She had travelled with the fifth applicant to Sweden, via Paris, using their passports and with French visas. She had thrown the passports away upon arrival in Sweden for fear of being sent back. They had paid about 2,000 US dollars (USD) for their tickets and about USD 1,000 for the visas. She had paid for this by selling gold that she owned. A friend of hers had helped to obtain the visas from the French Embassy in Sana’a in January 2006. Her brother had obtained their passports without X’s knowledge. The second, third, fourth and sixth applicants had travelled to Sweden illegally with the help of smugglers. 10. The first applicant claimed that her biggest problem was X who had abused her for many years. They had married when she was 14 years old and he had been very strict and had hit her, burnt her and threatened her with a knife. She had back problems caused by the violence and had received an injection at a hospital in Sana’a a few months before leaving the country to alleviate the back pain caused by a slipped disc. She had tried to obtain a divorce but the judge at the court had told her that she should solve her private problems with her husband. She had not contacted a lawyer as she had no money and she had not reported the violence to the police because they did not interfere in family matters. 11. However, the first applicant alleged that the main reason for leaving Yemen had been to protect her daughters. The second applicant had been forced to marry an older man when she was 14 years old and forced to leave school because of it. X had also planned to marry off the fifth applicant to a much older man when she was only thirteen years old. The first applicant had petitioned the courts to stop the marriage but the courts had decided that X, as the head of the family, was entitled to make that decision. She claimed that women had no freedom in Yemen and that X would kill her if she were returned since she had dishonoured him by leaving the country with their daughter and without his permission. No one would be able to protect her and her daughter. 12. The fifth applicant supported her mother’s claims, stating that X had wanted to marry her off to an older man against her will. The court case to stop the marriage had taken about six months and the outcome had favoured X for which reason she and the first applicant had left the country. Her uncle had helped them to obtain travel documents so they could leave the country legally. She also stated that X had worked at a ministry and that he had been very strict with her and her mother. 13. The second applicant also supported her mother’s claims and submitted that X had married her off, at the age of 14, to a much older man who had eight children and a disabled first wife. He had treated the second applicant like a servant but had agreed to divorce her if he was reimbursed the USD 4,000 that he had paid as a dowry for her to X. After her mother and sister had left the country, the second applicant alleged that X had made her other siblings leave the house but that they had been able to stay with a friend of hers until they could travel to Sweden. She submitted that, if they were to return to Yemen, they would all risk being killed since they had dishonoured X. She also risked being killed by her husband since she had left him without his permission. 14. In a later submission, the second applicant added that X would never allow her to return home even if she did obtain a divorce from her husband. Moreover, when X had made her siblings leave their home, she had exceptionally been allowed by her husband to house them. 15. On 9 May 2007 the Migration Board rejected the applications. It first noted that the applicants had not submitted their passports or any other documents to prove their identity or to support their story. It then observed that Yemen is a tribal society dominated by a patriarchal social order where women are subject to discriminating treatment and where they have to obey their husbands. Turning to the applicants’ personal situation, the Board first pointed out that the first applicant’s brother had failed according to the “honour rules” by helping her to obtain a passport. Moreover, it considered that the mere fact that the first applicant had left the country, and by doing so allegedly dishonoured her husband, was not sufficient to create a need for protection in Sweden. In this respect, the Board observed that the first applicant’s clan could protect her against X. Concerning the fifth applicant, the Board considered that X’s actions had been motivated by financial gain and that, by paying the necessary sum to X, the fifth applicant could solve any problems that might arise. Here, it noted that the applicants’ contention that they were poor was contradicted by the fact that they had been able to afford to travel to Sweden since the cost of the journey would have been a fortune to a poor person. Turning to the second applicant, the Board observed that her husband had consented to divorce her if she reimbursed him the sum he had originally paid X. Again, the Board considered that the problem was mainly a financial matter which could be solved by paying the required amount. In regard to the remaining applicants, the Board found that they would be able to stay with their maternal grandparents or other relatives in the clan. 16. Thus, the Board concluded that the family’s problems were related to financial matters rather than to honour and, consequently, they could not be considered refugees or otherwise in need of protection in Sweden. Since the situation in Yemen was not such as to call for an automatic grant of residence permits, the applicants’ requests were rejected. In reaching this conclusion, the Board had regard to the fact that some of the applicants were minors. 17. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that they had disgraced the head of their family as well as the clan by fleeing. Since they were members of the same clan as X and, since the clan always took the side of the man, it would not protect them. On the contrary, the clan, which was very large and powerful, had blacklisted them and they were convinced that the clan would kill them to save its honour. Moreover, the first applicant’s brother had helped them in secret and had risked his own life by doing so. He would not be able to help them again. According to the applicants, there was no one in Yemen who would be able to protect them. Furthermore, the applicants insisted that their need for protection was honour-related and not economic in nature. The second and fifth applicants did not have the money necessary to buy their freedom and, in any event, nothing would hinder X from marrying them off to someone else later on. The first applicant added that she had been a member of a women’s association which had met on Thursdays and Fridays and that she had told the women in the association about her problems and they had lent her some money to pay for travel. The remainder of the cost, she had paid by selling her jewellery. As concerned the other applicants, the second applicant had helped to pay for that trip. 18. In support of their claims, the applicants submitted an e-mail, dated 26 December 2007, and sent by a programme officer for “Sisters of Arab Forum for Human Rights”. It stated that, if the applicants were sent back to Yemen, their lives would be in danger since the first and fifth applicants had disgraced their husband/father when they had run away instead of accepting his decision that the fifth applicant marry the man X had chosen for her. It further stated that honour crimes were common in Yemen and that Yemeni law encouraged it; for example, a man who killed his wife because of infidelity would only be sentenced to six months’ imprisonment. 19. They also submitted a copy of a police report, dated 19 January 2008, from which it appeared that X had reported to the Yemeni Ministry of the Interior that the third and fourth applicants had stolen 1,500,000 Yemeni rial (approximately EUR 5,300) from him. He stated in the report that he had hidden the money in his wardrobe about two months previously and had discovered that it had gone two days before. He had asked his wife about it but she had not known anything and thus he suspected that his two sons had stolen the money since they had been out a lot lately. The sons had now run away from home and he wanted them arrested. It appeared from the report that a regional arrest warrant had been issued for the third and fourth applicants. The applicants claimed that this was a method for X to get the authorities’ help to locate the family in order for him to have his revenge. They had received the report from the first applicant’s brother, who had heard about it and requested a copy from the Ministry of the Interior. He had received a copy since he was the boys’ uncle. 20. Lastly, the applicants submitted the children’s birth certificates in original which their uncle had also acquired and sent to them. 21. On 19 August 2008 the Migration Court rejected the applicants’ appeal. The court first observed that the general situation for women in Yemen was not a sufficient ground for them to be granted refugee status. An individual assessment had to be made in each case. It then observed that the reasons referred to by the applicants in support of their need for protection mainly concerned problems within the personal sphere caused, inter alia, by the country’s traditions. The court further noted that, other than the first applicant’s petition to a court to stop the fifth applicant’s marriage, the applicants had not turned to the Yemeni authorities to obtain protection against X or the second applicant’s husband. The court reiterated that, before international protection could be considered for problems of violence and reprisals within the family, all avenues of mediation and protection by the national authorities should have been tried. With regard to X’s police report against the third and fourth applicants, the court considered that it would be no problem for them to prove that they were innocent since they were in Sweden at the time of the alleged crime. Therefore, they did not risk being arrested or imprisoned. The court concluded that the applicants could not be considered refugees, that they were not in need of protection and that there were no exceptional circumstances to grant them leave to remain in Sweden, even though some of them were still minors. In reaching this conclusion, the court also had regard to the fact that the family was united, that several of them were adults and that they had family and friends in Yemen who supported them. 22. On 22 October 2008, with one of the judges being of a dissenting opinion, the majority of the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. This decision was final and the deportation order thus became enforceable. 23. However, in January 2009, the applicants lodged an application with the Migration Board to stay the enforcement of the deportation order and to reconsider their case due to new circumstances. They maintained their previous claims and submitted a copy of a document in Arabic that they claimed was a copy of a summons, dated 22 December 2008, and which had been issued by a Yemeni court. According to the applicants, it stated that the first applicant had taken her and X’s five children and had moved to Sweden, following a dispute between her and X regarding whether or not the fifth applicant should be married to an older man. According to the document, X requested the court to order the return of the applicants to Yemen so that the children would be with their father and to imprison the first applicant because she had disobeyed her husband and to stop her from leaving Yemen again. Moreover, X requested the court to decide that the fifth applicant should marry the man that he had chosen. The applicants contended that this, together with the other information in the case, showed clear discrimination against women and that there could be no doubt that, should they be returned to Yemen, they would be subjected to persecution because they had dishonoured the head of the family. 24. On 20 January 2009 the Migration Board rejected the new application and decided that the measures to enforce the deportation order should continue. The Board found that the grounds invoked by the applicants had already been examined earlier in all essential parts and that no new circumstances had been presented which could lead to a stay of the enforcement of the deportation order. Furthermore, it considered that the applicants had invoked no other new circumstances which could lead to granting them residence permits in Sweden. 25. The applicants appealed against the decision to the Migration Court, insisting that the evidence showed that inhuman treatment awaited them if they were returned to Yemen. However, on 13 February 2009, the court upheld the Board’s decision and reasoning in full and rejected the appeal. 26. Upon further appeal, the Migration Court of Appeal, on 5 March 2009, refused leave to appeal 27. On 24 March 2009, upon request by the applicants, the Court applied Rule 39 of the Rules of Court until further notice. On the same day and on the basis of the Court’s request, the Migration Board stayed the enforcement of the deportation order until further notice. 28. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010. The following refers to the Aliens Act in force at the relevant time. 29. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act). 30. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). 31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act). 32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act). 33. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act). 34. On 22 March 2011 the Head of the Legal Department of the Migration Board issued an instruction concerning the enforcement of deportation orders to Yemen. He noted that the already unstable situation in Yemen had rapidly deteriorated due to protests against the regime and that there was increased violence from various groups, including by government forces. Having regard to the difficulties in evaluating the situation in the country and how it would develop, the Head of the Legal Department considered that no deportation orders to Yemen should be enforced until further notice. 35. A second instruction was issued on 10 February 2012 by the Head of the Legal Department of the Migration Board in which he considered the developments in Yemen since the issuance of the first instruction. He first noted that the security situation in Yemen was affected by a number of internal conflicts, such as conflicts between clans, between the regime and various clan militias in the north and the south of the country as well as the regime fighting Al-Qaida in the Arab Peninsula (AQAP). These conflicts had been accentuated by the growing protests and opposition against the regime by civil society, weakening the central government and its control over the country. During the autumn of 2011, in particular, there had been violent clashes in the bigger cities of Sana’a and Taiz. Following the agreement brokered by the Gulf Cooperation Council and sanctioned by the United Nations, where President Ali Abdullah Saleh agreed to hand over power to Vice-President Abdel Rabbo Mansour Hadi, the situation in Yemen continued to be marked by political unrest, an unstable security situation and continued internal conflicts. However, the country-wide protests had diminished in intensity and no longer paralysed the big cities of Sana’a and Taiz. Thus, the general security situation in Sana’a and other big cities had improved. In view of this, the Head of the Legal Department found that the situation in the country was generally very serious but that the violence was not so serious or indiscriminate as to give well-founded grounds to assume that civilians, through their mere presence in the parts of the provinces where the violence occurred, were at a real risk of being exposed to serious and personal threats to life or limb. 36. In conclusion, the Head of the Legal Department noted that Yemen was still marked by major political instability and occasionally armed fighting between various entities in essentially all parts of the country. The Government had little if any power in certain parts of the country and the judicial system could currently not be considered to be capable of impartially protecting the population’s basic rights. In these circumstances, he considered that there were severe conflicts (svåra motsättningar) within the meaning of the Aliens Act in all of Yemen. It was important to point out that the severe conflicts, and consequently the security situation, were more serious in some parts of the country than in others and that this had to be taken into account in each individual case. He further noted that vulnerable groups in Yemen, such as women and children, should be given special attention when their need for protection was considered. Through this instruction, the first instruction was repealed and thereby the stay on deportation orders was also ended. 37. The U.K. Foreign & Commonwealth Office’s Travel Advice for Yemen, as updated on 5 March 2012, sets out the following about the political situation in Yemen: “Following the signing on 23 November 2011 of the Gulf Cooperation Council’s Initiative by President Saleh, political transition in Yemen is now underway. Much progress has since been achieved with the appointment of a new prime minister, a National Unity Government comprising ministers from the former ruling party and opposition, and approval by parliament of the government’s programme. Interim presidential elections were held on 21 February 2012 and President Abd Rabbuh Mansour Hadi was inaugurated on 25 February as Yemen’s new head of state. The second phase of transition has now begun, leading to greater participation in the political process by all Yemenis, constitutional reform and parliamentary elections. The situation remains uncertain in Yemen, with some seeking to disrupt the new political process and others dissatisfied with the pace of change. Yemen faces tough political, humanitarian and economic challenges. Violent clashes continue across Yemen, particularly in Sana’a and Taiz. The long period of political impasse in 2011 has resulted in the withdrawing of effective state control over parts of the country, especially in the north in Sadah and the south in Abyan. Dialogue is ongoing to achieve political transition and the situation remains extremely tense.” 38. The volatile and tense situation in Yemen, as set out above by the Head of the Legal Department of the Migration Board and the U.K. Foreign & Commonwealth Office, is reflected and supported by other international sources, such as the United Nations. 39. The United States Department of State “2010 Human Rights Report: Yemen”, of 8 April 2011, states among other things: “Women The law, rarely enforced, provides women with protection against violence, but there were no laws specifically prohibiting domestic violence, including spousal abuse. Although spousal abuse occurred, it generally was undocumented. Violence against women and children was considered a family affair and usually went unreported to police. Due to social norms and customs, an abused woman was expected to take her complaint to a male relative (rather than to authorities) to intercede on her behalf or provide sanctuary to avoid publicizing the abuse and shaming the family ... The law criminalizes rape, although spousal rape is not criminalized because a woman may not refuse sexual relations with her husband ... The law does not address other types of honour crimes, including beatings, forced isolation, imprisonment, and forced early marriage. The law regarding violence against women states a convicted man should be executed for killing a woman ... Social custom and local interpretation of Shari’a discriminated significantly against women ... Men were permitted to take as many as four wives. A husband may divorce a wife without justifying the action in court. Under the formal court system, a woman has the legal right to divorce, but she must provide a justification, and there were practical, social, and financial considerations that impeded women from obtaining a divorce. However, in some regions under tribal customary law, a woman has the right to divorce without justification... Women also faced discrimination in courts, where the testimony of one man equals that of two women ... Governmental mechanisms to enforce equal protection were weak or nonexistent. According to the Ministry of Social Affairs and Labour (MSAL), there were more than 170 NGOs working for women’s advancement. The Arab Sisters Forum for Human Rights worked with other NGOs, the government, and donor countries to strengthen women’s political participation. The Yemeni Women’s Union and Women’s National Committee (WNC) conducted workshops on women’s rights. The Arab Sisters Forum, with funding from the Netherlands and in cooperation with the MSAL, established projects aimed at providing protection against violence for women and children. Children The law does not define or prohibit child abuse, and there was no reliable data on its extent. Child marriage was a significant problem in the country. There was no minimum age of marriage, and girls were married as young as age eight. A February 2009 law setting the minimum age for marriage at age 17 was repealed. According to a 2009 MSAL study, a quarter of all girls were married before they were 15 years old. The law has a provision that forbids sex with underage brides until they are "suitable for sexual intercourse," an age that is undefined. An Oxfam International study calculated that among 1,495 couples, 52 percent of women and 7 percent of men were married at an early age. The report also highlighted that 15-16 years was generally considered the appropriate age of marriage for girls, depending on region and socioeconomic status.” 40. The Amnesty International report “Yemen’s Dark Side - Discrimination against Women and Girls”, of November 2009, and the Human Rights Watch report “How Come You Allow Little Girls to Get Married? Child Marriage in Yemen”, of December 2011, support the abovementioned findings concerning women and children by the U.S. Department of State. 41. The Human Rights Watch report further states that: “The provisions in Yemen’s Personal Status Law on marriage and divorce create particular hardships for women and girls. ... A man may divorce his wife by pronouncing his repudiation three times. A woman may ask for separation from her husband on certain conditions, for example if the husband fails to provide financially for his family even though he is capable of doing so; if he abandons his wife for more than one year with no compensation, or for more than two years with compensation; if he is imprisoned for more than three years; or if he marries more than one woman and is unable to provide financially for his wives. The wife must provide proof of these allegations before being granted a divorce. A wife who wishes to divorce her husband for other reasons may file for khul’a, or no-fault divorce, under which she is required to pay back her dowry and forego claims to maintenance. Given women’s economic dependence on their husbands, this requirement makes it difficult for women to seek and obtain a divorce.” 42. The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information has, in a note concerning marriage in Yemen dated 20 July 2010, observed that, according to the Yemeni Personal Status Law no. 20 of 1992, as amended in 1997 and 1999, there is no requirement that a bride be physically present when she is married. It is enough that her guardian agrees and shows his identity card or family book. Moreover, it notes that the mother of the bride has no legal authority to decide about her daughter’s marriage, since she is also under the authority of her husband and has to follow his decisions. The note further states that every year there are girls who flee their forced marriages and seek refuge with NGOs and human rights activists. In this respect, it observes that NGOs run a few shelters in Sana’a and one in Aden where these girls and other women in vulnerable situations can receive protection, counselling and training in various skills. 43. Landinfo has in another note focusing on Yemeni women’s possibilities to support themselves, dated 20 March 2009, observed that it is not acceptable for a Yemeni woman to live alone without a family network. Although women, formally, have some civil and political rights, in reality, they are hindered from using them due to poverty and religious and cultural values. However, there are working women and they are to a certain extent visible on the work market. Roughly 25% of all university students are women and women are allowed to work within the health care and education system, as well as in the agricultural sector, private business or for NGOs. 44. The Freedom House’s report “Women’s Rights in the Middle East and North Africa 2010- Yemen”, of 3 March 2010, sets out: “Yemen is a tribal and traditional country where prevailing cultural attitudes, patriarchal structures, and Islamic fundamentalism accord women low status in the family and community and limit their participation in society. ... Women face additional difficulties obtaining justice because police stations and courts – which are always crowded with men – are commonly considered to be inappropriate places for "respected women". Moreover, the lack of female judges, prosecutors, and lawyers discourages women from turning to the courts. Given the social discrimination experienced by women, they hesitate to approach male legal consultants, particularly for issues such as abuse or rape. Instead, women often rely on male relatives to go to court in their place, or turn to them to solve their problem rather than taking the matter to the judiciary. Domestic violence in cases related to honor is a concealed phenomenon in Yemen. Normally such cases are handled discreetly within the family and rarely reach police records. If the parties to the problem are not relatives, it is often resolved amicably through tribal mechanisms. Cases of honor-related homicide perpetrated against women are usually not reported, and no health certificate is required for a burial, particularly in rural areas. As a result, such deaths are often attributed to natural causes.” 45. There have been some recent changes as observed by Human Rights Watch in its report of December 2011, cited above, pp. 8-9: “Women played an important role in anti-Saleh protests, despite beatings, harassment, and, in some cases, the condemnation of relatives. President Saleh in April 2011 admonished women demonstrators, saying “divine law does not allow” public intermingling of the sexes. Women responded with further protests. In October 2011, Tawakkol Karman, a prominent woman journalist and human rights activist who has played a pivotal role in the protests, won the Nobel Peace Prize along with two women leaders from Liberia. In recent years, Karman has defied conservatives in her political party Islah, or the Islamists Congregation for Reform, by calling for a minimum age for child marriage.” 46. The important role played by women in the protests against the Yemeni Government during 2011 has also been highlighted by other sources, such as Amnesty International and the media. 47. Yemen is a State Party to a number of international treaties and conventions that explicitly prohibit discrimination against women and protects the rights of women and children, such as the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. 48. The United States Department of State’s 2010 Report on Yemen, cited above, states: “The law provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights with some restrictions. The government limited the movement of women, foreign tourists, and other foreigners ... According to the law, government officials required women to have the permission of a male relative before applying for a passport or leaving the country. A women’s rights NGO asserted that a husband or a male relative could bar a woman from leaving the country and that authorities strictly enforced this requirement when women travelled with children. During the year authorities reportedly turned back several women at the airport because they did not have the permission of a male relative.” 49. Landinfo has in a thematic note of 2 November 2010 concerning Yemeni travel and identity documents concluded that the notoriety of Yemeni documents was low, partly as a result of a weak central government, widespread corruption and incomplete registration procedures and archives. Thus, it was reported that it was easy to obtain forged documents through bribery or personal connections. 50. The note further stated that passports were issued and renewed by the Ministry of the Interior. In order to get a passport, the applicant would have to present a valid identity card or family book as well as two photographs and leave his or her fingerprints. For a woman to obtain a passport, she had to have the permission of her husband or, if she was unmarried, that of her father or other male relative. Children were normally registered in their parents’ passport until the age of 16. However, if necessary, a child could get a passport if the child’s birth certificate and the father’s passport were submitted to the issuing authority. As concerned leaving the country, the note observed that there was different information available. According to the U.S. Department of State, a woman needed permission from her husband, or father if unmarried, to leave the country. However, the Women’s National Committee (a Yemeni government-affiliated body working to empower women) and a Yemeni lawyer had informed Landinfo that, once a married woman had obtained a passport, she did not need formal permission from her husband to leave the country.
| 0 |
train
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001-67445
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ENG
|
TUR
|
ADMISSIBILITY
| 2,004 |
CELIK v. TURKEY
| 1 |
Inadmissible
|
Georg Ress
|
The applicant, Mr Hatip Çelik, is a Turkish national who was born in 1954 and lives in Konya. He was represented before the Court by Mr İ.E. Gencan, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 November 1980 police officers arrested the applicant on suspicion of membership of the PKK. On 8 January 1981 the Diyarbakır Martial Law Court (sıkıyönetim askeri mahkemesi) ordered the applicant's detention pending trial. On 14 September 1981 the Military Public Prosecutor filed an indictment with the Diyarbakır Martial Law Court charging the applicant under articles 125 and 168 of the Criminal Code with membership of the PKK and undertaking actions aimed at separating a portion of the territories under the sovereignty of the State from the administration of the State. On an unspecified date the applicant appointed a lawyer of his own choice to represent him throughout the domestic criminal proceedings. On 19 February 1985 the Martial Law Court found the applicant guilty of offences under Articles 125 and 168 and sentenced him to 24 years' imprisonment. The applicant appealed. On 10 April 1990 the Military Court of Cassation (askeri yargıtay) quashed the judgment of 19 February 1985 holding that there was insufficient evidence for the applicant's conviction. On 18 June 1990 the applicant was released pending trial. Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Diyarbakır Assize Court acquired jurisdiction over the case and the case-file was sent to it. On 13 July 1998 the Diyarbakır Assize Court acquitted the applicant of the charges. On 5 August 1998 the judgment of the Diyarbakır Assize Court was served on the applicant's representative. On 10 September 1998 the judgment acquitting the applicant became final as neither the applicant nor the public prosecutor had appealed against it before the statutory time-limit. On 4 February 1999 the applicant appointed a new lawyer, who is his representative in the proceedings before the Court. On 19 March 1999 the now final judgment was served on the applicant's new lawyer upon his request. On 30 April 1999 the applicant filed a claim with the Konya Assize Court under Law no. 466 requesting compensation for his unjustified detention on remand. On 3 November 2000 the Konya Assize Court awarded compensation to the applicant. On 14 June 2001 the Court of Cassation upheld the judgment of the firstinstance court.
| 0 |
train
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001-58261
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ENG
|
BGR
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CHAMBER
| 1,998 |
CASE OF ASSENOV AND OTHERS v. BULGARIA
| 2 |
Preliminary objection dismissed (abuse of process);Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (ill-treatment);Violation of Art. 3 (effective investigation);No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 3 (detention);No violation of Art. 5-1;Violation of Art. 5-3 (judge or other officer);Violation of Art. 5-3 (trial within a reasonable time);Violation of Art. 5-4;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
| null |
7. The applicants are a family of Bulgarian nationals, of Roma origin, who live in Shoumen, Bulgaria. Mr Anton Assenov was born in 1978, and his parents, Mrs Fidanka Ivanova and Mr Stefan Ivanov, were born in 1956 and 1952 respectively. 8. On 19 September 1992, while gambling in the market square in Shoumen, Mr Assenov (then aged 14) was arrested by an off-duty policeman and taken to the nearby bus station, where the officer called for back-up. 9. Subsequently Mr Assenov’s parents, who were both working at the bus station, came and asked for their son’s release. Mr Ivanov, as a way of showing that he would administer any necessary punishment, took a strip of plywood and hit his son. At some point two other policemen arrived. The applicants allege that these officers hit the boy with truncheons. A dispute ensued between the boy’s parents and the police, although it appears that Mr Assenov himself was unaggressive and compliant. He and his father were handcuffed and forced into a police car. They were taken to the police station, where they were detained for approximately two hours before being released without charge. Mr Assenov alleged to have been beaten with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station. 10. On 21 September 1992, the first working day following the incident, the applicants visited a forensic medical expert. They explained to him that Mr Assenov had been beaten by three policemen with a truncheon and with the handle of a pistol and that his mother had been beaten with a truncheon. The doctor examined the two applicants and issued medical certificates. 11. The certificate concerning the first applicant stated that the boy had a band-like haematoma about 5 cm long and 1 cm wide on the upper outer side of his right arm; three band-like haematomas, each about 6 cm long and 1 cm wide, on the right side of his chest; another bruise about 4 cm long on the left scapula; a haematoma 2 cm in diameter on the back of the head; and five grazes each about 5 cm long on the right chest. The certificate concerning Mrs Ivanova stated that she had a bruise about 5 cm long on her left thigh. The doctor concluded that the bruises could have been inflicted as described by the applicants. 12. On 2 October 1992, Mrs Ivanova filed a complaint with the District Directorate of Internal Affairs (“the DDIA”), alleging that her son had been beaten at the bus and police stations, and requesting the prosecution of the officers responsible (see paragraph 58 below). 13. The complaint was dealt with by Colonel P., an inspector with the personnel service of the DDIA. On 15 October 1992, Colonel P. heard each of the applicants and prepared written accounts of their oral testimony. Mr Assenov was heard in the presence of a teacher, Mr G. In their statements, the applicants gave the account of events set out in paragraphs 8–9 above. 14. Colonel P. also ordered the three police officers present at the bus station and the officer who had been on duty at the police station to submit written explanations. This they did on 21, 22 and 26 October 1992. According to these statements, Sergeant B., who was off-duty and out of uniform, had been passing the central bus station when he saw people gambling. He had arrested Mr Assenov and taken him to the bus station from where he had called the police officer on duty. Thereupon Mr Ivanov had appeared, shouted at the boy, and had hit him two or three times on the back with a plywood strip. He and his wife, who had arrived shortly thereafter, started protesting against their son’s arrest and pulling the boy. When Sergeants S. and V. arrived, the father had shouted, swore, and threatened the police officers, who told him to be quiet and asked him to come voluntarily to the police station. A crowd of about fifteen to twenty Roma had gathered; also present were approximately twenty drivers from the bus station. Since Mr Ivanov had continued his violent behaviour, the police officers had subdued him forcibly, handcuffed him and taken him and his son to the police station. There officer S. had filled out a form recording the seizure of 100 levs from Mr Assenov and then released the two applicants. It was not true that they had been beaten at the police station. 15. On 26 October 1992 Colonel P. also obtained a written statement from the traffic manager at the bus station. She stated that a policeman had brought a boy and had asked her to telephone the police for a car. She did not remember any disturbance having occurred. 16. Based on this evidence, on 6 November 1992 Colonel P. drew up an internal note in which he made a summary of the facts and concluded that the boy had been beaten by his father. 17. On 13 November 1992 the Director of the DDIA wrote to the applicants stating that the conduct of the police officers had been lawful and that he would not, therefore, open criminal proceedings against them. 18. On 12 December 1992 the applicants submitted a request for the criminal prosecution of the alleged offenders to the regional military prosecution office in Varna (“the RMPO”). 19. On 30 December 1992 the RMPO ordered an inquiry to be carried out by investigator G. at the military investigation office in Shoumen. 20. On 8 February 1993 investigator G. wrote to the Director of Police in Shoumen, instructing him to take evidence from the applicants and the police officers and to report back. Since there had already been an inquiry on the matter, on 15 February 1993 the DDIA sent to the investigator all the material already collected. 21. It is disputed whether investigator G. heard the applicants personally. The Government allege that he did, but there is no record of this on file. 22. On 20 March 1993 investigator G. drew up a one-page internal note summarising the facts and advising that criminal proceedings should not be brought against the officers, on the grounds that the allegations had not been proved and the evidence in the case was “contradictory”. 23. On 24 March 1993, the RMPO decided, on the basis of the investigator’s advice, not to instigate criminal proceedings. The decision stated, inter alia, that Mr Ivanov had been hitting his son, shouting and pulling him, in disobedience of police orders, which had led to the applicants’ arrest (see paragraph 55 below), and that the evidence taken from witnesses did not confirm the use of physical violence by the police against the boy. 24. On 15 April 1993 the applicants appealed to the general military prosecution office (“GMPO”). They stated that it was clear from the decision of non-prosecution that the only witnesses examined had been the police officers who were the suspects; that the medical certificates had not been taken into consideration; and that it was untrue that Mr Assenov and his father had disobeyed police orders. 25. The appeal was submitted through the RMPO, which forwarded it to the GMPO on 30 April 1993, enclosing a letter advising that the complaint should be dismissed. A copy of this letter was sent to the applicants. 26. On 21 May 1993 the GMPO, apparently after an examination of the file, refused to open criminal proceedings against the police officers on the same grounds as the lower prosecuting authority. The decision stated, inter alia: “A medical certificate is enclosed in the file, from which it appears that there were haematomas on the juvenile’s body, indicating superficial bodily harm, and corresponding, in terms of mechanism of infliction, to blows with a band-like solid object. The deputy regional prosecutor correctly considered that even if blows were administered on the body of the juvenile, they occurred as a result of disobedience to police orders. The physical force and auxiliary means employed were in accordance with section 24(1), points 1 and 2, of the Law on National Police now in force [see paragraph 56 below].” 27. Apparently as a result of continued complaints from the applicants and pressure from the Ministry of Justice to re-examine the matter, on 13 July 1993 the GMPO wrote to the RMPO, stating that preliminary inquiries regarding alleged police misconduct should include the examination of independent witnesses, and that further investigations should therefore be carried out. 28. The RMPO took statements from a bus driver and a bus station employee on 29 and 30 July 1993 respectively. The driver stated that he had seen a Roma man hit his son with a lath. When the police car arrived, the father had thrown himself at the police officers and started fighting. The driver had taken the father’s arm to prevent him hitting the officers. He had not seen any of the officers hitting the boy. The other witness had a vague recollection of events and could not say whether or not the father had hit his son or the policemen had beaten them. 29. These additional investigations apparently did not conclude with the delivery of a formal decision. Their results were not communicated to the applicants. 30. On 20 June 1994 the applicants appealed to the Chief General Prosecutor of Bulgaria. They again set out their version of events, adding that Mr Assenov’s beating had been accompanied by insults referring to the applicants’ Roma origin and pointing out that there had been a number of witnesses to the incident but that no effort had been made to take evidence from any of them. They argued that there was a contradiction between the finding of the RMPO that no physical force had been used and the conclusion of the GMPO, which established that there had been use of physical force, but that it had been legal, and they alleged violations of Articles 3, 6 and 14 of the Convention. 31. This appeal was apparently transferred to the GMPO, which wrote to the applicants’ lawyer on 28 June 1994 stating that there were no grounds to overturn the previous decision. 32. In January 1995, Mr Assenov was questioned by the Shoumen prosecuting authorities in connection with an investigation into a series of thefts and robberies. 33. He was arrested on 27 July 1995 and the following day, in the presence of his lawyer and a prosecutor (“K.”), he was questioned by an investigator and formally charged with ten or more burglaries, allegedly committed between 9 January and 2 May 1995, and six robberies committed between 10 September 1994 and 24 July 1995, all involving attacks on passers-by on the street. Mr Assenov admitted most of the burglaries but denied having committed the robberies. The decision was taken to detain him on remand. This decision was approved the same day by another prosecutor, “A.” (see paragraph 69 below). 34. On 27 July, 2 August, 7 August and 15 August 1995, the applicant took part in identification parades, at which he was identified by four robbery victims. A lawyer was present on all occasions. On 28 August 1995 an expert appointed by the investigator submitted a report concerning the value of the objects allegedly stolen by the first applicant and his accomplices. On an unspecified date additional charges, concerning other thefts in which Mr Assenov was suspected to have been an accomplice, were joined. It would appear that, in the course of the investigation, approximately sixty witnesses and alleged victims were examined, but that no evidence was collected after September 1995. 35. Between 27 July 1995 and 25 March 1996, Mr Assenov was detained at the Shoumen police station. There is a dispute between the parties as regards the conditions of his detention there. The applicant submits that he was held in a cell measuring 3 x 1.80 metres, which he shared at times with two to four other detainees; that the cell was almost entirely below ground level, with very limited light and fresh air; that he could not exercise or engage in any activity in his cell; and that he was let out of his cell only twice a day, to go to the toilet. The Government submit that the cell measured 4.60 x 3.50 metres and that the applicant shared it with only one other detainee. 36. The applicant submitted numerous requests for release to the prosecuting authorities, referring, inter alia, to the facts that no further evidence had to be collected and that he was suffering from health problems exacerbated by the conditions of his detention and had two young children. It appears that some of these applications were assessed individually, and that others were grouped and examined several months after their submission. 37. On 21 August 1995, Mr Assenov was examined by a doctor, who found that he was healthy. He was examined again on 20 September 1995, by a cardiologist from the Regional Hospital of Shoumen, who concluded that he did “not suffer from any cardiac disease, either congenital or acquired”, and that there were “no counter-indications against him remaining in detention, as far as his cardio-vascular status is concerned”. 38. On 11 September 1995, Mr Assenov submitted a petition to the Shoumen District Court requesting his release (see paragraphs 72–76 below). On 19 September 1995 a judge sitting in camera dismissed the petition, stating, inter alia, that the charges against Mr Assenov concerned serious crimes, and that his criminal activity had been persistent, giving rise to a danger that he would commit further crimes if released. 39. On 13 October 1995, a district prosecutor dismissed two requests for Mr Assenov’s release. This refusal was confirmed on 19 October 1995 by a regional prosecutor. 40. The applicants appealed to the Chief Public Prosecutor’s Office stating, inter alia, that there had been a “campaign” against them because of their application to the Commission. In its decision of 8 December 1995 the Chief Public Prosecutor’s Office dismissed the applicants’ arguments and stated that, although the investigation had been completed by September 1995, it was still necessary to detain Mr Assenov because there was a clear danger that he would resume his criminal activities. However, the view was expressed that prolonged detention in the premises of the Shoumen police would be harmful to the applicant’s “physical and mental development” and that he should therefore be moved to the Boychinovzi juvenile penitentiary. The transfer took place three and a half months later, on 25 March 1996. 41. On an unspecified date in 1996, Mr Assenov again challenged his detention on remand before the Shoumen District Court. On 28 March 1996 the court requested the case file from the district prosecutor’s office. Noting that an application had already been examined on 19 September 1995, it rejected the new petition as inadmissible (see paragraph 75 below). 42. On 21 March 1996 the investigator opened a separate case file to deal with the robbery charges, in connection with which he questioned Mr Assenov and ordered his continued detention on remand. The following day the investigator drew up a report summarising the facts in the robbery case and sent it to the prosecutor proposing that an indictment be prepared. 43. On 3 July 1996, a district prosecutor sent the robbery case back to the investigator with instructions to see one further witness. On 23 August 1996 the investigator returned the case file because the proposed witness had died. On 26 September 1996, the district prosecutor drew up an indictment in the case and, four days later, submitted it to the Shoumen District Court. The court held a hearing on 6 February 1997, where it heard four witnesses and adjourned the hearing to 29 May 1997 because of the non-attendance of two other witnesses. 44. In the meantime, on 20 September 1996, the investigator completed the preliminary inquiry into the burglary case. On 25 October 1996, this case was sent to the regional prosecutor’s office with a proposal to indict Mr Assenov. It appears that on 31 January 1997 the burglary case was referred back for further investigation. 45. Between 5 July and 24 September 1996, Mr Assenov was again held at Shoumen police station, before being transferred to Belene Prison. 46. Throughout 1996 the applicants continued to submit requests for Mr Assenov’s release to the prosecuting authorities. By decisions of 21 February and 17 June 1996 these requests were dismissed by the district prosecutor, on the grounds that the applications raised no new arguments, that there was still a danger of the applicant reoffending if released and that the cases would soon be sent for trial. On 8 October 1996 the regional prosecution office dismissed another request for release. 47. On 4 November 1996, a District Court judge sitting in the robbery case examined in camera Mr Assenov’s petition for release. The judge refused to release Mr Assenov, taking into account the seriousness and the number of the crimes with which he had been charged and the fact that the trial would soon commence. 48. In July 1997 Mr Assenov was convicted of four street robberies and sentenced to thirty months’ imprisonment. According to the information available to the Court, he has not yet been indicted in relation to the burglary charges pending against him. 49. The applicants’ complaint was lodged with the Commission on 6 September 1993. In March 1995 they signed before a notary a statement of means, prepared in Bulgarian, referring expressly to their application to the Commission, and stating that it was done for purposes of their legal aid request to the Commission. 50. On 15 May, 23 May and 8 September 1995 two daily newspapers published articles about the case. Two of the articles, under headlines stating that a Roma gambler had “put Bulgaria on trial in Strasbourg”, explained inter alia that, in response to questions from journalists, the applicants had allegedly denied having made an application to the Commission. The articles concluded that perhaps some Roma activists had pushed the case and misled Amnesty International. 51. On an unspecified date the prosecuting authorities or the police approached the applicants and asked them to declare whether they had made an application to the Commission. On 8 September 1995, the second and third applicants visited a notary and signed a declaration in which they denied having made an application to the Commission. They further stated that they remembered having signed, in 1992 and 1993, some documents prepared by human rights associations. However, they had not been given copies of the documents and did not know their contents. One of the documents had been in a foreign language. 52. It would appear that this declaration was then submitted to the prosecuting authorities. On 19 September 1995 the GMPO wrote about it to the Ministry of Foreign Affairs. 53. The transcript of Mr Assenov’s questioning after his arrest on 28 July 1995 establishes that he spoke to the investigator about the events of 19 September 1992, saying: “In 1992 ... I was beaten by policemen ... [at the bus station]. Thereafter I obtained a medical certificate and my father complained to the police. They did not look at it seriously and he submitted it to the military prosecution office. They did not take it seriously either. Then my father heard that there were some people from an international human rights organisation [in town]. My father brought me there and showed them how I was beaten. In fact, after my release from the police my father brought me first to these people and then wrote to the police and to the prosecution authorities.” Since the minutes record only that said by Mr Assenov, it cannot be established whether or not his statement was made in response to questioning. 54. Gambling is an administrative offence under Bulgarian law, for which individuals under sixteen years of age are not liable (section 2(2) of the Law against Speculation). 55. Section 20(1) of the Law on National Police (1976), which applied at the relevant time, provided that a police officer could take to a police station or local government office only those persons: “1. whose identity may not be established; 2. who behave violently and do not obey after warning; 3. who refuse to come voluntarily to a police station without serious reasons for refusal, after having been notified under section 16 of the present Act; 4. who wilfully create obstacles for the authorities of the Ministry of Internal Affairs in carrying out their duties; 5. who carry or use without lawful permission firearms, other weapons or other dangerous objects; 6. in other cases prescribed by law.” According to section 20(2) of this Law, in each of the above cases the police were required to carry out an immediate investigation and release the person held within three hours, unless it was necessary to take further lawful measures in respect of him or her. 56. Section 24(1) contained provisions on the use of force by police officers. The use of force “adequate to the character and seriousness of the offence and resistance” (section 24(2)), was permitted: “1. to bring an end to violent conduct or other serious violation of the public order; 2. in cases of obvious disobedience to police orders or prohibition; 3. during arrest or convoy where there is danger of absconding or for the life of the person arrested or conveyed or for other persons.” 57. Article 190 of the Code of Criminal Procedure (1974) (“CCP”) states: “There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed.” 58. In respect of most serious crimes, and all crimes allegedly committed by civil servants in the exercise of their duties, criminal proceedings cannot be brought by a private individual, but only by the decision of a public prosecutor (CCP, Articles 192 and 282–85). According to Articles 192 and 194 § 3 of the CCP, when a prosecutor has refused to institute criminal proceedings, such proceedings can be instituted by a higher prosecutor upon the petition of the interested person or ex officio. 59. The victim of an alleged crime can join criminal proceedings as a civil party in order to seek compensation (CCP, Chapter II, Articles 60–64). 60. The Law on Obligations and Contracts 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. The Law on State Responsibility for Damage provides that a person who has suffered damage due to the unlawful act of a civil servant can bring an action against the State authority concerned. 61. The Code of Civil Procedure provides, in Articles 182(d) and 183, that a court examining a civil action: “182. … shall suspend the proceedings: (d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings. 183. Proceedings which have been suspended shall be resumed ex officio or upon a party’s petition after the respective obstacles have been removed...” Article 222 of the Code of Civil Procedure provides: “The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt, are binding on the civil court when it examines the civil consequences of the criminal act.” 62. The parties have submitted to the Court a number of decisions of the Bulgarian Supreme Court as to the effect of the above provisions. In decision no. 3421 of 18 January 1980 in case no. 1366/79, the First Civil Division of the Supreme Court held: “In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure. This is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182(d) of the Code of Civil Procedure, is obliged to suspend the civil proceedings. This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of criminal courts is set out in Article 222 of the Code of Civil Procedure.” In decision no. 12/1966, the Plenary Civil Division of the Supreme Court held as follows: “The decision of the prosecution to terminate the criminal prosecution based on a finding that the accused is not guilty of committing the criminal act does not bind the civil court which examines the civil consequences of this act... [T]he civil court, on the basis of evidence [collected] in the course of the civil proceedings, can reach different factual findings, for example that the tort was in fact caused by the same person, the criminal prosecution against whom had been terminated. If in the course of the civil proceedings, after collection of evidence, fresh criminal circumstances are discovered, the determination of which is decisive for the outcome of the civil dispute, the court is obliged to suspend the proceedings in accordance with Article 182(d) of the Code of Civil Procedure.” In interpretative decision no. 11 of 3 January 1967 (Yearbook 1967), the Civil Assembly of the Supreme Court of Bulgaria held: “… In principle a civil court may not establish whether any particular act constitutes a crime. But when the criminal proceedings were closed under Article 6 § 21 of the Code of Criminal Procedure [where the criminal procedure was closed following the death of the alleged perpetrator, expiry of the time-limit for prosecution or where an amnesty has been granted], the criminal court does not make a decision whether the act constitues a crime. In such cases, the law – Article 97 § 4 of the Code of Civil Procedure – provides a possibility for the civil court to establish in a separate procedure whether the act constitutes a crime and who was the perpetrator.” In decision no. 817 of 13 December 1988 in case no. 725, a claim for damages arising out of a car accident, the Fourth Civil Division of the Supreme Court held: “In dismissing the claim, the first-instance court had found that the only one responsible for the car accident was the claimant, who, at a distance of about ten metres, suddenly jumped in front of the car in order to cross the street and therefore, despite the measures taken by the driver, the collision was not avoided. This conclusion was based on the fact that the criminal investigation against the driver had been closed on the grounds of lack of evidence, ill-foundedness, lack of some of the elements comprising a crime in the accusation and lack of guilt. The court was not required to rely on the prosecutor’s decision to terminate the criminal investigation by Article 222 of the Code of Civil Procedure [see paragraph 61 above], which states that only the final judgment of a criminal court is binding on the court which deals with the civil consequences of the act in question. The order of a prosecutor closing an investigation has no evidential weight and his/her findings are not binding on the court dealing with the civil consequences of the act. Where there is no verdict of a criminal court finding the accused not guilty of causing the injuries of the claimant, the civil court must establish whether the defendant was guilty or not guilty on the basis of all admissible evidence under the Code of Civil Procedure. Thus, in the present case, the order of the prosecutor closing the investigation had no evidential weight that the defendant was not guilty for the car accident.” 63. In connection with the alleged burglaries, Mr Assenov was charged with an offence the elements of which are continuous criminal activity by a minor consisting of burglaries committed with accomplices and involving breaking in to locked premises, where the amount stolen is significant. The maximum punishment for this offence is three years’ imprisonment (Criminal Code 1968 (“CC”), Article 195 §§ 1(3), 1(5) and 2 in conjunction with Articles 26 § 1 and 63 § 1(3)). 64. In connection with the alleged robberies, he was charged with an offence of continuous criminal activity by a minor, committed with accomplices, consisting of robberies, defined as stealing with the use of force or threats. The punishment is up to five years’ imprisonment (CC, Article 198 § 1 in conjunction with Articles 26 § 1 and 63 § 1(2)). 65. Pursuant to Articles 23–25 of the CC, the maximum sentence which Mr Assenov could have received if convicted of all the charges against him was six and a half years’ imprisonment. 66. According to the relevant provisions of the CCP and legal theory and practice, the prosecutor performs a dual function in criminal proceedings. During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court. At the judicial stage he is entrusted with the task of prosecuting the accused. 67. The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (CCP, Articles 48 § 2 and 201). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding. 68. Under Article 86 of the CCP, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (CCP, Article 43). 69. An accused, including a minor, can be detained on remand by decision of an investigator or prosecutor, although minors may be detained on remand only in exceptional circumstances. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (CCP, Articles 152, 172, 201–03 and 377–78). 70. A criminal investigation must be concluded within two months. A prolongation of up to six months may be authorised by a regional prosecutor and, in exceptional cases, the Chief Public Prosecutor may prolong the investigations up to nine months. If the period is prolonged, the prosecutor will decide whether to hold the accused in custody (CCP, Article 222). 71. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings. In practice this frequently occurs. 72. A person detained on remand has the opportunity immediately to file an appeal with the competent court against the imposition of detention. The court must rule within three days of the filing of the appeal (CCP, Article 152 § 5). 73. According to the practice which was current at the time of Mr Assenov’s arrest, the court examines appeals against detention on remand in camera, without the participation of the parties. If the appeal is dismissed, the court does not notify the detained person of the decision taken. 74. The First Criminal Division of the Supreme Court has held that, in deciding on such appeals, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order. A detention order will only be lawful, in cases of persons charged with crimes punishable by less than ten years’ imprisonment, where there is a “real danger” of the accused absconding or reoffending (decision no. 24 in case no. 268/95). 75. In a decision of 17 September 1992, the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once. A new appeal was only possible where a detained person had been released and then redetained. In all other cases a detained person could request his release from the prosecuting authorities if there had been a change of circumstances (decision no. 94 in case no. 754/92). 76. Periodic judicial review of the lawfulness of detention on remand becomes possible only when the criminal case is pending before a court, which can then decide whether or not to release the accused.
| 1 |
train
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001-103153
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ENG
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TUR
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CHAMBER
| 2,011 |
CASE OF HÜSEYİN HABİP TAŞKIN v. TURKEY
| 3 |
Violation of Art. 6-3-c+6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
|
4. The applicant was born in 1960 and lives in Izmir. 5. On 9 July 2002 at 4 p.m., the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Izmir Security Directorate. Immediately, he was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. The applicant was then taken to the Izmir Security Directorate Building for interrogation. 6. According to a form dated 9 July 2002 that explained arrested persons' rights, and which was signed by the applicant, he had been reminded of his right to remain silent. 7. On 10 July 2002 the applicant was interrogated at the Anti-Terrorist Branch in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in an illegal organisation, namely the Bolşevik Parti - Kuzey Kürdistan/Türkiye (Bolshevik Party – North Kurdistan/Turkey). The applicant further took part in an identification parade with other accused persons and identified certain persons as members of the said organisation. 8. On 12 July 2002 the applicant was visited by a lawyer, Mr M.R., for a short period of time. The applicant told the lawyer that he did not need anything and that during his trial he wished to be represented by Mr H.D., a lawyer practising in Izmir. 9. On 13 July 2002 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body. 10. On the same day, the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant repeated his police statement. After the questioning was over, the investigating judge remanded the applicant in custody. 11. On 6 September 2002 the public prosecutor at the Izmir State Security Court filed an indictment with that court accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 7 of the Prevention of Terrorism Act (Law no. 3713). During the proceedings, the applicant was represented by his lawyer, and he denied his police statement alleging that it had been extracted under duress. On 21 January 2003 the applicant was released pending trial. 12. On 24 July 2003 the Izmir State Security Court found the applicant guilty as charged and sentenced him to four years and two months' imprisonment under Section 7 of Law no. 3713. 13. On 8 April 2004 the Court of Cassation quashed the judgment, holding that the first instance court should have taken into account the recent amendments made to Law no. 3713 when giving its judgment. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court. 14. On 12 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced him to two years and six months' imprisonment. In convicting him, the court had regard to the applicant's statements to the police, the public prosecutor and the investigating judge respectively. The applicant appealed against this decision. While the appeal was pending before the Court of Cassation, in 2005 new legislation amending the Criminal Procedure Code came into force. By a decision dated 10 November 2005, the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first instance court and requested the latter to reconsider the case in the light of the amendments made to the Code of Criminal Procedure. On 16 March 2006 the Izmir Assize Court repeated its previous judgment and held that the new provisions were not more favourable to the applicant. On 25 December 2006 the Court of Cassation upheld the judgment dated 16 March 2006.
| 1 |
train
|
001-61080
|
ENG
|
GBR
|
CHAMBER
| 2,003 |
CASE OF APPLEBY AND OTHERS v. THE UNITED KINGDOM
| 1 |
No violation of Art. 10;No violation of Art. 11;No violation of Art. 13
|
Matti Pellonpää;Nicolas Bratza
|
10. The first, second and third applicants were born in 1952, 1966 and 1947 respectively and live in Washington (Tyne and Wear), where the fourth applicant, an environmental group set up by the applicants, is also based. 11. The new town centre of Washington is known as “the Galleries” and is located within an area now owned by Postel Properties Limited (“Postel”), a private company. This town centre was originally built by the Washington Development Corporation (“the Corporation”), a body set up by the government of the United Kingdom pursuant to an Act of Parliament to build the “new” centre. The centre was sold to Postel on 30 December 1987. 12. The Galleries, as owned by Postel at the relevant time, comprised a shopping mall (with two hypermarkets and major shops), the surrounding car parks with spaces for approximately 3,000 cars and walkways. Public services were also available in the vicinity. However, the freehold of the careers’ office and the public library was owned by the Council, the social services office and health centre were leased to the Council by the Secretary of State and the freehold of the police station was held on behalf of Northumbria Police Authority. There was a post office within the Galleries and also the offices of the housing department, leased to the Council by Postel. 13. Around September 1997 the Council gave outline planning permission to the City of Sunderland College to build on a part of Princess Anne Park in Washington known as the Arena. The Arena is the only playing field in the vicinity of Washington town centre which is available for use by the local community. The first to third applicants, together with other concerned residents, formed the fourth applicant to campaign against the college’s proposal and to persuade the Council not to grant the college permission to build on the field. 14. On or around 14 March 1998 the first applicant, together with her husband and son, set up two stands at the entrance of the shopping mall in the Galleries, displaying posters alerting the public to the likely loss of the open space and seeking signatures to present to the Council on behalf of Washington First Forum. Security guards employed by Postel would not let the first applicant or her assistants continue to collect signatures on any land or premises owned by Postel. The applicants had to remove their stands and stop collecting signatures. 15. The manager of one of the hypermarkets gave the applicants permission to set up stands within that store in March 1998, allowing them to transmit their message and to collect signatures, albeit from a reduced number of people. However, the same permission was not granted in April 1998 when the applicants wanted to collect signatures for a further petition. 16. On 10 April 1998 the third applicant, as acting chair of Washington First Forum, wrote to the manager of the Galleries asking for permission to set up a stand and to canvass views from the public either inside the mall itself or in the adjacent car parks and offered to pay to be allowed to do so. In his reply of 14 April 1998, the manager of the Galleries refused access. His letter read as follows: “... the Galleries is unique in as much as although it is the Town Centre, it is also privately owned. The owner’s stance on all political and religious issues, is one of strict neutrality and I am charged with applying this philosophy. I am therefore obliged to refuse permission for you to carry out a petition within the Galleries or the adjacent car parks.” 17. On 19 April 1998 the third applicant wrote again to the manager of the Galleries, asking him to reconsider his decision. His letter remained unanswered. 18. The fourth applicant continued to try and reach the public by setting up stands by the roadside on public footpaths and going to the old town centre at Concord which, however, is visited by a much smaller number of Washington residents. 19. The deadline for letters of representation to the Council regarding the building works was 1 May 1998. On 30 April 1998 the applicants submitted the 3,200 letters of representation they had obtained. 20. The fourth applicant has produced a list of associations and others which were given permission to carry out collections, set up stands and displays within the Galleries. These included: the Salvation Army (collection before Christmas), local school choirs (carol-singing and collection before Christmas), the Stop Smoking Campaign (advertising display and handing out of nicotine patches), the Blood Transfusion Service (blood collection), the Royal British Legion (collection for Armistice Day), various photographers (advertising and taking of photographs) and British Gas (staffed advertising display). 21. From 31 January to 6 March 2001, Sunderland Council ran a consultation campaign under the banner “Your Council, Your Choice”, informing the local residents of three leadership choices for the future of the Council and were allowed to use the Galleries for this purpose. This was a statutory consultation exercise carried out under section 25 of the Local Government Act 2000, which required local authorities to draw up proposals for the operation of “executive arrangements” and consult local electors before sending them to the Secretary of State. Some 8,500 people were reported as having responded to the survey. 22. At common law, a private property owner may, in certain circumstances, be presumed to have extended an implied invitation to members of the public to come onto his land for lawful purposes. This is the case with commercial premises, such as shops, theatres and restaurants, as well as private premises (for example, there is a presumption that a house owner authorises people to come up the path to his front door to deliver letters or newspapers or for political canvassing). Any implied invitation may be revoked at will. A private person’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness. 23. In CIN Properties Ltd v. Rawlins ([1995] 2 EGLR (Estates Gazette Law Reports) 130), where the applicants (young men) were barred from a shopping centre in Wellingborough as the private company owner CIN considered that their behaviour was a nuisance, the Court of Appeal held that CIN had the right to determine any licence which the applicants might have had to enter the centre. In giving judgment, Lord Phillips found that the local authority had not entered into any walkways agreement with the company within the meaning of section 18(1) of the Highways Act 1971 (later replaced by section 35 of the Highways Act 1980) which would have dedicated the walkways or footpaths as public rights of way and which would have given the local council the power to issue by-laws regulating the use of those rights of way. Nor was there any basis for finding an equitable licence. He also considered case-law from North America concerning the applicants’ arguments for the finding of some kind of public right: “Of more obvious relevance are two North American cases. In Uston v. Resorts International Inc. (1982) N.J. 445A.2d 370, the Supreme Court of New Jersey laid down as a general proposition that when property owners open their premises – in that case a gaming casino – to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises. However, that decision was based upon a previous decision of the same court in State v. Schmid (1980) N.J. 423A 2d 615, which clearly turned upon the constitutional freedoms of the First Amendment. The general proposition cited above has no application in English law. The case of Harrison v. Carswell (1975) 62 D.L.R. 3d 68 in the Supreme Court of Canada concerned the right of an employee of a tenant in a shopping centre to picket her employer in the centre, against the wishes of the owner of the centre. The majority of the Supreme Court held that she had no such right and that the owner of the centre had sufficient control or possession of the common areas to enable it to invoke the remedy of trespass. However, Laskin C.J.C., in a strong dissenting judgment held that since a shopping centre was freely accessible to the public, the public did not enter under a revocable licence subject only to the owner’s whim. He said that the case involved a search for an appropriate legal framework for new social facts and – ’If it was necessary to categorise the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based.’ I have already said that this was a dissenting judgment. Nevertheless counsel [for the applicants] submitted that we should apply it in the present case. I accept that courts may have to be ready to adapt the law to new social facts where necessary. However there is no such necessity where Parliament has already made adequate provision for the new social facts in question as it has here by section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980. (Harrison v. Carswell makes no mention of any similar legislation in Canada.) Where Parliament has legislated and the Council, as representing the public, chooses not to invoke the machinery which the statute provides, it is not for the courts to intervene. I would allow this appeal ... on the basis that CIN had the right, subject only to the issue under section 20 of the Race Relations Act 1976, to determine any licence the [applicants] may have had to enter the Centre.” 24. The parties have referred to case-law from the United States and Canada. 25. The First Amendment to the Federal Constitution protects freedom of speech and peaceful assembly. 26. The United States Supreme Court has accepted a general right of access to certain types of public places, such as streets and parks, known as “public fora” for the exercise of free speech (Hague v. Committee for Industrial Organisation, 307 U.S. (United States: Supreme Court Reports) 496 (1939)). In Marsh v. Alabama (326 U.S. 501, 66 S.Ct. (Supreme Court Reporter) 276, 90 L.Ed. (United States Supreme Court Reports, Lawyers’ Edition) 265 (1946)), the Supreme Court also held that a privately owned corporate town (a company town) having all the characteristics of other municipalities was subject to the First Amendment rights of free speech and peaceable assembly. It has found that the First Amendment does not require access to privately owned properties, such as shopping centres, on the basis that there has to be “State action” (a degree of State involvement) for the amendment to apply (see, for example, Hudgens v. NLRB, 424 U.S. 507 (1976)). 27. The United States Supreme Court has taken the position that the First Amendment does not prevent a private shopping-centre owner from prohibiting distribution on its premises of leaflets unrelated to its own operations (Lloyd Corp. v. Tanner, 47 U.S. 551, 92 S.Ct. 2219, 33 L.Ed. 2d 131 (1972)). This did not however prevent State constitutional provisions from adopting more expansive liberties than the Federal Constitution to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping centre to which the public was invited and this did not violate the property rights of the shopping-centre owner so long as any restriction did not amount to taking without compensation or contravene any other federal constitutional provisions (Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 64 L.Ed. 2d 741, 100 S.Ct. 2035 (1980)). 28. Some State courts have found that a right of access to shopping centres could be derived from provisions in their State constitutions according to which individuals could initiate legislation by gathering a certain number of signatures in a petition or individuals could stand for office by gathering a certain number of signatures (see, for example, Batchelder v. Allied Stores Int’l, N.E. (West’s North Eastern Reporter) 2d 590 (Massachussetts, 1983); Lloyd Corp. v. Whiffen, 849 P. (West’s Pacific Reporter) 2d 446, 453-54 (Oregon, 1993); Southcenter Joint Venture v. National Democratic Policy Comm., 780 P. 2d 1282 (Washington, 1989)). Some cases found State obligations arising due to State involvement, for example, Bock v. Westminster Mall Co., 819 P. 2d 55 (Colorado, 1991) (the shopping centre was a State actor because of financial participation of public authorities in its development and the active presence of government agencies in the common areas), and Jamestown v. Beneda, 477 N.W. (West’s North Western Reporter) 2d 830 (North Dakota, 1991) (where the shopping centre was owned by a public body, although leased to a private developer). 29. Other cases cited as indicating a right to reasonable access to property under State private law were State v. Shack, 277 A. (West’s Atlantic Reporter) 2d 369 (New Jersey, 1971), where the court ruled that under New Jersey property law ownership of real property did not include the right to bar access to governmental services available to migrant workers, in this case a publicly funded non-profit lawyer attempting to advise migrant workers; Uston v. Resorts International, 445 A. 2d 370 (New Jersey, 1982), a New Jersey case concerning casinos where the court held that when property owners open their premises to the general public in pursuit of their own property interests they have no right to exclude people unreasonably (although it was acknowledged that the private law of most States did not require a right of reasonable access to privately owned property, p. 374); and Streetwatch v. National Railroad Passenger Corp., 875 F. Supp. (West’s Federal Supplement) 1055 (Southern District of New York, 1995) concerning the ejection of homeless people from a railway station. 30. States in which courts ruled that free speech provisions in their constitutions did not apply to privately owned shopping centres included Arizona (Fiesta Mall Venture v. Mecham Recall Comm., 767 P. 2d 719 (Court of Appeals, 1989)); Connecticut (Cologne v. Westfarms Assocs, 469 A. 2d 1201 (1984)); Georgia (Citizens for Ethical Gov’t v. Gwinnet Place Assoc., 392 S.E. (West’s South Eastern Reporter) 2d 8 (1990)); Michigan (Woodland v. Michigan Citizens Lobby, 378 N.W. 2d 337 (1985)); Minnesota (State of Minnesota v. Wicklund et al., 7 April 1998 (Court of Appeals)); North Carolina (State of North Carolina v. Felmet, 273 S.E. 2d 708 (1981)); Ohio (Eastwood Mall v. Slanco, 626 N.E. 2d 59 (1994)); Pennsylvania (Western Pa Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A. 2d 1331 (1986)); South Carolina (Charleston Joint Venture v. McPherson, 417 S.E. 2d 544 (1992)); Washington (Southcenter Joint Venture v. National Democratic Policy Comm., cited above; and Wisconsin (Jacobs v. Major, 407 N.W. 2d 832 (1987)). 31. Prior to the entry into force of the Canadian Charter of Rights and Freedoms, the Canadian Supreme Court had taken the view that the owner of a shopping centre could exclude protesters (Harrison v. Carswell, 62 D.L.R. (Dominion Law Reports) 3d 68 (1975)). After the Charter entered into force, a lower court held that the right to free speech applied in privately owned shopping centres (R. v. Layton, 38 C.C.C. (Canadian Criminal Cases) 3d 550 (1986) (Provincial Court, Judicial District of York, Ontario)). However, an individual judge of the Canadian Supreme Court has since expressed the opposite view, stating obiter that the Charter does not confer a right to use private property as a forum of expression (McLachlin J, Committee for Cth of Can. v. Canada [1991] 1 SCR (Canada Supreme Court Reports) 139, 228).
| 0 |
train
|
001-23067
|
ENG
|
GRC
|
ADMISSIBILITY
| 2,003 |
IMAM v. GREECE
| 4 |
Inadmissible
|
Françoise Tulkens
|
The applicant, Mr Ahmet Imam, is a Greek national, who was born in 1955 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 Muslim 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 Muslims 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 his 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 a 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 (judgment no. 3595/1995). 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. 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. By decision of 2 December 1997, notified to the applicant on 9 January 1998 the Prefect ordered for the third time the applicant’s dismissal. In the meantime, the applicant had instituted several proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant claims that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further claims 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 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by 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. On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated 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 4,185 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
|
001-95564
|
ENG
|
BIH
|
CHAMBER
| 2,009 |
CASE OF SULJAGIC v. BOSNIA AND HERZEGOVINA
| 2 |
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
6. The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”). 7. Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka Titograd). 8. Hard-pressed for hard currency as it was, the SFRY made it attractive for its expatriate workers and other citizens to deposit their foreign currency with commercial banks based in the SFRY: such deposits earned high interest (the annual interest rate often exceeded 10%) and were guaranteed by the State (see, for example, section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989). 9. The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of Yugoslavia. Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of Yugoslavia was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988). 10. Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen. 11. Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged. 12. Some important features of the banking system remained, however, unaffected by the reforms. First of all, commercial banks remained under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the SFRY. Secondly, both commercial banks and the State had financial obligations arising from foreign-currency savings: depositors were entitled to collect their deposits at any time, together with accumulated interest, from commercial banks (see sections 1035 and 1045 of the Civil Obligations Act 1978) or, in the event of a commercial bank's “manifest insolvency” or bankruptcy, from the State (see sections 1004(2) and 1007(2) of the Civil Obligations Act 1978, section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and a decision of the SFRY Government of 23 May 1990). 13. In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and Slovenia. 14. A brutal war started in Bosnia and Herzegovina shortly after its declaration of independence. During the war, Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (pursuant to section 6 of the SFRY Legislation Application Act 1992). Furthermore, the concept of “social ownership” was abandoned (see the Social Ownership Transformation Act 1993 and the Social Ownership Transformation Act 1994). As a result, all commercial banks based in Bosnia and Herzegovina were effectively nationalised. While the use of “old” foreign-currency savings was allowed in some exceptional situations during the war, it would appear that this possibility remained only theoretical (see a decision of the Presidency of the Republic of Bosnia and Herzegovina of 18 February 1993 and a decision of the National Bank of the Republika Srpska of 17 June 1993). 15. On 14 December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of Bosnia and Herzegovina”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of Brčko under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of Bosnia and Herzegovina and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006. 16. On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007). 17. Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and Herzegovina, where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998). 18. In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko. 19. Legislation providing for the use of “old” foreign-currency savings in the privatisation process had limited appeal and, moreover, led to abuses: an unofficial market emerged on which such savings were sometimes sold for no more than 3% of their nominal value. In 2004, in an attempt to remedy the situation, the Entities and the District agreed to recompense “old” foreign-currency savers in cash and government bonds and set up repayment schemes to this effect. However, pursuant to decision U 14/05 of the Constitutional Court of Bosnia and Herzegovina of 2 December 2005, the three repayment schemes were replaced by one for the entire territory of Bosnia and Herzegovina (see “Relevant domestic law and practice” below). 20. The applicant was born in 1935 and lives in the vicinity of Srebrenik, in Bosnia and Herzegovina. 21. He worked across Europe as a mailman, construction worker and handyman in the 1970s and 1980s and deposited foreign currency earned abroad with a basic bank based in Tuzla, a member of the Privredna banka Sarajevo. During the Marković reforms the bank became a separate entity, named Tuzlanska banka. In 1994 it was nationalised (see paragraph 14 above) and in 1998 it was sold to a commercial bank based in Slovenia (Nova Ljubljanska banka). 22. After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs. 23. On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below). 24. On 11 June 2007 the applicant received BAM 1,000 (see paragraph 29 below). On 14 May 2009 he received the first instalments of the principal debt and of interest on the bonds, both due on 27 September 2008, in the total amount of BAM 4,237.44 (see paragraph 31 below). 25. It would appear that the government bonds due on 31 March 2008 have not yet been issued (see paragraph 30 below) and that the second instalment of interest on the bonds, due on 27 March 2009, has not yet been paid (see paragraph 31 below). 26. For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII. 27. Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”). Bosnia and Herzegovina undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions. 28. The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28). 29. All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and Herzegovina and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds. 30. In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and Herzegovina and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and Herzegovina. 31. Meanwhile, amortisation plans were adopted on 21 February 2008 for the Republika Srpska and on 9 April 2008 for the Federation of Bosnia and Herzegovina and the Brčko District. On 24 June 2009 a new amortisation plan was adopted for the Brčko District which is along the lines of that of 9 April 2008. In the Republika Srpska, bonds are to be amortised by 28 February 2013 in ten instalments (on 28 February and 28 August every year from 28 August 2008 to 28 February 2013) together with interest on the bonds (at an annual rate of 2.5%). The first three instalments were paid, as planned, on 28 August 2008, 28 February and 28 August 2009. In the event of late payment, default interest is to be paid at the statutory rate. In the Federation of Bosnia and Herzegovina, bonds are to be amortised by 27 March 2015 in eight instalments as follows: 7.5% of the entire debt is to be paid on 27 September 2008, 9% on 27 September 2009, 11% on 27 September 2010, 12% on 27 September 2011, 13% on 27 September 2012, 15% on 27 September 2013, 15.5% on 27 September 2014 and 17% on 27 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 27 March and 27 September every year from 27 September 2008 to 27 March 2015. The first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) were paid on 14 May 2009. It would appear that the instalments due on 27 March and 27 September 2009 have not yet been paid. Lastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate. 32. Since government bonds are redeemable before their maturity, once issued, they may be traded on the Stock Exchange. In the Republika Srpska, their current trade price on the Stock Exchange is around 90% of their nominal value. Given that government bonds have been issued in the Brčko District only recently, their trade price on the Stock Exchange has not yet consolidated. As mentioned above, it would appear that bonds have not yet been issued in the Federation of Bosnia and Herzegovina.
| 1 |
train
|
001-80848
|
ENG
|
ITA
|
CHAMBER
| 2,007 |
CASE OF DELLE CAVE AND CORRADO v. ITALY
| 3 |
Violation de l'art. 6-1;Non-violation de l'art. 13;Préjudice moral - réparation pécuniaire;Remboursement frais et dépens - procédure de la Convention;Frais et dépens (procédure nationale) - demande rejetée
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András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
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4 The applicants were born in 1954 and 1956 respectively and live in Cicciano (Naples). 5. On 21 April 1993, the applicants, acting both in their own names and as representatives of their son S.D.C., then a minor, sued the insurance company R. and Mr V.B. in Naples District Court, seeking to obtain compensation for damage sustained by their son in a road traffic accident. 6. Preparation of the case for hearing began on 23 September 1993. Two hearings were initially scheduled for 15 and 17 March 1994 but were adjourned: one of the court's own motion and the other for examination of evidence. 7. At a hearing of 8 November 1994, upon the applicants' request, the judge in charge of preparations for trial ordered the transmission of the case file to the District Court of Nola (Naples), which assumed jurisdiction ratione loci. 8. The case was set down for a first hearing before that court as late as 29 May 1997. Five hearings scheduled to take place between 4 December 1997 and 26 October 1999 were adjourned: two for examination of evidence, one of the court's own motion, one because S.D.C., who had in the meantime reached his majority, had joined the proceedings in his own name before Nola District Court, and one in order to allow the parties to make their submissions. The hearing of submissions was then scheduled for 11 July 2000. However, finding that the defendant had not been informed of a change in the judge in charge of preparations for trial, the new judge adjourned the case until 18 January 2001. The hearing of submissions finally took place on 31 May 2001 and judgment was reserved. 9. In a judgment of 8 October 2001, the text of which was deposited in the court's registry on 10 October 2001, Nola District Court allowed the claims of the applicants and their son. 10. On 27 September 2001 the applicants lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the excessive length of the above-described proceedings. The applicants requested the court to conclude that there had been a violation of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage that they claimed to have sustained. Each applicant sought, inter alia, at least 2,582.28 euros (EUR) for pecuniary damage and EUR 8,392.42 for non-pecuniary damage. 11. In a decision of 28 January 2002, the text of which was deposited in the court's registry on 20 March 2002, the Court of Appeal found that the length of the proceedings had been unreasonable. Dismissing their claim in respect of pecuniary damage on the ground that the applicants had not adduced any evidence in that connection, it awarded each applicant the sum of EUR 1,032.92, determined on an equitable basis, in respect of non-pecuniary damage and EUR 620 for costs and expenses. This decision was served on the authorities on 12 July 2002 and became final on 26 September 2002. 12. The applicants did not appeal to the Court of Cassation, taking the view that such a remedy was available only in respect of points of law. On 11 April 2003 they brought their case before the Court. 13. In the meantime, the applicants had addressed a letter on 16 July 2002 to the Ministry of Justice, seeking payment of the sum awarded by the Rome Court of Appeal. 14. On 25 February 2003 the applicants served formal notice on the Ministry of Justice to pay the sum in question, then applied for a garnishee order (pignoramento presso terzi). 15. The sum awarded by the Court of Appeal was paid on 17 November 2005. 16. The relevant domestic law and practice are to be found in the Cocchiarella v. Italy judgment ([GC], no. 64886/01, §§ 23-31, ECHR 2006V).
| 1 |
train
|
001-118602
|
ENG
|
RUS
|
CHAMBER
| 2,013 |
CASE OF AGEYEVY v. RUSSIA
| 3 |
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
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5. The applicants were born in 1962 and 1963 respectively and live in the village of Korobovo in the Leninskiy District of the Moscow Region. 6. The applicants have been married since 1990. 7. In 2000 their seventeen-year-old son R., who suffered from widespread vasculitis, died. Some time later the couple decided to adopt two children. 8. On 19 March 2008 the Nagatinskiy District Court of the City of Moscow approved the applicants’ full adoption of two unrelated children, a boy, A. (first name), born on 7 April 2005, and a girl, D. (first name), born on 11 June 2006. 9. Following the adoption, the children became brother and sister and their first names were changed from A. to G. and from D. to P. respectively. Their surnames and patronymics were also changed to reflect the surname of their adoptive parents and the first name of their adoptive father. 10. Both children had been removed from their respective birth parents’ care in their infancy. The boy was aged one year and six months at the time of the removal, whilst the girl was aged seven months. Prior to adoption, both children had lived in various foster homes and displayed slight developmental delays. G. was recorded as being developmentally delayed in speech and motor skills and to have suffered neglect. It appears that G. had problems walking and often fell. As a result, he had three front teeth missing. At the time of her removal, P. was recorded as having minor heart anomalies and delays in her mental and verbal skills. 11. After the adoption the children lived with the applicants as a family in a detached two-storey house in the village of Korobovo in the Leninskiy District of the Moscow Region. 12. The children’s placement was assessed prior to the adoption and the Leninskiy District Custody and Guardianship Agency (“the Leninskiy District Agency”) made two post-adoption visits to their home, in May and September 2008. 13. On 21 May 2008 official E. of the Leninskiy District Agency visited the applicants’ house and issued a report describing the family’s living conditions. The report stated, in particular, that the house was “kept in order, the rooms had furniture, had been recently renovated, all rooms being decorated with wood, the floor having been covered with laminated wood and soft carpets”. The report mentioned that the family was well-off financially and that the children had a room measuring 20 square metres containing two beds, a wardrobe and many toys. The report did not mention any problems, and concluded that the living conditions were in compliance with the relevant requirements and that relations within the family were “normal”. 14. The report was approved by the head of the Leninskiy District Agency, Ms F. 15. On 12 September 2008 official E. of the Leninskiy District Agency again visited the house and issued a report on the living conditions. The report concluded: “it was excellent that the children’s living conditions and their relations with the family were normal and that normal conditions had been created for bringing up the children”. 16. Following this visit, official E. also issued a separate report stating as follows: “... it is a good family, in which two children are being brought up. They have grown and developed a sun-tan over the summer period. They have spent time with their parents in the south. The children are very cheerful and lively. The speech of P. has become more articulate, whilst G.’s has become good, with much thorough composition and expression of thoughts. The boy is very active; his hyperactivity is a concern to the parents, they are going to take the boy to a neurologist at a medical centre for children. P. has become calm and affectionate. The children like to listen to and look at the books read aloud to them by their parents ...” “... [the applicants] create all the necessary conditions for the children. G. and P. are being correctly fed a varied diet, including many vegetables and fruit. G. loves meat, whilst P. loves dairy products ...” “The children are attached to [their parents]. The family lives in a cottage situated in a suburban area, in which the children have a room measuring some 18 square metres with two beds, a wardrobe and a table. All furniture is suitable for their size and age. The children continue to be fashionably and well dressed. There are even more board games stimulating development. [The second applicant] accompanies the children to the educational centre for children in Moscow. The centre gives its classes four times a week. The parents are very happy because the knowledge and skills acquired during these classes have produced demonstrable results for P. and G.” 17. The report went on to conclude that: “... the living conditions for the children in the family as well as the relations between the parents and children are good. The children communicate happily with their parents. The parents love their children and take care of them.” 18. In the evening of 20 March 2009, at around 7.30 p.m., all the family was at home and the children were playing in the house. 19. The second applicant saw G. lying near the stairs. G. was bleeding and had burns on his face. She called the first applicant and they immediately tried to give G. first aid, treating the wounds with hydrogen dioxide and applying plasters on the wounds. G. was put to bed. 20. The applicants submitted that they had not seen how the incident had occurred, but they suspected that because of a momentary lack of supervision G. might have scalded himself with hot water from an electric kettle on the second floor and then run downstairs, falling on the stairs. 21. At around 9 p.m. the applicants examined G. and saw that the left side of their son’s face was red, the plasters had come unstuck and the wounds on his chin and eyebrow had started bleeding again. The applicants decided that it was necessary to have him checked by a doctor. 22. At 9.50 p.m. the first applicant took G. to the Emergency Unit of Children’s Hospital No. 145 of Moscow. Since the Unit was not open, he took the boy to the Burn Care Centre of the G. N. Spiranskiy Children’s Hospital No. 9 of the Department of Healthcare of the City of Moscow (“the Burn Care Hospital”). 23. From that date until 27 March 2009 G. remained in the hospital for treatment. 24. The admission entry of 20 March 2009 in G.’s medical file no. 2264 from the Burn Care Hospital described G.’s condition as “serious”. He was diagnosed by the surgeon on duty as follows: “... closed crano-cerebral trauma, brain concussion? A burn caused by hot liquid, III-IIIA degree, to the face covering S=8% of the body’s surface. Bruises to the head. Multiple scratches, bruises, haematomas on the body, limbs and sexual organs of various degrees of maturity. Battered child syndrome?” 25. A combined report by the surgeon in charge and the resuscitation specialist made later the same day confirmed the above conclusions, with a reduction of the estimated surface of the burn to 4%. 26. In the morning of 23 March 2009 official E. of the Leninskiy District Agency, along with her colleague Ef., again visited the applicants’ house. The resulting report stated that the next visit had been planned for April 2009 but that because of the incident of 20 March 2009, of which the Agency had learnt from the police on 23 March 2009, it had been decided to visit the applicants immediately. The report stated in respect of the incident: “... G. was in hospital, since, according to the parents, on 20 March 2009 he had spilled boiling water from a kettle on himself and, panicking, tripped and fallen down the stairs. The boy had been brought by [the first applicant] to [the hospital]. [The second applicant] was in a state of shock during the visit, could hardly speak and was constantly crying. The minor child P. was all the time nearby and did not leave her mother even for a second.” 27. The report further stated that the family would be visited and checked frequently and that the information about the incident was to be transferred to the municipal authority responsible for the adoption. 28. On 27 March 2009, at the applicants’ request, G. was discharged from the Burn Care Hospital and returned home. 29. On the same day the Head of the Golyanovo District Custody and Guardianship Agency (“the Golyanovo District Agency”) issued removal orders in respect of G. and P. because of an “immediate threat to their health and life”. 30. It appears that later on 27 March 2009 officials M., S. and F. of the Golyanovo District Agency visited the applicants’ house. The resulting report stated that because of the incident of 20 March 2009 and the institution of criminal proceedings in that connection, as well as because of the media coverage of the case, it had been decided to visit the applicants’ family and to consider the question of removing the children pending the investigation. The report then went on as follows: “... From the interviews with the children it was established that the parents loved them; the children looked well groomed and clean. During the visit the children were playing and looked happy; they then watched a fairy tale, held and kissed their mother affectionately ... Given that there was no immediate threat to the life and health of the children, the children were sleeping and the family would remain under the close supervision of the [Golyanovo District Agency], and regard being had to the pending investigation, we consider it unnecessary to remove the children and that consideration of the question should be suspended until the conclusion of the criminal case.” 31. It appears that based on the findings of the above report the Head of the Golyanovo District Agency withdrew the removal orders on 28 March 2009. 32. In a letter of the same date the Deputy Head of the Main Department of the Interior in the Moscow Region, K., referred the Head of the Golyanovo District Agency to the incident of 20 March 2009 and then stated: “With a view to avoiding any pressure from the parents on G. and the infliction of any physical or mental harm on him, I would ask you to consider the possibility of removing G. from the conditions representing a threat to his life and health pending the resolution of [these criminal proceedings].” 33. Furthermore, on 28 March 2009 other officials of the Golyanovo District Agency G., Z. and E. compiled the following report: “... as a result of examining the housing and living conditions of the family of [the applicants], the visits of the officials of the [agency] during the period from 23 March 2009 to 28 March 2009, and reviewing the video materials presented by the family showing episodes from the life of the parents and children, and the continuous interviews with [the applicants], the following has been established: At present, despite repeated recommendations by the officials of the agency, the stairs connecting the first and second floors have still not been made secure (according to [the applicants] it was precisely these stairs that caused serious injuries to G., who fell down them). The previous security mechanism had been taken down before the New Year period. The injuries received by the minor child G. on 20 March 2009 were not without precedent. Serious falls of the child occurred previously as well, as can be seen from the video materials in the family archive, as well as being confirmed by the parents. Given the above, as well as the institution of criminal proceedings ... together with the fact of the infliction of the injuries in question, we consider that the parents do not fulfil the security requirements for the life and health of minors and do not keep a close enough watch over the children, who are prone to trauma because of their high levels of activity and mobility . Thus there are reasons to remove [the children] from their parents.” 34. Late in the evening of 28 March 2009 official F. of the Golyanovo District Agency accordingly issued removal orders in respect of G. and P. because of “the immediate threat to their health and life”. 35. On 29 March, at around 9 p.m., the removal of both children took place, with both children being placed in the Vidnovskaya District Hospital. 36. On 31 March 2009 the children were removed from the Vidnovskaya District Hospital and were placed in the Morozovskaya City Children’s Hospital. 37. On 10 April 2009 the applicants challenged the removal orders. They argued that the authorities had acted unlawfully and that the orders were generally unjustified and disproportionate. The applicants maintained that the authorities had denied them any possibility of visiting the children. 38. On 24 April 2009 the Golyanovo District Agency carried out an additional investigation into the living conditions of the applicants’ family. 39. On 27 April 2009 the Golyanovo District Agency replied to the applicants’ challenge. 40. On 28 April 2009 the Vidnovskiy District Court of the Moscow Region (“the Vidnovskiy District Court”) held a hearing in the case and rejected the applicants’ challenge to the removal orders as follows: “... having before it the explanations of the participants in the proceedings, the statements of witnesses and the case materials, the court finds that the [applicants’] claims are unfounded for the following reasons. In accordance with part 1 of Article 77 of the Family Code, in case of an imminent threat to the life and health of a child [the agency] can immediately remove the child from its parents, the removal being carried out on the basis of a decision by a municipal authority ... Taking into account the evidence collected, the court is also of the view that there were reasons to remove the children because of an immediate threat to their life and health. On the date the contested removal order was made, the stairs [in question] had still not been secured, despite repeated warnings. Criminal proceedings have been brought in respect of [the second applicant] ... and investigative actions are being taken. In view of this situation, with the presence of serious injuries on G. and the failure to secure the hazardous items, [the agency] had reasons to issue the removal orders ...” 41. On 21 July 2009, upon an appeal by the applicants, the Moscow Regional Court upheld the judgment of 28 April 2009, essentially confirming the conclusions of the first-instance court. 42. On 1 April 2009 the Golyanovo District Agency brought court proceedings for the revocation of the adoption of G. and P. in the Preobrazhenskiy District Court of the City of Moscow (“the Preobrazhenskiy District Court”). 43. On 15 and 27 May 2009 the Preobrazhenskiy District Court held hearings in the case. 44. On 17 June 2009 the Preobrazhenskiy District Court rendered a judgment in the case in which it revoked the adoption. The court stated as follows: “On 28 March 2009 [the Agency] conducted a check of the applicant’s house, which included a review of video materials showing episodes in the life of the parents and children and, as a result of continuous interviews with [the applicants], it was established that the stairs [in question] had still not been secured, whilst the trauma sustained on 20 March 2009 by G. was not an unusual event because serious falls had taken place before as well. The fact of G. having fallen off the dog’s kennel (in February 2009), which occurred before the incident of 20 March 2009, was not denied by the [applicants] in court. On 28 March 2009 [G. and P.] were removed from the [applicants’ family] owing to the situation in the family, which posed a threat to the life and health of the children, as well as owing to the institution of criminal proceedings ... On 30 March 2009 the Vidnovskaya District Hospital issued the results of an examination of the children from which it could be seen that P. had arrived at the hospital in a satisfactory condition, but with a wet cough, a congested pharynx, rough breathing, elongated exhalation, wheezing, ... diagnosis: obstructive bronchitis. At the same time, until the removal the child had not been treated by a paediatrician, since [the applicants] had not registered the child with a hospital and had not had her examined by a paediatrician. The examination of G. showed that his condition was satisfactory and that he was admitted suffering from the consequences of skull and brain trauma as well as a thermal burn to the face and scalp. In the set of criminal proceedings instituted on 22 April 2009 [the second applicant] was accused of a criminal offence under subpart (d), part 2, of Articles 117 and 156 of the Criminal Code, whilst [the first applicant] was accused under Article 156 of the Criminal Code. On 31 March 2009 the children G. and P. were placed in the Morozovskaya City Children’s Clinical Hospital for a medical examination and treatment as a result of their transfer from the Vidnovskaya District Hospital of the Moscow Region. G. was admitted to the Morozovskaya Hospital in a moderately serious condition. At the time of his admission ... G. was diagnosed as follows: hyperactivity syndrome with attention deficit, bruises on the left frontal bone and scratches on the body and extremities, balanitis, navel hernia, seborrhoeic dermatitis. From the medical card it also appears that apart from the above-mentioned diagnosis, G. was also diagnosed with developmental delay, acute rhino-pharyngitis, functional cardiopathy, acute pancreatitis, dyskinesia of the biliary pathways, slight isometropic myopia, acute allergic reaction (food) and first-degree obstruction of the adenoids. At the time of her admission ... P. was diagnosed as having: minimal brain dysfunction, acute rhino-pharyngitis, functional cardiopathy, reactive pancreatitis, dyskinesia of the biliary pathways, weak long vision, acute allergic reaction (food). The condition at the time of admission was of medium gravity. The above diagnosis confirms that the [applicants] failed to pay sufficient attention to the children’s health, did not take steps to treat them in due time and moreover did not even register them with a local polyclinic ... Moreover, as has been established by the court and can be seen from the statements of the [applicants], they are not keen to apply to [local] polyclinics and prefer selftreatment for both themselves and their children, as well as an uncontrolled coldwater treatment, which, according to the [agency], the prosecutor and the court, is obviously not in the children’s interest and actually poses a danger to the life and health of the children remaining in this [family] without access to the necessary medical aid. Further, at the time of [the adoption] they were given recommendations concerning the mandatory follow-up of each child by the appropriate doctors, including a paediatrician. It cannot be concluded from the fact that the [applicants] took their children to a neurologist, orthopaedist, and dentist, that they took due care of the children’s health, since the examinations at the Vidnovskaya and Morozovskaya hospitals diagnosed the children as being in need of treatment by doctors and attention from the [applicants], but the [applicants] did not take any such measures. The [applicants’ family] did not find the time to obtain medical insurance certificates in due time and only on 10 December 2008 did they receive an insurance certificate in respect of P., and on 18 March 2009 in respect of G. This also confirms their improper attitude in respect of the children’s health, and that very attitude fails in securing the protection of the children’s health and poses a threat to the health and life of the children ... ... under Article 141 of the Family Code an adoption may be revoked in cases where the adoptive parents fail to fulfil their parental obligations, abuse their parental rights, treat the adopted children cruelly, or suffer from chronic alcoholism or drug addiction. The court may also revoke an adoption in other cases, taking into account the interests of the child and having regard to the children’s opinion. The court is of the view that in the present case there are grounds to revoke the adoption because the [applicants] had an improper attitude in respect of the health and security of the children, which posed and still poses a danger to the life and health of the children, including, among other things, failure to provide the children with the necessary medical assistance, which, it was established by the court, they need. The reckless attitude of the [applicants] in respect of the health and security of the children, and the strong inclination of the [applicants] towards self-treatment poses a danger to the life and health of the children, and therefore the revocation of the adoption is in [the children’s] interest. The fact that the [applicants] have received positive character references, including by all witnesses questioned by the court during the examination of the case, and that they have some savings and property, even though they are unemployed, as well as the fact that they wish to continue to bring up the children, cannot serve as a basis for refusing the application, since the claims have been proved and [the application] is made solely in the interests of the children. The statements of witnesses [who all without exception gave positive character references concerning the applicants] ... cannot be taken into account by the court in order to reject the application, since those witnesses did not witness the events of 20 March 2009 and these events pose a threat to the security of the children, and to their life and health, and make it impossibile for the children to remain in the [applicants’] family. Having examined the evidence presented ... and taking into account the opinion of the [agency] concerning the need to revoke the adoption of the children, and given the improper attitude of the [applicants] in respect of the health and security of the children, the court finds that the application must be granted in full, since this is in the interests of the children, who in the future will be able to find a home with another family that will take due care of them and provide them with secure conditions for their life and development, as well as take due care of their health and development ...” 45. In addition to revoking the adoption, the court cancelled the relevant entries in the official database concerning the parental relationship between the applicants and G. and P. 46. On 22 June 2009 the Preobrazhenskiy District Court issued a full version of the judgment. 47. The judgment was upheld on appeal by the Moscow Regional Court on 13 August 2009. 48. On 26 March 2009 criminal proceedings were brought by the investigatory department of the Main Directorate of Investigations of the Moscow Regional Department of the Interior (“the investigation authority”) against the applicants on account of the incident of 20 March 2009. 49. On 28 March 2009 G. was examined at the State institute of forensic examinations in the town of Vidnoye in the Moscow Region. 50. Between 13 May and 8 July 2009 G. was also examined at the Bureau of Forensic Examinations of the State Department of Health of the Moscow Region. The commission consisted of eight doctors of various specialisations, including paediatricians. 51. On the basis of the evidence collected during the criminal investigation, on 23 November 2009 the investigation authority brought criminal charges against the second applicant. She was charged under Article 156 (non-fulfilment of duties relating to the care of minors), part 2 of subpart “d” of Article 117 (infliction of physical sufferings through regular beatings in respect of a minor), part 2 of subpart “c” of Article 112 (intentional infliction of moderate harm on health in respect of a person in a helpless situation) and Article 125 (knowingly leaving in a dangerous situation a person incapable of taking measures to save himself due to young age) of the Criminal Code of Russia. Criminal charges were also brought against the first applicant. He was charged in connection with the same events under Articles 156 and 125 of the Criminal Code. G. became a victim in the criminal case, his interests being represented by an official of the Leninskiy District Agency. 52. During the hearing of 29 March 2010 the trial court examined the witness Prod., a principal doctor at the Burn Care Hospital. He stated, among other things, that the press had been “admitted upon the order of someone in the Department of Health of Moscow, to be ‘allowed at [his] discretion’...”. 53. During a cross-examination on the same date, witness Dav., a children’s surgeon at the same hospital, admitted that the photographs disseminated by the media had been taken with her personal camera but stated that they had been taken by someone else and not by her. As regards the question whether it was usual practice to take photographs of sick patients, she stated as follows: “I know nothing about such a practice, I did it only once, with the permission of the patient ...”. 54. She also stated: “... during the medical examination I asked the father what had happened and where the injuries had come from, to which the father ... responded that the boy had spilled hot water on himself from a kettle and then fallen down the stairs leading from the second to the first floor. Thereafter the father went [out of the room] and I asked the child [the same question]. The boy answered that his mother had pushed him, and at that moment the boy’s father came back and, having apparently overheard our conversation, said that the child would ‘come up with a story’ now. Since the child was diagnosed with having injuries dating from different times, I indicated to the medical sister in charge that she should ... [report the case to the police] ...”. 55. On the same day, during a cross-examination before the trial court the witness Gor., head of the department of microsurgery at the same hospital, admitted that the photograph distributed by the media had been taken by him, that photographs had been taken for professional use and that he had given them to doctor Pen. He also admitted that no consent had been obtained either from G. or from his parents in connection with the taking of the photographs, that the taking of photographs was not a usual practice, and that the photographs had been taken because “the police had been informed [about the case]”. 56. Doctor Pen., the head of the third department of traumatology, was questioned as a witness on the same day. He gave evidence as follows: “Q: Explain more about the photographs of G. and how you gave them out and to whom? A: Since the child was in my department, they were all here. Then Mr Ger. came, and showed his ID as an assistant to [a well known member of the Russian State Duma] and very seriously asked me to make him copies. I remembered that I was obliged to obey. Ger. then went to my PC and sent the photographs by electronic mail to his account. Q: Did you check his identity? A: He showed his ID. Q: Did he show you a written request for information? A: No. ... Q: What was the purpose of these photographs? A: They had no value for me – G. had third-degree burns, that is quite rare. They heal on their own. Usually burns are deep and take a longer time to recover. ... Q: Were you fired [after the events]? A: Yes, but not because of the photographs, but because of the admission of the press into the department. Q: Did you do it [allow the admission of the press]? A: No, that was the order of my superior ...” 57. The witness Leb., a doctor with the emergency services, was questioned in court on the same day and stated it was he who had made an entry in the medical file to the effect that G.’s father had told him that G. had been ill-treated by his drunken mother. He conceded that this information was a falsehood, that the first applicant had never told him this, that he had no grounds to believe it, and that he had made this entry as a result of “pure emotion”. 58. On 15 November 2010 the Vidnovskiy District Court of the Moscow Region examined the criminal case against the applicants and delivered their judgment. The first applicant was acquitted in respect of the charges under Article 156 of the Code and the prosecution had dropped the charges against him under Article 125 of the Criminal Code. The second applicant was found guilty under Articles 156 (non-fulfilment of duties relating to the care of minors) and 115 (intentional infliction of mild harm to health) of the Criminal Code. She received a cumulative sentence of one year and eight months’ correctional work, which meant that during that period the second applicant had to pay fifteen per cent of her salary to the State. As regards the other charges, the second applicant was either acquitted or the charges were dropped. 59. Both the second applicant and the legal representatives of G. appealed against the judgment. They all disagreed with the court’s conclusion and argued that the second applicant should be acquitted in full. 60. The prosecution also appealed against the judgment, insisting that the applicants were guilty and demanding the quashing of the judgment in the part acquitting them. 61. On 17 February 2011 the Moscow Regional Court examined and rejected the parties’ appeals and upheld the judgment of 5 March 2010. 62. The applicants submitted that during G.’s stay in the Burn Care Hospital between 20 and 27 March 2009, the hospital’s administration on several occasions admitted a number of third persons, including journalists, photographers and various public figures, to G.’s room. These third persons were allowed to interview G. and to take photographs of him and his injuries. Among those admitted to see G. by the hospital’s administration was one Ger., an assistant to a well-known member of the Russian State Duma. 63. The applicants were not informed about these visits, interviews and photograph sessions, let alone asked for their authorisation. 64. On 24 March 2009 a number of national media sources belonging to the same media group and including the life.ru website and the newspapers Zhizn’ and Tvoy den’ started publishing material about the case of G. and his adoptive parents, using their full names and photographs. According to the applicants, the material included photographs of G. in the Burn Care Hospital and suggested that G.’s injuries had been caused by ill-treatment at the hands of his parents. The newspapers also learned from unspecified sources of G.’s adopted status and at once made this information public. 65. Thereafter various national media sources followed suit, publishing articles with the following titles: “Mother with a devil’s heart”, “I was beaten by my Mum”, “Mummy beat me up with a hot kettle full of boiling water”, “Monster-mummy is facing jail for ill-treatment of child”, “Mummy tortured adopted [child]”, “Gestapo Mummy” and so on. 66. On 30 March 2009 the applicants’ case was discussed in the Public Chamber of the Russian Federation. 67. On 16 April 2009 the Russia-wide TV channel Pervyy broadcast a programme, Pust’ Govoryat, (“Let them speak”) entirely devoted to the applicants’ case, with various individuals, including public figures, commenting and speculating on what had happened to G. and what was the appropriate State reaction in this connection. Ger. was invited as a guest and stated as follows: “... The child was admitted to hospital with so-called multi-trauma. This means that the injuries were not isolated but were multiple, including the burn on the face and heavy beatings and bruises to the sexual organs. And the doctors have now clearly given an assessment of these actions. They say that the child was admitted unconscious, which means that he could not tolerate the level of pain that he was suffering at home. And he was at home in this condition not for just one day. And the parents had taken him to the hospital not to have stitches to a scratch on his face, but because he was nearly dead. This is clearly confirmed by doctors ...” 68. This statement was accompanied by both photographs and video footage of G. taken by the crew of the television channel during his stay in hospital. It is clear from the video footage that the media crew had direct access to G. during filming. During the programme Ger. publicly showed photographs of G. obtained from the doctors of the Burn Care Hospital. 69. On 17 October 2009 the NTV channel broadcast video footage of G. in the Burn Care Hospital in its programme Maksimum. The media crew had direct contact with G. and was, among other things, able to question him in respect of the circumstances of the incident. 70. The Government submitted that the Burn Care Hospital did not keep any logs of visits by third persons, but that visits by third persons were possible under the applicable rules. The Government admitted that the applicants’ allegations concerning unauthorised access to G. by third persons, the unauthorised taking of photographs of G. and the dissemination of these photographs were true. They submitted the following description of the events. 71. On 23 March 2009 a police officer was admitted for a talk with a doctor and the hospital administration. He did not have access to G. 72. On 25 March 2009, with the permission of the Department of Health of the City of Moscow and the hospital administration, four media crews from the leading Russian TV channels (Pervyy, Vesti, NTV and TNT) were admitted to the relevant department, but did not have access to G., so they stood and filmed their footage in the lobby. 73. On 26 March 2009 the head of the relevant department of the hospital received a direct oral request from Ger. seeking to gather information about the child. Ger. did not have access to the child, but he received electronic copies of photographs of G. with injuries, in hospital settings. According to the Government, the photographs had not been meant for dissemination in public but had been taken by a doctor for professional reasons. 74. The Government also submitted that on 31 March 2009 the Presnenskiy Interdistrict Prosecutor’s office of the City of Moscow had issued an official warning to the Burn Care Hospital in connection with media access to the hospital. This warning had resulted in the decision to dismiss the head of the department, Pen., and to reprimand a deputy principal doctor at the hospital. The Government denied that the leaks about the adopted status of the child had come from the doctors of that hospital. 75. On 5 November 2009 the applicants requested the investigation authorities to institute criminal proceedings in respect of a breach of secrecy concerning the adopted status of their children under Article 155 of the Criminal Code. 76. It appears that this application was initially joined to the criminal proceedings in connection with G.’s alleged ill-treatment. In the decision of 23 November 2009 the investigation authority mentioned that the secrecy of G’s adoption had been breached. The discussion of this question apparently did not initially result in any developments leading to a separate investigation. The applicants were not notified of the decision. 77. In an application of 25 November 2009 the applicants also requested the investigation authority, inter alia, to investigate the actions of the hospital administration which had authorised access to G. by the various third persons, and which had resulted in the allegedly intrusive media coverage of their case. This application was apparently not responded to. 78. On 12 December 2010 the Investigative Department of the Department of the Interior of the Leninskiy District of the Moscow Region initiated a separate investigation in connection with the breach of the secrecy of G.’s adoption. 79. On 15 December 2010 the applicants were given victim status and subsequently questioned. 80. On 28 January 2011, in the absence of any suspects, the criminal investigation was suspended. It does not appear that the investigation had taken any steps with a view to identifying the suspects in the case or to question the journalists or editors of the media which had made the relevant information public. 81. On 1 February 2011 the suspension of the investigation was quashed by the deputy at the Vidnoye Town Prosecutor’s office, because “not all possible investigatory measures” had been carried out. 82. The investigation is apparently still pending. 83. On 13 July 2009 the applicants attempted to bring defamation proceedings against Ger., the Tvoy Den’ newspaper, and the Pervyy Channel in the Ostanskinskiy District Court of the City of Moscow on account of Ger.’s statements that he had been in contact with G. in the hospital and that the boy had been severely beaten and was barely alive. 84. It appears the case was later transferred to the Lyublinskiy District Court of the City of Moscow, because Ger.’s exact place of residence could not be established. The Ostankinskiy District Court made some efforts to identify and summon Ger. to court. In particular, the court made a number of requests, inter alia, to the Russian State Duma and the Federal Migration Service. These efforts were to no avail because Ger. was an unpaid pro bono assistant, and not a staff member, so the State Duma did not have information on his whereabouts. 85. On 14 July 2010 the applicants withdrew the claim in view of the impossibility of locating and summoning Ger., whom they described as the main defendant in the case. 86. The second applicant brought civil proceedings in connection with her right to the protection of her honour, dignity and reputation against OOO News Media-Rus, the publisher of the Tvoy Den’ newspaper. The claim contested the following four articles published in that newspaper and requested the defendant to officially refute them: (a) In issue no. 62 of 25 March 2009, on the front page there was a photograph of the second applicant with the comment: “Mummy with a devil’s heart”. To the left of the photograph there was another comment: “A four year old, Gleb A., from an ‘elite’ village in the Moscow Region, was severely beaten by his drunken adoptive mother”. Then there was a reference to an article by journalists A.S. and O.L., published on pages 4 and 5 of the same issue. The article was entitled “I was beaten by my mother”. It stated: “A boy was beaten and burned by his adoptive mother [who was] in a state of alcoholic intoxication (according to his father)”... and included the following additional headlines “Drunken mother cripples her adoptive child”, “Months of humiliation for four-year-old G.”. (b) In issue no. 63, of 26 March 2009, on the front page there was a photograph of the second applicant with the following comment: “Monster Mummy is facing jail for cruel treatment of child”. On the left of the photograph and on pages 4 and 5 of the newspaper it was stated that “... doctors made an official conclusion that the child, who ended up in the Burn Care Hospital on 20 March, had been beaten by his adoptive mother”. On the front page there was a headline “Mummy beat me up with a red hot kettle of boiling water”. A headline above the article stated: “Mother tortured her adoptive 4-year son with a red hot kettle”. A headline above the second applicant’s photograph stated: “Gestapo Mummy”. (c) In issue no. 69, of 2 April 2009, on pages 4 and 5 there was an article entitled “Payback for the torments of an angel”. The article stated: “On Tuesday she [the second applicant] was taken away to psychiatric clinic no. 24 in the town of Vidnoye”. It further stated: “An expert examination made it clear to the specialists that [she] is of sound mind: the woman can clearly, comprehensively and accessibly answer all questions, and the expert examination of her test drawings shows no signs of serious deviations. However, according to the doctors, [she] has long been in receipt of strong psychotropic substances. The adoptive mother is directed to undergo an additional examination; she needs to give blood samples to be tested for drugs and psychotropic substances”. (d) In the issue of 6 April 2009 an article covering the applicants’ case mentioned that G. had “deep bloody scratches caused by human nails”. 87. The Savelsovkisy District Court of Moscow examined the case on 4 March 2010. The court noted that the dissemination of the information referred to by the second applicant remained uncontested, and invited the defendant to justify the truthfulness of the published material in question. It then examined the evidence referred to by the defendants in order to establish the truthfulness of the material. In particular, the court examined Kor., one of the doctors who had treated G., who described G.’s condition at the time of his admission and repeated the version of events he had heard from the first applicant; he also stated that G. had at some point mentioned that he had been struck by his mother with a kettle. The court also examined an entry in the Emergency Team’s medical register made by doctor Leb. which stated that, according to the boy’s father, G. had been beaten and burned by his adoptive mother, who was in a state of alcoholic intoxication, the beatings having taken place at 8 p.m. The court also examined various photographs of G. with injuries and heard Sib., a nurse who had been assisting doctor Leb. at the time. Lastly, the court refused to hear the first applicant as a witness but examined the second applicant’s medical file from psychiatric clinic no. 24, which confirmed that the second applicant had been in that clinic, with the diagnosis mentioned in the newspaper, and had been, among other things, ordered to give additional blood samples for testing for drugs and psychotropic substances. 88. Overall, the court concluded that the factual information contained in the contested material about G.’s case was truthful, and that the medical information about the second applicant’s stay in clinic no. 24 was also truthful and could not be seen as in any way damaging to the second applicant’s reputation. The court also rejected as unproven the second applicant’s allegations that G.’s photographs had been heavily retouched by the defendant for a dramatic effect. As regards the descriptive comments about the second applicant’s role in G.’s injuries, the court considered that they represented value judgments not susceptible of proof in court. On the basis of the above, the court rejected the second applicant’s claim as groundless. The court did not address the second applicant’s arguments concerning the breach of her right to the presumption of innocence as a result of premature speculations concerning the nature and degree of her responsibility for G.’s injuries. 89. On 10 June 2010 the Moscow Regional Court examined and, without responding to the second applicant’s arguments, rejected her appeal against the firstinstance judgment of 4 March 2010. 90. On 31 March 2009 G. and P. were placed in the custody of the relevant bodies of the City of Moscow and some time later placed in the State educational establishment “Social asylum for children and adolescents” of the Department of Family and Juvenile Policy of the City of Moscow (“the children’s home”). They remain there to date. 91. It does not appear that the applicants had any access to either G. or P. between 31 March 2009 and 3 June 2010. It appears that between 29 April 2009 and 19 May 2010 the applicants were allowed to leave food and gifts for the children at the foster home. On 3 June 2010 the children’s home granted the applicants permission to visit. Since that day the applicants have had regular weekly access to both children. 92. On 22 February 2011 the applicant’s lawyer interviewed Zhm., a teacher from the children’s home, who confirmed that the children thought about and had not forgotten their parents and wanted to return to their family, and that it would be better to return the children to their parents. 93. In an interview conducted on the same day, the director of the children’s home, Alb., stated that he agreed with the position of Zhm. and was also of the view that the children’s condition had greatly improved and that it would be better for them to return to their parents. 94. On 11 March 2011 the first applicant lodged an application with the Preobrazhenskiy District Court requesting a review of the revocation of adoption proceedings in view of his recent acquittal, and sought to recover his lost rights. He asked the court to declare him the father of the children and to physically to return them to him. 95. On 17 March 2011 the children’s home also lodged an application with the Preobrazhenskiy District Court asking for a review of the revocation proceedings in the interests of the children and with a view to reuniting the family. 96. The first applicant’s application was supported by the Golyanovo District Municipal Authority, which now considered that G. and P. would be better off returning to the family of their former adoptive parents. 97. By a decision of 21 June 2011 the Preobrazhenskiy District Court examined the application by the children’s home and dismissed it for lack of standing. The court concluded that since the children’s home had not been a party to the original set of proceedings, it had no right to apply for a review of the judgment of 17 June 2009. 98. By a decision of 22 June 2011 the Preobrazhenskiy District Court examined and rejected the first applicant’s application. The court considered that the circumstances referred to by the first applicant could not be seen as newly discovered within the meaning of the applicable domestic law. 99. On 12 July 2011 the first applicant applied for the restoration of the adoption to the Preobrazhenskiy District Court. Since the domestic law did not contain any legal provision allowing for restoration of adoption in respect of adoptive parents whose parental rights had been removed, the first applicant requested the court to apply the legal provisions applicable to natural parents which provided for the restoration of their parental rights if they had previously had such rights restricted or been deprived of them, and to apply them in his case by analogy. 100. This request was maintained and supported by the Golyanovo District Municipal Authority, which took the view that the return of G. and P. to the applicants’ family was in the interests of the children. 101. By a decision of 9 August 2011 the Preobrazhenskiy District Court examined and rejected the first applicant’s request. The court considered that the application of the law by analogy in such cases was not possible. 102. That decision was upheld on appeal by the Moscow City Court on 20 February 2012. The court took the view that the domestic law did not provide for the possibility of restoration of adoption after it had been revoked and agreed with the first instance court that the law in respect of natural parents could not be applied to the adoptive parents by analogy. “1. Everyone has the right to the inviolability of his/her private life, to personal and family confidentiality, and to the protection of his honour and good name ...” “1. Everyone is guaranteed freedom of thought and speech ... 4. Everyone has the right freely to seek, receive, transfer, produce and distribute information by any legal means. The list of information subject to State secrecy is set out in the federal law. 5. The freedom of the media is guaranteed. Censorship is prohibited.” “1. Children shall have the right to the protection of their rights and legal interests. A child’s rights and legal interests shall be protected by his parents (or substitute parents), and, in the cases stipulated in the present Code, by the Custody and Guardianship Agency, the Prosecutor and the court. ... 2. Children shall have the right to protection from abuse on the part of the parents (or substitute parents). If the child’s rights and legal interests are violated, including where the parents (or one of them) fail to discharge, or improperly discharge, their duties in relation to the child’s upbringing and education, or where they abuse their parental rights, the child shall have the right to apply on his own initiative for the protection of the Custody and Guardianship Agency, and – upon reaching the age of 14 years – to a court. 3. Officers of organisations or other citizens who have learnt of a threat to the life or health of a child or a violation of his rights or legal interests are obliged to report this to the Custody and Guardianship Agency for the child’s current place of residence. Upon receipt of such information, the Custody and Guardianship Agency is obliged to take the necessary measures to protect the child’s rights and legal interests.” “1. A court may, taking into account the interests of the child, decide to remove the child from the parents (one of the parents) without stripping them of their parental rights (restricting their parental rights). 2. The restriction of parental rights is allowed when leaving the child with his parents (one of the parents) is dangerous for the child due to circumstances which do not depend on the parents (one of the parents), such as mental illness or other chronic disease, the combination of difficult circumstances, and so on. The restriction of parental rights is only possible in cases where leaving the child with the parents (one of the parents) is dangerous for the child on account of their conduct, but sufficient grounds for stripping the parents (one of the parents) of their parental rights have not been established. If the parents (one of the parents) do not change their conduct, six months after a court decision restricting their parental rights the agency is under an obligation to file an application for the parents to be stripped of their parental rights. Acting in the interests of the child, the agency may file such an application up to the expiry of the above-mentioned term ...” “1. Parents whose parental rights are restricted by the court shall lose the right to bring the child up in person, and also the right to the privileges and State allowances granted to citizens with children. 2. The restriction on parental rights shall not relieve the parents from the duty to maintain the child. 3. A child whose parents’ (or one of them) parental rights are restricted shall retain the right of ownership of the living premises or the right to use the living premises, and shall also retain property rights, based on his kinship with his parents and with his other relatives, including the right to receive an inheritance. 4. If the parental rights of both parents are restricted, the child shall be placed in the care of the Custody and Guardianship Agency.” “Parents whose parental rights are restricted by the court may be allowed to maintain contact with the child, unless this has a negative impact on the latter. The parents’ contact with the child shall be permitted with the consent of the Custody and Guardianship Agency, or with the consent of the child’s guardian (trustee), of his foster parents, or of the authorities of the institution where he resides.” “1. If the grounds on which one or both parents’ parental rights were restricted cease to exist, the court may, upon an application by the parents (or one of them) make a decision returning the child to the parents (or one of them) and lifting the restrictions stipulated by Article 74 of the present Code. 2. The court shall have the right, taking into account the child’s interests, to refuse to grant the application if the child’s return to the parents (or one of them) is contrary to his interests.” “1. If a direct threat exists to the child’s life or health, the guardianship and trusteeship body shall have the right to remove the child from his parents (or from one of them) or from any other person whose charge he is in. The immediate removal of the child shall be carried out by the Custody and Guardianship Agency pursuant to the corresponding order of the local self-governing body. 2. When removing the child, the Custody and Guardianship Agency must inform the prosecutor without delay, provide for the child’s temporary accommodation and, within seven days of the decision of the local self-governing body to remove the child, lodge an application with the court for the withdrawal or restriction of parental rights.” “1. The secrecy of a child’s adoption is protected by the law. Judges who have rendered a judgment concerning the adoption of a child, or other officials who have carried out the State registration of an adoption, as well as other persons who have otherwise become aware of an adoption, are obliged to maintain the secrecy of the child’s adoption. 2. Persons indicated in part 1 of the present Article who disclose the adoption of the child against the will of the adoptive parents shall be held liable in accordance with the law.” “1. A child’s adoption may be revoked if the adopters fail to discharge the parental duties imposed on them, abuse parental rights, treat the adopted children cruelly, or suffer from chronic alcoholism or drug addiction. 2. The court may also revoke a child’s adoption on other grounds, proceeding from the child’s interests and taking into account his opinion”. 103. On 20 April 2006 the Plenary Supreme Court of Russia adopted Resolution no. 8 “On the application of legislation by the court during the examination of cases concerning the adoption of children”. “19. Since adoptive parents acquire their parental rights and obligations as a result of adoption, and not because of the birth of their children, it should be borne in mind that in cases of evasion of parental duties by the adoptive parents, the abuse of parental rights or cruel treatment of the adopted children, as well as if the adoptive parents are chronically sick alcoholics or drug addicts, a court can decide to revoke the adoption (Article 140, part 1 of Article 141 of the Family Code of Russia), or not to deprive or limit the parental rights (Articles 69, 70 and 73 of the Family Code). In such cases, the child’s consent to the revocation of the adoption is not necessary (Article 57 of the Family Code) ...” “1. The intentional infliction of mild harm to health producing a short-term health disorder or insignificant but durable loss of the general capacity to work ... shall be punishable by a fine ... or compulsory work of up to 480 hours, or correctional work for a term of up to one year ...” “1. The unlawful collection or dissemination of information about the private life of a person constituting a private or family secret without his/her consent, or dissemination of such information during public addresses, in publicly visible work or in the media is punishable by a fine of up to 200,000 Russian roubles or the equivalent of the salary or other income of the convicted person for a period of up to eighteen months, or compulsory work for a term of up to 360 hours, or correctional work for a term of up to 1 year ... 2. The same acts committed by a person through the use of his/her official position are punishable by a fine ... or automatic disqualification from certain offices or certain occupations ...” “1. The disclosure of the secrecy of a child’s adoption against the will of the adoptive parent by a person who was under an obligation to keep the fact of the adoption a service-related or professional secret, or by other persons out of lucrative or base motives, shall be punishable by a fine ..., or community service ..., or an arrest ... combined with disqualification from holding certain posts or carrying out certain activities ...” “1. The non-fulfilment or improper fulfilment of duties concerning the upbringing of a minor by a parent or by another person ... if this conduct was accompanied by cruel treatment of the minor ... shall be punishable by a fine ..., or community service, or imprisonment ...” “Information about the fact of an individual’s application for medical aid, the state of health of a citizen, a diagnosis of disease or other data obtained as a result of his examination and treatment constitute a medical secret. An individual should have a firm guarantee of the confidentiality of the information imparted. The dissemination of information constituting a medical secret by persons who have had access to this information as a result of the educational process or the execution of professional, service or other obligations, except for the situations set out in parts 3 and 4 of the present article, is not allowed. Upon an individual’s or his representative’s consent, the transfer of information constituting a medical secret to other individuals, including officials, in the interests of the medical examination and treatment of a patient, for scientific examination, publications in scientific literature, or the use of this information in the educational process, is allowed. Information constituting a medical secret may be furnished without the consent of the individual in question or his representative: 1) in order to examine and treat an individual who is incapable on account of his condition of expressing his will; 2) in case of the threat of dissemination of infectious diseases, mass poisoning or infections; 3) upon the request of [various official investigation] bodies or a court in connection with a pending investigation or court proceedings; 3.1) upon a request from a body carrying out supervision in respect of the behaviour of a convict ...; 4) in case of treatment of an underage person [in cases of drug addiction], to keep their parents and legal representatives informed; 5) where there are grounds to believe that harm to the health of an individual has been inflicted as a result of unlawful actions; 6) with a view to carrying out a military medical examination ... Persons, who, in accordance with the law, are in receipt of information constituting a medical secret, are, along with medical and pharmaceutical officials, liable, account being taken of the extent of the resulting damage, for the disclosure of the medical secret under the disciplinary, administrative or criminal law in accordance with the [relevant] legislation.” “Disclosure of information to which access is limited by a federal law (except for cases in which such disclosure leads to criminal liability), by a person who had access to this information connection with the execution of his service or professional duties ... is punishable by an administrative fine of between 500 and 1,000 Russian roubles in respect of individuals and between 4,000 and 5,000 Russian roubles in respect of officials.” “1. Life and health, the dignity of an individual, personal integrity, honour and good name, business reputation, the inviolability of personal life, personal and family confidentiality ... belong to an individual by birth or by law, are inalienable and are not transferrable by any other means ... 2. Intangible rights are protected in accordance with this Code and other [relevant] laws ... as well as in such cases and within such limits where the use of the methods for the protection of ... the rights ... flows from the nature of the intangible right breached and the character of the consequences of such a breach.” “If non-pecuniary damage (physical or moral suffering) has been inflicted upon an individual by acts violating his personal non-pecuniary rights or encroaching upon other intangible interests belonging to the individual, as well as in other cases set out in the law, a court may order the perpetrator to pay monetary compensation for the said damage. In determining the amount of compensation, the court takes into account the degree of liability of the perpetrator and other relevant circumstances. The court also has to take into account the degree of physical and moral sufferings in the context of the individual features of the person on whom the damage was inflicted.” “1. An individual has a right to claim in court retraction of information damaging his/her honour, dignity or business reputation, if the person having disseminated such statements has failed to prove that they corresponded to reality ... 2. If damaging statements were disseminated in the media, they should be retracted in the same media ... 5. An individual concerned by the dissemination of damaging information ... has a right, along with the right to request refutation of such information, to ask for damages and compensation for non-pecuniary damage resulting from such dissemination ... 6. In case it is impossible to identify a person responsible for the dissemination of the [defamatory information], the individual concerned has the right to apply to court seeking to have the information in question declared untrue.” “1. Publication and further use of an image of an individual (including his photograph, as well as video footage or works of art in which he/she is depicted) are only permitted with the consent of the individual ... Such consent is not necessary in cases where: 1) the use of the image takes place in the interest of the State, society or other public interest; 2) the image was obtained during filming which took place in places open for free admission or at public gatherings, except for cases in which the image is the main object of [commercial] use. 3) the individual posed for a fee.” “1. Unless specifically authorised by law, the collection, storage, distribution and use of any information about the private life of an individual, including information about his origins, where he stays or resides, about private and family life, the biographical facts of such person, or his participation in court proceedings, is not allowed without his consent. The collection, storage, distribution and use of information about the private life of an individual which is in the interest of the State, society in general, or other public interest is excluded from this rule. The other exception to this rule is when the information about the private life of an individual has been made commonly available or disclosed by the individual himself or with his agreement. 2. Unless a contract between the parties provides otherwise, the parties are bound not to disclose information that they have received under a contract about a party or an interested third party to such a contract ... 4. Where the information about the private life of an individual obtained through a breach of law is contained in documents, video footage or other material means of storage, the individual has the right to request a court to seize the means of storage ... and to destroy it without any compensation ...” 104. On 24 February 2005 the Plenary Supreme Court of Russia adopted Resolution no. 3 “On judicial practice in cases concerning the protection of the honour and dignity of individuals and the business reputation of individuals or legal persons”, in which it reminded the lower courts that they should take into account the provisions of the European Convention on Human Rights and the case-law of the Strasbourg Court. More specifically, in part 8 of the Resolution, the Plenary Supreme Court noted that cases concerning the protection of honour, dignity and business reputation should be differentiated from cases concerning the protection of other intangible rights the inviolability of which is specifically protected by the Constitution of Russia and other laws and the dissemination of which may cause nonpecuniary damage even if the information in question is truthful and non-defamatory. In particular, in cases concerning the dissemination of information about the private life of an individual, it should be taken into account that unauthorised dissemination of even truthful information concerning private life may lead a court to award compensation for nonpecuniary damage resulting from the dissemination of such information (Articles 150 and 151 of the Civil Code). The only exception to this rule was when the information about the private life of a plaintiff had been disseminated with the aim of protecting some public interest under part 5 of Section 49 of the Law “On the media”... If false information about the person’s private life was disseminated, then a defendant could be obliged not only to retract such information, but also to compensate any resulting non-pecuniary damage under Article 152 of the Civil Code. 105. The Plenary Supreme Court also explained in part 2 of the Resolution that actions in defence of honour, dignity and business reputation could be brought by individuals and legal entities who considered themselves to have been injured by the disseminated information. Judicial protection in such cases could be granted even in cases where it was impossible to identify the person who had disseminated the information (for instance, in cases of anonymous letters directed at individuals and organisations, or publication of information on the internet by an anonymous user). Under part 6 of Article 152 of the Civil Code the court could declare the disseminated information untrue and defamatory. Such cases were examined by the courts under a special procedure set out in subsection IV of the Civil Procedure Code of Russia. 106. In part 5 of the Resolution, the Plenary Supreme Court also explained that the proper defendants in such cases were the authors of the disseminated information as well as those who had taken part in its dissemination. If the information had been disseminated by the media, the proper defendants were both the author of the information and the editorial board of the media involved, or the persons in charge of their production. 107. In its overview of the judicial practice in the examination of cases concerning the protection of honour, dignity and business reputation and the inviolability of the private life of public persons in the sphere of politics, art and sport (bulletin no. 12 for the year 2007), the Supreme Court noted that protected private information was listed, in particular, in Presidential Decree no. 1111 dated 23 September 2005. 108. On 23 September 2005 the President of Russia adopted decree no. 1111, which contains a list of information having a confidential character: “1. Information on facts, events and circumstances concerning the private life of an individual which enable the individual to be identified (personal data), except for information which can be disseminated in the media in situations defined by the federal laws. 2. Secret information in an investigation or judicial procedure ... 3. Official data access to which is limited by the State bodies according to the Civil Code ... and federal laws (official secret). 4. Information relating to professional activity to which access is limited in accordance with the Constitution of Russia and federal laws ([including] medical confidentiality ...).” 109. Article 392 of the Code of Civil Procedure of the Russian Federation contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court should be considered a new circumstance warranting a reopening (Article 392 § 4 (4)). This provision defines the duties of a journalist and mentions in its part 5 that when disseminating information on the private life of an individual in the media a journalist is bound to secure the consent of the person(s) concerned and/or their representative except for situations where dissemination is necessary for the protection of the interests of society. “... 2. Upon application by a member of the Council of the Federation or a member of the State Duma on questions relating to the functioning of State bodies, local authorities, NGOs and organisations to such bodies, the officials of such bodies and organisations are obliged to reply without delay (where further materials are required – not later than 30 days from the date of application) and provide the requested documents and information. At the same time, information constituting a State secret is provided in accordance with an order set out in the federal law on State secrets ...” “1. ... A member of the State Duma has the right to have assistants in connection with their work in the State Duma ... 4. ... A member of the State Duma has the right to have up to 40 assistants working pro bono ...” “1. An assistant to a member of ... the State Duma: ... c) upon assignment to the member of ... the State Duma, receives from State bodies [and other organisations] the documents required by the member ...” 110. The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 and came into force on 2 September 1990. It has been ratified by all Council of Europe member States. Its relevant provisions read as follows: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. ...” 111. The revised European Convention on the Adoption of Children was opened for signature on 27 November 2008 and entered into force on 1 September 2011. It has been ratified by seven States, namely Denmark, Finland, the Netherlands, Norway, Romania, Spain and Ukraine. The Russian Federation has not ratified or signed the Convention. 112. One of the reasons for the revision, as stated in the preamble to the 2008 Convention, was that some of the provisions of the 1967 European Convention on the Adoption of Children were outdated and contrary to the case-law of the European Court of Human Rights. The relevant provisions of the 2008 Convention read as follows: “1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin. 2. Nevertheless, the spouse or partner, whether registered or not, of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides. ...” “1 An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration. 2. An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority. ...” 113. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. Point 8 of the principles appended to the recommendation, reads as follows: “Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted persons. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 114. The commentary to the recommendation states as follows (paragraphs 26 and 27): “Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.”
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train
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001-87123
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ENG
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LVA
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ADMISSIBILITY
| 2,008 |
PLOTINA v. LATVIA
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Inadmissible
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
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1. The applicant, Mrs Diāna Plotiņa, is a Latvian national who was born in 1975 and lives in Jelgava District. She was represented before the Court by Mr T. Klauberg, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 5 September 1992 the applicant was staying in a café in Jelgava. On the premises there was also a certain K, who at the material time was an employee of the Security Service of the Republic of Latvia (Latvijas Republikas Drošības Dienests). K gave his gun to a private person, P, assuring him that the gun was unloaded. However, there was one bullet left in the barrel and the gun fired while P was examining it. Accidentally, the applicant was hit by the bullet. As a result of the injuries, she had to undergo several operations and rehabilitation procedures and was granted the status of a person with a second-degree disability. On the same day a prosecutor of the Jelgava Regional Public Prosecutor’s Office opened criminal proceedings in this connection. 1. Criminal proceedings against K 4. On 28 October 1992 K was charged with carelessly storing a firearm, under Article 220 of the Criminal Code. The charge was not presented to K as he did not appear at the prosecutor’s office. 5. In 1992 the Jelgava Regional Public Prosecutor’s Office decided to separate the criminal case against P from the case against K, who had left Latvia in the meantime and had gone to Belarus without the permission of the prosecutor in charge of the case. The pre-trial investigation against K was stayed and he was put on the wanted-persons list. 6. On 10 September 1997 and 23 February 1998 the applicant complained to the Presiding Prosecutor of Jelgava City about the lack of progress in the investigation of the criminal case against K. 7. On 3 March 1998 the Jelgava Police Department informed the applicant that K was not wanted by the police any longer. K had been on the wanted-persons list from 12 November 1992 to 1 March 1993. It was established that he was living in Belarus and his extradition had to be decided by the Prosecutor General. 8. On 20 April 1998 the applicant applied to the Prosecutor General, complaining about the lack of progress in the investigation of the criminal case against K and requesting him to take a decision concerning his extradition. 9. On 21 May 1998 the Prosecutor General informed the applicant that K was residing in Belarus and the Jelgava City Prosecutor’s Office had requested the Belarusian Embassy to provide information concerning his citizenship. Thereafter it could be decided whether to request the extradition of K or to transfer the proceedings to the Public Prosecutor of Belarus. In addition, the Jelgava City Prosecutor’s Office was requested to speed up the investigation. 10. On 9 April 1999, upon the applicant’s complaint, the Prosecutor General informed her that the relevant information concerning K’s citizenship had not yet been received. The Jelgava City Prosecutor’s Office was requested to speed up the investigation. 11. On 29 November 2000, upon the applicant’s complaint of 20 October 2000, the Prosecutor General informed her that the case against K had been closed on 6 April 1999 having regard to the statute of limitations. This decision was quashed and the case returned for additional investigation. The Presiding Prosecutor of Jelgava City was requested to establish whether K could be held liable as a State official because of his previous employment with the Security Service and to conduct the investigation by 20 December 2000. 12. On 27 December 2000 the Jelgava City Prosecutor’s Office informed the applicant that, in order to proceed with the criminal case against K, additional investigation was necessary. 13. On 29 March 2001 a prosecutor of the Jelgava City Prosecutor’s Office decided to close the criminal case against K. He acknowledged the accuracy of the events of 5 September 1992 and the status of K at the time, as established in the course of the pre-trial investigation. The prosecutor noted that on 8 September 1992 K had been dismissed from the Security Service for infringement of service discipline. The prosecutor considered that K had not misused his official position on 5 September 1992 and that he could not therefore be held liable in accordance with Article 162 § 2 of the Criminal Code. According to the prosecutor, K could be formally held liable under Article 220 of the Criminal Code as he, when giving his gun to P, being convinced that it was unloaded, had failed to examine the barrel. The prosecutor also established that on 24 December 1992 the registration of K’s domicile in Latvia had been deleted. The prosecutor decided to close the case, in accordance with Article 53 of the Code of Criminal Procedure, taking into consideration the facts that K had been punished at a disciplinary level, that he was residing abroad, that 8 years had passed since the incident and that – although he had committed a criminal offence provided for in the Criminal Code – he personally had not caused a degree of harm such as to justify criminal punishment. 14. On 23 November 2001 a prosecutor of the Prosecutor General’s Office quashed the decision of the prosecutor of the Jelgava City Prosecutor’s Office of 29 March 2001 as unsubstantiated, and decided to close the criminal case against K having regard to the statute of limitations. She also established that K had committed a criminal offence under Article 220 of the Criminal Code and that he could not be found liable for the criminal offence provided for in Article 162 § 2 of the Criminal Code. In the accompanying letter, the prosecutor informed the applicant that any material issues had to be dealt with in civil proceedings. 2. Criminal proceedings against P 15. On 28 October 1992 P was charged with unintentional grievous bodily harm, pursuant to Article 110 § 1 of the Criminal Code, and the charge was presented to him on the same day. 16. On 3 November 1992 the Jelgava Regional Public Prosecutor’s Office decided to separate the criminal case against P from the case against K. 17. On an unspecified date the prosecutor in charge of the investigation at the Jelgava Regional Public Prosecutor’s Office transferred the criminal case against P to the Jelgava City Court for adjudication. 18. On 2 December 1992 the applicant submitted to the Jelgava City Court a detailed list of claims for medical and rehabilitation expenses amounting to 115,511 Latvian roubles (approximately 578 Latvian lati (LVL); EUR 822). She amended the list on 1 February 1993, claiming an additional 18,400 Latvian roubles (approximately LVL 92; EUR 131) for medical and rehabilitation expenses. 19. On 3 December 1992 the Jelgava City Court found P guilty of unintentional grievous bodily harm and sentenced him to eight months’ imprisonment. The court left the applicant’s civil claim unexamined, stating that, in order to claim pecuniary damages, the applicant would have to bring civil proceedings. 20. On 14 January 1993 the Criminal Chamber of the Senate of the Supreme Court upheld the judgment of the first-instance court, which entered into force on the same day. 21. On 25 January 1993 the enforcement proceedings against P commenced. He was sent to Pārlielupes Prison to serve his sentence. 22. On 19 April 1993, following an application (protest) by the Prosecutor General in the framework of the supervisory review procedure, the Supreme Court decided to transfer the case against P for adjudication de novo to the Jelgava City Court. The court acknowledged that the first-instance court had not taken into consideration, when it sentenced P, that he had been sentenced previously for another criminal offence and he had not served the sentence at that time. 23. On 6 May 1993 P was released after having served his sentence. 24. On 10 May 1993 the Jelgava City Court received the decision of the Supreme Court of 19 April 1993. 25. On 17 May 1993, upon the decision of 19 April 1993, the Jelgava City Court scheduled a hearing for 10 June 1993. The hearing was not held as P had left Latvia in the meantime and the court decided to stay the proceedings. On 10 June 1993 the court decided to put P on the wanted-persons list and ordered a precautionary measure, namely his detention on remand. 26. On 18 June 1993 P was put on the wanted-persons list. 27. On 9 September 1993 P’s name was deleted from the list as he had been arrested in Russia. 28. On 15 September 1993 the Jelgava City and District Police informed the Jelgava City Court that P had been detained abroad for burglaries. 29. The case remained in the court without any progress until an unspecified date in 1997 when a judge of the Jelgava City Court applied to the police, inquiring about the progress of the investigation of the criminal case against P. 30. On 27 October 1997 the Jelgava Police replied to the judge of the Jelgava City Court, informing him of the events of 18 June and 9 September 1993. 31. On 3 March 1998 the Jelgava Police Department informed the applicant that P had been on the wanted-persons list from 18 June to 9 September 1993. He had been apprehended in Moscow for robbery and his stay there was being verified. 32. On 9 March 1998 the Jelgava City Court informed the applicant that it had been decided to stay proceedings in the criminal case against P, as he was wanted by the police. 33. In its decision of 23 November 2001 concerning the closure of the criminal case against K, the prosecutor of the Prosecutor General’s Office stated that at that date the criminal case against P was still pending before the Jelgava City Court as his whereabouts had not been established. 34. The Government submitted a letter from the Presiding Judge of the Jelgava City Court dated 6 September 2006, the relevant part of which reads as follows: 35. Article 5 provided that a criminal case had to be discontinued in accordance with the statute of limitations. 36. The relevant part of Article 53 provided that a public prosecutor could take a decision on the closure of a criminal case if a person had committed a criminal offence which was provided for by the Criminal Law but of which the consequences were not such as to justify criminal punishment. 37. Article 101 stipulated that a civil claim could be submitted by persons who had suffered damage as a result of a crime and, irrespective of the amount of the claim, it had to be examined jointly with a criminal case. The civil claim could be brought against the accused or a person who was vicariously liable for the acts of the accused (paragraph 1). The civil claim could be lodged upon the initiation of a criminal case, during pre-trial investigation, or with the court before the adjudication of the case (paragraph 2). If the court stayed the adjudication, the civil claim could be lodged before the beginning of the adjudication and also in the subsequent court hearing (paragraph 3). A person had the right to lodge a civil claim in civil proceedings if the claim had not been brought in criminal proceedings or if the claim had not been adjudicated owing to the discontinuance of the criminal case or a not-guilty verdict (paragraph 7). 38. Article 308 stipulated that if a civil claim was dismissed after its examination in criminal proceedings, the victim had no right to lodge the same claim in civil proceedings. If a civil claim was left without examination, the victim had the right to file the same claim in civil proceedings. 39. Under Article 110, the penalty for unintentional infliction of grievous or moderate bodily harm was up to one year’s imprisonment or a fine of up to ten minimal monthly salaries. 40. Under Article 162 § 2, the penalty for causing grievous consequences as a result of abuse of an official position was from two to eight years’ imprisonment. 41. The relevant part of Article 220 provided inter alia for imprisonment from three to five years for causing grievous consequences as a result of careless storage and carrying of firearms and ammunition which enabled a third person to use them. 42. Article 96 § 3 states that a judgment in criminal proceedings is binding in civil proceedings to the extent that it concerns the determination of the offence, for which a defendant has been sentenced, and the liability of the defendant. 43. The court must stay its proceedings if adjudication of the case is not possible prior to determination of another matter which is required to be adjudicated in accordance with criminal procedure (the relevant part of Article 214). 44. Article 1635 stipulates that every wrongful act or failure to act per se shall entitle the injured party to claim compensation from the wrongdoer, in so far as he or she may be held liable for such act. 45. Everyone has a duty to compensate for losses they have caused through their acts or failure to act (Article 1779). 46. Under Article 1895, all obligation-based rights which have not been expressly exempted from the impact of the statute of limitations, and the use of which is not by law subject to shorter terms, will lapse if the party entitled to them does not use them within a ten-year period. 5. The Instruction on the Carrying of Arms and Ammunition, as approved by Order no. 151 of the Security Service of the Republic of Latvia of 7 August 1992 (Latvijas Republikas Drošības Dienesta 7.augusta 1992.gada pavēle nr. 151 par Instrukcijas par bruņojuma un munīcijas glabāšanu apstiprināšanu) 47. The relevant part of the Instruction prohibits the handing-over of a weapon to other persons.
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train
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001-58240
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ENG
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GBR
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CHAMBER
| 1,998 |
CASE OF STEEL AND OTHERS v. THE UNITED KINGDOM
| 2 |
Not necessary to examine Art. 5-3;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 11;Not necessary to examine Art. 13;No violation of Art. 5-1 (first applicant);No violation of Art. 5-1 (second applicant);Violation of Art. 5-1 (third, fourth and fifth applicant);No violation of Art. 5-1 (first and second applicant);No violation of Art. 5-5;No violation of Art. 6-3-a;No violation of Art. 10 (first applicant);No violation of Art. 10 (second applicant);Violation of Art. 10 (third, fourth and fifth applicants);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
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John Freeland;N. Valticos;Simon Brown
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6. The first applicant, Ms Helen Steel, was born in 1965 and lives in London. 7. On 22 August 1992, together with approximately sixty others, she took part in a protest against a grouse shoot on Wheeldale Moor, Yorkshire. During the morning, the protesters attempted to obstruct and distract those taking part in the shoot. At midday the shooting party broke for lunch and did not recommence until approximately 1.45 p.m., when the police arrived and an officer began warning the protesters, through a public address system, to stop their behaviour. The protesters ignored this request and the police made a total of thirteen arrests. 8. Ms Steel was arrested by a police officer at approximately 2 p.m. for “breach of the peace” (see paragraphs 25–29 below). According to the police she was intentionally impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun to take aim, thus preventing him from firing. 9. She was taken to a police vehicle where she was detained until about 3.15 p.m., when she was transferred to a prison van. At approximately 7.15 p.m. she was taken to Whitby police station. Upon review, her continued detention there was authorised at 11 p.m. “to prevent any further breach of the peace” and subsequently, at 6.25 a.m. on 23 August, “in order to place her before the court later [that] morning”. In total she was detained for approximately forty-four hours. 10. At 12.56 a.m. on 23 August 1992 she was cautioned and charged. The charge-sheet stated: “That you did on Saturday 22 August 1992 at Wheeldale Beck in the Parish of Sefton behaved [sic] in a manner whereby a breach of the peace was occasioned. The complaint of PC 676 Dougall of North Yorkshire Police who applies for an order requiring that you enter into a recognizance with or without sureties to keep the peace. Pursuant to section 115 of the Magistrates’ Courts Act 1980 [“the 1980 Act” – see paragraphs 32–33 below].” At 9.40 a.m. on 24 August 1992, she was further charged with using “threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress”, contrary to section 5 of the Public Order Act 1986 (“the 1986 Act” – see paragraph 30 below). 11. She attended court on the morning of 24 August 1992 and was released on conditional bail, the condition being that she was not to attend any game shoot in North Yorkshire during the period of remand. 12. Ms Steel’s trial took place before the Whitby Magistrates’ Court between 15 and 20 February 1993. She was acquitted on the section 5 charge relating to the morning of 22 August 1992, and convicted on the section 5 charge relating to the afternoon of the same day. The magistrates found the complaint regarding the alleged breach of the peace proved but did not specify what behaviour of the applicant justified this conclusion or whether the complaint related to the morning or the afternoon. 13. Ms Steel appealed. Her appeal was heard by way of rehearing on 1 December 1993 by the Teesside Crown Court, which upheld the magistrates’ findings, imposed a fine of 70 pounds sterling (GBP) for the section 5 offence, and, in respect of the breach of the peace, ordered the applicant to agree to be bound over for twelve months in the sum of GBP 100 (see paragraph 31 below). Ms Steel refused to be bound over, and was committed to prison for twenty-eight days. 14. The second applicant, Ms Rebecca Lush, was born in 1973 and lives in Warsash, Hampshire. 15. On 15 September 1993, she took part in a protest against the building of an extension to the M11 motorway in Wanstead, London. During the course of that day a group of twenty to twenty-five protesters repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery. On each occasion they were removed by security guards. The protesters did not offer any resistance and there were no incidents of violence or damage to machinery. 16. Ms Lush was arrested at approximately 4.15 p.m. while standing under the “bucket” of a “JCB” digger, for conduct “likely to provoke a disturbance of the peace”. She was taken to Ilford police station where she was charged at 5.30 p.m. The charge-sheet states: “Arrested as a person whose conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace or Magistrate to be dealt with according to law.” She was kept in custody until 9.40 a.m. the following day (approximately seventeen hours’ detention), on the grounds that if released she would cause a further breach of the peace. 17. She appeared before Redbridge Magistrates’ Court on the morning of 16 September 1993 to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace. The proceedings were adjourned and she was released. 18. The proceedings resumed on 14 December 1993, when the allegation of conduct likely to cause a breach of the peace, brought under section 115 of the 1980 Act, was found to have been made out. Ms Lush was ordered to agree to be bound over for twelve months to keep the peace and be of good behaviour in the sum of GBP 100. She refused to be bound over and was committed to prison for seven days. 19. On 23 December 1993 Ms Lush requested the magistrates to state a case to the High Court (see paragraph 36 below). The magistrates replied on 24 December that under section 114 of the 1980 Act they would require a recognizance of GBP 500 that the applicant would prosecute the appeal without delay, submit to judgment and pay any costs ordered by the High Court. After correspondence between Ms Lush’s representatives and the clerk of the court concerning the applicant’s means, the magistrates agreed to reduce the recognizance to GBP 400. However, Ms Lush was unable to continue with the appeal since her application for legal aid was refused. 20. Ms Andrea Needham, born in 1965, Mr David Polden, born in 1940, and Mr Christopher Cole, born in 1963, all live in London. 21. On 20 January 1994, at approximately 8 a.m., they attended the Queen Elizabeth Conference Centre in Westminster, London, where the “Fighter Helicopter II” Conference was being held, in order to protest with three others against the sale of fighter helicopters. The protest took the form of handing out leaflets and holding up banners saying: “Work for Peace and not War.” 22. At approximately 8.25 a.m. the three applicants were arrested by police officers. Ms Needham was holding a banner and Mr Polden and Mr Cole were distributing leaflets. All three applicants were taken to Charing Cross police station where the custody record for each states the “circumstances” (the word “charges” having been deleted) as: “Breach of the peace, common law. On 20 January 1994 at Queen Elizabeth Conference Centre, Victoria Street, London SW1, constituted or was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace to be dealt with according to law. Contrary to common law.” 23. At approximately 10.40 a.m. the applicants were taken to Bow Street Magistrates’ Court where they were detained in a cell. They were brought before the magistrates at 3.45 p.m., having been detained for approximately seven hours. The magistrates adjourned the matters due to lack of time and the applicants were released. 24. On 25 February 1994, when the proceedings were resumed, the prosecution decided not to call any evidence and the magistrates dismissed the case against the applicants. 25. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426) He continued: “We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427) 26. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471) 27. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392) 28. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155), Lord Justice Simon Brown stated: “… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163) 29. A person may be arrested without warrant by exercise of the common-law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v. Lavin [1982] Appeal Cases 546 at 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)). 30. Section 5 of the Public Order Act 1986 (“the 1986 Act”) creates the offence of threatening, abusive, insulting or disorderly conduct likely to harass, alarm or distress others. It is triable before magistrates and punishable by fine. It is a defence to a charge under section 5 for the accused to show that the behaviour in question was reasonable in the circumstances. 31. Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”). A binding over order requires the person bound over to enter into a “recognizance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognizance. A binding-over order is not a criminal conviction (R. v. London Quarter Sessions, ex parte Metropolitan Police Commissioner [1940] 1 King’s Bench Reports 670). 32. Section 115 of the 1980 Act provides: “(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint. (…) (3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.” 33. The procedure under section 115 of the 1980 Act is begun by laying a formal complaint, usually by a police officer. Before the magistrates can make an order they must be satisfied, on the basis of admissible evidence, that (1) the defendant’s conduct caused a breach of the peace or was likely to cause one (R. v. Morpeth Ward Justices, ex parte Ward [1992] 95 Criminal Appeal Reports 215); and (2) unless the order is made, there is a real risk that the defendant will cause a further breach of the peace in the future. 34. Although a binding-over order is not a criminal conviction, these proceedings have been described as analogous to criminal proceedings. In the past it was unclear whether the court should apply the criminal or the civil standard of proof when deciding whether facts exist which warrant a binding-over order at the conclusion of the proceedings. However, in Nicol and Selvanayagam v. DPP (cited above), Lord Justice Simon Brown stated: “It is common ground that, although no criminal conviction results from finding such a complaint proved, the criminal standard of proof applies to the procedure.” 35. In addition to the above statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings (for example, a witness, acquitted defendant or a defendant who has not yet been acquitted or convicted), if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores (“conduct which has the property of being wrong rather than right in the judgment of the vast majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130). 36. An order of the magistrates to require a person to enter into a recognizance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. Before stating a case, the magistrates may, under section 114 of the 1980 Act, require the appellant to enter into a recognizance to pursue the appeal and to pay costs. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law. 37. In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law-reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that: “We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a binding-over order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222, § 6.27) The Law Commission therefore recommended abolition of the power to bind over. 38. Under section 108 of the Courts and Legal Services Act 1990, a civil action, for example for false imprisonment, may lie against a magistrate in respect of any act or omission in the purported execution of his or her duty only if it can be proved that he or she acted both in bad faith and in excess of jurisdiction.
| 1 |
train
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001-67357
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ENG
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UKR
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CHAMBER
| 2,004 |
CASE OF SVETLANA NAUMENKO v. UKRAINE
| 3 |
Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to the right to a court;Violation of Art. 6-1 with regard to impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
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Zoryana Bortnovska
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9. The applicant, Mrs Svetlana Borisovna Naumenko, was born on 26 January 1956 and currently resides in Odessa. 10. On 5 May 1991 the applicant was recognised as having been a relief worker at the 1986 Chernobyl Nuclear Plant disaster. The appropriate certificate (an identity card) was issued to the applicant by the Ministry of Health of the Ukrainian Soviet Socialist Republic. 11. In November 1991 the applicant was recognised as falling within the second category of invalidity in relation to her participation in the relief work at Chernobyl. 12. On 22 April 1992 the Ministry of Health of the Ukrainian Soviet Socialist Republic annulled the certificate issued on 5 May 1991 because the applicant had not stayed and worked in the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження)*. 13. On 7 November 1992 the Ministry of Health dismissed a petition filed by the chief doctor of the Odessa City Ambulance Service (the applicant's place of employment) requesting that the employees (including the applicant) of the Odessa City Ambulance Service who had worked in the alienation zone be given the status of relief workers. 14. On 1 September 1993 the Ministry of Chernobyl Affairs informed the chief doctor of the Odessa City Ambulance Service that there were no documents proving that the employees had stayed in the alienation zone. 15. In February 1994 the applicant lodged complaints with the Illichevsk District Court of Odessa, seeking to establish that she had indeed stayed in the alienation zone. On 3 March 1994 the Illichevsk District Court of Odessa delivered a judgment in which it accepted that the applicant had stayed in the alienation zone on 27 and 29 May 1986. The judgment became enforceable on 14 March 1994. 16. On 6 October 1994 the Odessa Regional Court dismissed as groundless the motion filed by the Chairman of the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe to reverse the judgment of 3 March 1994. 17. On 28 December 1994 the Odessa Regional Council issued a certificate (an identity card) acknowledging the applicant's status as a victim of the Chernobyl disaster, as established by the decision of 3 March 1994. 18. On 8 June 1995 the Cabinet of Ministers adopted Resolution no. 404 introducing amendments to its earlier Resolution of 25 August 1992 no. 501 on the Procedure for the Issue of Certificates (Identity Cards) to Victims of the Chernobyl Catastrophe. By virtue of these amendments, court judgments could not serve as a basis for the issue of certificates (identity cards) nor provide proof of being a victim of the disaster and thereby give entitlement to special State benefits and social payments. 19. On 14 December 1995 the Commission on Disputes of the Ministry of Chernobyl Affairs refused to confirm the applicant's status as a Chernobyl victim since the relief work had taken place outside the alienation zone. 20. On 18 January 1996 the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe (the “Commission”) annulled the decision of 28 December 1994 by which a certificate was issued to the applicant. 21. On 6 March 1996 the Chairman of the Department of Social Security of the Odessa Regional Council adopted a decision withdrawing the certificate from the applicant, suspending her social security payments and annulling the benefits awarded to her as a victim of the Chernobyl disaster. 22. On 18 June 1996 the Commission adopted a decision annulling the certificate. 23. In August 1996 the applicant lodged a complaint with the Supreme Court. 24. On 9 August 1996 the Supreme Court informed the applicant by letter that the refusal to issue a certificate could be appealed in accordance with the procedure established by law. 25. On 12 January 1999 the applicant instituted proceedings in the Primorsky District Court of Odessa in order to annul the decision of 18 January 1996 and to oblige the Commission to recognise her status as a Chernobyl victim and to re-issue the certificate. 26. On 26 January 1999 the District Court allowed her claims and declared the actions of the Commission unlawful. It also annulled the Commission's decisions and ordered it to issue a document recognising the applicant's status as a Chernobyl victim. The decision became enforceable on 6 February 1999. 27. On 6 February 1999 the Commission annulled its decision of 18 January 1996 and confirmed the applicant's status as a relief worker. The applicant's name was entered in the register of disabled Chernobyl relief workers. 28. In April 1999 the Deputy Chairman of the Odessa Regional Council's Commission on the Status of Chernobyl Victims filed a motion with the President of the Odessa Regional Court, requesting the President to lodge a protest against the decision of 26 January 1999 with a view to quashing it. 29. On 7 May 1999 the President of the Odessa Regional Court dismissed this petition as unsubstantiated. 30. On 14 January 2000 the Commission issued a Chernobyl victim identity card to the applicant. The applicant's name was also entered in the list of persons who had requested improved living conditions. 31. On 21 March 2000 the applicant filed a motion with the Primorsky District Court of Odessa for an interpretation of its judgment of 26 January 1999. She also requested that the Commission calculate her benefits and pension as from 18 January 1996 and compensate her for arrears in benefits from that same date. 32. On 28 March 2000 the Primorsky District Court of Odessa allowed the applicant's claims and ruled that the amount of compensation, arrears and benefits was to be calculated and paid to the applicant as from 18 January 1996. 33. On 15 June 2000 the applicant requested the Primorsky District Court of Odessa to issue her a writ of execution in respect of the ruling of 28 March 2000. On 13 July 2000 the Primorsky District Court of Odessa allowed the applicant's request and issued this writ. 34. The execution proceedings commenced on 19 July 2000, i.e. two days after the Illichevsk District Execution Service of Odessa Region had received the writ. 35. On 11 August 2000 the Illichevsk District Execution Service held that it had no jurisdiction over the enforcement of the ruling in the applicant's case. 36. On 29 August 2000 (28 August 2000 according to the Government) the Deputy President of the Odessa Regional Court lodged a protest with the Presidium of the Odessa Regional Court, requesting that the case be re-examined and the judgment of the Illichevsk District Court of Odessa of 3 March 1994 establishing the fact of the applicant's stay in the alienation zone reversed. 37. On 6 September 2000 the Presidium of the Odessa Regional Court allowed the protest and quashed the decision of 3 March 1994. It also remitted the case to the Illichevsk District Court of Odessa for re-consideration. 38. On 16 July 2001 the Illichevsk District Court of Odessa upheld the applicant's complaint, finding that she had stayed in the alienation zone on 27 and 29 May 1986. 39. On 14 August 2001 the Odessa Regional State Administration lodged an appeal against the judgment of 16 July 2001. 40. On 12 October 2001 the case file was transferred to the Odessa Regional Court of Appeal. However, it was sent back to the Illichevsk District Court of Odessa on 25 October 2001 since it was necessary to rule on the request for leave to appeal against the decision of 16 July 2001. 41. On 12 November 2001 the Illichevsk District Court of Odessa found that the Odessa Regional State Administration had failed to comply with the formalities envisaged by law for the introduction of appeals. The Administration was given until 20 November 2001 to rectify this shortcoming. 42. On 23 November 2001 the Odessa Regional Council rectified the shortcoming and appealed against the decision of 16 July 2001, seeking its annulment. 43. On 6 December 2001 the Illichevsk District Court of Odessa extended until 10 December 2001 the time-limit for the Odessa Regional State Administration to lodge a petition. 44. On 28 December 2001 the Odessa Regional Court of Appeal sent the case file to the Illichevsk District Court of Odessa requesting it to rule on the formal defects in the appeal that had been introduced out of time. 45. On 29 January 2002 the Illichevsk District Court of Odessa allowed the Administration's motion to extend the time-limit for filing an appeal with the Odessa Regional Court of Appeal. 46. On 1 February 2002 the Illichevsk District Court of Odessa sent the case file to the Odessa Regional Court of Appeal. 47. On 22 February 2002 the Odessa Regional Court of Appeal decided to initiate appeal proceedings in the case and scheduled a hearing on the merits for 14 May 2002. 48. On 14 May 2002 the Odessa Court of Appeal quashed the decision of 16 July 2001 and remitted the case to the same first-instance court. 49. On 17 July 2002 the case file was remitted to the Illichevsk District Court of Odessa for further consideration. 50. Between 12 August 2002 and 23 September 2002 the case could not be heard as the judge was on leave. 51. The case was scheduled for examination on 18 October 2002. 52. The hearing was adjourned to 8 November 2002 as the Ministry of Health, the State enterprise RUZOD and the Ministry of the Interior had failed to comply with the court's order of 17 July 2002 to provide relevant documentary evidence of the applicant's involvement in relief work at Chernobyl. The evidence requested by the court did not arrive until 18 October 2002. 53. On 8 November 2002 the Illichevsk District Court of Odessa held a hearing in the applicant's case. On the same date the court postponed the hearing until 29 November 2002 in order to summon specific witnesses. 54. On 29 November 2002 the hearing was rescheduled for 19 December 2002 as the Administration had requested that additional witnesses be summoned. 55. On 19 December 2002 the court heard the additional witnesses. It also scheduled another hearing for 16 January 2003 in order to allow time for the transfer of the case file relating to the applicant's status as a Chernobyl relief worker from the Primorsky District Court of Odessa. 56. On 16 January 2003 the hearing was rescheduled as the Administration's representative did not have a valid letter of authority. The next hearing was scheduled for 22 January 2003. 57. On 22 January 2003 the applicant lodged a motion with the court seeking the adjournment of the hearing in her case so that she could provide additional information about her claims. The hearing was rescheduled for 10 February 2003. 58. On 6 March 2003 the Malinovsky District Court of Odessa (the case having been transferred to this court in accordance with the territorial division of the districts of Odessa) found that the applicant had been a relief worker at the Chernobyl Nuclear Power Plant in 1986 and had stayed in the “alienation zone”. There was no appeal against this decision and it became final on 8 April 2003. 59. On 13 March 2003 the Malinovsky District State Execution Service initiated execution proceedings in the case. 60. The decision of 6 March 2003 was executed on 8 May 2003 once the applicant had received the Chernobyl victim certificate. 61. On 12 May 2003 the Malinovsky District State Execution Service terminated the execution proceedings since they had been completed. 62. On 13 November 2003 the Malinovsky District Court of Odessa gave an interpretation of the judgment of 6 March 2003 to the effect that the applicant stayed in the alienation zone from 26 May to 4 June 1986. 63. 24 May 2004 the Malinovsky Distrtict Court of Odessa awarded the applicant UAH 13,253.01 in unpaid pension for the period from 1 September 1996 to 1 November 2003. It also held that the applicant's monthly salary should be UAH 307,65. 64. Relevant provisions of the Constitution read as follows: “... The main principles of judicial proceedings are: 1) legality; ...9) the mandatory nature of court decisions.” 65. Relevant provisions of the Code of Civil Procedure read as follows: “Court decisions, rulings and resolutions may be reviewed in supervisory review proceedings following a protest lodged by the officials designated in Article 328 of the Code of Civil Procedure of Ukraine.” “The following persons have the right to lodge a protest against an enforceable court judgment, ruling or resolution: ...2) presidents of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts and their deputies - against decisions and rulings of the district (city), inter-district (county) court, and also against the cassation rulings of the civil division of the Supreme Court of the Crimea, regional courts, and the Kyiv and Sevastopol city courts; ...” “The following courts hear cases in supervisory review proceedings: ... 3. The Presidium of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts: as regards protests lodged by the President of the Supreme Court of Ukraine, the General Prosecutor of Ukraine and their deputies, Presidents of the Supreme Court of the Crimea, regional, Kyiv and Sevastopol city courts and their deputies - against the judgments and rulings of the district (city), inter-district (county) courts and against judgments of the district (city) courts, inter-district (county) courts and against the cassation rulings of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts; ...” “Officials who have the right to lodge a protest may suspend execution of the relevant judgments, rulings and resolutions until the end of the supervisory review proceedings. The lodging of a protest against a judgment adopted following a complaint about unlawful actions by an official who interferes with the citizen's lawful rights suspends execution of that decision until the end of the supervisory review proceedings.” “Parties and other persons participating in the case have the right to lodge written explanations regarding the protest. Persons informed about the place and time of consideration of the case can at their request participate in the proceedings. Their absence does not influence the consideration of the case.” “When considering a case in supervisory review proceedings, the court has the right by its ruling or resolution to: 1) leave a judgment, ruling, resolution without changes, and refuse a protest; 2) annul a judgment, ruling or resolution in whole or in part and remit the case for re-consideration to the court of first or cassation instance; 3) annul a judgment, ruling or resolution fully or partially and terminate proceedings in a case or leave it without consideration; 4) leave one of the previously adopted judgments in the case, or one of the rulings or resolutions without satisfaction; 5) “The directions of the court that made the supervisory review are binding on the court which later re-examines the case. These directions are binding within the limits established by Article 319 of this Code. When considering a case in supervisory review proceedings or annulling the cassation decision, the court has no authority to determine the conclusions that could be made in the course of re-consideration of the case by the cassation court.” 66. Relevant provisions of the Law of 21 June 2001 read as follows: “1. This Law shall enter into force on 29 June 2001... 3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court judgments. 4. Protests against judgments lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the cassation procedure. 5. Judgments that have been delivered and which have become enforceable before 29 June 2001 can be appealed against within three months in accordance with the cassation procedure (to the Supreme Court of Ukraine).” 67. Relevant provisions of the Law of 28 February 1991 read as follows: “Relief workers dealing with the consequences of the Chernobyl nuclear power plant disaster are those citizens who took part directly in any work related to dealing with the disaster itself or its consequences in the alienation zone in 1986-1987 regardless of the number of days worked, and in 1988-1990 – for not less than 30 calendar days, including the evacuation of persons and property from this zone, and those temporarily present there or assigned there from their place of employment within the designated terms for the execution of works in the alienation zone, including military servicemen, civil servants (якщо це державні службовці), the public, enterprises, institutions and organisations regardless of their jurisdiction and those who worked not less than 14 calendar days in 1986 in the acting ambulance stations for the decontamination of the population and the deactivation of the equipment or buildings. The list of these stations is drawn up by the Cabinet of Ministers of Ukraine.” “Persons who are considered victims of the Chernobyl nuclear power plant disaster are the following: ... 5) persons who worked for at least 14 days from the time of the accident until 1 July 1986 or for at least three months during 1986-1987 outside the exclusion zone in particularly harmful working conditions (taking into account radioactivity factors), where this work was related to the elimination of the consequences of the Chernobyl nuclear plant disaster and was carried out on the basis of instructions received from the Government. The types of work and territories to be covered are determined by the Cabinet of Ministers of Ukraine.” 68. Relevant provisions of the Resolution no. 501 of 25 August 1992 read as follows: “... persons assisting in eliminating the consequences of the nuclear power plant disaster shall be issued certificates on the basis of one of the following documents: a) a certificate of assignment to the alienation zone; b) a military certificate; c) a certificate of proof of bonus payments for participation in the relief work; d) (excluded on the basis of the Resolution of the Cabinet of Ministers of Ukraine no. 404 of 8.06.1995) a decision of a court establishing direct participation in any work for a certain period related to dealing with the consequences of the nuclear power plant disaster, its consequences in the alienation zone, including the evacuation of persons and property from this zone... The decision to issue or not to issue the relevant certificate shall be adopted within one month from the date of receipt of the necessary documents by the body issuing such a certificate.” 69. Relevant provisions of the Resolution no. 106 of 23 July 1991 read as follows: “... Commentary: The town of Ivankiv to which the applicant was assigned from the place of his employment (Odessa) is not included in the list of localities...” 70. Relevant provisions of the Resolution no. 404 of 8 June 1995 read as follows: “1. (delete paragraph 10 from the Resolution of the Cabinet of Ministers of Ukraine No. 501 of 25 August 1992). 2. Commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster, created at the Ministry of Chernobyl Affairs ... shall verify the issue of certificates to victims of the Chernobyl nuclear plant disaster on the basis of judicial decisions and shall take action where they find a violation of the procedure for establishing such status.” 71. Relevant provisions of the Resolution of the Plenary Supreme Court of 31 March 1993 read as follows: “2. ... – in accordance with the Law of Ukraine on the Status and Social Security of Victims of the Chernobyl Nuclear Power Plant Disaster and the Resolutions of the Cabinet of Ministers of Ukraine of 25 August 1992 on the Procedure for the Issue of Certificates to Victims of the Chernobyl Nuclear Plant Disaster, adopted in accordance with the Law, certificates may be issued on the basis of a court judgment establishing the person's specific participation in any kind of work for a certain period of time (determined by the legislation) related to eliminating the consequences of the disaster and its consequences in the alienation zone, including the evacuation of persons and property from such zones, and/or the works in the acting ambulance stations for decontamination of the population and deactivation of equipment. All other issues concerning the status of the victims of the Chernobyl nuclear power plant disaster shall be determined on the basis of the relevant documentation of the commissions of the executive bodies of the Kyiv and Zhytomyr Regional Municipal Councils, and disputes shall be settled by the commissions of the Executive Committees of Kyiv and Zhytomyr and of the Ministry of Chernobyl Affairs.”
| 1 |
train
|
001-58108
|
ENG
|
TUR
|
CHAMBER
| 1,997 |
CASE OF ERDAGÖZ v. TURKEY
| 3 |
No violation of Art. 3;Preliminary objection rejected (non-exhaustion);No violation of Art. 5
|
John Freeland
|
9. Mr Mehmet Erdagöz, a Turkish national, was, at the material time, the owner of a shop in Adana. He now lives in Kars. 10. On 3 June 1992 a brawl broke out between the applicant and members of his family on one side and a Mr H.A. and his friends on the other. After the fight each of the protagonists lodged a complaint accusing the other, and on 16 June 1992 the public prosecutor’s office charged H.A. and the others with armed assault, attempted murder and offences under the Firearms Act. The outcome of these proceedings is not known. 11. On 16 September 1992, at about 2 a.m., the police were informed by an anonymous telephone call to Bağlar police station that stones had been thrown against the applicant’s shop and had smashed the windows. The police arrived on the scene half an hour later – before the applicant, who was not on the premises, had even been informed – noted that the windows had been broken and made out a damage assessment report. Later that night, at 5.30 a.m., Mr Erdagöz, having been informed of the incident, unsuccessfully requested Deputy Inspector S.K., of Bağlar police station, to have the premises searched again before he opened the shop. He also named the persons he suspected of the attack, including H.A., but decided against lodging a complaint and left the police station. 12. At 10.45 a.m. on the same day, after consulting the security police, and on their advice, the applicant returned to the police station and handed over two spent cartridge cases which he claimed to have found inside his shop. He also lodged a complaint and demanded the arrest of H.A., who had allegedly organised the attack out of animosity towards the applicant. A police squad conducted a fresh search of the scene of the crime. According to the report drawn up at the time, at 11.30 a.m., no bullet marks were found. 13. On 16 March 1993, on account of the events of 16 September 1992, the Adana public prosecutor committed H.A. for trial in the Adana Criminal Court for threatening use of a firearm, criminal damage and an offence under the Firearms Act. In a judgment of 28 June 1993 the Criminal Court acquitted him for lack of sufficient evidence. The Court of Cassation upheld this judgment on 28 February 1994. 14. Shortly after 11.30 a.m. on 16 September 1992, as a result of the events of the previous night and on account of the conduct of the applicant, who was suspected of fabricating evidence (see paragraphs 11–12 above), Chief Inspector Enver Tunç ordered him to be transferred, together with H.A., who had been arrested in the meantime, to the security police headquarters. In the covering letter which he sent with the file to the public order branch of the security police, Mr Tunç wrote as follows: “In view of the fact that Mehmet Erdagöz has frequently lodged ill-founded complaints against the station personnel, that there is animosity between him and [H.A.], that he has previously abused the police and the judicial authorities, that the version of the events put forward by Mr Erdagöz, namely an armed attack, is probably an invention, that he possesses a registered firearm and may well have another unregistered one and that he has already made several contradictory statements, Mr Erdagöz and [H.A.] have both been transferred to security police headquarters for detailed questioning. I therefore request you to check whether these persons are wanted in connection with an offence, to inform the public order branch and our station of the result and to send a copy of the document to the criminal investigation branch.” 15. In an order of 17 September 1992 the chief inspector referred H.A. and the applicant, who was suspected of falsely reporting a criminal offence, to the public prosecutor’s office. 16. On the same day, accompanied by summaries of their interviews prepared by Mr Tunç, the applicant and H.A. appeared before the Adana public prosecutor. Mr Erdagöz was released the same day, at a time which has not been specified. 17. On 17 September 1992 the applicant lodged a criminal complaint against the chief inspector and Deputy Inspector S.K. with the public prosecutor. He alleged that during the inquiries into the altercation of 3 June 1992 (see paragraph 10 above) the former had abused his authority by drawing up a biased report of the incident. He accused S.K. of inflicting ill-treatment on him when he first went to the police station, at 5.30 a.m., following the events of the night of 15 to 16 September. 18. The next day, at the request of the police, Mr Erdagöz had a medical examination at the social security hospital in Adana. The provisional report, drawn up on the same day, mentions the following injuries: superficial grazing on the left side of the back and bruises and swelling below both knees. On 24 December 1992 a doctor from the Adana Institute of Forensic Medicine drew up a new report confirming the findings of the report of 18 September. 19. On 29 December 1992 the Adana public prosecutor, after conducting an investigation, discontinued the proceedings. He concluded that the allegation of abusing authority was unfounded and decided not to pursue the investigation concerning the chief inspector. With regard to the complaint of ill-treatment, he noted: “Following the telephone message to Bağlar police station reporting the fact that on 16 September 1992 the windows of the shop situated at 62B 677th Street had been smashed, Deputy Inspector [S.K.] sent a police squad to the scene. This squad made out a report at 3.30 a.m. At 7 a.m on the same day the complainant went to the police station to complain of the incident. While his complaints were being taken down he decided not to lodge a formal complaint and left the police station. He returned soon after and asserted that he had found two [bullets] inside his shop. Thereupon Mr Enver Tunç, the senior officer at the station, ordered the complainant’s first statement to be altered and sent a squad to the premises. At 11.30 a.m. on the same day this squad made out a report noting that there were no bullet marks whatsoever in his shop. There being no such marks, the inference was drawn that the complainant had falsely produced the bullets in question for the sole purpose of ensuring that [H.A.], the person he had accused, would be arrested. Chief Inspector Tunç accordingly referred him to the criminal investigation branch for questioning. By an order of 17 September 1992 the applicant and [H.A.] were referred to the public prosecutor’s office, the former on suspicion of falsely reporting a criminal offence. Although traces of blows and injuries on Mr Mehmet Erdagöz’s body are mentioned in the medical report of 18 September 1992, drawn up two days after the incident by the social security hospital to which he had been sent by Chief Inspector Tunç, there is no conclusive evidence that the lesions noted in the report were the result of blows inflicted by the deputy inspector; there is therefore insufficient evidence to prosecute him.” 20. On 27 January 1993 the applicant appealed against the above discontinuation order to the President of the Tarsus Assize Court, who dismissed the appeal on 23 February 1993. 21. On 8 March 1993 the applicant petitioned the Minister of Justice to lodge an appeal in the interests of the law. On 29 March 1993 the Minister of Justice refused. 22. During the investigation Mr Erdagöz lodged a complaint against the chief inspector and another policeman, A.K., alleging that they had insulted him and taken him into police custody for forty-eight hours even though he was the complainant. 23. On 6 December 1993 the Adana public prosecutor made an order discontinuing the proceedings against these two officers in the following terms: “However, the investigation file (case no. 1992/22569) and the preliminary inquiry conducted in the case show that on 16 September 1992 ... the complainant went to the police station, where he made an oral statement to the effect that the windows of his shop had been smashed and that he wished to lodge a complaint against the person responsible; he was then asked to produce evidence or name a witness; he left the police station and came back two hours later bringing two [bullets] as evidence; police officers accordingly went to the scene to verify Mr Erdagöz’s allegations and found that the windows were broken but that there were no marks which might suggest that they had been smashed by bullets. In the light of the applicant’s history, he was suspected of falsely reporting a criminal offence and the object of the inquiry was therefore modified and an investigation in two branches conducted. However, as the police had not found any pertinent evidence that the offence had been committed, the complainant was referred to the public prosecutor’s office by an order of 17 September 1992. Contrary to his allegations, he was not taken into police custody for forty-eight hours but necessarily held for twenty-four hours so that the inquiry could be completed. Moreover, there is no evidence to support the allegations of defamation.” 24. On 15 February 1994 the applicant appealed against the above discontinuation order to the President of the Assize Court. He alleged in particular that his detention in police custody had lasted for two days and had been due to the resentment the police felt towards him on account of his previous complaints to the European Commission of Human Rights and the domestic courts. On 7 March 1994 the President of the Tarsus Assize Court dismissed the appeal and on 24 June 1994 the Minister of Justice refused a petition in which Mr Erdagöz had asked him to lodge an appeal in the interests of the law. 25. Article 19 § 8 of the Constitution provides: “A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.” 26. Article 128 § 1 of the Code of Criminal Procedure, in the version in force at the material time, provided: “Where the arrested person has not been released, and in order to avoid any unnecessary or unjustified delay, he must be brought before the investigating judge and examined within twenty-four hours, not including the time needed to escort him to the investigating judge nearest to the place of his arrest ...” 27. The relevant provisions of the Criminal Code are the following: “An enforcement official, a police officer or any other official responsible for enforcement who performs his duties in an unlawful manner, whether spontaneously or on the orders of a superior, or who ill-treats, assaults or injures a third party while doing so, shall be sentenced to between three months’ and three years’ imprisonment and suspended from duty.” “Anyone who, by word or action, offends the honour, reputation or dignity of an official in his presence and while he is performing his duties shall be punished ...” “Anyone who submits a complaint to a judicial authority or to the holder of a public office who is accountable to that authority or to the holder of another office who is empowered to initiate proceedings or order that proceedings be brought, concerning an offence which he knows has not been committed or who fabricates evidence of such an offence so as to enable criminal proceedings to be opened for the purpose of establishing that offence shall be punished ...” “Anyone who, by reporting an offence or lodging a complaint with a judicial authority or with an official who is required to forward it to that authority or with the authority competent to bring proceedings or have proceedings brought, accuses a person whom he knows to be innocent of an offence, or who fabricates material evidence implicating that person, shall be punished according to the classification and nature of that offence and the importance of the evidence fabricated ...” 28. The relevant provisions of Law no. 466 of 7 May 1964 are the following: “Compensation shall be paid by the State in respect of all damage sustained by persons (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...” “Any person who has sustained damage for the reasons set out in section 1 may lodge a claim for damages ... with the assize court having jurisdiction in respect of his place of residence within three months of the date on which the decision concerning the allegations which form the basis of his claim becomes final.”
| 0 |
train
|
001-72592
|
ENG
|
UKR
|
CHAMBER
| 2,006 |
CASE OF SAVINSKIY v. UKRAINE
| 3 |
Violation of Art. 6-1
| null |
7. The applicant was born in 1969 and lives in the village of Ponyatovka, Odessa region, Ukraine. 8. The applicant worked as a customs officer at the Rozdilnyanska Customs Office in the Odessa Region, Ukraine. 9. On 24 July 2000 the applicant was charged with the criminal offences of aiding and abetting in smuggling and tax evasion, abuse of power and fraud. The same day the applicant was arrested. He remained in custody until 6 November 2000. 10. On 6 November 2000 the Novozavodsky District Court of Chernigiv decided the applicant’s case. The court established, in particular, that the applicant had certified documents confirming that two vans with goods had left the customs territory of Ukraine, and that the applicant had not checked the actual presence of the vehicles at the customs post. The goods were, however, found and seized by the Security Service somewhere else within the customs territory of Ukraine. The court did not find any proof that the applicant had acted deliberately in order to aid the crime: the applicant denied any criminal intent and no other persons involved in the actual smuggling or tax evasion had been established by the investigation. On the basis of these findings, the court sentenced the applicant to three years’ imprisonment for the negligent performance of his professional duties and to a fine of UAH 400. At the same time, the court acquitted the applicant of other charges. By the same decision, the applicant was absolved from this sentence under the Amnesty Law of 11 May 2000. This decision was not appealed and became final on 14 November 2000. 11. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgment of 6 November 2000, on the grounds of an erroneous qualification of the applicant’s actions and his unreasonable acquittal on the other criminal charges brought by the prosecution. The President also noted that the sentence was too lenient. 12. On 25 December 2000 the Presidium of the Chernigiv Regional Court allowed the request of its President, quashed the judgment of 6 November 2000, and remitted the case for a fresh consideration. The court instructed the first instance court to examine more thoroughly the existing evidence in the case and to conduct additional, more comprehensive interrogations of the accused and the witnesses. 13. On 29 January 2001 the Novozavodsky District Court of Chernigiv considered the case anew and sentenced the applicant to five years’ imprisonment, suspended for two years pending probation, and a fine of UAH 1,000. The court found the applicant guilty of aiding and abetting in smuggling, an abuse of power and fraud. The court acquitted the applicant of aiding and abetting tax evasion, since all the smuggled goods had been seized by the law enforcement bodies and no profit had been made by anyone selling them. 14. On 1 March 2001 the Criminal Chamber of the Chernigiv Regional Court upheld the decision of the first instance court. The former found that the first instance court had correctly qualified the applicant’s actions. This decision was final. 15. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgments of 29 January and 1 March 2001, on the ground that the courts had not followed the instructions given in the previous decision of the Presidium of the Chernigiv Regional Court of 25 December 2000 about the qualification of the applicant’s actions and the severity of the sentence. 16. On 19 March 2001 the Presidium of the Chernigiv Regional Court chaired by the President allowed the request, quashed the decision of 29 January 2001, and remitted the case for a fresh consideration. The Presidium found that the first instance court had not followed the earlier instructions and that the sentence was too lenient. 17. On 2 October 2001 the Novozavodsky District Court of Chernigiv considered the case anew, found the applicant guilty of all charges and sentenced him to five years’ imprisonment. 18. On 9 July 2002 the Supreme Court allowed the applicant’s cassation appeal and changed the decision of the first instance court, sentencing the applicant to two years’ imprisonment for the negligent performance of his professional duties. The court noted that no criminal intent in the applicant’s actions could be established and, given the lapse of time, it seemed improbable that any other offenders, who had been directly involved in smuggling, could be found. Therefore, the court acquitted the applicant of the other charges (aiding and abetting in smuggling and tax evasion) for a lack of corpus delicti. By the same decision, the applicant was absolved from his sentence under the Amnesty Law of 11 May 2000. 19. At the material time, Chapter 31 of the Code of Criminal Procedure allowed a final and binding judgment to be subject to a supervisory review. The final judgment in a case could be appealed under the supervisory review procedure by the President of a Regional Court or the Supreme Court of Ukraine, the Regional Prosecutor or the Prosecutor General of Ukraine or their Deputies (Article 384), and had to be considered by the Regional Court or the Supreme Court (Article 388). Under Article 385, if the appeal against the final judgment was to the detriment of the person thereby convicted or acquitted, it could be lodged only within a year after the impugned judgment had come into force. Otherwise, the supervisory review appeal could be lodged at any time. The supervisory review procedure was repealed in June 2001.
| 1 |
train
|
001-23179
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,003 |
OLSSON v. SWEDEN
| 4 |
Inadmissible
|
Nicolas Bratza
|
The applicant, Daniel Olsson, is a Swedish national, who was born in 1971 and lives in Orsa. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In its tax return for value-added tax for the period January – June 1993, Dondolare AB, a limited liability company owned by the applicant, claimed a right to deduct value-added tax (VAT) in the amount of 599,125 Swedish kronor (SEK) which had allegedly been paid in connection with the purchase of certain computer software rights. By a decision of 30 May 1994 the Tax Authority (skattemyndigheten) of the County of Kronoberg refused the deduction, considering that it was based on a fictitious transaction. The Authority also ordered the company to pay a tax surcharge (skattetillägg) amounting to 20% of the increased tax liability, claiming that the company had submitted incorrect information in its tax return. On the basis of this decision the Authority, on 3 January 1995, reported the applicant to the police authorities in Växjö on suspicion that he had committed a tax crime (hereinafter referred to as “case A”). As a consequence of the report, a preliminary investigation was opened on 10 January 1995. The applicant was questioned on 19 January 1995. The Växjö police authorities completed its investigation on 2 February 1995 and the applicant received, on that date, a copy of the file. Another preliminary investigation, initiated in 1994 and involving, inter alia, the applicant, was being conducted by the special department for economic crimes of the Public Prosecutor’s Office (åklagarmyndigheten) in Malmö (hereinafter referred to as “case B”). As the two investigations were considered to have much in common, they were joined and, as from 23 February 1995, directed by the prosecutor in Malmö. In the tax proceedings, the applicant’s company appealed against the imposition of a tax surcharge. By a judgment of 28 February 1995 the County Administrative Court (länsrätten) of the County of Kronoberg found that, although there were circumstances in the case which justified the calling into question of the right to the claimed VAT deduction, there was not sufficient evidence to show that the transaction in question had been fictitious or that the information submitted in the tax return in this respect had been incorrect in any other sense. The court noted that the mere rejection, under taxation law, of the arguments made in support of a claim for deduction of tax could not in itself lead to the conclusion that incorrect information had been submitted. Consequently, the court quashed the Tax Authority’s decision in so far as it concerned the imposition of a tax surcharge. The Authority did not appeal against the judgment. The applicant alleges that, following the County Administrative Court’s judgment, he and his legal counsel requested both the Tax Authority and the Public Prosecutor’s Office in Malmö to observe it and to take action accordingly. During the criminal investigations it emerged that, in case A, the applicant, as representative of Dondolare AB, had bought computer software and certain related sales rights from Media Mic Software AB, a company which had previously been owned by the applicant’s brother, M.O., and in which the brother was considered to have a continuing deciding influence. The latter company had, in its turn, bought the software from another company owned by M.O, Bo Michael Trade AB. Moreover, Dondolare AB’s purchase had been financed by M.O. In case B, M.O. had financed the purchase by an Indonesian company of certain licensing rights to computer software from a Swedish company, Svenska Dataintressenter AB. That company had, in its turn, bought the rights from another Swedish company, PE & BE Reklam AB, of which, inter alia, the applicant was a representative. The latter company had claimed to have purchased the rights from a Polish company which later turned out to be non-existent. A third Swedish company, Svenska Dataintressenter i Malmö AB, thus having a similar name as the one that had bought the licensing rights from PE & BE Reklam AB, had claimed in its tax return for the period January – June 1993 a deduction for VAT paid on the basis of that sales agreement, although it had not been a partner to the agreement and therefore not entitled to claim the deduction. It was suspected that the transactions in case B had been initiated by M.O. and that he had had a deciding influence over the various Swedish companies. Moreover, the computer software to which the licensing rights applied had been of insignificant value, according to an expert opinion, and it was suspected that the transactions had been carried out in order to fraudulently obtain VAT refunds. The applicant, M.O. and a third person were suspected of tax crimes in relation to the VAT claim in case B. The Public Prosecutor’s Office concluded that the persons involved, the mode of action and the relevant time-periods were essentially the same in cases A and B and considered that the possibilities of indicting both the applicant and M.O. were good. It was further considered that, in regard to both cases and thus in regard also to the suspicions against the applicant, it was necessary to hear M.O., who was living in Jakarta, Indonesia. In the beginning of the investigation into case B, M.O. had expressed his readiness to be interviewed by the Swedish police. M.O. having later changed his mind, the prosecutor had, via the Swedish Ministry for Foreign Affairs and the Swedish Embassy in Jakarta, in June 1994 requested legal assistance from the Indonesian authorities in obtaining information from a bank concerning certain documents submitted by M.O which were suspected to be forgeries. No information was forthcoming from the Indonesian police authorities in charge of the matter and further contacts via diplomatic channels were therefore taken in November 1994 and in February and March 1995. By a decision of the public prosecutor of 13 September 1995 M.O. was ordered to be detained on remand in his absence and a Swedish warrant for his arrest was issued. In early 1996 and in June the same year the public prosecutor again contacted the Ministry for Foreign Affairs in relation to the mentioned request for legal assistance. At the time of the latter contact, the District Court had upheld the decision on detention on remand and, as a consequence, an international warrant for M.O.’s arrest was issued. The prosecutor also asked the Ministry for Foreign Affairs to examine the possibilities of having M.O. extradited from Indonesia. The efforts to get legal assistance from the Indonesian authorities continued. In January 1997 there was a further contact between the prosecutor and the Ministry for Foreign Affairs concerning both the request for legal assistance and the extradition issue. At about this time, a Swedish liaison officer temporarily staying in Indonesia and an employee of the Swedish Embassy had paid a visit to some high-ranking Indonesian police officers and had raised the problem of receiving legal assistance from Indonesia. The outcome of this meeting was considered positive and it was hoped that the requested information would arrive within a month or two. Apparently, however, this did not happen. On 9 June 1997 the Swedish Embassy reported that the local police authorities were waiting for permission from the Indonesian Ministry of Finance to put questions to the Indonesian bank. The next day, it submitted information from Interpol in Jakarta, according to which M.O. had moved and his new address was unknown. In addition to the above-mentioned measures, the Swedish police was continuously searching for M.O., having received indications on several occasions that he would come to Sweden. On 19 June 1997 the Public Prosecutor’s Office decided to terminate the criminal proceedings in cases A and B on the ground that it could not be proved that a crime had been committed. The applicant was informed thereof on 4 September 1997. On 30 January 1998 the Parliamentary Ombudsman (Justitieombuds-mannen), examining a complaint made by the applicant, concluded that there was nothing calling for further action and therefore decided not to make any inquiries in the matter. On 22 December 1999 the Chancellor of Justice (Justitiekanslern), in reply to a request for damages made by the applicant, decided that there was no reason to assume that a crime had been committed by any public official and the applicant was therefore not entitled to damages. His request was consequently rejected.
| 0 |
train
|
001-58023
|
ENG
|
FRA
|
CHAMBER
| 1,997 |
CASE OF MANTOVANELLI v. FRANCE
| 2 |
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
| null |
8. On 27 January 1981 the applicants’ daughter, Jocelyne Mantovanelli, who was then 20, was admitted to the Nancy Orthopaedic and Accident and Emergency Clinic for an operation on a whitlow on her left thumb. On the same day, she was transferred to the surgical ward of the Jeanne d’Arc Hospital (Nancy Regional Hospital Centre - "CHRN") at Dommartinlès-Toul, where she had a second operation the next day. For a year she received periodical treatment there and underwent surgery seven times in the form of repeat operations and skin grafts, and an arteriovascular examination. Owing to an infection discovered in February 1982, Miss Mantovanelli was operated on again and a week later the second phalanx of her thumb was removed. 9. On 13 March 1982, having contracted jaundice, Miss Mantovanelli was transferred to the gastroenterology department of Brabois Hospital (CHRN) at Vand÷uvre-lès-Nancy. Her condition deteriorated and she fell into a hepatic coma. On 27 March she was transferred to the department for infectious diseases and neuro-respiratory intensive care, where she died two days later. 10. The surgical operations referred to above and the arterio-vascular examination Miss Mantovanelli underwent were carried out under a general anaesthetic. On each occasion a varying combination of seven different drugs was used which always included halothane. 11. Mr and Mrs Mantovanelli were convinced that their daughter’s death had been caused by excessive administration of halothane and applied to the administrative courts for a ruling that the CHRN was liable for her death. 12. On 29 November 1982 the applicants were granted legal aid and on 11 January 1983 their lawyer was appointed. On 26 April 1983 they applied to the Nancy Administrative Court for an interim order for the appointment of an expert and instituted proceedings to obtain a declaration that the CHRN was liable. 13. In their application Mr and Mrs Mantovanelli asked for the expert to be given the following tasks: "1. Seek all the information on the circumstances in which Miss Jocelyne Mantovanelli was admitted to hospital, received treatment and underwent operations in different departments of the CHRN between February 1981 and the date of her death; Read any document and interview any expert witness to that end; 2. Establish the circumstances surrounding her death and its causes; Provide this Administrative Court with ethical and other data such as to enable it to determine any liability incurred by identifying any failures to comply with accepted medical practice or any shortcomings in the functioning of the service; 3. Draw up a report on the foregoing and file it at the registry of this Court within the time to be allotted." 14. In an order of 28 April 1983 the president of the administrative court refused the application on the ground that allowing it would prejudice the trial of the merits and that the requisite urgency for ordering interim measures was lacking, seeing that the application for them had not been lodged until 26 April 1983 although the applicants’ lawyer had been appointed on 11 January 1983. 15. In their statement of claim Mr and Mrs Mantovanelli submitted: "... It is clear both from the report of Professor Dureux [head of the intensive care unit at the CHRN] and from the autopsy report that [Miss Mantovanelli’s death] ... was the result of hepatitis caused by halothane. Halothane is an anaesthetic that was used for the surgical operations. Repeat use of halothane for anaesthetic after only a short interval is known to be very dangerous as there is a serious risk of causing serious or even occasionally fatal injury to the liver. Miss Mantovanelli was given halothane as an anaesthetic on several occasions, the last two being within a short interval of each other, and the hepatotoxicity followed which was to prove fatal. The unit therefore displayed gross negligence in its complete disregard of the basic rules for administering halothane, making the CHRN liable to the applicants for the loss suffered as a result of their daughter’s death. The plaintiffs therefore ask the Court to find the CHRN liable and to order that public body to pay each of them FRF 50,000 in compensation for the various losses suffered by them. ..." 16. On 21 September 1983 the CHRN filed their defence. The applicants replied on 11 October 1983 and renewed their application for an expert report. 17. On 28 March 1985 the administrative court delivered the following interlocutory judgment: "... As the parties disagree as to the facts and the Court has not found evidence in the case file to enable it to rule on the merits, it is necessary to order that an expert report which complies with the adversarial principle be carried out by an expert whose instructions are ... [to]: ... (a) inspect Miss Jocelyne Mantovanelli’s full medical file, in particular the autopsy report and Professor Dureux’s report; (b) describe the treatment the patient received, making it clear whether the complaint from which she was suffering was a common one or a rare one and how complex the operations were; (c) indicate, if possible, the patient’s chances of recovery, having regard to her general condition and to the characteristics of her complaint; (d) state whether halothane was used and in what circumstances; whether any such use was in accordance with accepted practice and whether the subsequent complications were linked to this use; and if so, whether such complications are common and, if possible, how common they are in statistical terms; (e) make all the necessary findings and interview all the relevant witnesses and generally provide all the information needed to enable the Court to decide on the merits. ..." 18. On 4 April 1985 the expert appointed by the court, Professor Guilmet, took the oath. He examined various medical files and interviewed five members of the medical staff at the CHRN, including the surgeon who had performed the last operation on Miss Mantovanelli and the anaesthetist. His report, which was lodged with the court on 8 July 1985 and communicated to the parties on 19 July, contained the following findings: "Although in most cases a whitlow is a minor ailment, Miss Mantovanelli presented with a whitlow that was unusually serious owing mainly to the delay in seeking effective medical treatment and, in particular, surgery. I have discovered no concurrent deterioration in her general state of health or any progressive disease in her past history, or any special feature of the local germ in question that could have affected the intensity of the presenting picture. From 27 January 1981 Miss Mantovanelli was cared for diligently in accordance with current scientific knowledge. The unusual complexity and length of the treatment were related to the extent of the lesions and of damage to the tissue, which delayed the healing process, repair of the loss of matter and the remedying of the sequelae. A new infection finally led to complete failure. When the patient was found to have jaundice fourteen months after the whitlow in question appeared, she was transferred to two specialist departments. The appropriate treatment she received there failed to halt a rapid worsening of her condition. Before this unexpected complication, which proved fatal, Miss Mantovanelli had a foreseeable chance of recovering from her local lesion, albeit only in the long term. It does not appear that her general condition at the time put the prognosis for survival in doubt, despite the characteristics of her original complaint. Halothane was used each time the patient was anaesthetised, as an adjunct to a number of other anaesthetics administered, in a way that was wholly appropriate and in accordance with accepted practice, without provoking any abnormal reaction. There is no absolute certainty that the onset of hepatitis and the patient’s death are directly linked to the use of halothane alone. However, there must have been an atopic susceptibility (that is to say a predisposition to sensitisation through medication without any revealing signs) triggered first by the Epontol, use of which was later discarded, and then by the halothane, and exacerbated in terms of enzymatic action by a third substance, Nesdonal. This is a plausible diagnostic hypothesis, constructed after the event and which, given that there were no warning signs of intolerance, obviously cannot call in question the choice or rejection of one anaesthetic rather than another. An idiosyncrasy, in other words a reaction peculiar to her as an individual, must therefore have been responsible for Miss Mantovanelli’s death, brought about by a particularly strong autoimmune process ... There are no frequency figures for such exceptional cases. (Halothane’s toxicity does not appear to be implicated and is in any case still widely disputed today. However, in so far as halothane is still suspected of causing necrosis of the liver, statistics show that this phenomenon does not occur in more than 1 in 10,000 cases.)" 19. In a pleading registered on 30 July 1985 the applicants alleged that neither they nor their lawyer had been informed of the dates of the steps taken by the expert and that his report referred to documents which they had not been able to inspect. In their submission, there had thus been a breach of the principle of adversarial proceedings and this justified setting the expert report aside and ordering a new one. On 3 October 1985 the CHRN filed a pleading in reply. 20. The administrative court held a hearing on 8 November 1988, and on 29 November 1988 it delivered the following judgment: "... While Mr and Mrs Mantovanelli are justified in submitting that there were irregularities in the production of the expert report on the medical file of their daughter who died in the [CHRN], seeing that they were not informed of the dates of the steps taken by the expert as required by Article R. 123 of the Administrative Courts and Administrative Courts of Appeal Code, they have not disputed the facts that appear from both their own evidence and the expert report. It must thus be taken as established that the hepatitis Miss Mantovanelli died from cannot definitely be attributed to the administration of halothane on the eleven occasions when she was given an anaesthetic and that, in any event, she presented no clinical signs of a contraindication against the use of that substance, which had been used in accordance with accepted practice and which only very rarely causes liver damage. No gross medical negligence can therefore be imputed to the [CHRN]. The action must therefore be dismissed. ..." 21. On 4 January 1989 Mr and Mrs Mantovanelli appealed to the Nancy Administrative Court of Appeal. They pointed out that the facts of the case were not disputed and that the purpose of the proceedings was to determine, after adversarial examination of all the evidence, the cause of the hepatitis from which their daughter had died in order to establish if the public hospital service was guilty of gross negligence. They maintained that they had been unlawfully deprived of the opportunity to make their own submissions on that point to the expert, submitted that the administrative court’s judgment and Professor Guilmet’s report should be set aside and asked the Court of Appeal to order that the report be removed from the case file and that a fresh one be produced. On 17 May 1990 the CHRN produced a pleading in reply, to which the applicants replied on 12 December 1991. 22. The Nancy Administrative Court of Appeal held a hearing on 13 February 1992, and on 5 March 1992 it gave the following judgment: "... Where a court finds that an expert report has been produced in an irregular manner, it is not bound by any legal provision or general principle of law to order its removal from the case file and direct that a new report be drawn up. The fact that the expert report ordered did not comply with the adversarial principle as regards a party to the proceedings could not therefore prevent the judges at first instance from relying, in order to rule on the merits, on the facts in the report which they considered were not disputed by the applicants or were not seriously challengeable. Mr and Mrs Mantovanelli had been given the expert report, which mentions all the evidence it is based on, and could therefore have challenged it but they have raised no valid objections to the findings or assessments in it. If they thought it inadequate, it was their responsibility to specify the points on which they considered further inquiries into the facts to be necessary. As they did not raise such an objection, the administrative court quite rightly held that, in view of the uncontradicted statements in the report, no gross negligence could be imputed to the hospital centre. It is clear from the foregoing that Mr and Mrs Mantovanelli are not justified in maintaining that the Nancy Administrative Court was wrong to dismiss their action in the impugned judgment. ..." 23. On 14 April 1992 the applicants lodged an application for legal aid with the Legal Aid Office of the Conseil d’Etat, which refused the application on 16 December 1992 on the basis that the grounds for an appeal on points of law were not sufficiently strong. This decision was notified to the applicants on 20 January 1993. They did not bring an appeal on points of law. 24. The former Article R. 123 (now Article R. 164) of the Administrative Courts and Administrative Courts of Appeal Code provides: "The parties must be given notice by the expert or experts of the dates and times of the steps taken to produce their reports. This notice must be given at least four days beforehand by registered letter. ... The parties’ submissions during the preparation of the expert report must be recorded in the report." 25. In the Autunes v. Commune de Decazeville judgment of 1 July 1991 (Gazette du Palais, 8-9 April 1992, p. 41) the Conseil d’Etat stated: "The expert appointed ... to examine Mrs Autunes carried out the medical examination without informing Decazeville Town Council of this beforehand and thus deprived it of the right to make submissions during the preparation of the expert report. That being so, the report was prepared in an irregular manner. That irregularity does not, however, prevent it from being adopted for information or preclude ruling on the merits without having to order a fresh expert report as the town council requested, since the latter was able to submit its observations during the written proceedings that followed the lodging of the report and the Conseil d’Etat now has the necessary information to decide the case. ..." An irregularity in the preparation of an expert report is, however, a ground for setting aside a judgment where the latter was based on the report (Conseil d’Etat, 28 November 1988, Bruno Pierre Guy, Recueil Dalloz Sirey 1989, no. 129).
| 1 |
train
|
001-87247
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,008 |
CAREVIC v. SLOVENIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Miodrag Carević, is a Slovenian national who was born in 1953 and lives in Celje. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 23 January 1997 the applicant instituted proceedings against the insurance company ZT and his employer in the Celje Local Court (Okrajno sodišče v Celju) seeking compensation in the amount of 1,431963 SIT (approximately 60.000 euros) for injuries he had sustained in an accident at work. 4. Between 25 August 1998 and 12 January 2001 the applicant lodged four requests that a date be set for a hearing. 5. Between 28 October 1998 and 26 October 1999 the applicant lodged three written submissions. 6. Hearings were held on 30 November 1998, 11 January 1999 and 8 October 2001. 7. During the proceedings the court appointed a medical expert to prepare a forensic report. 8. On 8 October 2001 the court partly upheld the applicant’s claim. The written judgment was served on the applicant on 3 December 2001. 9. All parties appealed. 10. On 5 March 2003 the Celje Higher Court (Višje sodišče v Celju) delivered a judgment partly upholding the appeals. The judgment was served on the applicant on 10 April 2003. 11. Subsequently, ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). 12. On 26 August 2004 the Supreme Court partly upheld the appeal and changed the first- and second-instance court’s judgments accordingly. The Supreme Court’s judgment was served on the applicant on 10 December 2004. 13. On 20 February 2007 the respondent Government were given notice of the present application. 14. On 4 June 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in the amount of 1,040 euros (EUR) in respect of non-pecuniary damage and EUR 292 for reimbursement of the costs and expenses connected with the case. 15. Subsequently, the applicant informed the State Attorney’s Office that he was not willing to accept the proposal as the sum offered was too low. At the same time, he proposed to settle the case for EUR 1,500 in respect of non-pecuniary damage and approximately EUR 990 in costs and expenses, in particular lawyer’s fees. 16. As no settlement had been reached, the applicant, relying on section 25, paragraph 2 of the 2006 Act, lodged a claim for just satisfaction with Celje Local Court on 6 November 2007. He claimed EUR 3,000 in respect of non-pecuniary damage sustained due to alleged excessive length of the proceedings and EUR 500 in respect of the alleged violation of the right to effective remedy. These proceedings are still pending. 17. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the Lukenda Project the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which was enacted on 1 January 2007. 18. Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court: “(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest..... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” 19. The following parts of the 2006 Act are relevant as regards the claim for just satisfaction: “When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.” “.... (2) Just satisfaction shall be provided by: i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay; ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed; iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.” “(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation for individual finally decided cases shall be granted in amounts 300 to 5,000 euros. “... (3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office. ... (6) Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court. (7) Appeal on points of law shall be excluded for disputes on damage under this Act.” “... (2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.” ...” “Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.” 20. The general provisions of the Civil Procedure Act (Zakon o pravdnem postopku, uradno prečiščeno besedilo, Official Gazette, no. 73/2007) concerning the role of the domestic courts in determining costs and expenses of the proceedings, including lawyer’s fees, apply also to the proceedings concerning small claims (sections 151 to 166 and 442).
| 0 |
train
|
001-93967
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,009 |
POKRZEPTOWICZ-MEYER (I) v. GERMANY
| 4 |
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
The applicant, Ms Beata Monika Pokrzeptowicz-Meyer, is a Polish national who was born in 1967 and lives in Kwidzyn. The The applicant and her former husband have a son, born on 26 May 1999. After the separation of his parents in 2002 the child initially lived with the applicant in Bielefeld. On 2 October 2003, the Bielefeld District Court advised the applicant that she was not allowed to take the child elsewhere without the father’s consent. On 3 October 2003 the applicant took the child to Poland without the father’s consent, although she knew that the father did not agree. On 24 June 2004 she returned the child to the father after a Gdansk Court had decided that the child had to be returned to his place of habitual residence. Since then the child has lived with his father and his new wife in Düsseldorf. On 5 October 2004 a court-appointed expert submitted an opinion on the distribution of parental authority drawn up on the basis of information collected between August and October 2004. He found that the child, who had lived with his father in Düsseldorf since June 2004, was well integrated. The child’s primary attachment to his father, the latter’s ability to promote the child’s emotional development and to tolerate its attachment to the other parent, and continuity were arguments clearly in favour of the child staying with his father. The applicant’s ability to promote the boy’s linguistic competencies, even though it exceeded that of the father, was not as important for him as the father’s ability to promote his emotional development, which was greater than that of the applicant. On 16 December 2004 the District Court held a hearing during which it heard the expert and the child. On 15 March 2005 the District Court dismissed the applicant’s motion for bias against the expert, finding that the expert’s opinion did not contain any factual errors. On 15 June 2005 the District Court transferred sole parental authority to the father. On the basis of the expert opinion it found that this was in the child’s best interests. Having regard to the parents’ difficulties in communicating, joint custody could not be awarded. There was no indication that the father had impaired the applicant’s access to the child to an extent as to merit a different result. On 20 September 2005 the Hamm Court of Appeal dismissed the applicant’s request for legal aid for appeal proceedings for lack of prospects of success. The transfer of sole parental authority was in accordance with Section 1671 of the Civil Code, according to which a request to transfer sole parental authority is granted where this is in the best interests of the child. The Court of Appeal considered that nothing warranted uprooting the child from his current environment. According to the reliable findings of the expert the father was fully able to raise the child. He had strong empathy for the child. The child liked his father and had an at least equally good relationship with both parents. The father had meanwhile even become the child’s main reference person. Uniformity and regularity were factors in favour of the child remaining where he had lived for more than one year and where he was content. The Court of Appeal stressed in this respect that since the separation the applicant had exposed the child, no less than four times, to changes in his personal and social environment. After two moves in the area of her place of work in November 2001 and January 2003 she had moved with the child to Poland in October 2003, contrary to prior agreement and infringing upon the father’s co-parental authority. Thereby she accepted that the child had to be returned eight months later on the basis of return proceedings initiated by the father, which had been foreseeable to her. The child’s needs for stability would not be met by a further move. The Court of Appeal stressed that no meaningful weight could be attached to the fact that the applicant, who at the time worked part-time in contrast to the father, had more time to care for the child, since the applicant’s course of action in October 2003 raised at least doubts as to her ability to act in accordance with the child’s best interests and to thereby also appropriately take into account the father’s interests. The fact that she had departed from her word in order to carry out her plans probably called into question her capacity to act as a role model in one essential educational area. On 22 December 2005 the Court of Appeal, without holding a hearing, dismissed the applicant’s appeal, referring to the reasoning in the decision at first instance and its decision of 20 September 2005. Having regard to the applicant’s allegation that living conditions in Düsseldorf were inadequate, the fact that the father had meanwhile moved with the child to Mönchengladbach was consistent and in line with the child’s best interests. Furthermore, it had not been necessary to appoint a curator ad litem. In the event of a conflict of interests between parents this was only necessary where the parents’ dispute was of such a nature that the child’s interests had to be defended against those of his parents. This could be the case where both parents predominantly sought to enforce their own interests. In the present case only the applicant had demonstrated such behaviour. Contrary to the applicant’s allegations the child had been heard at first instance as evidenced by the minutes of the hearing. It was irrelevant that this was not explicitly reflected in the decision at first instance as the hearing had not produced any findings deviating from those of the expert. The Court of Appeal explained that it had refrained from orally examining the parents and the child because the relevant facts had already been established and because the case file did not contain any indication that a renewed hearing would have provided the court with any additional information that could have been of importance to its adjudication. On 17 January 2006 the Hamm Court of Appeal declared the applicant’s appeal on the ground that she had not had a sufficient opportunity to make submissions (Anhörungsrüge) inadmissible. It found that the applicant did not allege that she had not had an opportunity to comment on the arguments put forward during the proceedings or that her comments had not been taken into account. Rather, she only criticised the failure to conduct a renewed oral hearing at second instance. The Court of Appeal considered that the right to be heard did not principally comprise the right to an oral hearing. In its decision of 22 December 2005 it had given reasons for refraining from an oral hearing. The applicant had not submitted why the outcome of the proceedings might have been different if an oral hearing had been held. On 19 April 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication because it was inadmissible. It also refused to accept the applicant’s joint requests for an interim order for adjudication. It dismissed the applicant’s requests for legal aid and to be assigned an attorney. On 9 November 2005 the Bielefeld Regional Court reprimanded the applicant for child abduction. By decisions taken between September 2004 and March 2006 the domestic courts regulated the applicant’s access to her son.
| 0 |
train
|
001-22647
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,002 |
JAMES and OTHERS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
Matti Pellonpää;Nicolas Bratza
|
The applicants are the James family, all United Kingdom nationals, resident in Norwich: (1) Dr Peter James, born in 1938; husband (2) Mrs Sue James, born in 1944; wife; and their children (3) Mr David James, born in 1971, (4) Ms Victoria James, born in 1974, (5) Mr Richard James, born in 1976, (6) Mr Caspar James, born in 1980. They are represented before the Court by Ms Nuala Mole, of the Aire Centre, London. The facts of the case, as submitted by the applicants, may be summarised as follows. The first and second applicants decided to put themselves forward to adopt a child. In March 1990, they were approved by the Childrens’ Society as prospective adopters and were matched with a child, J., who was born on 21 January 1984 and in the care of Essex County Council (“the local authority”). They stated that they made it clear that they could not envisage adopting a “boisterous” child or any child who presented challenging behavioural or physical disabilities. During the matching process, the applicants were not shown inter alia J.’s July 1990 school report which noted that there were “constant arguments when he was with others” and that he “can be aggressive”, a report of a previous foster carer which depicted J. as a very troublesome presence in the family home and a report by the Maudsley Hospital which stated that J. would find it harder to find adoptive parents given his history of difficult behaviour. The documents on J.’s background gave a clear picture of a troublesome and difficult child with a disturbed background, far from the child whom the applicants envisaged they would be caring for. On 2 September 1990, J. moved into the applicants’ home. It was immediately apparent that he had serious behavioural problems, that he was prone to persistent foul moods and required constant one to one attention. The applicants began to discover information that demonstrated that J. had not been a suitable child for them to adopt and felt very strongly that they had been severely misled by the local authority. Had full and candid disclosure been made they felt that they would never have accepted J. as suitable for their family. For example, they were not told of the possibility that J. might have had a genetic disposition to fragile X syndrome until shortly after he arrived in their home; they were not told until February 1992 that he had been removed from his first foster placement after an alleged sexual incident between him and the foster mother’s daughter; and they were not told until two years later that it was the unsubstantiated belief of a previous social worker that J. had been abused at a pre-verbal stage. Nor had they been told of the correct number of previous placements (there had been three, not two) or of the extent of disruption that J. had caused in these placements. In 1991, the applicants reached the painful decision to discontinue their relationship with J. However social worker delays in responding to the situation left the applicants in the impossible situation of finding that they did not want to adopt him but having to keep him as the local authority could not place him anywhere else. In July 1992, they decided that he could remain with them as a foster child while attending boarding school most of the year. On 15 July 1993, the applicants initiated the local authority’s internal complaints procedure complaining about their poor social work practices and also seeking access to the files to ensure the records accurately reflected the difficulties surrounding the placement. Their complaints were upheld in June 1994 and the applicants received reimbursement of their legal costs of 10,000 pounds sterling. Following further disputes with the local authority about payment of J.’s boarding school fees, the applicants applied for a residence order for J. in October 1997. This order was made on 9 April 1998. J. has remained difficult throughout his teenage years and exhibits disturbed and disordered behaviour. The applicants took legal advice concerning their remedies in respect of the local authority’s failings in their case. Notes of a consultation with Queen’s Counsel on 17 December 1998 referred to the case-law which indicated that it was problematic to establish that a local authority owed a duty of care to foster parents in the area of child care. A pending case of W. v. Essex County Council (2000 2 WLR 601) was expected to clarify if a cause of action could arise in a similar situation. It was also pointed out that difficulties arose concerning the ability of the applicants to demonstrate that they had suffered damage, as it would be necessary to show that there had been economic loss or a psychiatric condition caused to the parents or the other children. On 16 March 2000, the House of Lords issued its judgment in the case of W. v. Essex County Council, holding that the foster parents’ claim against the local authority could not be struck out and should proceed on the merits. On 20 June 2000, advice from Queen’s Counsel noted that recent authorities indicated that the applicants might have an arguable claim that the local authority owed them a duty of care in respect of the information which they imparted about any child offered for fostering. However, the difficulty with their claim was that they had not suffered any damage recognised by law. They had not suffered any physical injury and had been able to protect their own children against J. Unlike the foster parents in W. v. Essex County Council, they had not needed psychiatric treatment or been forced to abandon paid employment or otherwise incurred any overall financial loss. She therefore advised that there was no basis on which the courts would accept that they had suffered any damage of a kind that the local authority had a duty to prevent or of a kind that was recoverable.
| 0 |
train
|
001-85125
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,008 |
AKIN AND OTHERS v. TURKEY
| 4 |
Inadmissible
|
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
|
1. The applicants, Ms Elif Akın, Ms Özlem Ünal, Ms Yeşim Tayfur, Ms Emel Koşkun, Ms Halime Akın, Mr Mehmet Ünsal Akın, Ms Gönül Akın and Mr Vural Akın, are Turkish nationals who were born in 1973, 1972, 1971, 1949, 1925, 1978, 1946 and 1951 respectively, and live in Turkey. They are represented before the Court by Mr B. Orta, a lawyer practising in Tekirdağ. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 23 August 2000 the General Directorate of Roads and Highways expropriated four plots of land belonging to the applicants in the Seymen village of Çorlu, for a highway construction. The Directorate assessed the value of the land and paid the applicants 5,000,000 Turkish Liras (TRL) per square metre. 4. On 1 September 2000, i.e., within the 30-day prescription period, the applicants brought an action before the Çorlu Civil Court for increased compensation, requesting 12,000,000 TRL per square metre. 5. The court appointed a committee of experts, who conducted an on-site property inspection on 3 November 2000. They found that the land had been significantly undervalued and assessed it at 34,000,000 TRL per square metre. 6. Given the considerable discrepancy between this evaluation and that of the administration, the court appointed another committee of experts. This new committee conducted an examination on 15 December 2000 and valued the land at 22,000,000 TRL per square metre. 7. On 8 January 2001 the applicants filed a petition with the same court for “amendment” (ıslah) of their claim. They argued that they had been unaware of the real value of their property revealed by the expert reports. On that basis, they requested that their original claim be increased to 22,000,000 TRL per square metre, relying on the lower of the two expert assessments. 8. On 16 February 2001 the court denied the request. It held that the petition had been filed outside of the 30-day period stipulated for expropriation-related compensation cases. 9. Ruling on the merits, the court first examined the expert reports. It found that they were consistent with the evidence in the case file as well as the records of the mayor’s office. It further found that they had duly taken into account the factors affecting the value of the expropriated property. 10. Nonetheless, the court disregarded the experts’ valuations. It reasoned that both assessments exceeded the applicants’ claim, and thus, it sufficed to award the amount of compensation originally claimed. It also explained that it was unnecessary to require a third expert valuation with a view to reconciling the earlier two. 11. The applicants appealed. They relied on a Constitutional Court decision dated 20 July 1999. The decision had reviewed the constitutionality of the last sentence of Article 87 of the Code of Civil Procedure, which read as follows: “Article 87: The plaintiff cannot increase his claim through amendment (ıslah).” 12. Declaring that sentence unconstitutional and a nullity, the Constitutional Court had reasoned: “The [local] court requesting the review maintained that the impugned rule was contrary to Article 141 of the Constitution as it forces plaintiffs to initiate a new case and unduly burdens the judiciary. ... By not allowing a claim to be increased through amendment, the impugned rule prevents cases from being resolved as promptly and cost-effectively as possible, and thereby violates Article 141 of the Constitution. ... The rule that prevents plaintiffs from increasing their original claims through ‘amendment’ is contrary to the principle of the rule of law as it makes it unduly difficult to claim a right. ... The impugned rule forces a plaintiff to reinitiate the case from the very beginning and as such, it restricts the freedom to seek a legal remedy. ... As the rule prevents plaintiffs from receiving redress as promptly and costeffectively as possible, it significantly impedes the freedom to seek a legal remedy, which is irreconcilable with the requirements of a democratic society...” 13. On 20 September 2001 the Court of Cassation upheld the civil court’s judgment. It relied on a different reasoning. Instead of discussing whether or not the petition for “amendment” had been filed on time, it held that: “By requesting 12,000,000 TRL per square metre, the plaintiffs have bound themselves. They are not allowed to increase that amount even through amendment. The fact that the last sentence of Article 87 of the Code of Civil Procedure had been nullified by the Constitutional Court has no applicability in this particular context.” 14. On 22 October 2001 the decision was notified to the applicants. 15. Article 141 of the Turkish Constitution: “Article 141: ... It is the duty of the judiciary to conclude trials as quickly as possible and at minimum expense.” 16. The relevant provisions of the Code of Civil Procedure: “Article 83: Either of the parties may partly or entirely rectify a procedural act. Each party may use the right of rectification only once within a case.” “Article 84: For cases subject to investigation, rectification may be made until the end of the investigation, for all other cases, it may be made until the end of the trial.” 17. Article 14 of the Expropriation Act: “Right of action Article 14: The owner ... of an expropriated property may, within thirty days from the notification [of an expropriation], file an action to ... challenge the amount of compensation assessed [by the authorities].” 18. In a case concerning the plaintiff’s inability to increase his claim through amendment (ıslah) (file no. 2004/28705, decision no. 2005/9379), the 5th Chamber of the Court of Cassation ruled, in its judgment dated 2 April 2002, that the plaintiff was bound by his original claim. In its opinion, the fact that the Constitutional Court annulled Article 87 of the Code on Civil Procedure did not give the plaintiff a new right as long as he did not bring a partial action (kısmi dava). Under Turkish law, a “partial action” was brought when the plaintiff made a partial claim and stated in his petition that he reserved his further rights, i.e. the right to increase his claim. 19. In a case concerning the plaintiff’s request for pecuniary and nonpecuniary compensation for having suffered bodily harm (file no. 2004/4200, decision no. 2004/227), the Grand Chamber of the Court of Cassation held, in its judgment 14 April 2004, that if the plaintiff did not reserve his further rights and bring a “partial action” he could not increase his claim by way of amendment (ıslah). It further stated that any plaintiff who did not reserve his further rights when bringing an action must be considered to have forfeited them and that this forfeiture could not be altered through amendment. 20. In a case concerning the plaintiff’s request to increase his claim through amendment (file no. 2004/28705, decision no. 2005/9379), the 9th Chamber of the Court of Cassation ruled in its judgment of 22 March 2005 that an amendment would only be possible should the plaintiff make such a request within the statutory time-limit. In this case, having found that the plaintiff’s request for increased compensation was time-barred, the court concluded that the amendment request must be dismissed.
| 0 |
train
|
001-23408
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,003 |
BALAZ v. SLOVAKIA
| 4 |
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Vincent Baláž, is a Slovakian national, who was born in 1931 and lives in Leopoldov. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant and his wife are retired and receive an old age pension 5,800 Slovak korunas (SKK) per month, which forms their main source of income. On 30 January 1997 the applicant acquired a trade licence for inter alia operating a merrygoround for children. The licence became operative on 1 April 1997. Since then, the applicant has operated a merry-go-round in the summer season, that is between May and October. According to the applicant, he earns about SKK 500 per month of operation. A holder of a trade license is considered as a selfemployed person for the purposes of the Social Security Administration Act no. 274/1994 Coll. (Zákon o Sociálnej poisťovni - “the 274/1994 Act”) and is obliged to register with the health insurance fund and the pension fund, and to pay monthly contributions to both funds. Under Section 14 § 7 (e) of the 274/1994 Act as in force until 1 January 2000, holders of a trade licence who where receiving an old age pension were exempted from the obligation to contribute to the pension fund. As the applicant was receiving an oldage pension, he was exempted from the obligation to pay premiums to the pension fund. He did, however, remain obliged to register with the health insurance fund and to pay the monthly contributions to this fund, none of which he in fact did. The applicant did declare his income earned from the exploitation of the merry-go-round to the fiscal authorities. According to his income tax declarations, this taxable income was SKK 0 in 1997, SKK 31 in 1998 and SKK 3,179 in 1999. On 1 January 2000 an amendment no. 345/1999 Coll. of the 274/1994 Act entered into force. It repealed the exemption set forth in Section 14 § 7 (e) of the 274/1994 Act. Consequently, in addition to his obligation to pay contributions to the health insurance fund, the applicant became liable to contribute to the pension fund as well. In February 2000 the applicant registered with the health insurance fund and with the pension fund at the Social Security Administration (Sociálna poisťovňa). He indicated 1 January 2000 as the starting date of his participation in the social security scheme on grounds of his selfemployment activity. On 22 February 2000 the applicant complained to the Constitutional Court (Ústavný súd) that his monthly income from exploiting the merrygoround amounted to SKK 529 whilst his mandatory contributions payable to the Social Security Administration were calculated on the minimum assessment basis of SKK 4,000 thus amounting to SKK 1,292 (i.e. 4.8 % for the health insurance scheme plus 27.5 % for the pension scheme) per month. The applicant alleged that the relevant provisions of the Social Insurance Act violated his property rights. The applicant complained numerous times, including by letters of 4 April, 5 April, 10 April and 14 April 2000, to various bodies of the Social Security Administration that the level of contributions that he was required to pay was excessive in relation to his actual income and that he was required to pay contributions even for the months in which he did not operate his business. On various occasions in April and May 2000, including in a letter of 27 April and during a meeting held on 17 May, the Social Security Administration informed the applicant of the legal rules that applied to his selfemployment activity. It informed him in particular that since 1 April 1997, when he had started the operation of the merrygoround, he had been obliged to contribute to the health insurance fund in an amount equivalent to 4.8 % of the above minimum assessment basis. It further informed the applicant that, as from 1 January 2000, he had further become obliged to contribute to the pension fund by 27.5 % of that basis. The Social Security Administration asked the applicant to pay the contributions due, including the arrears. On 4 May 2000 the Constitutional Court rejected the applicant’s complaint on the ground that the applicant had no standing to bring proceedings challenging the constitutionality of legislation. By letters of 20 December 2000 and 3 January 2001 the Social Security Administration reminded the applicant of his obligation to pay the outstanding contributions. On 8 January 2001 the applicant and the Social Security Administration agreed on a schedule for payment of the outstanding contributions. Under Section 14 §§ 1 and 2 of this Act, selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund. Section 14 § 7 (e) of the Act, as in force until 31 December 1999, provided that selfemployed persons in receipt of an oldage pension were exempted from the obligation to contribute to the pension fund. This exemption was abolished on 1 January 2000 when the amendment no. 345/1999 Coll. entered into force. According to Section 15 § 1 of the Act the contributions are a percentage of the “assessment basis” (vymeriavací základ). The percentages applicable to selfemployed persons are 4.8 % for the health insurance fund and 27.5 % for the pension fund (Section 15 § 3 of the Act). The “assessment basis” is 50% of the average monthly taxable income gained by a self-employed person during the previous fiscal year (Section 16 § 4 in conjunction with Section 17 § 2 of the Act). However, regardless of income actually earned during the previous fiscal year, a personal “assessment basis” for a selfemployed person cannot be lower than the statutory defined “minimum assessment basis”, that is SKK 2700 until 31 December 1997, SKK 3000 from 1 January 1998 to 31 December 1999 and SKK 4000 since 1 January 2000. Pursuant to Section 18 of the Act, selfemployed persons are inter alia obliged to register themselves with the local branch of the Social Security Administration within eight days from the date on which their licence for their selfemployment activity takes effect.
| 0 |
train
|
001-92825
|
ENG
|
SVK
|
CHAMBER
| 2,009 |
CASE OF GRAUSOVA v. SLOVAKIA
| 4 |
Violation of Article 6 - Right to a fair trial
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
4. The applicant was born in 1953 and lives in Košice. 5. In 1997 the applicant’s parents, by way of a donation contract, transferred to the applicant their ownership title to a garage. 6. On 13 March 2002 the applicant was sued by her parents. They asked the Košice I District Court to order the applicant to return the above gift. 7. The applicant’s request for an interim measure was dismissed on 10 December 2002. 8. Several hearings took place between 19 February 2003 and 29 July 2005. 9. On 3 November 2005 the Constitutional Court found a violation of the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay and her right under Article 6 § 1 of the Convention to a hearing within a reasonable time. It held that the case was not complex and the applicant’s conduct had not contributed to the length of the proceedings. The period of inactivity totalling one year was imputable to the District Court. 10. The Constitutional Court awarded the applicant 10,000 Slovakian korunas (SKK) (the equivalent of 256 euros at that time) as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s costs. 11. A hearing took place on 4 November 2005. Another hearing, scheduled for 2 February 2006, was adjourned. 12. On 3 July 2006 the District Court dismissed the action. The judgment was served on the applicant on 10 October 2006 and became final and enforceable on 26 October 2006.
| 1 |
train
|
001-70847
|
ENG
|
UKR
|
CHAMBER
| 2,005 |
CASE OF CHEREMSKOY v. UKRAINE
| 4 |
Violation of Art. 6-1;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award
| null |
4. The applicant was born in 1934 and lives in the city of Snizhne, Ukraine. 5. On 12 June 2000 the Snizhne City Court ordered the State Holding Company “Torezantratsit” to pay the applicant UAH 3,448.60 in salary arrears and other payments. 6. On 26 June 2000 the Torezk City Bailiffs’ Service instituted enforcement proceedings in respect of that judgment. 7. On 2 March 2004 the Bailiffs’ Service informed the applicant that the judgment of 12 June 2000 could not be executed due to the large number of enforcement proceedings against the debtor, and that the procedure for the forced sale of assets belonging to the debtor has been suspended due to the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29 November 2001. 8. On 28 October and 22 December 2004, respectively, the full amount of the judgment debt was paid to the applicant in two instalments of UAH 2,679.70 and 768.90. 9. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
| 1 |
train
|
001-69356
|
ENG
|
POL
|
CHAMBER
| 2,005 |
CASE OF PISK-PISKOWSKI v. POLAND
| 3 |
Violation of Art. 8;Partly inadmissible;Not necessary to examine Art. 34;Non-pecuniary damage - finding of violation sufficient
|
Nicolas Bratza
|
4. The applicant was born in 1967 and lives in Opole, Poland. 5. In 1998 the prosecution service filed with the Opole District Court (Sąd Rejonowy) a bill of indictment in which it charged the applicant with making unlawful threats. In the course of the court proceedings the applicant was represented by a court-appointed lawyer. On 6 November 2001 the trial court held a hearing at which the applicant and his courtappointed lawyer were present. During the hearing, the court scheduled the next hearing for 4 December 2001 about which the applicant was informed. 6. On 4 December 2001 a hearing took place before the trial court. The applicant did not attend the hearing but his counsel was present. The applicant failed to give any reasons for his absence and the trial court finished the proceedings and decided in the presence of the counsel that the judgment would be delivered on 11 December 2001. 7. On 11 December 2001 the Opole District Court delivered a judgment in which it convicted the applicant as charged and sentenced him to a prison term of one year and six months. Neither the applicant nor his counsel was present at the delivery of the judgment. 8. The applicant did not appeal against the judgment of 11 December 2001 and did not apply for a copy of the reasons of that judgment. 9. Subsequently, the applicant lodged an application for leave to apply for a reasoned judgment out of time. In his application, he argued that his absence at the hearing held on 4 December 2001 was justified because he had been recently released from the detention and on 5 December 2001 he had been assaulted. The applicant also complained that he had not been informed about the date of the delivery of the judgment. On 9 April 2002 the Opole District Court examined the application and dismissed it. The court, in a reasoned decision, established that the applicant had known about the hearing scheduled for 4 December 2001. He failed to attend it without providing any justification for his absence. Therefore, the trial court was entitled to terminate the proceedings in his absence on the basis of Article 376 § 2 of the Code of Criminal Procedure. The court further examined the reasons for the absence submitted by the applicant. It established that in fact he had been released on 22 November 2001 - two weeks prior to the hearing. Moreover, while it was true that the applicant had been assaulted, nevertheless, that had happened the day following the hearing and the injuries sustained by the applicant, according to a hospital certificate, were not serious and the applicant was not admitted to hospital. With regard to the complaint that he was not informed about the date of the delivery of the judgment, the court found that the applicant had not been diligent since he had not contacted his lawyer. The applicant was aware of the scheduled hearing and knew the address and the name of his courtappointed lawyer. The applicant appealed against this decision. On 16 May 2003 the Opole Regional Court (Sąd Okręgowy) examined the reasons given by the District Court and upheld the decision. 10. On 14 January 2002 the applicant started serving the prison sentence ordered by the judgment of 11 December 2001. 11. On 6 December 2002 the Court received the applicant’s first letter dated 13 November 2002. The letter was sent while the applicant was serving a prison sentence in the Wrocław Detention Centre. The envelope in which the letter was delivered bears the following stamps: “District Court in Legnica, censored on 22.11.02” (Sąd Rejonowy w Legnicy, cenzurowano dnia 22.11.02) and “252, 14 NOV 2002, register number 2738/01” (252, 14 LIS 2002, numer ewid. 2738/01). 12. Article 376 of the Code of the Criminal Procedure (Kodeks Postępowania Karnego) relates to the absence of the accused at a hearing. It reads, in so far as relevant, as follows: “§ 1. If the accused, who has already given explanations, leaves the courtroom without the permission of the presiding judge, the court may complete the hearing in his absence, and the judgment thus rendered shall not be regarded as issued by default; the court shall order the accused to be brought to the courtroom by force, if it finds his presence indispensable. § 2. This provision shall apply accordingly when the accused, who has already given his explanations, and having been notified of the date of the adjourned or interrupted hearing, has not come to that hearing or justified his non-appearance.” 13. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998. Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows: “Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.” 14. Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”. Article 217 § 1 reads, in so far as relevant: “... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Pursuant to Article 214 § 1, “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same statutory rights as a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” 15. Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”
| 1 |
train
|
001-122413
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,013 |
KATELIEV v. BULGARIA
| 4 |
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
1. The applicant, Mr Kosyu Todorov Kateliev, is a Bulgarian national, who was born in 1953 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s house was built in the first half of the 20th century in Varna. Until 2005, another small building was attached to its side wall, the length of the wall that functioned as a party wall measuring about 5 metres. On the part of the side wall that was not adjoining the other building, the applicant’s house had several windows, including those of the two bedrooms, and a balcony. 5. On 16 February 2004 the local development plan was amended to permit the construction of a new four-storey building attached to the side of the applicant’s house. The owners obtained all necessary planning permissions and building permits. 6. On 10 January 2005 the construction of a new building began on the neighbouring plot, replacing the old building attached to the applicant’s house, which was demolished. However, as the new building was larger, the length of the party wall shared with the applicant’s house now measured 7 metres. As a result, the house’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed. 7. After an enquiry by the applicant, he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan, envisaging the construction of the new building, and had not objected to it. The applicant contested this fact, arguing that his signature attesting to the fact that he had received the notification had been forged. 8. In October 2006 the new building was finished and the municipality authorised its use. 9. Following that and because of the damage caused to his house, the applicant and his family moved out to another home. 10. On 1 June 2005 the applicant appealed against his neighbours’ building permit and sought an order that the construction works be ceased. On 9 June 2005 the building control authorities rejected the appeal as inadmissible. The applicant applied for judicial review to the Varna Regional Court. 11. On 22 August 2005 one of the owners of the neighbouring plot asked the Regional Court to authorise the preliminary execution of the building permit, stating that the suspension of the works would inflict contractual penalties and other losses on him. In a final decision issued on the same date the Regional Court authorised the continuation of the construction works, reasoning that their interruption would entail substantial losses for the owners of the plot. 12. By a final decision of 23 May 2006 the Supreme Administrative Court rejected the applicant’s application for judicial review as inadmissible. It held that the applicant had no standing to appeal against the building permit, as it concerned property which did not belong to him. 13. In the meantime, on 13 May 2005 the applicant applied for the judicial review of an order of 16 February 2004 of the Varna deputy mayor, whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved. The applicant sought to have the construction works ceased pending the resolution of the dispute. 14. On 28 September 2005 the Supreme Administrative Court dismissed the applicant’s application for a suspension order as inadmissible, reasoning that his appeal had suspended the implementation of the local development plan by virtue of law. 15. On an unspecified date one of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant’s appeal. By a final decision of 5 December 2005 the Regional Court granted the request, reasoning that a delay in implementation would entail losses for the owners of the building. 16. By a final judgment of 20 May 2010 the Regional Court quashed the amendment to the local development plan. It held, in the first place, that it had not been established that the applicant had been informed of the intended amendment (a name different from his had been indicated on the notification papers) and therefore his appeal had been submitted in time. The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant’s house was officially considered a blind wall, and hence, whether the legislation governing building works had been violated. Without adjudicating on this matter, it held that the order for the amendment did not contain any reasons, which made it impossible to assess its lawfulness. In particular, it was not explained why it was necessary to amend the existing plan. Furthermore, as the applicant had not been duly notified of the amendment, he had not had the opportunity to object to it, which was another violation of the legal requirements. 17. Although the Regional Court’s judgment was not subject to appeal, the owners of the neighbouring building tried to challenge it before the Supreme Administrative Court, which rejected their appeal as inadmissible on 25 October 2011. 18. From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities, which, however, refused to intervene, pointing out that his neighbours had been issued with all necessary planning permissions and building permits and, later on, that the courts had allowed the building works to be carried out. 19. The applicant also complained to the Ministry of Public Works, the Ombudsman, the National Assembly, the President of Bulgaria, the Varna municipality and other bodies, which all refused to intervene and on most occasions referred the matter back to the building control authorities. 20. On an unspecified date in 2007 the applicant brought an actio negatoria against the owners of the neighbouring building. On 5 December 2008 the Varna District Court dismissed the action. However, in a judgment of 11 May 2010 the Varna Regional Court reversed and allowed the claim, ordering the neighbours to demolish their building. It held, on the basis of two expert reports, that the amendment to the local development plan had breached the applicable legislation. As a result, the newly constructed building had rendered useless two of the applicant’s rooms and had had a detrimental effect on the living conditions in his house. The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit. 21. One of the defendants filed an appeal on points of law, pointing out that his wife had not been summoned as a party to the proceedings, although she was a co-owner. 22. In a judgment of 29 June 2011 the Supreme Court of Cassation quashed the judgment of 11 May 2010 and remitted the case to the Regional Court for fresh examination. It established that the appellant’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties. It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings. 23. After the case was remitted, the applicant identified all owners of the building and notified the Regional Court of their names and addresses. A hearing was scheduled for 25 June 2012. The Court has not been informed of the developments in the proceedings after that date. 24. On an unspecified date in 2005 the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person. Criminal proceedings for forgery were opened against one of the owners of the neighbouring plot, but the investigation was subsequently directed against the applicant. On 23 December 2005 he was charged with perjury, in that he had lied to the investigator when declaring that he had not himself signed the document in question. The applicant was prohibited from leaving his place of residence without permission. 25. On 26 June 2008 the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town. It is unclear whether any investigation against the owner of the neighbouring plot remained underway. 26. Section 50 of the Property Act 1951 (Закон за собствеността) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of neighbouring properties. 27. Under section 109(1) of the same Act, an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights. In an interpretative decision (no. 31 of 6 February 1985) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his property to the fullest extent. The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects. The Supreme Court held, in particular, that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof, the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause. Thus, the actio negatoria could be used to obtain an order to demolish a building. Lastly, the Supreme Court held that unlike decisions of the building control authorities, the courts’ judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference, and could be enforced as a matter of right. 28. In judgment no. 1291 of 16 November 1992 (case no. 1038/1992) the former Supreme Court of Bulgaria, examining an actio negatoria, held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour’s right to property, which did not thus need to be proven any further. In judgments no. 7 of 24 February 2000 (case no. 1440/1999) and no. 43 of 4 March 2009 (case no. 4983/2007) the Supreme Court of Cassation held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits, as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour’s interests. 29. In judgment no. 350 of 5 August 2010 (case no. 1269/2009), the Supreme Court of Cassation allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted, thus occupying a portion of the claimants’ plot and blocking the light. The Supreme Court of Cassation, finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property, ordered the neighbours to demolish their building. 30. In judgments no. 40 of 31 January 2011 (case no. 296/2010) and no. 46 of 26 May 2011 (case no. 438/2010) the Supreme Court of Cassation also ordered, in actions under section 109 of the Property Act, the demolition of unlawfully constructed buildings. 31. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди, “the SMRDA”) provides that the State and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of an administrative activity. The liability for damages of the municipalities was introduced following legislative amendments of July 2006. 32. The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities. In judgment no. 633 of 19 November 2009 (case no. 2032/2008), the Supreme Court of Cassation upheld a lower court’s judgment allowing such a claim against the building supervision authorities and the Ministry of Public Works, finding that the construction works on a plot neighbouring that of the claimant, although duly authorised by the defendants, had contravened the relevant construction regulations and had, as a result, infringed the claimant’s right to light. The Supreme Court pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void; it was sufficient that the construction works were in breach of the statutory requirements. 33. In another judgment, no. 475 of 9 January 2012 (case no. 1922/2010), the Supreme Court of Cassation awarded damages to a claimant in a similar situation, pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot. Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the neighbours’ building demolished, which had resulted in damage to the claimant’s house. 34. In another case (see judgment no. 77 of 13 May 2005, case no. 234/2004, the judgment has entered into force), the Plovdiv Court of Appeal awarded damages to claimants whose neighbours had erected a building without the necessary construction permits. The construction had subsequently been retrospectively approved by the municipal authorities, but the approval order had been annulled by the courts. The Court of Appeal took note of the fact that even following these developments the neighbours’ building was still standing and its demolition had been neither ordered, nor undertaken, and therefore held that the municipal authorities had failed in their obligations to protect the claimants’ property. 35. In a similar situation, the Veliko Tarnovo Court of Appeal also awarded damages (judgment no. 361 of 15 January 2009, case no. 606/2008, the judgment has entered into force). In that case, the claimant’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity. However, the intended expropriation had subsequently been abandoned, which had forced the claimant to remain in her house, whose value had already seriously depreciated and which had also been damaged by the construction works close to it.
| 0 |
train
|
001-109986
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,012 |
ZABOTIN v. RUSSIA
| 4 |
Inadmissible
|
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
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1. The applicant, Mr Aleksandr Petrovich Zabotin, is a Russian national who was born in 1954 and lives in Kovrov, Vladimir Region. He is represented before the Court by Mr S. Shenkman, a lawyer practising in Kovrov. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 9 February 2005 the applicant and his late wife sued the military unit No. 55034 claiming compensation of non-pecuniary damage and various costs resulting from serious bodily injuries caused to their son during his military service in Chechnya and his ensuing death. 4. On 25 October 2005 the Kovrov Town Court of the Vladimir Region granted their claim in part. The defendant military unit was ordered to pay the claimants a total of 58,465.80 Russian roubles (RUB) in compensation of the non-pecuniary damage and funeral costs. On 11 November 2005 the judgment became final. 5. Since that time the claimants lodged repeated requests for enforcement of the judgment with various State authorities including the commander of the defendant military unit, the Ministry of Defense, the bailiffs and the State Treasury. However, the judgment in their favour remained unenforced. 6. On 2 April 2009 the applicant’s wife died. 7. On an unspecified date the defendant military unit was dismantled and the applicant reapplied to the Kovrov Town Court requesting an order for the awarded sums to be paid by the Ministry of Defence. 8. On 31 March 2010 the Kovrov Town Court ordered that the judicial awards of 25 October 2005 be paid to the applicant by the Ministry of Defense. The award of RUB 58,465.80 was credited to the applicant’s bank account on 9 July 2010. 9. The applicant brought a claim seeking compensation for the lengthy failure to enforce the judgment in his favour. On 22 November 2010 the Vladimir Regional Court ruled in favour of the applicant and acknowledged a violation of his right to enforcement of the judgment of 25 October 2005 within a reasonable time and his right to peaceful possession of property. The Ministry of Finance was ordered to pay RUB 80,000 (2011 euros (EUR)) in compensation and RUB 2,935.65 (EUR 73) in costs and expenses. The court took account of the enforcement delay, the nature of the award, its significance for the applicant, and the efforts made to obtain the payment. 10. On 18 February 2011 the Supreme Court of the Russian Federation upheld the judgment on appeal. 11. The compensation of EUR 2011 and costs and expenses of EUR 73 were transferred to the applicant’s bank account on 3 March and 11 April 2011 respectively. 12. On 15 January 2009 the Court delivered the Burdov (no. 2) v. Russia pilot judgment (no. 33509/04, ECHR 2009 (extracts)). It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. 13. Federal Law № 68-ФЗ of 30 April 2010 (“Compensation Act”), which entered in force on 4 May 2010, was adopted in response to the abovementioned judgment. It provides that in case of a violation of the right to enforcement of a final judgment within a reasonable time, the Russian citizens are entitled to seek compensation of non-pecuniary damage in Russian courts. Federal Law № 69-ФЗ adopted on the same day introduced the relevant changes in the Russian legislation. 14. Section 6 § 2 of the Compensation Act provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to a domestic court, provided the European Court did not declare the application admissible or decide it on the merits.
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train
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001-69564
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ENG
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IRL
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GRANDCHAMBER
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CASE OF BOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI v. IRELAND
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Preliminary objections rejected (out of time, non-exhaustion of domestic remedies);No violation of P1-1
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Christos Rozakis;Nicolas Bratza;Paul Mahoney
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11. The applicant company is an airline charter company incorporated in Turkey in March 1992. 12. By an agreement dated 17 April 1992, the applicant company leased two Boeing 737-300 aircraft from Yugoslav Airlines (JAT), the national airline of the former Yugoslavia. These were, at all material times, the only two aircraft operated by the applicant company. The lease agreement was a “dry lease without crew” for a period of forty-eight months from the dates of delivery of the two aircraft (22 April and 6 May 1992). According to the terms of the lease, the crew were to be the applicant company's employees and the applicant company was to control the destination of the aircraft. While ownership of the aircraft remained with JAT, the applicant company could enter the aircraft on the Turkish Civil Aviation Register provided it noted JAT's ownership. 13. The applicant company paid a lump sum of 1,000,000 United States dollars (USD) per aircraft on delivery. The monthly rental was 150,000 USD per aircraft. On 11 and 29 May 1992 the two aircraft were registered in Turkey as provided for in the lease. On 14 May 1992 the applicant company obtained its airline licence. 14. From 1991 onwards the United Nations adopted, and the European Community implemented, a series of sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) – “the FRY” – designed to address the armed conflict and human rights violations taking place there. 15. In January 1993 the applicant company began discussions with TEAM Aer Lingus (“TEAM”) with a view to having maintenance work (“C-Check”) done on one of its leased aircraft. TEAM was a limited liability company whose principal business was aircraft maintenance. It was a subsidiary of two Irish airline companies wholly owned by the Irish State. Memoranda dated 8 and 18 January 1993 showed that TEAM considered, on the basis of information obtained, that the applicant company was not in breach of the sanctions regime, noting that it was doing business with many companies, including Boeing, Sabena and SNECMA (a French aero-engine company). By a letter of 2 March 1993, TEAM requested the opinion of the Department of Transport, Energy and Communications (“the Department of Transport”) and included copies of its memoranda of January 1993. On 3 March 1993 the Department of Transport forwarded the request to the Department of Foreign Affairs. 16. On 17 April 1993 the United Nations Security Council adopted Resolution 820 (1993), which provided that States should impound, inter alia, all aircraft in their territories “in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY]”. That resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993 (see paragraph 65 below). 17. On 5 May 1993 the Department of Foreign Affairs decided to refer the matter to the United Nations Sanctions Committee. 18. By a letter of 6 May 1993, the Turkish Foreign Ministry indicated to the Turkish Ministry of Transport that it considered that the leased aircraft were not in breach of the sanctions regime and requested flight clearance pending the Sanctions Committee's decision. On 12 May 1993 Turkey sought the opinion of the Sanctions Committee. 19. On 17 May 1993 one of the applicant company's leased aircraft arrived in Dublin. A contract with TEAM was signed for the completion of C-Check. 20. On 18 May 1993 the Irish Permanent Mission to the United Nations indicated by facsimile to the Department of Transport that informal advice from the Secretary to the Sanctions Committee was to the effect that there was no problem with TEAM carrying out the work, but that an “informal opinion” from the “legal people in the Secretariat” had been requested. On 19 May 1993 the Department of Transport explained this to TEAM by telephone. 21. On 21 May 1993 the Irish Permanent Mission confirmed to the Department of Foreign Affairs that the “informal legal advice” obtained from the “United Nations legal office” was to the effect that TEAM should seek the “guidance and approval” of the Sanctions Committee before signing any contract with the applicant company. It was recommended that TEAM submit an application to the Committee with relevant transaction details; if the applicant company was to pay for the maintenance, it was unlikely that the Committee would have a problem with the transaction. On 24 May 1993 the Department of Transport received a copy of that facsimile and sent a copy to TEAM, who were also informed by telephone. By a letter dated 26 May 1993, the Irish Permanent Mission provided the Sanctions Committee with the required details and requested the latter's “guidance and approval”. 22. On 21 May 1993 the Sanctions Committee disagreed with the Turkish government's view that the aircraft could continue to operate, referring to Resolution 820 (1993) of the United Nations Security Council. The Turkish Permanent Mission to the United Nations was informed of that opinion by a letter dated 28 May 1993. 23. At noon on 28 May 1993 the applicant company was informed by TEAM that C-Check had been completed and that, on payment of USD 250,000, the aircraft would be released. Later that day payment was received and the aircraft was released. While awaiting air traffic control clearance to take off, the aircraft was stopped. In his report, the duty manager of Dublin Airport noted that TEAM had informed him that it had been advised by the Department of Transport that it would be “in breach of sanctions” for the aircraft to leave. He also stated that the aircraft had been scheduled to depart during that shift and that the airport police had been advised. TEAM informed the applicant company accordingly. The Department of Transport later confirmed by a letter (of 16 June 1993) its instructions of 28 May 1993: “... [TEAM] were advised by this Department that, in the circumstances, TEAM should not release the [aircraft] ... Furthermore, it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the UN resolutions (as implemented by Council Regulation (EEC) no. 990/93) ... and the matter was under investigation. At the same time directions were given to Air Traffic Control, whose clearance is necessary for departure of aircraft, not to clear this aircraft for take-off.” 24. By letters dated 29 May 1993 to the applicant company, TEAM noted that it was waiting for the opinion of the Sanctions Committee and that it had been advised by the authorities that release of the aircraft before receipt of that opinion would be in violation of the United Nations sanctions regime. 25. By a memorandum dated 29 May 1993, the Turkish embassy in Dublin requested the release of the detained aircraft to Turkey, given the latter's commitment to the sanctions regime 26. By a letter dated 2 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the maintenance work had in fact already been carried out, that the government regretted the failure to abide by the procedure it had initiated and that the matter had been taken up with TEAM. The aircraft was being detained pending the Committee's decision. 27. On 3 June 1993 the Irish government learned of the Sanctions Committee's reply to the Turkish government and that the chairman of the Committee had indicated that it would be likely to favour impounding. The Committee would not meet until 8 June 1993. 28. On 4 June 1993 the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993) were adopted. By a letter dated 8 June 1993, the Minister for Transport (Energy and Communications) informed the Dublin Airport managers that he had authorised the impounding, until further notice, of the aircraft pursuant to that statutory instrument. 29. Shortly afterwards the applicant company's second aircraft was grounded in Istanbul, although the parties disagreed as to precisely why. 30. By a letter of 14 June 1993, the Sanctions Committee informed the Irish Permanent Mission of the findings of its meeting of 8 June 1993: “... the provision of any services to an aircraft owned by an undertaking in the [FRY], except those specifically authorised in advance by the Committee ..., would not be in conformity with the requirements of the relevant Security Council resolutions. The members of the Committee also recalled the provisions of paragraph 24 of [Resolution 820 (1993) of the United Nations Security Council] regarding such aircraft, under which the aircraft in question should have already been impounded by the Irish authorities. The Committee, therefore, would be extremely grateful for being apprised of any action on behalf of Your Excellency's Government to that effect.” By a letter dated 18 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the aircraft had been detained on 28 May 1993 and formally impounded on 8 June 1993. 31. In a letter of 16 June 1993 to the Department of Transport, the applicant company challenged the impoundment, arguing that the purpose of Regulation (EEC) no. 990/93 was not to deal simply with legal ownership, but rather with operational control. On 24 June 1993 the Department replied: “The Minister is advised that the intention and effect of the UN resolution as implemented through [Regulation (EEC) no. 990/93] is to impose sanctions by impounding the types of commercial asset mentioned in Article 8, including aircraft, in any case where a person or undertaking in or operating from the [FRY] has any ownership interest of the kind mentioned. As this view of the scope and effect of the original resolution has been confirmed by the [Sanctions Committee], the Minister does not feel entitled to apply [Regulation (EEC) no. 990/93] in a manner which would depart from that approach. ... the aircraft must remain impounded. ... the Minister appreciates the difficulty that [the applicant company] finds itself in and would be anxious to find any solution that was available to him under [Regulation (EEC) no. 990/93] which would permit the release of the aircraft.” 32. By a letter dated 5 July 1993, the Turkish embassy in Dublin repeated its request for the release of the aircraft, stating that the Turkish government would ensure impoundment in accordance with the sanctions. The Irish government indicated to the Sanctions Committee, by a letter of 6 July 1993, that it would be favourably disposed to grant that request. On 4 August 1993 the Sanctions Committee ruled that the aircraft had to remain in Ireland, since the relevant resolutions required the Irish State to withhold all services from the aircraft, including services that would enable it to fly. 33. In November 1993 the applicant company applied for leave to seek judicial review of the Minister's decision to impound the aircraft. Amended grounds were later lodged taking issue with TEAM's role in the impoundment. On 15 April 1994 the High Court struck out TEAM as a respondent in the proceedings, the applicant company's dispute with TEAM being a private-law matter. 34. On 15 June 1994 the applicant company's managing director explained in evidence that rental payments due to JAT had been set off against the deposits initially paid to JAT and that future rental payments were to be paid into a blocked bank account supervised by the Turkish Central Bank. 35. On 21 June 1994 Mr Justice Murphy delivered the judgment of the High Court. The issue before him could, he believed, be simply defined as the question of whether the Minister for Transport was bound by Article 8 of Regulation (EEC) no. 990/93 to impound the applicant company's aircraft. He considered the Department of Transport's letter of 24 June 1993 to the applicant company to be the most helpful explanation of the Minister's reasoning. He found that: “... it is common case that the transaction between JAT and [the applicant company] was entirely bona fide. There is no question of JAT having any interest direct or indirect in [the applicant company] or in the management, supervision or direction of the business of that company. ... It is, however, common case that [resolutions of the United Nations Security Council] do not form part of Irish domestic law and, accordingly, would not of themselves justify the Minister in impounding the aircraft. The real significance of the [resolutions of the United Nations Security Council], in so far as they relate to the present proceedings, is that [Resolution 820 (1993) of the United Nations Security Council] ... provided the genesis for Article 8 of [Regulation (EEC) no. 990/93]. ...” 36. In interpreting Regulation (EEC) no. 990/93, Mr Justice Murphy had regard to its purpose. He found the aircraft not to be one to which Article 8 applied, as it was not an aircraft in which a majority or controlling interest was held by a person or undertaking in or operating from the former FRY, and that the decision of the Minister to impound was therefore ultra vires. However, the aircraft was, at that stage, the subject of an injunction obtained (in March 1994) by a creditor of JAT (SNECMA) preventing it from leaving the country. That injunction was later discharged on 11 April 1995. 37. Having indicated to the applicant company that the Minister for Transport was investigating a further impoundment based on Article 1.1(e) of Regulation (EEC) no. 990/93, the Department of Transport informed the applicant company by a letter of 5 August 1994 of the following: “The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of the High Court and the provisions of the Council regulations referred to. Arising out of the Minister's consideration, I am now directed to inform you that the Minister has ... directed that the aircraft ... be detained pursuant to Article 9 of [Regulation (EEC) no. 990/93] as an aircraft which is suspected of having violated the provisions of that regulation and particularly Article 1.1(e) and [Regulation (EEC) no.] 1432/92. The aircraft will remain detained pending completion of the Minister's investigation of the suspected violation as required under Article 9 and Article 10 of Regulation [(EEC) no.] 990/93.” Although not noted in that letter, the Minister's concern related to the applicant company's setting off of JAT's financial obligations (certain insurance, maintenance and other liabilities) under the lease against the rental monies already paid by it into the blocked bank account. 38. On 23 September 1994 the United Nations Security Council adopted Resolution 943 (1994). Although it temporarily suspended the sanctions as peace negotiations had begun, it did not apply to aircraft already impounded. It was implemented by Regulation (EC) no. 2472/94 on 10 October 1994. 39. In March 1995 the applicant company was given leave to apply for judicial review of the Minister's decision to re-impound the aircraft. By a judgment of 22 January 1996, the High Court quashed the Minister's decision to redetain the aircraft. It noted that almost all of the monies which had been paid into the blocked account by the applicant company had by then been used up (with the consent of the holding bank in Turkey) in order to discharge JAT's liabilities under the lease. The crucial question before the High Court was the Minister's delay in raising Article 9 of Regulation (EEC) no. 990/93 given that the applicant company was an “innocent” party suffering heavy daily losses. The High Court found that the Minister had failed in his duty to investigate and decide such matters within a reasonable period of time, to conduct the investigations in accordance with fair procedures and to have proper regard for the rights of the applicant company. 40. On 7 February 1996 the Irish government appealed to the Supreme Court and applied for a stay on the High Court's order. On 9 February 1996 the Supreme Court refused the Minister's application for a stay. The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party. Noting the significant delay of the Minister in raising Article 1.1(e) and the potentially minor damage to the State (monies owed for the maintenance and parking in Dublin Airport) compared to the applicant company's huge losses, the justice of the case was overwhelmingly in the latter's favour. 41. The aircraft was therefore free to leave. By letters dated 12 and 14 March 1996, the applicant company, JAT and TEAM were informed that the Minister considered that he no longer had any legal responsibility for the aircraft. 42. On 8 August 1994 the Minister for Transport lodged an appeal in the Supreme Court against the High Court judgment of 21 June 1994. He took issue with the High Court's interpretation of Regulation (EEC) no. 990/93 and requested a preliminary reference to the ECJ (Article 177, now Article 234, of the Treaty establishing the European Community – “the EC Treaty”). 43. By an order dated 12 February 1995, the Supreme Court referred the following question to the ECJ and adjourned the proceedings before it: “Is Article 8 of [Regulation (EEC) no. 990/93] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [the FRY] where such aircraft has been leased by the owner for a term of four years from 22 April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [FRY]?” 44. The parties made submissions to the ECJ. The applicant company noted that it was ironic that, following Resolution 943 (1994) of the United Nations Security Council, JAT aircraft could fly whereas its own remained grounded. 45. On 30 April 1996 Advocate General Jacobs delivered his opinion. Given the majority interest of JAT in the aircraft, Article 8 of Regulation (EEC) no. 990/93 applied to it. The Advocate General disagreed with the Irish High Court, considering that neither the aims nor the texts of the relevant resolutions of the United Nations Security Council provided any reason to depart from what he considered to be the clear wording of Article 8 of Regulation (EEC) no. 990/93. 46. As to the question of the respect shown in that regulation for fundamental rights and proportionality, the Advocate General pointed out: “It is well established that respect for fundamental rights forms part of the general principles of Community law, and that in ensuring respect for such rights, the [ECJ] takes account of the constitutional traditions of the Member States and of international agreements, notably [the Convention], which has a special significance in that respect. Article F(2) of the Treaty on European Union ... gives Treaty expression to the [ECJ's] case-law. ... In relation to the EC Treaty, it confirms and consolidates the [ECJ's] case-law underlining the paramount importance of respect for fundamental rights. Respect for fundamental rights is thus a condition of the lawfulness of Community acts – in this case, the Regulation. Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of Community law by Member States which is in issue. Community law cannot release Member States from their obligations under the Convention.” 47. The Advocate General noted that the applicant company had relied on the right to peaceful enjoyment of property, protected by the Convention, and the right to pursue a commercial activity, recognised as a fundamental right by the ECJ. Having considered Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52), he defined the essential question as being whether the interference with the applicant company's possession of the aircraft was a proportionate measure in the light of the aims of general interest Regulation (EEC) no. 990/93 sought to achieve. He had regard to the application of this test in AGOSI v. the United Kingdom (judgment of 24 October 1986, Series A no. 108) and Air Canada v. the United Kingdom (judgment of 5 May 1995, Series A no. 316-A) and to a “similar approach” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial activity (including Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] European Court Reports (ECR) 3727, §§ 17-30). 48. While there had been a severe interference with the applicant company's interest in the lease, it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war. While some property loss was inevitable for any sanctions to be effective, if it were demonstrated that the interference in question was wholly unreasonable in the light of the aims sought to be achieved, then the ECJ would intervene. However, the Advocate General felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable. 49. Whether or not the financial impact of the sanctions were as outlined by the applicant company, a general measure of the kind in question could not be set aside simply because of the financial consequences the measure might have in a particular case. Given the strength of the public interest involved, the proportionality principle would not be infringed by any such losses. 50. The Advocate General concluded that the contested decision did not “... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. That conclusion seems consistent with the case-law of [this Court] in general. Nor has [the applicant company] suggested that there is any case-law under [the Convention] supporting its own conclusion. The position seems to be no different if one refers to the fundamental rights as they result from 'the constitutional traditions common to the Member States' referred to in the case-law of [the ECJ] and in Article F(2) of the Treaty on European Union. In the [above-cited Hauer case, the ECJ] pointed out ..., referring specifically to the German Grundgesetz, the Irish Constitution and the Italian Constitution, that the constitutional rules and practices of the Member States permit the legislature to control the use of private property in accordance with the general interest. Again it has not been suggested that there is any case-law supporting the view that the contested decision infringed fundamental rights. The decision of the Irish High Court was based, as we have seen, on different grounds.” 51. By a letter of 19 July 1996, TEAM informed JAT that the aircraft was free to leave provided that debts owed to TEAM were discharged. 52. On 30 July 1996 the ECJ ruled that Regulation (EEC) no. 990/93 applied to the type of aircraft referred to in the Supreme Court's question to it. The ECJ noted that the domestic proceedings showed that the aircraft lease had been entered into “in complete good faith” and was not intended to circumvent the sanctions against the FRY. 53. It did not accept the applicant company's first argument that Regulation (EEC) no. 990/93 did not apply because of the control on a daily basis of the aircraft by an innocent non-FRY party. Having considered the wording of Regulation (EEC) no. 990/93, its context and aims (including the text and aims of the United Nations Security Council resolutions it implemented), it found nothing to support the distinction made by the applicant company. Indeed, the use of day-to-day operation and control as opposed to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions. 54. The applicant company's second argument was that the application of Regulation (EEC) no. 990/93 would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by having their bank accounts blocked. The ECJ did not find this persuasive: “It is settled case-law that the fundamental rights invoked by [the applicant company] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community (see [the above-cited Hauer case]; Case 5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609; and Case C-280/93, Germany v. Council [1994] ECR I-4973). Any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions. Moreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a substantial nature, for some operators. The provisions of [Regulation (EEC) no. 990/93] contribute in particular to the implementation at Community level of the sanctions against the [FRY] adopted, and later strengthened, by several resolutions of the Security Council of the United Nations. ... It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance, which is, in particular, in terms of [Regulation (EEC) no. 990/93] and more especially the eighth recital in the preamble thereto, to dissuade the [FRY] from 'further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian Serb party to cooperate in the restoration of peace in this Republic'. As compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the [FRY], cannot be regarded as inappropriate or disproportionate.” 55. The answer to the Supreme Court's question was therefore: “Article 8 of Council Regulation (EEC) no. 990/93 of 26 April 1993 concerning trade between the European Economic Community and the [FRY] applies to an aircraft which is owned by an undertaking based in or operating from the [FRY], even though the owner has leased it for four years to another undertaking, neither based in nor operating from [the FRY] and in which no person or undertaking based in or operating from [the FRY] has a majority or controlling interest.” 56. On 6 August 1996 the Minister reinstated the impounding of the aircraft under Article 8 of Regulation (EEC) no. 990/93. 57. By a notice of motion dated 29 October 1996, the applicant company applied to the Supreme Court for, inter alia, an order determining the action “in the light of the decision of the [ECJ]” and for an order providing for the costs of the Supreme Court and ECJ proceedings. The grounding affidavit of the applicant company of the same date stressed its bona fides, the benefit of having had the ECJ examine the regulation for the first time, the fact that ultimate responsibility for its predicament lay with the FRY authorities and that its operations had been destroyed by the impoundment. It referred to Regulation (EC) no. 2815/95, noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could do so. Since its aircraft was the only one impounded under the sanctions regime, no other lessee could have initiated the action it had in order to clarify the meaning of the relevant regulation. 58. On 29 November 1996 the Supreme Court delivered its judgment allowing the appeal of the Minister for Transport from the order of the High Court of 21 June 1994. It noted that the sole issue in the case was whether the Minister had been bound by Article 8 of Regulation (EEC) no. 990/93 to impound the aircraft. Having noted the answer of the ECJ, the Supreme Court simply stated that it was bound by that decision and the Minister's appeal was allowed. 59. In May 1998 the Supreme Court allowed the appeal from the order of the High Court of 22 January 1996. Given the intervening rulings of the ECJ and of the Supreme Court (of July and November 1996, respectively), the appeal was moot since, from the date of the initial order of impoundment, the aircraft had been lawfully detained under Article 8 of Regulation (EEC) no. 990/93. There was no order as to costs. 60. The applicant company's leases on both aircraft had expired by May 1996 (see paragraph 12 above). Further to the judgment of the Supreme Court of November 1996 (see paragraph 58 above) and given the relaxation of the sanctions regime (see paragraphs 67-71 below), JAT and the Minister for Transport reached an agreement in July 1997 concerning the latter's costs. JAT deposited 389,609.95 Irish pounds into a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking, maintenance, insurance and legal costs of the Minister for Transport associated with the impoundment. On 30 July 1997 the aircraft was returned to JAT. 61. In September 1991 the United Nations Security Council (UNSC) adopted a Resolution (Resolution 713 (1991)) under Chapter VII of its Charter by which it expressed concern about the conflict in the former Yugoslavia and implemented a weapons and military embargo. UNSC Resolution 724 (1991), adopted in December 1991, established a Sanctions Committee to administer the relevant resolutions of the United Nations Security Council. 62. The relevant parts of UNSC Resolution 757 (1992), adopted on 30 May 1992, provided as follows: “5. Decides further that no State shall make available to the authorities in the [FRY] or to any commercial, industrial or public utility undertaking in the [FRY], any funds, or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to those authorities or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [FRY], except payments exclusively for strictly medical or humanitarian purposes and foodstuffs; ... 7. Decides that all States shall: (a) Deny permission to any aircraft to take off from, land in or overfly their territory if it is destined to land in or has taken off from the territory of the [FRY], unless the particular flight has been approved, for humanitarian or other purposes consistent with the relevant resolutions of the Council, by the [Sanctions Committee]; (b) Prohibit, by their nationals or from their territory, the provision of engineering or maintenance servicing of aircraft registered in the [FRY] or operated by or on behalf of entities in the [FRY] or components for such aircraft, the certification of airworthiness for such aircraft, and the payment of new claims against existing insurance contracts and the provision of new direct insurance for such aircraft; ... 9. Decides further that all States, and the authorities in the [FRY], shall take the necessary measures to ensure that no claim shall lie at the instance of the authorities in the [FRY], or of any person or body in the [FRY], or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures imposed by the present resolution and related resolutions;” The resolution was implemented in the European Community by a Council regulation of June 1992 (Regulation (EEC) no. 1432/92), which was in turn implemented in Ireland by statutory instrument: the European Communities (Prohibition of Trade with the Republics of Serbia and Montenegro) Regulations 1992 (Statutory Instrument no. 157 of 1992) made it an offence under Irish law from 25 June 1992 to act in breach of Regulation (EEC) no. 1432/92. 63. UNSC Resolution 787 (1992), adopted in November 1992, further tightened the economic sanctions against the FRY. This resolution was implemented by Regulation (EEC) no. 3534/92, adopted in December 1992. 64. UNSC Resolution 820 (1993), adopted on 17 April 1993, provided, inter alia, as follows: “24. Decides that all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] and that these vessels, freight vehicles, rolling stock and aircraft may be forfeit to the seizing State upon a determination that they have been in violation of resolutions 713 (1991), 757 (1992), 787 (1992) or the present resolution;” 65. This resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993, once published in the Official Journal (L 102/14 (1993)) of that date (as specified in Article 13 of the regulation) pursuant to Article 191(2) (now Article 254(2)) of the Treaty establishing the European Community (“the EC Treaty”). Articles 1.1(e) and 8 to 10 of that regulation provided as follows: “1. As from 26 April 1993, the following shall be prohibited: ... (e) the provision of non-financial services to any person or body for purposes of any business carried out in the Republics of Serbia and Montenegro.” “All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] shall be impounded by the competent authorities of the Member States. Expenses of impounding vessels, freight vehicles, rolling stock and aircraft may be charged to their owners.” “All vessels, freight vehicles, rolling stock, aircraft and cargoes suspected of having violated, or being in violation of Regulation (EEC) no. 1432/92 or this Regulation shall be detained by the competent authorities of the Member States pending investigations.” “Each Member State shall determine the sanctions to be imposed where the provisions of this [Regulation] are infringed. Where it has been ascertained that vessels, freight vehicles, rolling stock, aircraft and cargoes have violated this Regulation, they may be forfeited to the Member State whose competent authorities have impounded or detained them.” 66. On 4 June 1993 the Irish Minister for Tourism and Trade adopted the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993), the relevant part of which provided as follows: “3. A person shall not contravene a provision of [Regulation (EEC) no. 990/93]. 4. A person who, on or after the 4th day of June, 1993, contravenes Regulation 3 of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both. 5. The Minister for Transport, Energy and Communications shall be the competent authority for the purpose of Articles 8 and 9 of [Regulation (EEC) no. 990/93] except in so far as the said Article 8 relates to vessels and the said Article 9 relates to cargoes. 6. (1) The powers conferred on the Minister for Transport, Energy and Communications by Articles 8 and 9 of [Regulation (EEC) no. 990/93] as the competent authority for the purposes of those Articles may be exercised by – (a) members of the Garda Síochána, (b) officers of customs and excise, (c) Airport Police, Fire Services Officers of Aer Rianta, ... (d) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport, Energy and Communications in that behalf. ... (3) A person shall not obstruct or interfere with a person specified in sub-paragraph (a), (b) or (c) of paragraph (1) of this Regulation, or a person authorised as aforesaid, in the exercise by him of any power aforesaid. (4) A person who, on or after the 4th day of June, 1993, contravenes sub-paragraph (3) of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both. 7. Where an offence under Regulation 4 or 6 of these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.” 67. UNSC Resolution 943 (1994), adopted on 23 September 1994, provided, inter alia, as follows: “(i) the restrictions imposed by paragraph 7 of Resolution 757 (1992), paragraph 24 of Resolution 820 (1993) with regard to aircraft which are not impounded at the date of adoption of this Resolution, ... shall be suspended for an initial period of 100 days from the day following the receipt ... of a report from the Secretary-General ...” This resolution was implemented by Regulation (EC) no. 2472/94 of 10 October 1994, Article 5 of which suspended the operation of Article 8 of Regulation (EEC) no. 990/93 “with regard to aircraft ... which had not been impounded at 23 September 1994”. 68. The suspension of UNSC Resolution 820 (1993) was extended further by periods of 100 days on numerous occasions in 1995, and these resolutions were each implemented by Community regulations. 69. UNSC Resolution 820 (1993) was suspended indefinitely in 1995 by Resolution 1022 (1995). It was implemented in the Community by Regulation (EC) no. 2815/95 of 4 December 1995 which provided, inter alia, as follows: “1. [Regulation (EEC) no. 990/93] is hereby suspended with regard to the [FRY]. 2. As long as [Regulation (EEC) no. 990/93] remains suspended, all assets previously impounded pursuant to that Regulation may be released by Member States in accordance with the law, provided that any such assets that are subject to any claims, liens, judgments, or encumbrances, or which are the assets of any person, partnership, corporation or other entity found or deemed to be insolvent under the law or the accounting principles prevailing in the relevant Member State, shall remain impounded until released in accordance with the applicable law.” 70. UNSC Resolution 820 (1993) was later definitively suspended. That suspension was implemented by Regulation (EC) no. 462/96 of 27 February 1996, the relevant part of which provided as follows: “As long as the Regulations [inter alia, Regulation (EEC) no. 990/93] remain suspended, all funds and assets previously frozen or impounded pursuant to those Regulations may be released by Member States in accordance with law, provided that any such funds or assets that are subject to any claims, liens, judgments or encumbrances, ... shall remain frozen or impounded until released in accordance with the applicable law.” 71. On 9 December 1996 Regulation (EC) no. 2382/96 repealed, inter alia, Regulation (EEC) no. 990/93. On 2 March 2000 the European Communities (Revocation of Trade Sanctions concerning the Federal Republic of Yugoslavia (Serbia and Montenegro) and Certain Areas of the Republics of Croatia and Bosnia-Herzegovina) Regulations 2000 (Statutory Instrument no. 60 of 2000) repealed Statutory Instrument no. 144 of 1993. 72. This judgment is concerned with the provisions of Community law of the “first pillar” of the European Union. 73. While the founding treaties of the European Communities did not contain express provisions for the protection of human rights, the ECJ held as early as 1969 that fundamental rights were enshrined in the general principles of Community law protected by the ECJ. By the early 1970s the ECJ had confirmed that, in protecting such rights, it was inspired by the constitutional traditions of the member States and by the guidelines supplied by international human rights treaties on which the member States had collaborated or to which they were signatories. The Convention's provisions were first explicitly referred to in 1975, and by 1979 its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ. Thereafter the ECJ began to refer extensively to Convention provisions (sometimes where the Community legislation under its consideration had referred to the Convention) and latterly to this Court's jurisprudence, the more recent ECJ judgments not prefacing such Convention references with an explanation of their relevance to Community law. 74. In a judgment of 1991, the ECJ was able to describe the role of the Convention in Community law in the following terms: “41. ... as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories ... The [Convention] has special significance in that respect ... It follows that ... the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed. 42. As the Court has held ... it has no power to examine the compatibility with the [Convention] of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the [Convention].” 75. This statement has often been repeated by the ECJ, as, notably, in its opinion on accession by the Community to the Convention, in which it opined, in particular, that respect for human rights was “a condition of the lawfulness of Community acts”. 76. In Kondova, relied on by the applicant company, the ECJ ruled on the refusal by the United Kingdom of an establishment request of a Bulgarian national on the basis of a provision in an association agreement between the European Community and Bulgaria: “... Moreover, such measures [of the British immigration authorities] must be adopted without prejudice to the obligation to respect that national's fundamental rights, such as the right to respect for his family life and the right to respect for his property, which follow, for the Member State concerned, from the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or from other international instruments to which that State may have acceded.” 77. The case-law developments noted above were reflected in certain treaty amendments. In the preamble to the Single European Act of 1986, the Contracting Parties expressed their determination “to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms ...”. 78. Article 6 (formerly Article F) of the Treaty on European Union of 1992 reads as follows: “1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 3. The Union shall respect the national identities of its Member States. 4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.” 79. The Treaty of Amsterdam of 1997 required the ECJ, in so far as it had jurisdiction, to apply human rights standards to acts of Community institutions and gave the European Union the power to act against a member State that had seriously and persistently violated the principles of Article 6(1) of the Treaty on European Union, cited above. 80. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (not fully binding), states in its preamble that it “reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”. Article 52 § 3 of the Charter provides: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” 81. The Treaty establishing a Constitution for Europe, signed on 29 October 2004 (not in force), provides in its Article I-9 entitled “Fundamental Rights”: “1. The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.” The Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional treaty. 82. Article 5 (now Article 10) provides: “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.” 83. The relevant part of Article 189 (now Article 249) reads as follows: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ...” The description of a regulation as being “binding in its entirety” and “directly applicable” in all member States means that it takes effect in the internal legal orders of member States without the need for domestic implementation. 84. Article 234 (now Article 307) reads as follows: “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.” 85. As regards the control exercised by the ECJ and national courts, the ECJ has stated as follows: “39. Individuals are ... entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ... 40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article 177, on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts ... Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 184 of the Treaty or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid ..., to make a reference to the Court of Justice for a preliminary ruling on validity. 41. Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. 42. In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.” 86. Article 173 (now Article 230) provides member States, the European Parliament, the Council and the Commission with a right to apply to the ECJ for judicial review of a Community act (“annulment action”). Applications from the Court of Auditors and the European Central Bank are more restricted and, while subject to even greater restrictions, an individual (a natural or legal person) can also challenge “a decision addressed to that person or ... a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former” (Article 173(4), now Article 230(4)). 87. According to Article 175 (now Article 232) member States and the Community institutions can also call, among others, the Council, the Commission and the European Parliament to account before the ECJ for a failure to perform their Treaty obligations. Article 184 (now Article 241) allows a plea of illegality of a regulation (adopted jointly by the European Parliament and the Council, by the Council, by the Commission or by the European Central Bank) to be made during proceedings already pending before the ECJ on the basis of another Article: a successful challenge will result in the ECJ declaring its inapplicability inter partes, but not the annulment of the relevant provision. 88. Having legal personality of its own, the European Community can be sued for damages in tort, described as its non-contractual liability. Its institutions will be considered liable for wrongful (illegal or invalid) acts or omissions by the institution (fautes de service) or its servants (fautes personnelles) which have caused damage to the claimant (Articles 178 and 215, now Articles 235 and 288). Unlike actions under Articles 173, 175 and 184 (now Articles 230, 232 and 241), and subject to the various inherent limitations imposed by the elements of the action to be established, there are no personal or locus standi limitations on the right to bring such an action. It can therefore provide an independent cause of action before the ECJ to review the legality of an act or failure to act to those (including individuals) who do not have locus standi under Articles 173 or 175 but who have suffered damage. 89. Under Article 169 (now Article 226) and Article 170 (now Article 227), both the Commission (in fulfilment of its role as “guardian of the Treaties”) and a member State are accorded, notably, the right to take proceedings against a member State considered to have failed to fulfil its Treaty obligations. If the ECJ finds that a member State has so failed, the State shall be required to take the necessary measures to comply with the judgment of the ECJ (Article 171, now Article 228). The Commission can also take proceedings against a member State in other specific areas of Community regulation (such as State aids – Article 93, now Article 88). 90. There is no provision in the EC Treaty for a direct action before the ECJ against individuals. Individuals may, however, be fined under certain provisions of Community law; such fines may, in turn, be challenged before the ECJ. 91. Where individuals seek to assert their Community rights before national courts or tribunals, they may do so in the context of any proceedings of national law, public or private, in which Community rights are relevant, in pursuit of any remedy, final or interim, under national law. 92. The “direct effect” of a provision of Community law means that it confers upon individuals rights and obligations they can rely on before the national courts. A provision with direct effect must not only be applied by the domestic courts, but it will take precedence over conflicting domestic law pursuant to the principle of supremacy of Community law. The conditions for acquiring direct effect are that the provision “contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the States which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between States and their subjects” . 93. Certain EC Treaty provisions are considered to have direct effect, whether they impose a negative or positive obligation and certain have been found to have, as well as “vertical” effect (between the State and the individual), a horizontal effect (between individuals). Given the text of Article 189 (now Article 249), the provisions of regulations are normally considered to have direct effect, both vertically and horizontally. Directives and decisions can, in certain circumstances, have vertical direct effect, though recommendations and opinions, having no binding force, cannot generally be relied on by individuals before national courts. 94. The rights an individual may claim under Community law are no longer confined to those under directly effective Community provisions: they now include rights based on the principles of indirect effect and State liability developed by the ECJ. According to the principle of “indirect effect” (“interprétation conforme”), a member State's obligations under Article 5 (now Article 10) require its authorities (including the judiciary) to interpret as far as possible national legislation in the light of the wording and purpose of the relevant directive. 95. The principle of State liability was first developed in Francovich. The ECJ found that, where a State had failed to implement a directive (whether or not directly effective), it would be obliged to compensate individuals for resulting damage if three conditions were met: the directive conferred a right on individuals; the content of the right was clear from the provisions of the directive itself; and there was a causal link between the State's failure to fulfil its obligation and the damage suffered by the person affected. In 1996 the ECJ extended the notion of State liability to all domestic acts and omissions (legislative, executive and judicial) in breach of Community law provided the conditions for liability were fulfilled. 96. In order to assist national courts in correctly implementing Community law and maintaining its uniform application, Article 177 (now Article 234) provides national courts with the opportunity to consult the ECJ. In particular, Article 177 reads as follows: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community ...; ... Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” 97. The ECJ described the nature of this preliminary reference procedure as follows: “30. ... the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate ... 31. In the context of that cooperation, it is for the national court seisple, bound to give a ruling ... ” 98. Article 177 distinguishes between domestic courts which have a discretion to refer and those courts of last instance for which referral is mandatory. However, according to the CILFIT judgment, both categories of court must first determine whether an ECJ ruling on the Community law matter is “necessary to enable it to give judgment”, even if the literal meaning of Article 177 would suggest otherwise: “It follows from the relationship between the second and the third paragraphs of Article 177 that the courts ... referred to in the third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment.” In CILFIT the ECJ indicated that a court of final instance would not be obliged to make a reference to the ECJ if: the question of Community law was not relevant (namely, if the answer to the question of Community law, regardless of what it may be, could in no way affect the outcome of the case); the provision had already been interpreted by the ECJ, even though the questions in issue were not strictly identical; and the correct application of Community law was so obvious as to leave no scope for reasonable doubt, not only to the national court but also to the courts of the other member States and to the ECJ. This matter was to be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the Community. 99. Once the reference is made, the ECJ will rule on the question put to it and that ruling is binding on the national court. The ECJ has no power to decide the issue before the national court and cannot therefore apply the provision of Community law to the facts of the particular case in question. The domestic court will decide on the appropriate remedy. 100. Article 31 § 1, entitled “General rule of interpretation”, provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. Article 31 § 3 further provides that, as well as the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation together with any relevant rules of international law applicable in the relations between the parties shall be taken into account. 101. The relevant part of Article 29 of the Irish Constitution reads as follows: “1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality. ... 3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States. 4. 1o ... 10o No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”
| 0 |
train
|
001-87832
|
ENG
|
RUS
|
CHAMBER
| 2,008 |
CASE OF KUKALO v. RUSSIA (NO. 2)
| 4 |
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
|
4. The applicant was born in 1941 and lives in Kurgan, a city in the Kurgan Region. 5. As a victim of Chernobyl, the applicant was entitled to social benefits. The benefits were underpaid, and the applicant sued the local welfare authority. 6. The Kurgan Town Court held for the applicant eight times. 7. On 25 March 2003 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 8 May 2003 and was enforced in July 2003. 8. On 3 April 2003 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 17 April 2003 and was enforced on 21 July 2005. 9. On 19 February 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 6 March 2004 and was enforced on 21 July 2005. 10. On 11 March 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 27 March 2004 and was enforced in July 2005. 11. On 27 April 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 8 May 2004 and was enforced in July 2005. 12. On 20 December 2004 the court awarded inationary loss caused by the non-enforcement of the previous four judgments, awarded arrears, and fixed a new amount of periodic benefits. This judgment became binding on 11 January 2005 and was enforced on 27 October 2006. 13. On 22 May 2006 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 6 June 2006 and has been enforced in part. 14. On 28 June 2006 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 14 July 2006 and has been enforced in part. 15. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
| 1 |
train
|
001-91343
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,009 |
STATE HOLDING COMPANY LUGANSKVUGILLYA v. UKRAINE
| 3 |
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
|
The applicant is a legal entity, a state holding company, Luganksvugillya (Державна холдингова компанія «Луганськвугілля»), registered in Lugansk, Ukraine. It is represented before the Court by Mr Viktor Bilyk, a practicing lawyer. On 12 August 2004 the local department of the State Securities and Stock Market Commission imposed a fine on the applicant company for failure to comply with the legislation on market circulation of shares. In August 2004 the applicant company lodged a complaint with the Lugansk Regional Commercial Court against the aforementioned resolution of the Commission to impose a fine on it. On 5 October 2004 the court rejected this complaint as it was unsubstantiated. On 23 December 2004 the Lugansk Commercial Court of Appeal upheld that judgment. The applicant lodged an appeal in cassation with the Higher Commercial Court, which on 11 March 2005 refused to examine it for the applicant’s failure to comply with the formal requirements envisaged in the Code of Commercial Procedure for lodging such appeals. On 28 April 2005 the Supreme Court refused to institute cassation proceedings upon the applicant’s appeal in cassation lodged against the resolution of 11 March 2005. From extensive domestic law, including the acts of Parliament, normative acts of the Cabinet of Ministers and various ministerial decisions and orders it ensues that the applicant company is managed and fully controlled by the Government of Ukraine, through its various institutional structures, including formerly through the Ministry of Fuel and Energy of Ukraine and currently the Ministry of Coal Industry of Ukraine. The company exercised certain public functions in administration of funds allocated by the State for restructuring of the coal industry. On 8 July 2008 the Ministry of Coal Industry of Ukraine by an order no. 326, acting in accordance with the Civil and Commercial Codes of Ukraine, the State Registration of Legal Entities and Entrepreneurs Act and the Management of State Property Act, ordered the liquidation of the state holding company Luganskvugillia. The liquidation proceedings are still pending.
| 0 |
train
|
001-78836
|
ENG
|
UKR
|
CHAMBER
| 2,006 |
CASE OF SUKHOY v. UKRAINE
| 4 |
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed - Non-pecuniary damage - award
|
Peer Lorenzen
|
4. The applicant was born in 1955 and lives in Zhovti Vody, the Dnipropetrovsk region. He is a former employee of the OJSC “ElectronGaz” (“the Company,” ВАТ “Електрон-Газ”). At the material time the State owned 99.96% of the Company's share capital. The Company was therefore subject to the Law of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property.” 5. On 6 October 2000 the Zhovti Vody Court (Жовтоводський міський суд Дніпропетровської області) ordered the Company to pay the applicant UAH 12,514.76 in salary arrears. This judgment became final and the enforcement writ was transferred to the Zhovti Vody Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Жовтоводського міського управління юстиції) for enforcement. 6. On 26 December 2002 the Bailiffs informed the applicant that the enforcement of the judgment of 6 October 2000 was delayed on account of the Company's lack of funds. It also stated that the attachment of the Company's property was impeded by the Law of 2001 “on the Introduction of a Moratorium on the Forced Sale of Property.” 7. On 7 March 2003 the Dnipropetrovsk Commercial Court (Господарський суд Дніпропетровської області) instituted bankruptcy proceedings against the Company and on 10 October 2003 ordered its rehabilitation to be completed by 10 October 2004. 8. On 21 October 2004 the applicant received the debt due to him by the judgment of 6 October 2000.
| 1 |
train
|
001-71026
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,005 |
HAYDARIE v. THE NETHERLANDS
| 4 |
Inadmissible
|
David Thór Björgvinsson
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The applicants are a mother and her four children. They are all Afghan nationals. The first applicant, Mrs Marjam Popal Haydarie, was born in 1954 and is currently residing in the Netherlands together with her son Haydar, who was born in 1984. The other three children, Fatma, Yusuf and Ali, were born in, respectively, 1984, 1988 and 1989 and are currently residing in Pakistan with a sister of their maternal grandmother. They are represented before the Court by Mrs E.L. Garnett, a lawyer practising in ‘sHertogenbosch. The Netherlands Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In October 1996, the applicants’ home in Kabul was searched and ransacked by the Taliban. A hand grenade thrown in their kitchen killed the first applicant’s mother and seriously injured her sister. The first applicants’ husband and the other applicants’ father disappeared in January 1998, likely after having been arrested by the Taliban. One week after his disappearance, the applicants fled from Kabul to Jalalabad where they stayed in the home of the first applicant’s father. However, also in Jalalabad, the Taliban regularly visited and questioned them about the whereabouts of their husband/father. At an unspecified date, when trying to take the first applicant’s injured sister to hospital, the second applicant, Haydar, was stopped by the Taliban who beat him and broke his hand. On 4 October 1998, in order to escape from the continuous Taliban harassment and as the first applicant’s sister could not obtain adequate medical treatment in Afghanistan, the first applicant together with her sister and Haydar fled to Pakistan. Fatma, Yusuf and Ali remained in Afghanistan in the care of their maternal grandfather. They were to join the first and second applicants in Pakistan as soon as possible. On 9 October 1998, with the assistance of a “travel agent” who had been paid by her father, the first applicant, her sister and Haydar travelled by air from Karachi to the Netherlands, where they applied for asylum. On 15 June 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum request filed by the first applicant and her son Haydar, but did grant them a conditional residence permit (voorwaardelijke vergunning tot verblijf) valid until 10 October 1999 as – in light of the general situation in Afghanistan at that time – their expulsion to Afghanistan would entail undue hardship. On 15 July 1999, the first applicant filed an objection (bezwaar) against this decision with the Deputy Minister. On 13 September 1999, the validity of the first and second applicants’ conditional residence permit was prolonged by one year, i.e. until 10 October 2000. On 23 March 2000, the Deputy Minister rejected the first applicant’s objection of 15 July 1999. The first applicant filed an appeal against this decision with the Regional Court of The Hague on 18 April 2000. On 11 September 2000, the validity of the first and second applicants’ conditional residence permit was again prolonged by one year, i.e. until 10 October 2001. As from 10 October 2000, the first applicant became entitled to work in the Netherlands. She further started attending Netherlands language and sewing courses. She successfully passed a first exam in both courses on 9 February 2001. On 1 April 2001, pursuant to the terms and the transitory arrangements under the 2000 Aliens Act (vreemdelingenwet) which entered into force on that date and replaced the 1965 Aliens Act, the first and second applicants’ conditional residence permit was automatically transformed into a residence permit for the purposes of asylum for a fixed period (verblijfsvergunning asiel bepaalde tijd). In April 2001, the first applicant learned from a friend, who had gone to Pakistan for a family visit, that her three children – who had stayed behind in Afghanistan in the care of their maternal grandfather and with whom the first applicant had not had any contacts since she had left Afghanistan in 1998 – were living in Pakistan with a maternal aunt of the first applicant. On 21 May 2001, the first applicant filed a request with the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) for a provisional residence visa (machtiging tot voorlopig verblijf) for the purposes of family reunion for her three children living in Pakistan. The first applicant was not able to produce these children’s birth certificates but submitted four photographs of them, and declared to be willing to undergo DNA testing. She further declared that she had never been gainfully employed and was livinglived on benefits under the General Welfare Act (Algemene Bijstandswet). By letter of 28 May 2001, she advised her three children in Pakistan to apply as soon as possible to the Netherlands consular authorities in Pakistan for the purposes of obtaining a provisional residence visa. On an unspecified date and in accordance with the policy rule that after three years a temporary residence permit for the purposes of asylum is replaced by a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd), the temporary residence titles granted in the instant case were changed into permanent residence permits for the purposes of asylum. On 12 July 2001, the first applicant passed a second exam in the Netherlands language and sewing courses attended by her. On 21 November 2001, the first applicant withdrew the appeal that she had filed on 18 April 2000. On 31 January 2002, the Minister of Foreign Affairs rejected the request of 21 May 2001, considering at the outset that the transformation of the first applicant’s residence title from a conditional residence permit under the 1965 Aliens Act to a temporary residence permit for the purposes of asylum under the 2000 Aliens Act did not entail entitlement to a residence permit under Article 29 § 1 (e) or (f) for family members having joined the person who has been granted asylum in the Netherlands within three months after the latter’s arrival in the Netherlands. This rule applied only where it concerned a first issuance of a residence permit for the purposes of asylum, which was not the first applicant’s case. Consequently, her request fell to be examined under the regular immigration rules on family reunion set out in Chapter B2/6 of the 2000 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The Minister further found that the first applicant’s family tie with the three children had not been demonstrated by means of official documents as no birth certificates of the three children had been submitted. Although this requirement could be replaced by DNA testing, this possibility was only offered if all other conditions for family reunion were met. This did not apply to the instant case, as in addition the first applicant did not comply with the minimum income requirements under the applicable immigration rules. On this point, the Minister noted that her sole income consisted of general welfare benefits whereas, pursuant to Article 3.73 § 1 (c) of the 2000 Aliens Decree (Vreemdelingenbesluit) and the provisions of Chapter B1/2.2.3.1 of the 2000 Aliens Act Implementation Guidelines, benefits under the General Welfare Act are not accepted as constituting (a part of the) means of subsistence within the meaning of the immigration rules. The Minister further found no special circumstances on the grounds of which it should be held that the aim served by the income requirement under the immigration rules entailed disproportionate consequences for the first applicant. As regards Article 8 of the Convention, the Minister acknowledged the possibility of the existence of an objective obstacle to family life being exercised in the country of origin. Although this possible obstacle weighed heavily in the balancing-of-interests exercise to be carried out under this provision, it was not necessarily decisive. The first applicant’s personal interests were to be weighed against the general interest served by the restrictive immigration policy pursued by the Netherlands and in which context it was justified to require persons seeking family reunion to have, independently and lastingly, sufficient means of subsistence. The Minister considered – in order to avoid that the exercise of family life would become permanently impossible – that in balancing these interests it had to be assessed whether it was possible that the first applicant’s personal situation would change within a reasonable time. The Minister was only prepared to accept the existence of a positive obligation under Article 8 when, despite serious efforts made by the first applicant, there were no real prospects for her to obtain, lastingly, sufficient and independent means of subsistence and, given the circumstances in which she was finding herself, it would be unreasonable to maintain the income requirement. Finding that it was not excluded that the first applicant would be able to comply with the income requirement within a reasonable time, the Minister concluded that, for the time being, it could not be said that a hopeless situation had arisen in which it was impossible for the first applicant ever to comply with the requirements for family reunion. Consequently, the Minister concluded that the Netherlands authorities were not under a positive obligation to allow the three children in Pakistan to join the first applicant in the Netherlands. On 27 February 2002, the three children filed an objection against this decision with the Minister of Foreign Affairs. On 23 September 2002, after a hearing held on 13 August 2002 before an official committee (ambtelijke commissie), the Minister of Foreign Affairs rejected the objection in two separate decisions. The Minister noted that the family tie between the first applicant and the children had still not been demonstrated by means of official documents and that, as the first applicant did not comply with the income requirement, she and the children did not qualify for the possibility of DNA testing in lieu. Furthermore, as Fatma had come of age in the meantime, the first applicant’s request was also to be examined under the policy rules on extended family reunion (verruimde gezinshereniging). The Minister noted that, according to the contents of a letter submitted, the three children had left Afghanistan after the death of their maternal grandfather and, since 15 January 2001, were staying in Pakistan with a maternal aunt of the first applicant. As her younger brothers were also not granted entry to the Netherlands, the Minister held that the refusal to grant Fatma entry to the Netherlands could not be regarded as entailing disproportionate hardship. As regards Article 8 of the Convention, the Minister found no particular facts or circumstances on the basis of which the Netherlands were under a positive obligation to admit the three children. The Minister considered that, in view of the first applicant’s personal situation in her country of origin, there was in any event a suspicion of an objective obstacle to family life being exercised in that country. Although this possible obstacle weighed heavily in the balancing exercise to be carried out, it was not necessarily decisive. The responsibility of the first applicant to ensure that she would comply with the requirements for family reunion also played an important role. In this context it was expected of the first applicant that, for a reasonable period of time, she would make serious efforts to find employment so that she would lastingly possess sufficient and independent means of subsistence. This reasonable period, of generally three years, had begun to run when the first applicant had become entitled to work in the Netherlands, i.e. on 10 October 2000. The Minister found no special circumstances on the basis of which this three-year period should be shortened in her case. The Minister further stated that the serious efforts asked from the first applicant required an active attitude on her part, implying actively looking for and accepting work even where a job would not correspond to her education or professional experience, registering at an employment office (arbeidsbureau) and interim employment agencies indicating to be willing to accept any kind of work, reacting to vacancy announcements, intensive writing of (un)solicited job applications, and undertaking labour-market oriented studies. In so far as the first applicant had argued that she had to care for her wheel-chair bound sister who refused aid from strangers and that she did not wish to leave her sister alone in the house fearing that she might cause a fire, the Minister held that it was the first applicant’s own choice to care for her sister and that she could appeal to aid providing bodies. Finding it not excluded that the first applicant would be able to comply with the income requirement within a reasonable time, the Minister held that it could not be said that a hopeless situation had arisen entailing a permanent impossibility for family reunion in the Netherlands and that, therefore, at present no positive obligation arose under Article 8 to allow the three children entry to the Netherlands. It could be expected from the first applicant that she would make serious efforts aimed at complying with the income requirement and, in all reasonableness, there was no reason in the present case to anticipate this by giving more weight to the personal interests of those concerned than to the general interest at issue. On 16 October 2002, the three children filed an appeal with the Regional Court of The Hague. On 23 March 2001, the applicant registered at the Maastricht office of the Centre for Work and Income (Centrum voor Werk en Inkomen). In its judgment of 19 June 2003, following a hearing held on 8 May 2003, the Regional Court rejected the appeal of 16 October 2002. In so far as the appellants relied on Article 8 of the Convention, the Regional Court held: “Where, such as in this case, there is no interference [with the rights under Article 8 as the refusal at issue does not concern a withdrawal of a residence permit] the question arises whether there are facts and circumstances of such a nature that the right to respect for family life nevertheless gives rise to a positive obligation for the Minister to grant the appellants residence [in the Netherlands]. In order to determine that question, the interests [involved] ... must be balanced against each other. To strike a ‘fair balance’ between those interests is of primary importance, in which [exercise] the Minister enjoys a certain margin of appreciation. In the court’s opinion, the Minister could in all reasonableness conclude that the appellants’ interests did not outweigh the general interest of the Netherlands State. In this finding, the court takes into account that, given that at the present time there is no hopeless situation for the [first applicant] to comply eventually with the income requirement, there is no situation entailing a permanent impossibility of family reunion. The Minister has therefore considered on good grounds that there is no positive obligation to admit [the three children] under Article 8 of the Convention. In this, the court further takes into consideration that, in the present case, the Minister has held that, due to the [first applicant’s] personal situation in her country of origin, there is a suspicion of an objective obstacle to the exercise of family life in the country of origin, but that this was not decisive in the context of the balancing of interests. In this connection the court further notes that [the appellants’] submission made in the present proceedings that [the first applicant and Haydar] are recognised refugees and that the Minister – other than suspecting – has acknowledged the existence of an objective obstacle to the exercise of family life in Afghanistan finds no support in the documents. Noting this and the improving human rights situation in Afghanistan after the removal of the Taliban regime and the prior, apparently ill-founded request [of the first applicant] for admission as refugee [under the Geneva Convention relating to the Status of Refugees], it cannot be excluded in the court’s opinion that the [first applicant] can also exercise her family life in Afghanistan. This applies even more since the [first applicant] has submitted that she has been separated for a long time from her children and that she has difficulties integrating into the Netherlands society whereas she and [the children] are rooted in the Afghan culture. In the court’s opinion, the [Minister] did further in all reasonableness not have to see grounds to deviate from the guideline that within a reasonable period of three years everything should be undertaken to comply with the income requirement as meant in [Chapter] B2/13.2.3.1 of the 2000 Aliens Act Implementation Guidelines. The point of departure for the [Minister’s] policy is that the main person with whom stay is sought bears his or her own responsibilities, also as regards his or her living expenses and those of the family members by whom he or she wishes to be joined. That is why it is expected from the main person that he or she has done everything during a lengthy period to find work and thus lastingly to dispose of sufficient and independent means of subsistence. In this an active attitude is expected from him or her. The above-cited Chapter of the 2000 Aliens Act Implementation Guidelines also provides that in a special case the position in which the family members outside of the Netherlands find themselves, also if that position is not so harrowing (schrijnend) that already for that reason alone residency should be granted, may form a ground for applying a shorter period than three years. Also special circumstances in respect of the admitted main person can in principle lead to applying a shorter period. The court is of the opinion that the [Minister] has correctly found no special circumstances as regards the [first applicant] which should lead to applying a shorter period. The court agrees with the [Minister] that it has not or at least insufficiently appeared that the [first applicant] has done the utmost to find work as meant in the 2000 Aliens Act Implementation Guidelines. She has not substantiated by means of concrete documents – such as for instance several negative written replies to job applications – that she has intensively applied for several existing job openings or has sought assistance in every feasible manner [in finding gainful employment]. On the other hand it has appeared that the [first applicant] has taken on the care for her disabled sister, which choice apparently entailed that she distanced herself from the labour market and thereby indirectly from her [three] children on account of failing to comply with the income requirement. In this connection the [Minister] has, in the court’s opinion, justly considered that there is no hopeless situation in which the conditions for admission can never be met. In this [finding] the court takes into account that according to the case file documents the [first applicant] was allowed already since 10 October 2000 to look for work on the labour market and that the [Minister] could hold in all reasonableness that the [first applicant] could appeal to aid providing agencies for the care of her sister. Consequently, the appellants’ reliance on Article 8 of the Convention fails.” The three children’s subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) was rejected on 21 October 2003. It upheld the impugned ruling of 19 June 2003. It held, inter alia, that the Regional Court had correctly concluded that it had not been established that the first applicant had made any effort to meet the income requirement. Further noting that the first applicant was not permanently and completely unfit for work and having found no indication that she would be permanently unable to meet the income requirement, it concluded that the Regional Court had correctly rejected the applicants’ arguments under Article 8 of the Convention. On an unspecified date, the first applicant and Haydar were granted Netherlands nationality and, on 28 December 2004, a Netherlands passport was issued to both of them. On an unspecified date in 2005, the first applicant travelled to Pakistan in order to visit her youngest son Ali who had been admitted to hospital as he was suffering from serious diarrhoea. Two days after having arrived in Pakistan, the first applicant suffered a stroke, causing partial paralysis. She returned to the Netherlands, where she is currently staying in hospital. It is still uncertain whether the stroke she suffered will have any lasting effects. Her son Ali was discharged from hospital in Pakistan after three weeks. The Netherlands Government pursue a restrictive admissions policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations under international law, if their presence serves an essential national interest, or for compelling humanitarian reasons, with most policy rules for admission being more detailed formulations of this last criterion. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act (“the Act”). On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act (“the Decree” and “the Implementation Guidelines”). Under the system in force until 1 April 2001, a person having been granted asylum in the Netherlands on grounds of being a “refugee” within the meaning of Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 was in principle entitled to family reunion if his or her family members had joined him or her within a period of six months after his or her admission to the Netherlands. For this specific category, no income requirement applied. However, a limited income requirement had to be met if it concerned family reunion with family members having joined him or her in the Netherlands more than six months after his or her admission to the Netherlands. For persons having been granted a residence permit on any other ground, a higher income requirement applied when family reunion was sought. Persons having been granted a conditional residence permit were not entitled to family reunion under domestic law, as their residence title was only of a provisional nature. Under the system in force after 1 April 2001, the income requirement for all categories of persons having been granted an “asylum-related” (i.e. on the basis of personal facts and circumstances, or the general situation in the country of origin) residence permit who seek family reunion in the Netherlands is identical. For a person holding an “asylum-related” residence permit, no income requirement applies if his or her family members have joined him or her within three months after his or her admission to the Netherlands. After this date, an income requirement must be met where family reunion is sought. Under the new system, also persons having been granted a temporary residence permit for the purposes of asylum are entitled to family reunion. 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. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit. Pursuant to Article 14 of the Act, a temporary residence permit (verblijfsvergunning voor bepaalde tijd) for the purpose of family reunion may be issued by the Minister for Immigration and Integration if a number of eligibility requirements – set out in Articles 3.13 to 3.22 of the Decree – have been satisfied. These requirements include, inter alia, the possession of a valid provisional residence visa, actual cohabitation in the country of origin (“feitelijk behoren tot het gezin in het land van herkomst”), possession of a valid international travel document, and the person in the Netherlands with whom family reunion is sought having sufficient means of subsistence as defined in Article 3.74 (a) of the Act, i.e. having a net income from work of at least the amount equal to benefits under the General Welfare Act for the corresponding category (such as for instance a single parent). The Centre for Work and Income (Centrum voor Werk en Inkomen) is an independent administrative body that works on assignment from the Ministry of Social Affairs and Employment (Ministerie van Sociale Zaken en Werkgelegenheid). It is centrally managed and has about 130 offices throughout the Netherlands. It invites employers to offer vacancies and helps and activates job seekers to find work in every possible way. It can further help job seekers to apply for unemployment or supplementary benefits. If attempts to find work are unsuccessful, the municipal social services together with the Centre for Work and Income will do everything possible to provide the person concerned with work or training. If necessary, a route plan will be drawn up. This contains all concrete arrangements that have been made for job application courses, for example, acquiring work experience and participation in a social assimilation.
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train
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001-95560
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ENG
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HUN
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CHAMBER
| 2,009 |
CASE OF WOLFGEHER AND TURULA v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial
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András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
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4. The applicants were born in 1957, 1959 and 1927, respectively, and live in Budapest. The first and second applicants are a married couple, and the third applicant is the second applicant's mother. They live together in the house which was the object of the litigation outlined below. 5. On 10 September 1992 two individuals brought an action against the applicants before the Budapest XX/XXI/XXIII District Court, requesting it to establish the invalidity of a contract and to order the applicants to vacate the house in which they lived. 6. Subsequently, several hearings took place and the opinion of an expert was obtained. Between 4 February 1997 and 20 May 1999 the case was suspended pending a related procedure before the land registry. 7. After several further hearings, on 30 June 2004 the District Court dismissed the action. On appeal, the Budapest Regional Court upheld the essence of the first-instance decision on 13 April 2005.
| 1 |
train
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001-85436
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ENG
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RUS
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CHAMBER
| 2,008 |
CASE OF BUDAYEVA AND OTHERS v. RUSSIA
| 1 |
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of P1-1;No violation of Art. 13+P1-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
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Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
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7. The applicant in the first application (no. 15339/02), Ms Khalimat Khuseyevna Budayeva, was born in 1961 and lives in Tyrnauz, in the Elbrus District of the Republic of Kabardino-Balkariya (KBR), Russia (the first applicant). 8. The applicant in the second application (no. 21166/02), Mrs Fatima Khuseynovna Atmurzayeva, was born in 1963 and lives in Tyrnauz (the second applicant). 9. The applicant in the third application (no. 20058/02), Ms Raya Meliyevna Shogenova, was born in 1953 and lives in Nalchik in the KBR (the third applicant). 10. The applicant in the fourth application (no. 11673/02), Ms Nina Nikolayevna Khakhlova, was born in 1955 and lives in Tyranuz (the fourth applicant). 11. The applicants in the fifth application (no. 15343/02), Mr Andrey Aleksandrovich Shishkin and Mrs Irina Ilyinichna Shishkina, were born in 1958 and 1955 respectively and live in Tyrnauz (the fifth and the sixth applicants). 12. The facts of the case are partially in dispute between the parties. Their submissions on the circumstances in which a mudslide swept through the town of Tyrnauz in 2000 are set out in Section A below. The manner in which these events affected the individual applicants is set out in Section B. A description of the materials submitted to the Court by the applicants is given in Section C. 13. The town of Tyrnauz is situated in the mountain district adjacent to Mount Elbrus, in the central Caucasus. Its population is about 25,000 inhabitants. The general urban plan of the town was developed in the 1950s as part of a large-scale industrial construction project. Two tributaries of the Baksan River passing through Tyrnauz, the Gerhozhansu and the Kamyksu, are known to be prone to causing mudslides. 14. The first documentary evidence of a mudslide in the Gerhozhansu River dates back to 1937. Subsequently mudslides were registered almost every year; occasionally they hit the town, causing damage. The heaviest mudslides registered prior to 2000 occurred on 1 August 1960, on 11 August 1977 and on 20 August 1999. According to the Government, the series of mudslides of 18-25 July 2000 were the strongest and most destructive of all. 15. The inhabitants and authorities of Tyrnauz are generally aware of the hazard, and are accustomed to the mudslides which usually occur in the summer and early autumn. 16. The first technical research into a scheme to protect Tyrnauz from the mudslides was carried out in the 1950s, and by 1959 a number of proposals had been made. The scheme chosen by the authorities following a comparative feasibility study provided for the construction of a feed-through mud retention collector. Construction work began, but in 1960 this was disrupted by an exceptionally strong mudslide, and the project had to be corrected and extended accordingly. The construction of the collector was finished in 1965 and operated successfully for 35 years, apparently providing sufficient defence against the mudslides. In 1977 a technical review was carried out following a particularly strong mudslide which seriously damaged some sections of the collector, and it was considered necessary to carry out repair work. The collector was fully repaired by 1982. 17. In addition, in early 1999 the local authorities put into operation a mud retention dam in the river gorge of Gerhozhan, upstream from the mud retention collector. The dam was intended to enhance the protection of Tyrnauz from mud and debris flows. It measured 160 m x 38 m x 40 m and was built with 6,000 cubic metres of reinforced concrete and 2,000 tons of metal structures. 18. On 20 August 1999 a mud and debris flow hit the dam, seriously damaging it. 19. On 30 August 1999 the director of the Mountain Institute, a state agency whose mandate included monitoring weather hazards in high-altitude areas, called for an independent survey of the damage caused to the dam by the mudslide. He made recommendations to the Minister responsible for Disaster Relief of the KBR concerning the composition of a State Commission for the survey. 20. On the same day he also sent a letter to the President of the KBR, calling for emergency clean-up and restoration work to the dam and for an early warning system to be set up to raise the alarm in the event of a mudslide (see the full text in Section C “Documents submitted by the applicants”). 21. On 17 January 2000 the acting director of the Mountain Institute sent a letter to the Prime Minister of the KBR, warning about the increased risk of mudslides in the coming season. He stated that the dam was seriously damaged, that its reconstruction appeared unfeasible at that stage and that, consequently, the only way to avoid casualties and mitigate the damage was to establish observation posts to warn civilians in the event of a mudslide, for which he requested a mandate and financial support (see the full text in Section C below). 22. On 7 March 2000 the Head of the Elbrus District Administration sent a letter to the Prime Minister of the KBR in which he referred to the imminent large-scale mudslide and requested financial aid to carry out certain emergency work on the dam. In his request he invoked possible “record losses” and casualties (see the full text in Section C below). 23. On 7 July 2000 the assistant director and the head of research of the Mountain Institute attended a session at the Ministry for Disaster Relief of the KBR. At the meeting they reiterated the warning about the risk of mudslides in that period and requested that observation points be set up in the upper sections of the Gerhozhansu River, in order to monitor the river at all times and to issue an emergency warning in the event of a mudslide. 24. On 10 July 2000 the assistant director of the Mountain Institute reported to the agency director that he had warned the Ministry for Disaster Relief of the KBR of the forthcoming mudslide and requested the setting up of twenty-four hour observation posts. 25. It would appear that none of the above measures were ever implemented. 26. At about 11 p.m. on 18 July 2000 a flow of mud and debris hit the town of Tyrnauz and flooded some of the residential quarters. 27. According to the Government, this first wave caused no casualties. However, the applicants alleged that at least one person was killed. In particular, the second applicant claimed to have witnessed the death of her neighbour Ms B, born in 1934, who was trapped in the debris and drowned in the mud before anybody could help her. She also alleged that she had witnessed a Zhiguli vehicle with four men in it being carried away by the mudslide. 28. According to the Government, following the mudslide of 18 July 2000 the authorities ordered the emergency evacuation of the residents of Tyrnauz. The police and local officials went round people's homes to notify them of the mudslide and to help evacuate the elderly and disabled. In addition, police vehicles equipped with loudspeakers drove round the town, calling on residents to evacuate because of the mud hazard. 29. The Government did not specify when exactly these measures were taken. The applicants agreed that the alarm was indeed raised through loudspeakers once the mudslide had struck, but no advance warning was given. They claimed that they had been unaware of the order to evacuate and doubted that any had been issued. They also alleged that there had been no rescue forces or other organised on-the-spot assistance at the scene of the disaster, which became a cauldron of chaos and mass panic. 30. In the morning of 19 July 2000 the mud level lowered and the residents returned to their homes. The Government alleged that they did so in breach of the evacuation order, while the applicants claimed that they were not aware that the mudslide alert was still active, pointing out that there were no barriers or warnings to prevent people from returning to their homes. They did not spot any police or emergency officers near their homes, but could see that their neighbours were all at home and children were playing outside. Water, gas and electricity supplies had been reconnected after being cut off during the night. 31. At 1 p.m. on the same day a second, more powerful, mudslide hit the dam and destroyed it. Mud and debris instantly descended on the town, sweeping the wreckage of the dam before them. At 17 Otarova Street the mudslide destroyed part of a nine-storey block of flats, with four officially reported casualties. Several other buildings were damaged. It also caused the river to overflow, flooding the residential quarters on the right bank. 32. The town was hit by a succession of mudslides until 25 July 2000. 33. Eight people were officially reported dead. According to the applicants, a further 19 persons allegedly went missing. 34. According to the Government, on 3 August 2000 the Prosecutor's Office of the Elbrus District decided not to launch a criminal investigation into the accident. The applicants claimed that they were unaware of this. No copy of this decision was made available to the Court. 35. On 12 August 2000 the Government of the KBR adopted a directive on the payment of compensation for loss of housing to the victims of the mudslide. It established the general principles for the provision of new accommodation and the guidelines for calculating compensation for those who wished to settle outside Tyrnauz. The loss of a 1-room flat gave rise to payment of up to 15,000 roubles (RUB), of a 2-room flat – to up to RUB 20,000 and of a 3room flat – to up to RUB 45,000. Alternately, victims could opt for housing vouchers that would entitle families of more than one person to free housing of at least 18 sq. m per family member, and single-person families – to 33 sq. m. 36. On 20 December 2000 the Department of Disaster Relief of the Elbrus District issued a written statement, apparently in connection with individual lawsuits, that it had received no advance warning concerning the Tyrnauz mudslide in 2000, either from the Ministry for Disaster Relief of the KBR or from any other authority. 37. On the same day the Elbrus District Administration also issued a written statement that it had received no warning of a mudslide at any time during the past two years. 38. On 14 February 2001, apparently following an enquiry from the district administration, the Finance Department of the Elbrus District reported that no funds had been allocated in the district budget for the restoration work required after the 1999 mudslide. 39. Before the events of July 2000 the first applicant, her husband and their two sons, born in 1987 and 1997, lived at 17 Otarova Street, Tyrnauz, in a 72 sq. m flat they owned on the seventh floor. 40. On 18 July 2000 she and her family were asleep when the mudslide began. The first applicant claimed that no emergency warning was given, and the mudslide came as a total shock. They had a narrow escape and spent the night in the mountains. 41. At about noon on the following day (19 July 2000) they returned to their flat. According to the first applicant, the mudslide appeared to have ended, and since there had been no warning or barriers to stop them, they thought that it must be safe to return home. Exhausted from the events of the previous night, they went straight to bed. However, shortly afterwards the first applicant was woken up by Ms K, a friend of her sister's (see Ms K's testimonies in Section C below), and within minutes they felt the walls shake and heard a loud rumble, glass shattering, cries and people running. 42. The first applicant and her older son only just managed to escape. 43. The younger son was carried out by Ms K and rescued from the wreckage, but he sustained serious injuries, including cerebral and spinal contusion, erosion of the cornea, multiple avulsed wounds, abrasions and bruises. 44. The first applicant's husband, Mr Vladimir Khalimovich Budayev, aged 47, stayed behind to help her parents flee but was killed when the building collapsed after being hit by the mudslide. The first applicant's parents were rescued. 45. The first applicant's flat and all her possessions were flooded and destroyed by the mudslide. 46. On 3 August 2000 the Prosecutor's Office of the Elbrus District decided not to launch a criminal investigation into the death of the first applicant's husband. Having found that he died as a result of the collapse of the building, it established that the death was accidental and not attributable to any criminal act. 47. Following a decision by the Government of the KBR on 12 August 2000, the applicant was issued with a housing voucher on 4 June 2001 entitling her to 54 sq. m of free accommodation to compensate for the loss of her flat. It would appear that the size of the accommodation was reduced pro rata her deceased husband's share, but, after numerous complaints, she was eventually provided with another 40 sq. m flat in Nalchik. She received a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 2,337. 48. On an unspecified date the first applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 259,200 for the loss of movable and immovable property, and RUB 5,000,000 for non-pecuniary damage on account of the death of her husband and the mental and physical suffering she and her children had been caused by the disaster. She claimed that the authorities had persuaded the local population that there was no risk of a mudslide. She also alleged that the authorities had been negligent as they had failed to take measures to mitigate the damage, in particular by establishing an early warning system and clearing the deposits left in the dam and river channel since the 1999 mudslide. In support of her claims she provided the documents set out in Part 2 of Section C (“Official letters and documents issued before the 2000 mudslide”) and other evidence. 49. On 9 October 2001 the Baksan District Court of the KBR examined the case and found that the authorities had taken all reasonable measures to mitigate the risk of a mudslide. Noting that the retention capacity of the dam was calculated for a flow of 500 cu. m per second, when the actual flow rate was 2,000 cu. m per second, it concluded that a mudslide of such exceptional force could be neither predicted nor stopped. The court also found that the media had informed civilians of the risk of possible mudslides and it took into account the fact that, following the mudslide, the authorities had carried out infrastructure work, such as repairs to a water pipeline, and had offered the applicant social aid in the form of accommodation and financial compensation. 50. The court concluded that no fault attached to the authorities for the damage sustained by the applicant and found her claim for pecuniary and non-pecuniary damage unsubstantiated. 51. On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001. 52. According to the first applicant, her living conditions have been extremely difficult since the disaster. She claimed that both her own and her children's health has deteriorated substantially as a result of the injuries, stress and devastation caused. Her younger son has developed serious chronic post-traumatic conditions, such as enuresis and the progressive deterioration of his eyesight. Both her sons require regular neurological treatment as a result of their injuries and shock. The flat she bought with the housing voucher had to be sold immediately to cover living expenses and pay for medical treatment. The flat in Nalchik was in an appalling state (it had not been renovated since its construction in 1952) and she had no means of restoring it sufficiently to make it habitable. 53. Before the events of July 2000 the second applicant, her husband and their daughter lived at 42 Otarova Street in a 44.6 sq. m flat (no. 33) which they owned. She owned another flat (no. 1) in the same block under a social tenancy agreement. 54. In 1999 a mudslide caused damage to the second applicant's property and she lost some of her livestock. She said that she requested the local authorities to carry out emergency maintenance to the dam and clear away the wreckage. However, despite numerous requests by the residents, nothing was done. 55. On 18 July 2000 the second applicant and her family were at home when the mudslide began at about 11 p.m. She claimed that no emergency warning was given, and they had to flee their home in their pyjamas. As they attempted to escape, the applicant and her daughter were caught in the flow of mud and debris, which dragged them for some distance before passers-by came to their rescue. Both were injured and suffering from severe shock, in particular the second applicant's daughter, who suffered severe friction burns caused by the debris. 56. On the following day, 19 July 2000, the second applicant's brother-in-law (the first applicant's husband Vladimir Budayev) died while helping the first and second applicants' parents to flee when a new mudslide hit the town. 57. Both of the second applicant's flats and all of her possessions were destroyed by the mudslide. 58. Following the decision of the Government of the KBR of 12 August 2000, the second applicant received a housing voucher on 29 August 2001 to compensate for the loss of flat no. 1. It entitled her to 33 sq. m of free accommodation. She also received a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 1,168. She has not received any compensation in respect of flat no. 33. 59. The second applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 360,000 for the loss of movable and immovable property, and RUB 1,000,000 for non-pecuniary damage for the mental and physical suffering she and her daughter had been caused by the disaster. Her allegations, arguments and other submissions were essentially the same as those of the first applicant. 60. On 9 October 2001 the Baksan District Court of the KBR examined her claim together with that of the first applicant and rejected it on the same grounds. 61. On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001. 62. According to the second applicant, her living conditions after the disaster were, and remain, very poor. Both her own and her daughter's health deteriorated substantially as a result of the injuries, stress and devastation caused and they had to receive neurological treatment for their injuries and shock. 63. Before the events of July 2000 the third applicant lived at 17 Otarova Street, Tyrnauz, in a 54.2 sq. m flat which she owned. 64. On 18-24 July 2000 her flat was flooded and destroyed by the mudslide, together with her possessions. The third applicant claimed that no emergency warning was given and that she only just managed to escape the mudslide. 65. Following the decision of the Government of the KBR of 12 August 2000 the third applicant received a subsidy of RUB 30,000 for the loss of her flat and a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 584. 66. She brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 730,662 for the loss of movable and immovable property, as well as RUB 250,000 for non-pecuniary damage for the mental and physical suffering she was caused by the disaster. Her allegations, arguments and other submissions were essentially the same as those of the first and the second applicants. 67. On 27 August 2001 the Nalchik Town Court of the KBR examined the case and rejected her claims. Its judgment was based on essentially the same reasons as the subsequent judgment of the Baksan District Court of the KBR, dated 9 October 2001, in the case brought by the first and second applicants. In its judgment, the court referred to certain media records of 1999-2000 which had been submitted by the Ministry for Disaster Relief of the KBR. On the basis of these records, taken together with the weather reports for the relevant period, it concluded that the local population had been adequately forewarned about the possible mudslides. The court took into account the fact that, following the mudslide, the authorities had offered the applicant welfare aid, namely the subsidy for a flat and the monetary compensation. It also noted, inter alia, that the third applicant was entitled to exchange the RUB 30,000 subsidy for 33 sq. m of social housing. 68. On 25 September 2001 the Supreme Court of the KBR upheld the judgment of 27 August 2001. This decision was served on the third applicant on 25 October 2001. 69. On 5 June 2004 the third applicant exchanged her housing subsidy for a housing voucher which entitled her to 33 sq. m of free accommodation. She used this voucher to purchase a flat in the Moscow Region, which she resold shortly afterwards. 70. According to the third applicant, her health and living conditions deteriorated as a result of the above events and she was not adequately compensated for the losses sustained in the accident. 71. Before the events of July 2000 the fourth applicant lived at 46 Elbrusskiy Prospekt, Tyrnauz, in a 33 sq. m flat which she owned. 72. On 18-24 July 2000 her flat and possessions were flooded and destroyed by the mudslide. She claimed that no emergency warning had been given prior to the mudslide, but she managed to make her way to safety. 73. The fourth applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 248,942 in compensation for the loss of movable and immovable property and RUB 1,266 for medical treatment; she also claimed RUB 100,000 for non-pecuniary damage for mental and physical suffering. Her allegations, arguments and other submissions were essentially the same as those of the other applicants referred to above. 74. On 25 April 2001 the Elbrus District Court of the KBR examined the fourth applicant's claim and rejected it. 75. On 22 May 2001 the Supreme Court of the KBR reversed the judgment of 25 April 2001 on the grounds that one of the parties had not attended the trial. The case was remitted for re-examination by a first-instance court. 76. On 9 October 2001 the Baksan District Court of the KBR examined her claim and rejected it on the same grounds as those of the other applicants referred to above. It noted, inter alia, that the fourth applicant was still entitled to apply for compensation of RUB 30,000 from an emergency fund or, alternatively, for 33 sq. m of free housing, but held that any further claims were unsubstantiated. 77. On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001. 78. On 7 December 2001 the fourth applicant was issued a housing voucher entitling her to 33 sq. m of free accommodation to compensate for the loss of her flat and received a grant of RUB 13,200 from the emergency fund to compensate for the loss of her possessions, plus an additional allowance of RUB 584. 79. According to the fourth applicant, her living conditions after the above events were extremely difficult and her health deteriorated substantially as a result of the stress and devastation they had caused. Following the disaster she suffered from psychological disorientation and depression, for which she had to undergo psychiatric treatment. According to her medical records her condition has been further aggravated by the litigation over the compensation. 80. Before the events of July 2000 the applicants and their two daughters lived in a 72 sq. m flat, which they owned. 81. On 18-24 July 2000 their flat and possessions were flooded and destroyed by the mudslide. They claimed that no emergency warning was given and that they and their family had only just managed to escape the mudslide. 82. The fifth and sixth applicants brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. They claimed RUB 498,368 for the loss of their movable and immovable property as well as RUB 200,000 for non-pecuniary damage for mental and physical suffering. Their allegations, arguments and other submissions were essentially the same as those of the other applicants referred to above. 83. On 25 April 2001 the Elbrus District Court of the KBR examined the fifth and sixth applicants' claim and rejected it. 84. On 22 May 2001 the Supreme Court of the KBR reversed the judgment of 25 April 2001 on the grounds that one of the parties had not attended the trial. The case was remitted for re-examination by a first-instance court. 85. On 9 October 2001 the Baksan District Court of the KBR examined their claim and rejected it on the same grounds as those of the other applicants referred to above. It noted, inter alia, that the fifth and sixth applicants were still entitled to apply for compensation from an emergency fund in the sum of RUB 13,200 for the loss of movable property and RUB 45,000 for the loss of the flat or, alternatively, for 33 sq. m of free housing per person, but held that further any claims were unsubstantiated. 86. On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001. 87. On 8 December 2001 the fifth and sixth applicants were issued with a housing voucher entitling them to 72 sq. m of free accommodation to compensate for the loss of the flat and received a grant from the emergency fund of RUB 13,200 to compensate for the loss of their possessions, plus an additional allowance of RUB 2,337. 88. According to the fifth and sixth applicants, their health deteriorated substantially as a result of the stress and devastation. In particular, the sixth applicant had to receive extensive psychiatric and neurological treatment following a nervous breakdown caused by living through the disaster and its consequences. 89. In support of their allegations the applicants submitted numerous newspaper articles, official letters, documents and witness statements to the Court. In so far as relevant, these documents read as follows. 90. Official letter of 30 August 1999 from the director of the Mountain Institute, Mr M. Zalikhanov, to the President of the KBR: “As you know, earlier this year, on 20 August, a heavy mudslide with a volume of some 1 million cu. m was recorded in the valley of the Gerhozhansu River. The aerial visual survey made from a helicopter found that fluid material had formed in the upper stream of one of the mud-bearing deposits of Kaya-Arty-Su. At the same time, another mud-bearing deposit has formed in the Gerhozhan basin, in the Sakashili-Su River, and the mud reserves may soon become active. Given that the feed-through mud retention collector at the estuary of the mudslide basin has been destroyed by previous mudslides, and the river channel has filled up with mud deposits, the disaster may recur on a larger scale. We therefore request financial support to set up for the period of September radio-communication posts in the upper section of the river to warn civilians and the [emergency] services of the mud-hazard and to conduct engineering surveys to restore the mud-protection structure, which is now in a critical state of disrepair.” 91. Official letter of 17 January 2000 from the acting director of the Mountain Institute, Mr Kh. Kalov, to the Prime Minister of the KBR: “As you are well aware, the area around Tyrnauz is one of the areas most at risk of a mudslide in the Russian Federation. The mudslide retention dam erected here, which is 160 m long, 38 m high and 40 m broad ... was destroyed on 20 August last year. The devastating 1 million cu. m mudslide caused the collapse of the dam, with a 60 m fracture line. Damage was caused to Tyrnauz... In view of the high risk of mudslides in the coming year and given that the reconstruction of the dam does not appear financially or technically feasible, observation points must be set up in the upper section of the Gerhozhansu River to avoid casualties and mitigate the damage... with the task of monitoring the river and giving an emergency warning to civilians in the event of a mudslide ... Twenty-four-hour monitoring will be carried out in the period from 15 June to 15 September to provide a mudslide forecast and to inform the [Ministry for Disaster Relief of the KBR]... The Mountain Institute has a wealth of experience of such work in the Tyrnauz area, and will provide members of the expedition with salary, gear and equipment. We request financial aid of 100,000 roubles to cover field supplies and transport.” 92. Official letter of 7 March 2000 from the Head of the Elbrus District Administration to the Prime Minister of the KBR: “In August 1999 the mudslide from the Sakashili-Su tract blocked the bed of the Baksan River and directed the main water stream outside the retaining wall on the left side of the riverbed. As a result, the foundation soil and spandrels of the retaining wall have eroded and continue to erode. At the moment a 500 m section of the bypass road has been put completely out of service. The state of the foundation of the retaining wall is near critical. When the thaw floods begin in spring it may lead to the collapse of sections of the retaining wall of the defence system above the hollowed out soil. Their reconstruction will be very costly. The mudslide has also filled up the mud conveying channel to up to 25-30% of capacity; if another mudslide occurs, the mud conveying channel may overflow and flood the residential neighbourhoods of Tyrnauz. This could lead to an emergency on a scale that is impossible to predict, with record financial losses and, probably, casualties. Taking the above into account, the Elbrus District Administration requests financial aid to perform the above work.” 93. Interview with Mr M. Zalikhanov, published in the national newspaper Rossiyskaya Gazeta on 26 July 2000. MZ: It is not only nature that must take the blame for the tragedy [of 18-25 July 2000, but also] blatant irresponsibility on the part of officials and their reluctance to follow the recommendations of specialists. ... RG: ... could this disaster have been foreseen? And why did the mud protection dam on the Gerhozhansu River fail? MZ: ... Tyrnayz is a mining centre of the [KBR] ... and because of its geographical position it is under permanent threat from mudslides. The most disastrous were the mudslides of 1964 and especially of 1977. [The latter] destroyed over thirty houses in the town centre, and casualties were avoided solely because the specialists of the [Mountain Institute] gave a timely warning to the town authorities about the impending disaster. Later it was decided ... to erect a mud-protection system. I was ordered to develop specifications for the construction ... one of such mud retention dams ... [it] was launched last year. RG: Is it true that you then refused to sign the commission acceptance report for the mud-protection system? MZ: Yes. Why? Because the first construction stage of the complex had been sitting unfinished for over four years. There remained a great risk that the first mudslide to arrive, even if relatively feeble, would break the complex because its top section was not firmly anchored to solid rock. The funding for the completion of the construction had been allocated, but as to where the funds had disappeared (between Nalchik and Tyrnauz), nobody could give me a clear answer. Stressing the importance of this issue and the need to complete the construction, I made numerous appeals to the [KBR President], V. Kokov, and to the Minister for Disaster Relief of the Russian Federation, S. Shoigu. Finally more funds were allocated and the construction was ostensibly brought to completion. ... I refused to take part in the [inaugural ceremony] because of concern for my expert and academic reputation. My assistant specialists, in particular my deputy for the construction [Mr R.] and the geologist [Ms N.S.] drew up a report; here are some extracts from it: '... a failure to submit [project documentation] makes it impossible to assess the project's compliance [with the specifications]... Given the novelty of the [design] ... the high levels of seismic activity in the area, the high fail-safety requirements for the dam structure, any deformation of which may increase the impact of a mudslide on the town of Tyrnauz and thus significantly aggravate the mud hazard, and also taking into account the inordinate time taken to complete the construction work, with intervals as long as four years, it is necessary to subject the facility to a special architectural survey. [A number of serious technical deviations] give grounds for suspecting a degree of tension within the construction, even without mud or seismic impact. All of this considerably reduces the project capacity of the dam. The visual survey of the dam construction showed signs of wear and tear of sections of it even without mud...' RG: So even though Zelikhanov, a Member of the Academy, did not sign the report, the facility was nevertheless put into service? MZ: Yes. And within two months [it] had been destroyed by a mudslide of far from catastrophic intensity. I wrote to the KBR Minister for Disaster Relief, A. Turkinov ... and in August last year advised the KBR President, V. Kokov ... that the mud reserves might become active in the near future ... and that the disaster could be repeated on a much larger scale ... and requested assistance in finding resources for setting up surveillance posts ... and carrying out an engineering study to restore the construction, which was in a critical state... I believe that it is of the utmost importance to set up [without delay] a competent commission comprising prominent experts to establish the true causes of the tragedy. ... Another commission is also needed ... to develop a complex programme for the protection of the KBR community from environmental hazards...” 94. Interview with Mr O. Baydayev, the first Deputy Head of the Elbrus District Administration, published in the local newspaper Gazeta Yuga on 3 August 2000: “... 1.2 million roubles were allocated from the district budget to clear the mud conveying channel. We sent this money for clearing the [mud conveying] channel. Otherwise the outcome could have been even more disastrous. However, a mudslide of such force could not have been stopped even by a perfectly clear channel. About the warning. The very first impact [of the mudslide] tore down the electric wires and telephone cables. We were running around the town with two loudspeakers. It is possible we did not reach every single house or flat but the information was conveyed to every district of the town. On the very first night the town was divided into five sectors, temporary heads of administrations were appointed, and they received all the information. Understandably, people wanted to know how the mudslide would evolve, but even the scientists did not know that...” 95. Research note by Ms I. Seinova, holder of a research degree in geography, dated 26 August 1999. The text below is based on the text published in one of the KBR local newspapers after the mudslide of 2000 (the exact publication reference is not available): “The [1999] disaster at the Gerhozhansu mudslide retention dam has vividly demonstrated the danger posed by an unstable mudslide protection device situated above the town. ... The international practice of mudslide defence includes many examples of the collapse of a dam leading to a tenfold increase in the destructive force [of a mudslide] compared with the naturally occurring level... The mudslides on Gerhozhansu are among the most disastrous in the Central Caucasus. The volume of the 1977 mudslide was 3 million cu. m of mud and debris, discharging at 500 cu. m per second... In the current environmental and social situation the most reasonable solution would be to reject the idea of constructing a mud-retention dam. The top priority should be to dismantle the unstable blocks. Following the mudslide of 20 August [1999] the mud conveying channel retained a considerable amount of mud and debris deposit, but for the most part it settled in the flood-plain of the Baksan River. It is necessary to clear the mud conveying channel because its carrying capacity has reduced significantly...” 96. Interview with Mr V. Bolov, Director of the Centre for Disaster Monitoring and Forecasting of the Ministry of Disaster Relief, published on 28 July 2001 in the newspaper Gazeta Yuga following the Centre's field investigation into the 2000 mudslide: “V.B.: ... the expedition concluded ... that last year's mudslides in Tyrnauz were absolutely unique ... nowadays the profile of the mud phenomena in this basin has drastically changed for the worse. However, according to preliminary estimates, the extraordinary volume of [active] mud from last year is unlikely to be repeated this year, although the chances of several mudslides of variable intensity remain. G.Y.: So all of this may happen as unexpectedly as on 18 June 2000? V.B.: Here we can be certain that the situation has radically improved. The present position is that even before the beginning of the period when the mud is active, surveillance posts have been set up in the immediate vicinity of the glacier as well as [further down] where the mudslide gains force and becomes dangerous for the town. The [surveillance] posts are functioning and are provided with reliable communication facilities. That is to say, in so far as prevention is concerned, measures have been taken ... The second important problem is ... to close the twist in the mud conveying channel with a more secure wall. Work has been under way for some time. ... To sum up ... the mud activity in this gorge has increased because of last year's mudslide. At the same time the preventive measures that have already been taken inspire optimism. In any event, even if powerful mudslides develop, people's lives will undoubtedly be saved. G.Y.: Are there any effective methods of influencing the mud activity, for example by blowing up part of a slope or draining a glacier lake, so that the risk of a mudslide is reduced? V.B.: Yes, there are. ... but [their application] involves very complex and thorough calculations ... This question is currently being examined ... then it will be for the specialists and the authorities to decide whether to use this technology in the Gerhozhansu... ... At the same time in a number of mud-affected areas it is necessary to solve the question of [resettling the residents] outside the zone of mud activity in order to ensure [their] safety. This would be much cheaper and quicker. Engineering schemes involve tremendous expenditure, and given that funds are always lacking, are unlikely to offer a solution. Therefore, introducing restrictions in the mud-affected zones and regulating [building] within them, especially of a residential nature, is worth considering.” 97. Statement by Ms K, a friend of the first applicant: “On 19 July 2000 I, [K], born in 1970, decided on my way to work to call at my best friend Fatima's [the second applicant's] home. On the previous night I arrived in town late and went straight to bed ... unaware of what was happening in the town. At 7.30 a.m. on the morning of 19 July, I went out and saw people gathered on the mountain ... and found out that a mudslide had hit Fatima's house... The bridge had been destroyed and I could not cross to the other side where her house was. I decided to enquire after Fatima and went to the home of her sister Khalimat [the first applicant], who lives on this side. I saw the police nearby and asked them if I could go to this house [pointing at the first applicant's house] and they confirmed that I could, adding that the electricity had been switched back on two hours previously, and people were allowed back in their flats. I headed there with no apprehension, went up to the sixth floor ... walked in and found them asleep. I woke up Khalimat and she told me that on the previous night Fatima had crossed to the other side of the river. We had been talking for about 15 minutes when we heard a loud rumble. I rushed out to the balcony and saw people running. Khalimat also rushed to wake up her husband and children. I grabbed their youngest son, three-year-old Inar, and ran downstairs. On my way out I saw Khalimat's husband [Vladimir] looking for his trousers and Khalimat herself following me with her eldest son Magomed. Between the third and fourth floors I felt the stairs pitching and realised that the house was collapsing. We fell and I found myself locked with the child under a [concrete sheet] with dust, blood and debris around me. I pushed Inar up between the sheets so that he could get out. A man saw him and pulled him out but I stayed under the sheet. I could feel my legs but could not see them ... they were buried under a concrete sheet... I later saw three dead bodies underneath the same sheet (a woman and two children of about three to five years of age). I tried to pull my legs out but felt an awful pain in the pelvis... Eventually I was helped out by the emergency services and taken to hospital... For two months I was immobilised and continued to receive treatment for a further nine months... I did not sue... Every time I applied [to the authorities for medical or welfare benefits] I was asked why I had gone there in the first place, to which I could only answer that nobody had stopped me or warned me that it was dangerous; on the contrary, they had told me that I could go in... I am a reasonable person and would never have headed towards the danger if only I had been warned...” 98. Statement by Ms T.K. who lived at 17 Otarova Street, Tyrnauz: “... On the night of 18 July 2000 I, my husband and our grandson were woken up by a terrible rattling noise. We realised at once that it was a mudslide. We rushed out dressed in whatever we were wearing. It was raining heavily, people were running in fear and panic in all directions. The rest of the night we spent up in the mountains, trembling with cold and fear. In the morning, we saw the awful spectacle of the town partly covered in mud and rocks with some areas, especially Otarova Street, destroyed by the mud, and the centre flooded with water from the Baksan River. By about 11 a.m. [on 19 July] it seemed to everybody that the flow of mud had begun to settle and we approached our house. Nobody stopped us, there were no barriers. All the residents of our apartment block and of the two neighbouring nine-storey apartment blocks returned to their flats. We ate and went to sleep. I woke up because the house was shaking and I heard the noise and people screaming. I opened the door and saw that the right side of our house was missing and the staircase had collapsed. I grabbed my grandson and ran out to the balcony where the fire exit was. We could only make it to the fourth floor where the fire staircase ended; there were about 30 of us gathered there, while people from the lower floors were jumping out of their windows and balconies, which I could see. My neighbours, the men, found some ropes and began taking us down, the children first and then the women. It took me a while to come to my senses after the descent. My neighbour, [the first applicant], was crying and asking about her husband and child. But nobody knew what had become of them and the rest of us were also looking for our relatives. After these events we were in a state of shock for a long time, but no one paid any attention to us. The authorities still do not admit that they were not actually in control of the situation and that nothing had been done to save us from the disaster. They had taken no measures before the mudslide, or while it continued from 18 to 25 July, basically leaving us to our own devices. In our apartment block alone four people were killed and many were injured and remained disabled for life; it is a pity, especially about the children. Nobody knows how many people in fact died, in particular on the night of 18 July, as these facts have been vigorously concealed. We did not bring proceedings with a view to punishing those who were really responsible for everything we had had to endure, because we were sure that the court would never give a just ruling as these people occupy very high posts.” 99. Statement by Mr B, father of the first and the second applicants: “... Almost every year a mudslide descends through the bed of the Gerhozhansu River. Back in the 1970s there existed a special organisation to monitor the river estuary, and an alarm outside the factory would be activated when the [lookouts] warned the duty officer of danger. In the 1980s all that was [abandoned]. ... On the night of 18 to 19 July [2000] my wife and I were at home. We went to bed at about 10 p.m., but I was soon woken up by my wife's cries. I went out to the balcony but could not see anything because the electricity pylons had been taken down by the flow of mud. I lit a torch and saw the mud running through the entrance to our apartment block... I saw a passenger car being carried along by the wave of mud... The staircase had collapsed and the house was falling apart. ... we did not know what to do. I picked up the phone. It was still working, so I dialled the police and reported what was happening to us, and they told us to “wait, help will come”. We sat there until 3 a.m., until my son-in-law Vladimir Budayev, his friends and our neighbours came [to help] us... Just before the mudslide [of July 2000] we sent a collective petition to the Head of the Elbrus District Administration, Mr B.Sh. Chechenov, asking for the waterway to be cleared. Having received no reply to our petition, we went to meet him for public consultations. At our meeting he said that he had no money to clear the waterway, as no funds had been allocated, so there was nothing he could do for us. We suggested writing a letter to the government requesting the funds, but he began shouting at us that the government had enough work to deal with without us. We then demanded that a commission be set up to find out whether it was true that no money had been allocated for clearing the mud conveying channel, after which B.Sh. Chechenov called the police and they escorted us – respectable people, men with grey hair – out of his office... Then the mudslide occurred, and if only timely measures had been taken many victims could have been spared and there would not have been destruction on such a scale. Many of the casualties could have been avoided. Could they not have told people just an hour before the mudslide what they had known for 11 days before the tragedy? ... ...I lost my flat; my children were left without their flats, property, and most importantly my son-in-law was killed, my grandson remained between life and death for a long time, my granddaughter Indira and my grandsons Inar and Magomet Budayev are still receiving medical treatment ...” 100. Statement by Ms Zh. who lived at 42 Otarova Street, Tyrnauz: “... The mudslide of 2000 was terrible. It took away my home, all my possessions... On the night it occurred I was at home at 42 Otariva Street, already asleep. I woke up because of the rattling noise. I tried to get out of the flat but could not. I was crying out for help ... but nobody could hear me because of the horrible noise of the mudslide. ... ... This night was the most harrowing of my life ... because of the stress I lost my eyesight and cannot see anything now. For this I blame the mudslide and our authorities who did not prepare people psychologically for the possibility of a natural disaster and found themselves unable to provide relief to the victims...” 101. Section 6 of the Federal Law of 21 December 1994 No. 68-FZ “On Protection of Civilians and Terrains from Emergencies of Natural and Industrial Origin” imposes an obligation on the federal, regional and local authorities to promptly and accurately inform civilians through the mass media and other channels of information about any emergency situations and the safety measures taken to protect the population and about any forecasted disasters and means of protection against them. The same Section provides for the liability of State officials in the event of their failure to make this information public. 102. Section 7 of the same Law provides that prevention of emergencies and mitigation, to the maximum extent possible, of damage and losses constitutes one of fundamental principles of emergency relief and requires that all preventive measures be carried out in sufficient time in advance. 103. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage. Pursuant to Article 1069, a State agency or a State official is liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. 104. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
| 1 |
train
|
001-91399
|
ENG
|
UKR
|
CHAMBER
| 2,009 |
CASE OF MALENKO v. UKRAINE
| 3 |
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
|
Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
|
5. The applicant was born in 1961. Before his detention he lived in Mariupol. In May 1997 the applicant was recognised as falling into the second category of invalidity (the medium level) because of a spine disease. In November 1998 his invalidity was reclassified as being of the third category (mildest level). 6. On 16 April 1999 the applicant was detained on suspicion of murder. He was placed in the Mariupol Pre-trial Detention Centre (hereinafter “the Mariupol SIZO”). 7. In the period between 16 May and 5 June 1999 the applicant was kept in the Donetsk Pre-trial Detention Centre. On 5 June 1999 the applicant was returned to the Mariupol SIZO. 8. On 17 June 2000, after the applicant’s conviction, he was transferred to the Donetsk prison no. 124. 9. On 22 July 2000 he was transferred to the Gdanovsk prison no. 3. 10. On 15 December 2000 the applicant was returned to the Mariupol SIZO. 11. On 21 February 2003, after the retrial of the applicant’s case, upon which he was sentenced to imprisonment for a longer period, he was transferred to the Sokiryanska prison no. 67. 12. On 6 January 2005 the applicant was transferred to the Dykanivska prison no. 12 where he is still serving his sentence. 13. According to the applicant, when he was held in the Mariupol SIZO the cell was constantly overcrowded, so that three persons occupied one bunk and had to take turns to sleep. The cell was not properly ventilated with fresh air and he did not have access to daylight. The nutrition was insufficient. The medical care was inadequate in particular in view of the fact that in April 2000, in addition to his poor health, he contracted tuberculosis. He had not been provided with any medical treatment as regards his spine disease. 14. The applicant alleged that during his detention in the Sokiryanska prison no. 67 he suffered from the poor medical care and food supply which was inappropriate in view of his health problems. The cell was always damp which had an additional negative impact on his health. 15. As regards the Dykanivska prison no. 12, where the applicant is currently held, he states that the cell is lit by a wan electric lamp and dim daylight, restricted by glass blocks. This has led to the deterioration of his sight. However, despite his request to this effect, the applicant has not been examined by an ophthalmologist or provided with the necessary medical treatment. Moreover, despite the tuberculosis which he contracted in the Mariupol SIZO, for a year and a half he has not been provided with any medical care for this disease. In addition, his requests to receive the necessary medical treatment in respect of his spine disease have been ignored. 16. The mandatory ventilation in his cell is not available and the window does not open because of metal bars attached to it. The lack of adequate ventilation is further aggravated by a general tolerance of smoking in the cells and outside during walks. 17. The applicant is employed at the factory at the Dykanivska prison no. 12. He alleges that on his way to his working place and back he is strip searched in the presence of other inmates and in any season. He states that these searches are conducted in premises that are unequipped for this purpose. 18. The applicant complained about the conditions of his detention to various State authorities. In particular the applicant complained to the State Department for Execution of Sentences claiming that the material conditions of his detention had been inappropriate and that due to his tuberculosis and spine diseases he required medical treatment and support. In his letter to the Commissioner for Human Rights of the Parliament of Ukraine the applicant complained, inter alia, that his requests to provide him with medical treatment had been constantly ignored by the relevant authorities. He further specified that due to his spine problem his right leg became less and less functional. 19. The Government submitted that during the applicant’s stay in the Mariupol SIZO he was kept in various cells with an average surface area of 19 m2 and usually equipped with 10 bunks. The Government did not specify the number of detainees kept there at the relevant time. 20. According to the Government the cells of the pre-trial detention centres and the prisons, where the applicant stayed, were equipped with a sufficient number of bunks, tables and chairs. The windows of the cells were large enough to provide access to fresh air and daylight. The applicant has always been able to take a one-hour walk per day. 21. The Government further maintained that when held in the prisons, the applicant was provided with at least 3 m2 of living space in the cell, an individual bunk and bedclothes. The nutrition was sufficient and complied with the domestic regulations. 22. The Government submitted that during the applicant’s time in the Mariupol SIZO and the prisons he was always offered adequate medical treatment in respect of his tuberculosis disease. 23. In particular, on 9 December 1999 the applicant had been x-rayed for preventive purposes. In June 2000 the applicant was placed in the hospital of the Donetsk prison no. 124 where he was provided with a non-specific antibacterial pathogenesis therapy. However, in July 2000 the applicant was diagnosed with tuberculosis and transferred to the special tuberculosis hospital in the Gdanovsk prison no. 3. 24. In December 2000 the applicant was released from the prison hospital with a diagnosis of tuberculosis and transferred to the Mariupol SIZO where he was provided with further anti-tuberculosis treatment. Since then the applicant has been regularly x-rayed and provided with adequate anti-tuberculosis treatment. 25. In June 2007 the applicant was examined by the ophthalmologist and proper treatment was prescribed for him. 26. The Government did not submit any factual details in respect of the applicant’s allegations about the strip search practice at the prison factory where he works. 27. The relevant provisions of the Constitution of Ukraine and the PreTrial Detention Act can be found in the judgment of 12 October 2006 in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 28-31, 33-35 and 37). 28. Section 17 of the Act provides that persons suffering from tuberculosis detained in pre-trial detention centres (SIZOs) must receive appropriate treatment in the medical units of these detention centres. Persons detained in prisons should be treated in specialist prison hospitals. 29. The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows: “... The situation in investigation wards is perhaps the worst, [owing to] their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine’s investigation wards had available space for 32,800 detainees, but in reality held 44,700. The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. ... The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy. In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in prisons. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media...” 30. The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention, severe overcrowding, lack of adequate medical treatment and assistance, inadequate nourishment, and the inadequate financing of the needs of the pre-trial detention facilities. The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases. It mentioned for instance that in 1999 only 19.7% of the necessary food supplies were financed from the State budget (12.7% in 2000), and 6.7% of the medical supplies (12.7% in 2000). The average medical expenditure per person was UAH 18.7 in 2000 (compared to the required amount of UAH 220) and UAH 20.7 in 2001 (compared to the required amount of UAH 245.2). 31. The relevant extracts of the reports of the Committee for the Prevention of Torture can be found in the judgment in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-49). 32. The relevant international reports and other materials concerning the treatment of tuberculosis in Ukraine are summarised in paragraphs 50-53 of the Melnik judgment, cited above.
| 1 |
train
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001-89767
|
ENG
|
POL
|
ADMISSIBILITY
| 2,008 |
WOLEK, KASPROW AND LESKI v. POLAND
| 4 |
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicants, Mr Tomasz Wołek, Mr Rafał Kasprów and Mr Jacek Łęski are Polish nationals who live in Warsaw. They were represented before the Court by Mr R. Nowosielski, a lawyer practising in Gdańsk. , may be summarised as follows. On 23 August 1997 the daily newspaper “Życie” of which the first applicant was editor-in-chief, published an article entitled “Holidays with an agent” (“Wakacje z agentem”), written by the second and third applicants. The authors made an allegation that the then President of Poland elected in 1995, Aleksander Kwaśniewski, had spent his holidays in 1994, before he had been elected to office, in the same hotel as a Russian spy resident in Poland at that time, a certain W.A., and had had extensive contacts with him. He had at that time been a member of Parliament (Sejm) and represented the Alliance of the Democratic Left (Sojusz Lewicy Demokratycznej– “the SLD”). The opening text under the heading read: “There were no accidental visitors to the Rybitwa [a hotel in Władysławowo]. The élite of the Polish post-communists and business had been spending their holidays there for a long time. And, as it happens, an agent of the Russian intelligence services, W.A., also stayed there. And they formed, as the employees of the hotel say, 'a particularly close-knit company'. The article read: “Aleksander Kwaśniewski [the President] often spent his holidays in the Main Sports Centre in Władysławowo[-Cetniewo]. In the summer of 1994 he arrived there with his family and took a room in the Rybitwa. Subsequently, W.A. took a room in the same building. The Rybitwa should not be confused with the main building of the Centre. The latter can house up to several hundred people, while the Rybitwa, situated only a short distance away in a secluded place contains only twelve apartments. As the employees of the Centre say, visitors to the Rybitwa are most certainly not there by chance. Most often they are friends of J.K., the Centre's director, a former official of the Polish United Worker's Party (PZPR). Communist officials often visited the Centre, and later also officials of the SLD. When wellknown public figures visited the hotel it was kept under special surveillance by security agents. The Kwaśniewskis visited Rybitwa from 25 July to 15 August 1994. They got the best apartment, on the third floor. On 5 August, in the early hours, W.A. arrived at the Centre and remained there also until 15 August. He was introduced to the employees by the deputy director of the Centre as a “special guest of director K.”. This colonel of the Russian intelligence was given apartment no. 1, just beside the main entrance to the hotel and close to the reception room. Neither A. nor Kwaśniewski was listed in the official list of the hotel's guests, even though it was mandatory. Nonetheless, thanks to the efforts of some of the former employees of the Centre, we managed to obtain copies of invoices by which they had both paid for their stay in the Rybitwa. After we announced on Friday the publication of the present article, at yesterday's press conference the journalists asked Kwaśniewski whether he had ever had contacts with A. 'I have never met him' said the President firmly. Nevertheless, having conducted some investigations, we have found persons who tell us of meetings which A. and Kwaśniewski held at the Centre. We have talked with thirty employees of the Centre, past and current. Most of them are afraid to talk about what was going on in the Rybitwa. Some of them remember, however, that its visitors were good chums. They often had drinking parties. On at least one such occasion A. and Kwaśniewski were seen together. One former employee remembers another meeting between Kwaśniewski and A. This time, it was a tête-à-tête. 'They met in the socalled lower dining room in the main building of the Centre' says the employee, who was serving at their table. 'Apart from Kwaśniewski and the Russian, nobody else was present. I remember that they spoke in Polish, but some Russian words were thrown in from time to time.' After a while, having looked at a photo, this employee recognised A. and remembered that it was he who had had lunch with Kwaśniewski. A. served in the KGB from 1973. From 1982 to 1988 he worked in the Soviet Union embassy in Warsaw. Between 1990 and 1992 he was First Secretary of the embassy responsible for political affairs, and at the same time deputy to the Head of the KGB in Poland, General Walentij Smirnow. A. formally left the service in 1992. After that he worked as a socalled secondline officer, which meant that he carried on his spying activities, posing as a businessman and a civilian without any links to the Russian State apparatus. He became known in Poland after it became publicly known that he had been a longtime friend of the then Prime Minister, Józef Oleksy. Minister [of Internal Affairs] Andrzej Milczanowski accused Oleksy of being a spy. However, the investigation was discontinued as the prosecution authorities found that there was insufficient evidence to put Oleksy on trial. During his stays in Poland A. was, as far back as April 1994, kept under surveillance by the State Security Office (Urząd Ochrony Państwa). In the White Paper, a compilation of documents published by the Government's Information Office and relating to the Oleksy case, we find information that during the summer months the Russian was in Cetniewo. However, we find no information there about his activities or contacts during that time – despite the fact that there is a wealth of information concerning his movements before and after his stay in Cetniewo. In early September 1994 the State Security Office warned Oleksy that he should sever his ties with A. The then Director of the Office, G.C., stated later that it had been found that A. had been particularly active during the holidays, the better part of which he, like Kwaśniewski, spent at the Rybitwa. The newspaper also published two portrait photographs, one of the plaintiff and one of A., with the following caption: Friends from the beach – President Aleksander Kwaśniewski and W.A., Soviet and Russian intelligence officer. The article was accompanied by copies of invoices paid by the President and W.A. for their stay at the Rybitwa. In the same issue of “Życie” an article entitled “The Biggest Scandal of the Third Republic” was published. It summarised the affair in which in December 1995 A.M., the then Minister of the Interior, declared in Parliament that the then Prime Minister Józef Oleksy, a member of the same political party to which the President had belonged before his election in 1995, had been a Soviet spy recruited by W.A. The President lodged a civil action with the Warsaw Regional Court against the applicant and the publishing house which published “Życie”, claiming that the defendants should publish apologies for the text, which he qualified as deliberately misleading given that he had never met W.A. He also requested that the applicants pay, jointly, 2,500,000 zlotys (PLN) to the Polish Red Cross. During the proceedings the court heard evidence from five witnesses with whom the authors had spoken before the article was published and six other witnesses whom they had contacted after its publication. The court further heard evidence from seventeen witnesses called by the plaintiff. It also had regard to thirty-seven documents submitted by both parties, which all related to the plaintiff's schedule and private and public activities between 5 and 15 August 1994. The court examined an expert opinion verifying the plaintiff's signature on attendance lists of various parliamentary bodies during the material period. The applicants argued, inter alia, that in publishing the article they had exercised their freedom of expression, and referred to Article 10 of the Convention. By a judgment of 22 May 2000 the court partially allowed the plaintiff's claim. It had regard to thirty-seven documents relating to the essential message of the article, namely that the plaintiff had spent his holidays in Władysławowo in 1994 at the same time as A. and had had friendly contacts with him. The court concluded that the evidence before it was insufficient to make a finding that the applicants had shown sufficient diligence in gathering the material for their article. It further observed that the material which they had had at their disposal before publication was insufficient for the conclusion, which they had nevertheless presented in the article, that the plaintiff had indeed spent the period concerned in Władysławowo, that he had been A's friend and that they had stayed in the same hotel at the same time. It ordered the applicants to publish an apology in their newspaper, worded as follows: “Editor-in-chief of “Życie” [...] and [the second and third applicant] present their apologies to Mr Aleksander Kwaśniewski for having breached his personal rights by publishing in “Życie” of 23-24 August 1997, No. 196 (273), in the article “Holidays with an agent”, untrue information suggesting that in the first half of August 1994 he had spent holidays in hotel “Rybitwa” in the Main Sports Centre in WładysławowoCetniewo and that he had had close contacts with [W.A.]; moreover the [applicants] apologise for the manner in which the title of that article was formulated, for publication of the photographs on the first page of the newspaper and for the caption underneath.” The court dismissed the remainder of the claim and ordered each defendant to pay PLN 4,900 in reimbursement of the court fee paid by the plaintiff. No award regarding the reimbursement of other costs borne by the plaintiff was made. The applicants appealed. They argued that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence. This failure had had a direct bearing on the court's conclusion that they had failed to act with diligence when preparing and publishing the article concerned. They further argued that the court had ordered them to publish an apology with a different content from that requested by the plaintiff. The applicants finally referred to the Constitution, in so far as it guaranteed freedom of expression and access to information. By a judgment of 27 February 2001 the Court of Appeal allowed the appeal in so far as the first-instance court had ordered the applicants to apologise for the photographs published on the first page of the newspaper and for the caption underneath, and discontinued the proceedings in the relevant part. The court observed in this connection that the plaintiff's claim had not related to the photographs and the caption and that the court, consequently, had not been required to rule over and above the claim. The court dismissed the appeal in its remainder. It observed that the provisions of the Constitution adopted in 1997 relied on by the applicants could not be applied because they had entered into force after the events concerned. Nonetheless, at the material time freedom of expression had been guaranteed by Article 10 of the Convention, ratified by Poland in 1993. The court went on to state: “The caselaw of the European Court of Human Rights provides that freedom of expression of the press plays an essential role in a democratic society. Although the press should not overstep certain bounds, in particular in respect of reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. There is little scope for restrictions on political speech or on debate on questions of public interest. The limits of acceptable criticism are wider with regard to a politician than with regard to a private individual. A politician is entitled, like any other citizen, to legal protection of his or her personal rights and reputation, but the scope of this protection is considerably narrower than in respect of private individuals. Such an interpretation of Article 10 of the Convention was made in [the Court's] cases Oberschlick v. Austria (no. 1), 23 May 1991, Series A no. 204; Schwabe v. Austria, 28 August 1992, Series A no. 242B; Castells v. Spain, 23 April 1992, Series A no. 236 (...) All these cases were brought [to the Court] by journalists who had been parties to criminal proceedings on charges of defamation against politicians. Neither the veracity of information which they had published nor their diligence had been challenged by domestic courts. None the less, various criminal sanctions had been imposed on them. The [European] Court did not criticise the mere fact that the applicants had been found criminally liable; it found violations of Article 10 finding that the measures complained of had not been necessary in a democratic society.” The court further noted that the article had attributed to the plaintiff close and friendly contacts with the agent of the KGB, an assertion which in Polish society could not but provoke negative reactions. Hence, the firstinstance court had been right in its finding that the plaintiff's reputation, protected by Article 24 of the Civil Code as one of his personal rights, could be negatively affected. The defendants' conduct could only be protected if it was found to be lawful within the meaning of that provision. However, it could not be so qualified. It was true that the defendants had shown diligence and good faith when gathering the material for the article, in that they had talked with many persons who could have known about the plaintiff's holidays in 1994. Nevertheless, the conclusions which they had drawn on the basis of that material published in their article, were seriously flawed. While there had been sufficient grounds for a finding that the plaintiff and his family had spent some time in the hotel concerned in July and August 1994, it was also clear that during this period the plaintiff had left Władysławowo from time to time to attend to his political duties. There were no indications, let alone any sound evidence to show that he as much as had ever seen W.A. during this period, let alone been friends with him, as was strongly suggested, or that the two men had met in private while at the Rybitwa. While it was true that, on the whole, the article did not contain obvious statements of opinion, it was clearly implied that the plaintiff's conduct had been reprehensible. The court went on to state that the reasoning of the first-instance court as to the admissibility and assessment of the voluminous evidence before it had been correct and logical. The defendants had failed to show that the article's conclusion that the plaintiff and W.A. had indeed been friends, who in 1994 had spent holidays together, had any factual basis. Their conduct when publishing the article presenting such a conclusion regarding facts, based on manifestly flimsy grounds, was open to criticism and the lower court had been right in making such a finding. The court further noted that in the same issue another article had been published. It referred to the close contacts between Józef Oleksy, one of the leaders of the party to which the plaintiff belonged, and A.W. The tone of the article concerned, seen in that context, clearly suggested to the reader that there might have been close relations also between the plaintiff and the KGB officer in question. This was not sufficiently borne out by the evidence, either that gathered by the plaintiffs prior to the publication or that available to the first-instance court. The applicants lodged a cassation appeal with the Supreme Court, making essentially complaints similar to those contained in their appeal. By a judgment of 14 May 2003 the Supreme Court quashed the judgment of the appellate court in so far as it had dismissed the applicants' appeal, and remitted the case to be reheard by that court. The Supreme Court observed: Pursuant to section 1 of the Press Act the press is obliged to safeguard the citizens' right to obtain reliable information, to ensure transparency of the public life and to exercise public control and supervision of public affairs. This is why the press enjoys the freedom of speech and print, guaranteed by the Constitution, and when the impugned article was published – by the constitutional provisions as amended in 1990 and 1992, and also by Article 10 of the European Convention for the Protection of Human Rights. The importance of tasks to be fulfilled by the press and their character taken together with the freedom it should enjoy provide foundations for its crucial role in a democratic society. This is why it is often referred to as “a fourth power”. The press is obliged to impart an accurate picture of social phenomena which it presents to the public. The significance of this duty flows from the fact that it has been included in section 1 of the Press Act. Hence, it is not open to doubt that the press should provide accurate information. However, the obligations incumbent on journalists could not be interpreted as a straightforward obligation to present only “true” information to society. Similarly, one cannot say that every instance of publishing untrue information amounts to unreliability on the part of the press. It should be borne in mind that the journalists have at their disposal only limited measures, that it is impossible for them to have access to all sources of information and that, as a result, it often is not feasible to give a complete picture of a given situation or event. If the journalists were obliged to write only “truth”, it would amount to a serious restriction on the exercise of the freedom of expression guaranteed by Article 10 of the Convention. The Supreme Court referred to the Dalban v. Romania judgment of the Court (Dalban v. Romania [GC], no. 28114/95, ECHR 1999VI). However, it noted that journalists were obliged to act with diligence when gathering and verifying information for the purposes of publication. It was a lack of such diligence which could make their conduct unlawful and consequently entail a breach of Article 24 of the Civil Code. It had not been convincingly demonstrated that the defendants' conduct when preparing and publishing the article concerned had lacked such diligence. Hence, the judgment of the appellate court had to be quashed and the applicants' appeal reexamined. By a judgment of 13 September 2004 the Warsaw Court of Appeal reexamined the applicants' appeal and dismissed it. As a result, the firstinstance order to publish their apologies for having published the article was upheld. The defendants were also ordered to pay PLN 450 to the defendant to cover his costs incurred in the appellate proceedings. The court was of the view that the defendants had failed to show diligence when gathering the material on which they had later based their article. The evidence gathered by them and by the first-instance court had shown that the plaintiff had indeed been in Władysławowo from 25 July to 2 August 1994 which, in any event, had not been in dispute. However, on 3 August 1994 he had travelled from Warsaw to Ireland. Subsequently, he had come back to Warsaw on 7 August and from that date until 13 August had attended to his political duties, as confirmed by various witnesses and documents. In the light of the evidence, there had been no grounds on which to accept that he had been in Władysławowo-Cetniewo from 5 to 15 August 1994, when W.A. had been spending his holidays there. Likewise, there were no grounds for a conclusion that the plaintiff and A.W. had been friends or that they had been members of a “particularly close-knit company” as alleged in the article. The court concluded that in the light of the evidence gathered by the defendants themselves prior to publication of the article and, additionally, other evidence submitted to the first-instance court, the conclusions drawn by the defendants, namely that the president and W.A. had spent their holidays in 1994 in the same hotel as good friends, lacked any factual basis. It was of the view that the defendants had not demonstrated the necessary objectivity and detachment when presenting their conclusions to the public, also because they had omitted to present in reasonable detail the basis on which they had reached those conclusions. The applicants lodged a cassation appeal with the Supreme Court, raising various procedural complaints to the effect that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence. By a decision of 28 October 2005 served on the applicants' lawyer on 17 November 2005, the Supreme Court refused to entertain their appeal. Article 14 of the Constitution, adopted in 1997, provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 54 of the Constitution reads: “1. The freedom to express opinions to acquire and to disseminate information shall be secured to everyone. 2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.” Article 61 of the Constitution, in so far as relevant, provides: “1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury. 2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings. 3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security or important economic interests of the State.” Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads: “The personal rights of an individual, such as in particular the rights to health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work [as well as] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions.” Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. Where an infringement has taken place the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: (1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; (2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” The Supreme Court could, pursuant to Article 393 of the Code, refuse to entertain the cassation appeal if: “(i) there [was] no appearance of any significant legal issue in the case; (ii) there [was] no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts' case-law; (iii) the appeal [was] manifestly ill-founded.” Article 393 continued: “2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
| 0 |
train
|
001-75104
|
ENG
|
BGR
|
CHAMBER
| 2,006 |
CASE OF RAICHINOV v. BULGARIA
| 3 |
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
8. At the relevant time the applicant was the head of the Ministry of Justice’s division responsible for the financial and logistical support for the judicial system. In this capacity, he sometimes attended the meetings of the Supreme Judicial Council – the body responsible for, inter alia, allocating the judicial budget. The Supreme Judicial Council consists of twentyfive members, including the chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court, and the Prosecutor-General. Its meetings are presided over by the Minister of Justice. 9. The Supreme Judicial Council held a meeting on 15 December 1993, at which the issue of the endofyear bonus for judges, prosecutors, and investigators was discussed. The applicant attended the meeting, as he usually did in cases when budgetary matters were considered. The deputy ProsecutorGeneral, Mr S., who was a member of the Council, was also present. 10. At some point during the meeting, after commenting the provisions of the State Budget Act, the applicant said: “You have decided to have financial matters dealt with by Mr S. For me he is not a clean person...”. He then added: “I can prove this”. The Prosecutor-General reacted vehemently, asking the applicant to leave the room. The applicant tried to continue but was interrupted by Mr S. who asked him to clarify what he meant by “unclean person”. The Minister of Justice intervened and requested the applicant to retract the words “unclean person”. The Prosecutor-General reacted immediately: “There is no retraction, there are prosecution authorities. This is already a problem, this is already a crime”. The Minister insisted on the applicant apologising for the words “unclean person”. Thereupon the applicant said: “Alright, I apologise”. Because of the tense situation all financial matters which were due to be discussed at the meeting were adjourned. 11. Immediately after the meeting the ProsecutorGeneral requested a copy of the minutes. He received it on 27 December 1993 and on 12 January 1994 sent it to the Sofia City Prosecutor’s Office with instructions to carry out a preliminary inquiry with a view to opening criminal proceedings against the applicant. On 11 February 1994 the Sofia City Prosecutor’s Office transmitted the case file to the Sofia District Prosecutor’s Office with instructions to open criminal proceedings against the applicant for insult. The investigation was to be performed not by an investigator, as would usually be the case, but by a prosecutor. 12. On 16 February 1994 the Sofia District Prosecutor’s Office instituted criminal proceedings against the applicant for “having said publicly ‘for me he is not a clean person’ in respect of [Mr S.] in his presence ... which was degrading for the latter’s dignity”, contrary to Article 148 § 1 (1), (3) and (4) in conjunction with Article 146 § 1 of the Criminal Code. 13. On 20 April 1994 the applicant was charged. 14. The investigation was concluded on 16 June 1994 and the applicant and his counsel were allowed to consult the case file. After having done so, counsel for the applicant requested that all members of the Supreme Judicial Council who had been present at the meeting be questioned and that an expert report be prepared to compare the audio tape of the meeting with the written minutes. The prosecutor in charge of the investigation refused, reasoning that the facts of the case had been elucidated by the evidence already gathered, which supported the accusation. 15. The applicant was indicted. The trial against him took place on 11 April 1995 at the Sofia District Court. The court heard two witnesses: the alleged victim of the insult, Mr S., and another member of the Supreme Judicial Council. Mr S. stated that it was difficult for him to say whether the applicant’s remark had changed the Supreme Judicial Council’s opinion of him. The other witness stated that sometimes the discussions in the Council were quite heated but that no one had ever used such words or made such remarks. Three other witnesses called 16. After that the court heard the parties’ closing argument. Counsel for the applicant pleaded for a verdict of not guilty, relying, inter alia, on Article 10 of the Convention. She argued that the words “for me he is not a clean person” were only an expression of the applicant’s personal opinion about Mr S. The applicant’s words were objectively not rude, vulgar or insulting. He had simply exercised his right to voice what he thought about another person, in purely neutral terms. To equate this with an insult would mean that only those who had a favourable opinion of Mr S. would be allowed to express it. In her view, the entire case had been sparked by the ProsecutorGeneral’s vindictiveness. 17. In a judgment of 12 April 1995 the Sofia District Court found the applicant guilty as charged and sentenced him to a fine of 3,000 old Bulgarian levs (BGL) and to a public reprimand. The court held as follows: “The actus reus consisted of uttering words which were humiliating and disparaging for [Mr S.] in his presence. It is not disputed ... that the accused ... said in respect of [Mr S.] ‘For me he is not a clean person’. The expression has an insulting character, because it dishonours [Mr S.]. It contains a disapproval of his ethical and moral qualities, which is irreconcilable with his being in charge of the budgetary funds of the judiciary. In this fashion the personality of [Mr S.] and his authority in front of the other members of the [Supreme Judicial Council] were disparaged. ‘Not a clean person’ has only one interpretation, that the person concerned has a tainted consciousness and lacks morality. Even if this is the [applicant’s] personal opinion about the qualities of [Mr S.], the remark was aimed at affecting the honour and the dignity of [Mr S.]. Criticism ..., especially when it comes to the public manifestations of persons who represent state institutions, has to be consistent with the rules of society, ethics and the common rules of decency and morality. These must not be trampled on under the pretence that the personal opinion about another is a matter of perception and [represents the exercise] of the constitutional right to freedom of expression... It is unconstitutional and criminal to criticise in an insulting form, as in the case at hand... The offence was intentional... It was committed in public, in front of twentyfive members of the Supreme Judicial Council and the deputyMinister of Justice. This increases the gravity of the offence, because the offensive words were heard not only by the victim, but also by a large group of persons... The fact that the [applicant] apologised to the victim after being invited to do so by the [Minister of Justice] does not remove the criminal character of his act or its harmful consequences. By uttering words which were humiliating for the victim, [the applicant] completed the offence and the harmful consequences arose. The derogation of the victim’s reputation was irreversible. The fact [that the applicant apologised] must, however, be taken into consideration for the purpose of assessing the gravity of the offence ... and for the purpose of sentencing. The defence’s argument that the [applicant’s] act was not criminal because it was in fact the expression of a personal criticism by a person exercising his freedom of expression ... cannot be sustained. The right to freedom of expression carries the duty, set out in Article 39 § 2 of the Constitution, not to exercise this right to the detriment of the reputation of another. The present case represents an abuse of this right, because the personal disproval of [Mr S.] which the [applicant] expressed publicly had a humiliating content. The negative opinion was expressed indecently, in an insulting and humiliating manner, which is contrary to the law. This implies that the [statement] was contrary to both Article 146 of the Criminal Code and Article 39 of the Constitution and Article 10 of the European Convention for Human Rights ..., which enshrine the right to freedom of expression, but in the bounds of decency, respect for the rights of every member of society, tolerance and respect for the reputation of the others...” 18. The applicant appealed to the Sofia City Court. His counsel again argued that the applicant’s remark had not been couched in offensive terms, that he had expressed his personal views in an entirely acceptable way and that a penalty imposed on him for having voiced an opinion ran counter to his freedom of expression. 19. The prosecution appealed as well, requesting an increase of the applicant’s sentence. 20. The Sofia City Court held a hearing on 27 November 1995. 21. In a judgment of 23 January 1996 the Sofia City Court dismissed the applicant’s and the prosecution’s appeals. It held, inter alia, as follows: “The [court below] correctly concluded that the [applicant’s] words had an insulting content. The expression was examined by the district court in accordance with the meaning which was put in it – a disapproval of the ethical and moral qualities of [Mr S.], which was incompatible with his being in charge of the budgetary funds of the judiciary; a disapproval aiming to impinge on the victim’s personal dignity. The [words] were analysed by the firstinstance court in view of their objective potential to impinge on the dignity of the victim, because they exceeded the bounds of ethical communication and the generally accepted rules of decency. The defence’s arguments ... that the [words] in issue were in fact the [applicant’s] personal opinion, the expression of which is protected by the rule of Article 39 of the Constitution, are unfounded. The district court was correct in concluding that the expression of a personal opinion about someone, even though a constitutionally protected right, should not exceed the bounds set out in paragraph 2 of [Article 39 of the Constitution]. In other words, the right to freely express one’s opinion may not be used to infringe the rights and reputation of another... In its reasoning the district court examined all arguments of the defence, relying on the courts’ constant caselaw under the Constitution and the European Convention for Human Rights. ...” 22. On 2 April 1998 the applicant lodged a petition for review with the Supreme Court of Cassation, claiming that the lower courts’ judgments were unfounded and in breach of the law. 23. On 27 April 1998 the Supreme Court of Cassation accepted the petition for examination and listed the case for hearing. 24. The court held a hearing on 10 June 1998. It heard the parties’ argument and reserved judgment. Prior to the hearing the applicant’s defence presented written observations, in which it argued that the lower courts’ judgments were unfounded and unlawful. In particular, the courts’ holding that the applicant’s words were offensive was arbitrary. On the opposite, they were not rude, vulgar or cynical, but completely neutral. The defence also reiterated its submissions in respect of the applicant’s right to voice personal opinions. 25. The Supreme Court of Cassation delivered its judgment on 8 July 1998, dismissing the petition in the following terms: “[The words] used by [the applicant] in the presence of [Mr S.] were humiliating and it cannot be accepted that this was in line with the rule of Article 39 of the Constitution, which guarantees to all Bulgarian citizens the possibility to express their personal opinion and criticise other persons. This possibility is subject to and dependent on the limitations of paragraph 2 [of this Article], according to which this right should not be used for impinging on the reputation of another. In the case at hand there has been an abuse of the right under paragraph 1 [of this Article], because the personal opinion, expressed by [the applicant] in respect of [Mr S.] has a disparaging content. The negative opinion is expressed in an indecent, insulting and humiliating manner... As such it falls under the prohibition of Articles 148 [and] 146 of the Criminal Code, because it not only goes against Article 39 § 1 of the Constitution, but also against Article 10 of the European Convention for Human Rights ... which enshrine the right to freedom of expression, but within the bounds of decency, respect for the rights of the person, tolerance, and protection of the reputation of the others. These rules are valid in all civilised and democratic societies. It is unconstitutional and criminally liable to ‘criticise’ in an insulting manner, as has been done in the case at hand. The words which were used had an insulting content, because they debased the victim’s dignity and his authority before the other members of the [Supreme Judicial] Council. They contained a disapproval of his moral and ethical qualities which is incompatible with his function as a person disposing with budgetary funds. What was said could be interpreted in one manner only: that the person in question has a tainted consciousness and lacks morality; it was aimed at impinging the honour and dignity of [Mr S.]. ...” 26. The applicant paid the fine on 9 May 1996. He was not publicly reprimanded and on 23 March 1999 a prosecutor of the Sofia District Prosecutor’s Office ordered that his sentence was not to be enforced because the relevant limitation period had expired. 27. Article 39 of the Constitution of 1991 provides: “1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” 28. Article 146 § 1 of the Criminal Code, as in force at the relevant time, provided: “Whoever says or does something degrading for the honour or the dignity of another in his presence shall be punished for insult by up to six months’ imprisonment or a fine of up to three thousand levs. The court may also impose a public reprimand.” 29. If an insult has been made in public, or against an official in the performance of his duties, or by an official in the performance of his duties, it was punishable by up to two years’ imprisonment or a fine of up to BGL 5,000 (Article 148 § 1(1), (3), and (4) of the Criminal Code, as in force at the relevant time). 30. At the relevant time insult was privately prosecutable in all cases, save when perpetrated in respect of or by an official, in which case it was publicly prosecutable (Article 161 of the Criminal Code, as in force at the relevant time, in conjunction with Article 146 § 1 and Article 148 § 1 (1) and (2) thereof). At present insult is privately prosecutable in all cases without exception (Article 161 § 1 of the Code, as amended in March 2000 and presently in force). 31. By Article 60 § 1 of the Code of Criminal Procedure of 1974, the victim of a criminal offence may make a civil claim in the context of the criminal proceedings, and request compensation for the damage sustained as a result of the offence. He or she may also take part in the criminal proceedings as a private prosecuting party alongside the public prosecutor (Article 76 of the Code of Criminal Procedure of 1974).
| 1 |
train
|
001-88639
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,008 |
ZEMLYANSKIKH v. RUSSIA
| 4 |
Inadmissible
|
Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
|
The applicant, Mr Vitaliy Ivanovich Zemlyanskikh, is a Russian national who was born in 1957 and lives in Khabarovsk. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human. The facts of the case, as submitted by the parties, may be summarised as follows. In 1996 the Frunzenskiy District Prosecutor’s office of Saratov opened criminal investigations against the applicant who was suspected of having committed an act of hooliganism. In the course of the criminal investigations the applicant’s Ford vehicle was impounded. On 14 October 1999 the applicant was informed by a letter from the same prosecutor’s office that the criminal proceedings were discontinued because no facts had been established that would constitute a criminal offence. The letter stated that the applicant could access the official text of that decision at the prosecutor’s office and that he could challenge it before the prosecutor or the court. On 17 July 2000 the applicant requested the prosecutor’s office to return him the impounded vehicle. In reply, he was informed on 26 July 2000 that all material evidence seized in the course of criminal proceedings were in charge of the Saratov Town Department of the Interior and he could claim his belongings there. It is not clear whether the applicant attempted to do so. On 2 August 2000 the applicant seized the Leninskiy District Court of Saratov with a claim for compensation of damage caused by the unlawful prosecution. Among other complaints, he alleged that he did not get back the impounded vehicle. On 4 August 2000 the court issued a resolution to stay the proceedings on the ground that the applicant had failed to comply with the formal requirements for lodging a claim. In particular he did not provide the court with copies of the procedural decision that he intended to challenge, i.e., the investigators’ decision to institute the criminal proceedings. The applicant was allowed 10 days for supplementing his submissions. On 14 August 2000 the applicant appealed against the stay of proceedings claiming that the court could request the missing documents under its own powers. On 21 August 2000 he was informed by the same court that the stay of proceedings was not amenable to appeal. The applicant did not take any steps to comply with the court order of 4 August 2000. Neither did he request an extension of the time-limit for supplementing his submissions, which, accordingly, expired on 14 August 2000. On 26 October 2000 the court returned the applicant’s claim by posting it to him by ordinary mail. The applicant did not attempt to lodge his claims again. In 2000-2001 he brought several requests for supervisory review complaining about the court’s refusal to accept his claim for examination, but these were refused on the ground that every time he failed to attach a copy of the court order of 4 August 2000. The RSFSR Code on Civil Procedure, in force at the material time, provided as follows: “Having established that the claim does not conform to the formal requirements of ... this Code ... the judge issues a resolution to stay the claim and notifies the plaintiff and sets a time-limit for rectification of the shortfalls. If the plaintiff complies ... within the time-limit ... the claim is considered lodged on the date when it was originally filed with the court. Otherwise, the claim is considered as not having been lodged and is to be returned to the plaintiff.” “Resolutions of the courts of first instance may be appealed before the court of cassation separately from the courts’ judgements by the parties and other persons taking part in the proceedings, or by a prosecutor’s protest: 1) when it is specifically provided for by this Code; 2) whenever the resolution bars the continuation of the proceedings. Other resolutions of the first instance courts may not be appealed by way of a separate appeal or a protest, but the objections against them may appear in the points of appeal or a protest before the cassation instance.”
| 0 |
train
|
001-93528
|
ENG
|
DEU
|
GRANDCHAMBER
| 2,009 |
CASE OF MOOREN v. GERMANY
| 2 |
Preliminary objections dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - award
|
Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
|
9. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. 10. On 25 July 2002 the applicant was arrested. 11. On the same day the Mönchengladbach District Court ordered his detention on remand after hearing representations from him. The applicant was assisted from this point on by counsel. In a detention order running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002, an offence punishable under various provisions (which were specified in detail) of the Tax Code, the Turnover Tax Code, the Income Tax Code and the Regulations on Trade Taxes. He had been working as a self-employed commercial agent for fifteen different firms in Germany (whose names were listed in detail in the order) since 1994. He had also been running a telephone service since 2000; in 2001 a company, TMA Aachen, had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266. 12. Noting that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched, the District Court decided that he had to be placed in pre-trial detention because of the danger of collusion (Verdunkelungsgefahr – see Article 112 § 2 no. 3 of the Code of Criminal Procedure, cited in paragraph 45 below). It also noted that the documents seized were incomplete, so that there was a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. 13. On 7 August 2002 the applicant, represented by counsel, lodged an application for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case file, which he argued he had a right to inspect in order to apprise himself of all the facts and evidence on which the detention order and, in particular, the strong suspicion that an offence had been committed were based. He also pointed out that domestic law prohibited the District Court from considering facts and evidence to which defence counsel had been refused access pursuant to Article 147 § 2 of the Code of Criminal Procedure (see paragraph 52 below). 14. On 12 August 2002 the Mönchengladbach Public Prosecutor's Office informed the applicant's counsel that he was being refused access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure as it would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence at issue. The applicant's counsel did not take up that offer. 15. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant's counsel complained that he had still not had access to the case file. 16. By an order of the same day, the Mönchengladbach District Court, which had before it the case file of the proceedings, upheld the detention order. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had consistently sought. 17. Following the applicant's appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Mönchengladbach Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel's request for access to the case file, it stated that he should be informed orally about the content of the file in the first instance. 18. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case file would not be sufficient. 19. On 9 September 2002, after hearing representations from the Public Prosecutor's Office and considering the case file, the Mönchengladbach Regional Court dismissed the applicant's appeal against the District Court's decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes. Furthermore, there was a danger of his absconding within the meaning of Article 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 45 below), as the applicant had connections in foreign countries and faced a heavy sentence. 20. In view of defence counsel's refusal to accept the offer made by the Public Prosecutor's Office to explain the content of the case file orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At that stage of the proceedings, however, counsel for the defence could not claim to be entitled to unlimited access to the complete case file. 21. The Regional Court's decision was served on the applicant's counsel on 16 September 2002. 22. On 16 September 2002 the applicant, represented by counsel, lodged a further appeal against the detention order. He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based. 23. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to vary its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor's Office, which was in possession of the case file, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor's Office with the file the next day. 24. On 26 September 2002 the Chief Public Prosecutor's Office, in its submissions to the Düsseldorf Court of Appeal, stated that it was not prepared to give the applicant access to the case file as it was sufficient for the applicant to be notified of the Düsseldorf Tax Fraud Office's overview of the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case file reached the Düsseldorf Court of Appeal on 2 October 2002. 25. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal. 26. On 9 October 2002 the applicant, who had been sent the submissions of the Chief Public Prosecutor's Office on 7 October 2002, contested its arguments. He stated that the overview in question was merely a conclusion of the Tax Fraud Office the merits of which he could not examine without having access to the documents and records on which it was based. 27. On 14 October 2002 the Düsseldorf Court of Appeal, on the applicant's further appeal, quashed the District Court's decision dated 16 August 2002 and the Regional Court's decision dated 9 September 2002 upholding the applicant's detention and remitted the case to the District Court. 28. The Court of Appeal, which had the investigation file before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the statutory requirements and that the decisions taken in the judicial review proceedings by the District Court on 16 August 2002 and by the Regional Court on 9 September 2002 (but not the detention order of 25 July 2002 itself) therefore had to be quashed. It noted that Article 114 § 2 no. 4 of the Code of Criminal Procedure (see paragraph 46 below) required the facts that established strong suspicion that the accused had committed an offence and that formed the basis for his detention to be set out in the detention order. Moreover, in order to comply with the constitutional rights to be heard and to a fair trial, the facts and evidence on which the suspicion and the reasons for the defendant's detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively. The facts and evidence had to be set out in greater detail in the detention order in cases in which defence counsel had been denied access to the case file under Article 147 § 2 of the Code of Criminal Procedure. 29. The Court of Appeal noted, however, that in its decisions on the applicant's detention the District Court had confined itself to noting that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched” when it should, at minimum, have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence. This defect had not been remedied in the course of the subsequent decisions on the applicant's continued detention. As counsel for the defence had also been refused access to the case file under Article 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard. 30. The Court of Appeal declined to take its own decision on the applicant's detention under Article 309 § 2 of the Code of Criminal Procedure (see paragraph 50 below) or to quash the detention order of 25 July 2002. Referring to the civil courts' case-law on that issue (namely, two decisions of the Karlsruhe Court of Appeal, no. 3 Ws 196/00 and no. 3 Ws 252/85, and to a decision of the Berlin Court of Appeal, no. 5 Ws 344/93 – see paragraph 48 below) it considered that the District Court's detention order was defective in law (rechtsfehlerhaft), but not void (unwirksam). The defect could be remedied in the course of the judicial review proceedings (see Hamburg Court of Appeal, no. 2 Ws 124/92, and Berlin Court of Appeal, no. 5 Ws 344/93 – paragraph 48 below). It stated that it would only quash a detention order if it was obvious that there was either no strong suspicion that the accused had committed an offence or that there were no reasons for the arrest, but that that was not the position in the applicant's case. It was for the District Court to inform the accused of the grounds on which he was suspected of having committed an offence and to hear representations from him on that issue (see also Berlin Court of Appeal, no. 5 Ws 344/93, cited at paragraph 51 below). Should the Public Prosecutor's Office persist, in the interest of its investigations, in not informing the accused of the reasons for his detention, the detention order would have to be quashed. 31. As a consequence, the applicant remained in custody. 32. On 17 October 2002 the Mönchengladbach Public Prosecutor's Office requested the District Court to issue a fresh, amended detention order against the applicant. 33. On 29 October 2002 the Mönchengladbach District Court again heard representations from the applicant, his defence counsel, the Public Prosecutor's Office and an official in charge of investigations at the Düsseldorf Tax Fraud Office on the applicant's application for judicial review of the detention order. The applicant's counsel was given copies of four pages of the voluminous case file containing the overview by the Düsseldorf Tax Fraud Office of the amount of the applicant's income and of the taxes he was alleged to have evaded between 1991 and 2002. Relying on the applicant's rights to be heard and to a fair trial, the applicant's counsel complained that he had not been granted access to the case file before the hearing. 34. The Mönchengladbach District Court then issued a fresh order, running to four pages, for the applicant's detention. It stated that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1991 and June 2002. Listing in detail the applicant's income from his various activities as a self-employed commercial agent for six different firms and as marketing director of the TMA Aachen company and the amounts of tax payable in each of the years in question, the District Court found that there was a strong suspicion that he had evaded turnover taxes of DEM 125,231.79, income taxes of DEM 260,025, solidarity taxes of DEM 15,240.11 and trade taxes of DEM 36,930. It based its suspicion on documents whose content was explained by a tax official present at the hearing, witness statements of the owners of the firms the applicant was working for, the applicant's contracts of employment and wage slips and commission statements that had been issued by the firms. 35. The District Court further found that there was a risk of the applicant's absconding (a ground for detention under Article 112 § 2 no. 2 of the Code of Criminal Procedure) as he faced a lengthy prison sentence which could possibly no longer be suspended on probation, had not notified the authorities of his place of residence for a number of years and had claimed that he was living in the Netherlands. 36. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the detention order on condition that the applicant (who in the meantime had complied with his duty to inform the authorities of his address) informed the court of every change of address, complied with all summonses issued by the court, the Public Prosecutor's Office and the police, and reported to the police three times a week. However, the district court did not order the applicant's immediate release as the Public Prosecutor's Office had immediately lodged an appeal. 37. On 7 November 2002, after hearing representations from the applicant and the Public Prosecutor's Office, the Mönchengladbach Regional Court dismissed the applicant's appeal against the detention order. It likewise dismissed the appeal lodged by the Public Prosecutor's Office against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to the Public Prosecutor's Office and deposit EUR 40,000 as security. 38. Having deposited the security, the applicant was released from prison on 7 November 2002. 39. On 8 November 2002 the applicant lodged a further appeal against the Regional Court's decision, complaining that his counsel had still not been granted access to the case file. 40. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor's Office granted the applicant's counsel access to the case file. It stated that it had intended to send the file to him at an earlier date, but that this had not been possible as the file had been at the Regional Court and had only recently been returned to the Public Prosecutor's Office. The applicant's counsel received the file for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002. 41. On 23 October 2002 the applicant lodged a complaint with the Federal Constitutional Court against the decision of the Düsseldorf Court of Appeal dated 14 October 2002 and the detention order issued by the Mönchengladbach District Court on 25 July 2002. In his submission, his rights to liberty, to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by the Basic Law had been violated. He argued in particular that his right to liberty, the deprivation of which was only constitutional if it was in accordance with the law, had been breached by his illegal detention on the basis of a void detention order. The complete refusal to allow his defence counsel access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure had violated his right to be heard in court, as guaranteed by Article 103 § 1 of the Basic Law (see paragraph 53 below), and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 54 below). The impugned decisions disregarded both the case-law of the Federal Constitutional Court and the Court's case-law as laid down in its judgments of 13 February 2001 in the cases of Garcia Alva, Lietzow v. Germany and Schöps v. Germany. The Court of Appeal's refusal to quash the detention order and its decision to remit the case to the District Court instead had also breached his right to a fair hearing within a reasonable time. 42. On 4 and 11 November 2002 the applicant extended his constitutional complaint to include the decisions of the Mönchengladbach District Court dated 29 October 2002 and the decision of the Mönchengladbach Regional Court dated 7 November 2002. 43. On 22 November 2002 the Federal Constitutional Court, without giving further reasons, declined to consider the applicant's constitutional complaint against the detention orders issued by the Mönchengladbach District Court on 25 July 2002 and 29 October 2002, the decision of the Mönchengladbach Regional Court dated 7 November 2002 and the decision of the Düsseldorf Court of Appeal dated 14 October 2002. 44. On 9 March 2005 the Mönchengladbach District Court convicted the applicant on eight counts of tax evasion and sentenced him to a total of one year and eight months' imprisonment suspended on probation. It found that the applicant, who had confessed to the offences, had evaded turnover taxes of DEM 129,795, income taxes of DEM 344,802 and trade taxes of DEM 55,165. 45. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to Article 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (Article 112 § 2 no. 2) or of collusion (Article 112 § 2 no. 3). 46. According to Article 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written detention order. The detention order identifies the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest (nos. 1-3 of Article 114 § 2). Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered (Article 114 § 2 no. 4). 47. Under Article 117 § 1 of the Code of Criminal Procedure, remand prisoners may at any time seek judicial review (Haftprüfung) of a decision to issue a detention order or ask for the order to be suspended. They may lodge an appeal under Article 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention and a further appeal (weitere Beschwerde) against the Regional Court's decision on the appeal (Article 310 § 1 of the Code of Criminal Procedure). Decisions on a person's pre-trial detention have to be taken speedily (compare, among many others, Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, p. 319). As a rule, pre-trial detention must not continue for more than six months (see Article 121 § 1 of the Code of Criminal Procedure; compare Federal Constitutional Court, no. 2 BvR 558/73, decision of 12 December 1973). 48. The consequences of a court's finding in the course of judicial review proceedings that a detention order is flawed will depend on the nature of the defect found. Certain formal defects, in particular a failure to set out in sufficient detail in the order the facts establishing the grounds for strong suspicion that an offence has been committed and for the arrest, as required by Article 114 § 2 no. 4 of the Code of Criminal Procedure, will make the order defective in law (rechtsfehlerhaft), but not void (unwirksam / nichtig) (see, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, Neue Zeitschrift für Strafrecht (NStZ) 1986, pp. 134-35; and Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 318). Such defects may therefore be remedied by the appeal courts in the course of the judicial review proceedings by either quashing the defective order or replacing it with a fresh, duly reasoned order (compare, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, NStZ 1986, pp. 134-35 with further references; Hamburg Court of Appeal, no. 2 Ws 124/92, decision of 23 March 1992, Monatsschrift für Deutsches Recht (MDR) 1992, p. 694; Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-319; and Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, p. 118). A defective detention order thus remains a valid basis for detention until the defect is remedied. On the contrary, detention on the basis of a detention order which is void owing to a serious and obvious defect is unlawful (see paragraph 49). 49. The Federal Court of Justice gave the following reasons for the distinction between void and defective court decisions: “Only in rare, exceptional cases can a court decision be considered void in its entirety, with the consequence that it is legally irrelevant (see ...). This is a consequence of the requirements of legal certainty and its corollary, the authority of court decisions, as well as of the overall structure of criminal proceedings with its system of legal remedies designed to correct defective decisions. Considering a court decision ... as legally irrelevant means that anyone may claim that it is null and void at any stage of the proceedings, even after it has become final... In the case of decisions which can be challenged by an appeal, the statutory rules – formalities and time-limits – become inoperative if the decisions are deemed legally irrelevant. Such consequences, which run counter to the overall order of the law of criminal procedure, may be drawn from the defectiveness of a court decision only, if at all, where it would be unthinkable for the legal community to recognise (at least provisionally) its validity. This will occur if the extent and gravity of the defect are such that the decision blatantly contradicts the spirit of the Code of Criminal Procedure and key principles of our legal order (see ...). From the perspective of legal certainty, the assumption that a decision is null and void presupposes, in addition, that the serious defect is obvious” (see Federal Court of Justice, no. 1 BJs 80/78, decision of 16 October 1980, Neue Juristische Wochenschrift (NJW) 1981, p. 133 with further references; compare also Federal Court of Justice, no. 1 StR 874/83, decision of 24 January 1984, NStZ 1984, p. 279) 50. As regards the consequences of a finding by a court of appeal, on a further appeal by the detainee, that a detention order is flawed, Article 309 § 2 of the Code of Criminal Procedure lays down that if the appeal court considers the appeal against the (continued) detention well-founded, it must take the necessary decision in the case at the same time. The court of appeal thus decides the merits of the case in the lower courts' stead (see, for instance, Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, p. 2964). 51. However, the courts of appeal have developed exceptions to the rule laid down in Article 309 § 2 of the Code of Criminal Procedure. In certain limited circumstances, a case may exceptionally be remitted to the court of first instance if there has been a procedural defect which the court of appeal cannot properly remedy itself (see Brandenburg Court of Appeal, no. 2 Ws 50/96, decision of 17 April 1996, NStZ 1996, pp. 406-07; and Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, pp. 2964-65). In particular, a court of appeal may remit the case to the district court instead of taking its own decision on the merits if a detention order does not comply with the duty to set out the grounds for suspecting the accused of an offence and if, in addition, the prosecution refused access to the case file. The explanation for this is that, in such cases, the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant. It was the district court which had jurisdiction to inform the accused for the first time of the grounds for suspecting him of an offence and to hear representations from him (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-19). The duty to expedite proceedings in which the suspect is in detention does not warrant a different conclusion as only a remittal of the case will enable him to avail himself effectively of his right to be heard (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 319). 52. Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the file which has been or will be presented to the trial court, and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the file or to the exhibits to be refused until the preliminary investigation has ended if the investigation might otherwise be at risk. At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (Article 147 § 3 of the said Code). Pending the termination of the preliminary investigation, it is for the Public Prosecutor's Office to decide whether to grant access to the file or not; thereafter it is for the president of the trial court (Article 147 § 5). An accused who is in detention is entitled by virtue of Article 161a § 3 of the Code of Criminal Procedure to seek judicial review of a decision of the Public Prosecutor's Office to refuse access to the file. Pursuant to that provision, the regional court for the district where the Public Prosecutor's Office is located has jurisdiction to hear applications for judicial review; its decisions are not subject to appeal. 53. According to Article 103 § 1 of the Basic Law every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör). 54. Article 104 § 3 of the Basic Law provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge no later than the day following his arrest; the judge must inform him of the reasons for the arrest, hear representations from him and give him an opportunity to raise objections. The judge must then, without delay, either issue a written detention order setting out the grounds therefor or order the detainee's release.
| 1 |
train
|
001-84287
|
ENG
|
POL
|
CHAMBER
| 2,008 |
CASE OF PIETRZAK v. POLAND
| 4 |
Violation of P1-1
|
Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
|
5. The first applicant, Mr Wiesław Pietrzak (“the first applicant”), was born in 1943. The second applicant, Mrs Halina Pietrzak (“the second applicant”), was born in 1951. They are married and live in Gdańsk. 6. The first applicant owns a plot of land and a house situated on it located in the suburbs of Gdańsk. The major part of his property is classified as agricultural land. There are some other houses in the area, but a significant part of it is used for allotments. 7. It appears that the first applicant’s father acquired the property in question in 1972. At that time, the property was classified as agricultural land and lay outside the perimeters of Gdańsk. Subsequently, with the enlargement of the city, the property became located in the vicinity of a residential and allotments area. 8. In 1973 and 1977 the first applicant’s father was twice refused planning permission on the ground that the plot had not been designated for construction of a house. 9. In April 1975 a local development plan for the area was adopted. The first applicant’s plot was designated for the construction of a road. 10. On an unspecified later date the first applicant acquired the property at issue. 11. On 28 May 1988 the Gdańsk Municipal Council adopted a local development plan which stipulated that a road was to be constructed on the first applicant’s plot. 12. On 24 December 1987 and 15 November 1991 the Gdańsk Municipality informed the first applicant that his property was designated in the relevant local development plan for the building of a new road. Accordingly, the property could not be used for the purposes of constructing a new house or planting an orchard. 13. On 12 February 1992 the first applicant requested the Mayor of Gdańsk to acquire his property as it had been designated for the building of a road. On 22 June 1992 the Mayor transmitted that request to the Head of the Gdańsk District Office (Kierownik Urzędu Rejonowego) which was competent to decide on it. It appears that the request was never examined. 14. On an unspecified date in 1992 the first applicant petitioned the Ombudsman. On 14 July 1992 the Ombudsman informed him that, following a number of similar complaints concerning the legal status of so-called “frozen properties” (i.e. properties which were designated in a local development plan for public use at an undetermined future date), he had requested the Minister of Local Planning and Construction to adopt a general solution to the problem. In particular, the Ombudsman called for a provision in the local planning bill which would impose an obligation on the local authorities to acquire “frozen properties” or offer an alternative plot to the owners concerned. 15. On 29 June 1993 the Gdańsk Municipal Council adopted a general local development plan. The plan maintained the provision that a road was to be constructed on the applicant’s plot. Prior to the adoption of the new plan, the Minister of Agriculture and the Gdańsk Governor had authorised the change of use of agricultural land for non-agricultural purposes. 16. On 20 August 1993 the applicant inquired with the Gdańsk Municipality about the conditions for construction of a temporary building (zabudowa tymczasowa) on his property. On 6 October 1993 he was informed about the relevant conditions for properties designated in local development plans for future public use. He was also informed that he could continue using the property for agricultural purposes or, alternatively, he could construct a temporary storehouse. The municipality further explained that the planned road would not be constructed in the foreseeable future. The applicant was invited to submit concrete proposals for consideration by the municipality and informed that any temporary buildings would have to be removed at his own expense when the planned road was constructed. It appears that the first applicant did not submit any proposals to the municipality. 17. On 1 January 1995 the Law of 7 July 1994 on Local Planning (“the 1994 Act”) entered into force. 18. On 11 February 2000 the first applicant’s lawyer sent a letter to the Mayor of Gdańsk, inquiring about his unanswered request of 1992 for the acquisition of the property. 19. On 30 March 2000 the first applicant was informed that due to the dissolution of the district offices it was not possible to establish the reasons as to why the Gdańsk District Office had not taken any decision on his request. He was further informed that the local development plan of 28 May 1988, which had specified that a new road would pass through the first applicant’s property, was still in force. Furthermore, the municipality’s investment plan for the years 2000-2003 did not foresee the construction of the road in question. Accordingly, the first applicant could use his land as previously. In addition, the first applicant was informed that according to the 1994 Act the municipality could not acquire his property since the relevant local development plan had been adopted prior to 1995 and that his use of the property had not become unfeasible. Consequently, his request could not be granted. 20. The applicants appealed against that decision to the Gdańsk Local Government Board of Appeal. On 14 September 2000 the Board of Appeal ruled that the appeal was inadmissible in law. It observed that in accordance with the Code of Administrative Procedure an appeal could be lodged only against an administrative decision. However, the Board of Appeal noted that the provisions of the 1994 Act (section 36) excluded the possibility of adopting an administrative decision in respect of the applicants’ request for the acquisition of their property by the municipality. Thus, the letter of the Mayor of Gdańsk of 30 March 2000 could not be considered as an administrative decision. 21. The applicants appealed against that decision to the Supreme Administrative Court, relying, inter alia, on Article 1 of Protocol No. 1 to the Convention. 22. On 8 May 2002 the Supreme Administrative Court dismissed their appeal. 23. On 25 February 2003 the Gdańsk Municipality informed the first applicant that according to the local development plan which would remain valid until 31 December 2003 his property had been designated for a future thoroughfare. 24. On 5 August 2003 the Gdańsk Municipality informed the first applicant that the old local development plan designating his property for the construction of a road would remain valid until the end of 2003. In addition, he was informed that the municipal investment plan for the years 2004-2008 did not foresee the construction of the road in question. He was also informed that a new local development plan was being drafted and that he was entitled to lodge his objections in that respect. 25. On 11 July 2003 the Law of 27 March 2003 on Local Planning (“the 2003 Act”) entered into force on 11 July 2003. It repealed the 1994 Act. 26. On 31 December 2003 the old local development plan expired. 27. On 31 May 2005 the first applicant requested the municipality to provide him with information as to the future development of his land. 28. On 8 June 2005 he was informed that pursuant to the 2003 Act until the adoption of the new local development plan the manner of development of a particular property was to be determined by means of planning permission. However, such permission could only be granted if a number of conditions specified in section 61 of the 2003 Act were met, including that the property at issue did not have to be reclassified from agricultural to non-agricultural land. In connection with the last requirement, the first applicant submitted that he was prevented from developing his property until such time as the new local development plan had been adopted. 29. It appears that as of December 2005 the Municipality of Gdańsk had not yet adopted a new local development plan in respect of the first applicant’s land. According to the preliminary draft plan, the applicants’ property will be designated in the major part for housing purposes and in the remaining part for housing and services purposes. The property will adjoin the planned road, but the road will not pass through the applicants’ property. 30. As of 11 September 2006 the applicant had not yet applied for planning permission. 31. From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date. 32. On 7 July 1994 a new Law on Local Planning Act was enacted (“the 1994 Act”). It entered into force on 1 January 1995. 33. Section 36 of the 1994 Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation. 34. However, pursuant to section 68 § 1 of the 1994 Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the 1994 Act had entered into force, i.e. to plans adopted by local authorities after 1 January 1995. 35. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the 1994 Act which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 36. On 27 March 2003 a new Law on Local Planning was enacted (“the 2003 Act”). It entered into force on 11 July 2003 and repealed the 1994 Act. Under section 87 of the 2003 Act, all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 37. Compensation entitlements for owners, provided for by the 1994 Act, were in essence maintained by the 2003 Act. Pursuant to section 36 of the latter Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan had become impossible or had been restricted, it was open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act. 38. Section 59 of the 2003 Act provides, subject to certain conditions, for a possibility of developing a plot of land by way of planning permission in the absence of a local development plan. 39. Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28 – 53, 14 November 2006). 40. In its judgment of 5 December 1995, the Constitutional Court examined the Ombudsman’s request to determine the compatibility with the Constitution of section 68 § 1 of the 1994 Act insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The Constitutional Court referred to its established case-law to the effect that the right to property could not be regarded as ius infinitivum. Consequently, its exercise was restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of property rights. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with property rights that it could be regarded as being incompatible with their constitutional protection.
| 0 |
train
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001-100527
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,010 |
PALADE v. ROMANIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
|
1. The applicant, Mr Grigore Palade, is a Romanian national who was born in 1963 and lives in Galaţi. 2. 3. On 13 June 2001 the applicant murdered G.C. in the latter's apartment, cut the victim's body into pieces and disposed of some of them in rubbish bins around the town. He was apprehended by police on 18 June 2001 while trying to leave the country. He was convicted of murder and sentenced by the first-instance court on 11 February 2003. The decision became final on 8 December 2004. 4. Throughout the criminal trial against him and the proceedings complained of in the case at hand the applicant remained in detention. 5. Between November 2001 and June 2003 a series of articles was published in the local newspaper Monitorul de Galaţi concerning the criminal trial against the applicant. The following articles were submitted by the applicant: – “The Butcher 'Gogu' committed to trial” (“Măcelarul 'Gogu', trimis în judecată”), written on 10 November 2001 by C.S.; – “The indictment of horror” (“Rechizitoriul groazei”) a detailed article written on 15 November 2001 by the same C.S.; – “Gogu 'the Butcher''s trial postponed” (“Procesul lui Gogu 'Măcelaru' a fost amânat”) written on 1 February 2002 by the same C.S.; – “Key-witness in Gogu the Butcher's trial” (“Martor-cheie în procesul lui Gogu Măcelaru”), written on 26 April 2002 by E.T.; – “Gogu the Butcher is caught up in the victim's relatives' games” (“Gogu Măcelaru este ţinut in şah de rudele victimei sale”); written on 17 December 2002 by E.T.; – “Gogu 'the Butcher' unhappy with his sentence” (“Gogu 'Măcelaru' nemulţumit de pedapsa primită”), written on 23 June 2003 by V.T. A photograph of the applicant's face accompanied the articles published on 15 November 2001 and 17 December 2002. 6. V.T.'s article's introductory paragraph read as follows: “The [man] who, two years ago, had killed his friend, chopped his body into several pieces and spread his internal organs all around the town, appealed against the judgment by which he has been convicted to 19 years' imprisonment.” The article went on to reiterate the main facts of the case, the qualification given by the prosecutor to the crimes committed, the fact that “the [first-instance court] laid a distraint upon the applicant's apartment in order to secure payment of the compensation”, and that “the defence counsel had tried to lend weight to the idea that the applicant was not mentally responsible when he had committed the crime” (“nu era în toate minţile”) but that “the psychiatric expert evaluation the murderer underwent concluded that he had been responsible for his acts”. Lastly, V.T. reported on the first hearing in the appeal proceedings as follows: “... [The applicant] asked the judges ... to find that he had been provoked by the victim who, allegedly, had tried to kill him. This aspect does not justify the horror [the applicant] committed after ...” 7. On 8 July 2003 the applicant filed a criminal complaint for defamation against Monitorul de Galaţi and its reporters, giving as an example the article published by V.T. on 23 June 2003. He sought 20,000 US Dollars in damages. He argued that he had been defamed by the name given to him “Gogu the Butcher” and by the mention of his alleged insanity, which had not been proven by any medical report. 8. The Galaţi District Court held thirteen hearings in the case. At the hearing on 10 October 2003, upon the court's request, the applicant clarified his complaint as referring only to V.T. 9. On 7 and 28 November 2003 the applicant requested legal aid, arguing that his financial situation was precarious. On 6 February 2004 the court dismissed his request as unfounded, after it carried out the necessary checks. 10. On 7 May 2004 the applicant requested that other articles published about his criminal trial be adduced in the case. The court noted that the applicant was detained, considered that it was difficult for him to obtain evidence and therefore ordered the newspaper to produce copies of the other articles. 11. The publisher informed the court that no other articles had been published. At the hearing on 1 October 2004 the applicant contested that information and asked the court for a new postponement in order to adduce copies of other relevant articles. However, the court noted that on 5 March 2004 the applicant had declared that he had not wished to present other evidence and that, in any case, he had had enough time, from the beginning of the proceedings, to produce copies of other articles he might have considered relevant. It therefore dismissed the request and proceeded to hearing evidence from the parties and the prosecutor, after which it withdrew for deliberations. 12. The court delivered its judgment 15 October 2004. It acquitted the journalist on the grounds that he had not intended to insult or defame the applicant and that he had acted within the limits of his profession and based the article on court decisions which, in its opinion, constituted credible sources. The relevant parts of the judgment read as follows: “The facts [committed by the defendant] do not constitute the offence of insult or defamation, as the defendant did not act with the intention to commit such an offence. The defendant had the professional obligation to report on current issues of public concern ... Given the extreme gravity of the crime imputed to the victim, and its social consequences, the victim exposed himself to public disapproval (oprobriu public); the defendant did not intend to defame or insult the victim but rather to meet his obligation to inform the public about his acts. The defendant is a journalist and the victim used to work for a company that raised and processed poultry; therefore a certain degree of exaggeration in describing the victim in the title is acceptable. Furthermore, ... the defendant wrote that the victim had been mentally responsible for his acts and it is a well known fact that only a person that is mentally responsible may be convicted ... The court decision was an official and credible source for the defendant when he drafted the article; therefore it is obvious that by presenting the victim as mentally responsible for his acts, he had no intention of interfering with the victim's reputation.” 13. The applicant appealed. Before the Galaţi County Court he complained about the acquittal and considered that his right to present his case adequately had been restricted as he had not benefited from legal aid. He did not request further evidence. 14. In a final decision of 7 April 2005 the County Court upheld the firstinstance court decision. The County Court re-examined the facts and the evidence and concluded that the journalist had not intended to insult or defame the applicant and that the affirmations complained of were not capable of producing such consequences. It also considered that given the nature of the offence and the applicant's situation, he was capable of defending himself.
| 0 |
train
|
001-113603
|
ENG
|
UKR
|
COMMITTEE
| 2,012 |
CASE OF BESTIYANETS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
André Potocki;Karel Jungwiert;Mark Villiger
|
4. The applicant was born in 1951 and lives in Kyiv. 5. On 28 January 2000 the applicant instituted civil proceedings in the Shevchenkivskyy District Court of Kyiv (hereafter – “the Shevchenkivskyy Court”) against its former employer, the Kyiv Motorcycle Factory (“the factory”), seeking his reinstatement and compensation for the related pecuniary and non-pecuniary damages, salary and other payments’ recovery, as well as disability allowance (in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work-related). 6. On 20 November 2000 the court severed the applicant’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings. 7. On 27 December 2000 the Shevchenkivskyy Court rejected the applicant’s reinstatement claim. On 7 May and 8 October 2001 the Kyiv City Court and the Supreme Court respectively upheld that judgment. 8. In 2005 the applicant unsuccessfully sought re-opening of the proceedings on the basis of some newly-discovered circumstances. 9. On 8 June 2001 the Shevchenkivskyy Court allowed in part the applicant’s claim for recovery of certain payments, such as salary arrears, compensation for unused leave, dismissal allowance, and sick leave payment. On 28 August 2002 the judgment was enforced. 10. In January 2002 the Shevchenkivskyy Court transferred the applicant’s claim for disability allowance to the Podilskyy District Court of Kyiv (“the Podilskyy Court”), in line with the instruction of the Kyiv City Court of Appeal (“the Court of Appeal”). 11. The applicant reiterated all his initial claims before the Podilskyy Court. 12. On 25 December 2003 the court rejected the claim for disability allowance. As regards the other claims, it decided to leave them without examination, for they had already been adjudicated on 27 December 2000 and 8 June 2001 (see paragraphs 7 and 9 above). 13. On 6 June 2005 the Court of Appeal quashed the above judgment, because it had been delivered in the applicant’s absence and without his knowledge, and remitted the case to the first-instance court for fresh examination. 14. On 23 June 2005 the Podilskyy Court sent the file to the Shevchenkivskyy Court on the latter’s request. It was required for the examination of the applicant’s request for re-opening of the reinstatement proceedings (see paragraph 8 above). 15. On 24 June 2005 the Podilskyy Court stayed the proceedings until the file would be returned. 16. On 4 October 2005 the judge rejected the applicant’s request for leave to appeal against the aforementioned decision. That ruling was, by mistake, not sent to the applicant, until November 2008. 17. On 28 March 2008 the Podilskyy Court resumed the proceedings. 18. On 10 June 2008 it adjourned the hearing till 25 June 2008 because of the unspecified misbehaviour of the applicant’s representative. The court also decided that the applicant’s presence was obligatory. 19. On 25 June 2008 the applicant did not appear at the hearing, and the Podilskyy Court again adjourned it till 8 July 2008. 20. On 24 November 2008 it dismissed the claim without examination on merits for the applicant’s repeated failure to attend hearings. 21. On 25 August 2004 the applicant brought another claim to the Shevchenkivskyy Court against the factory in respect of salary recovery, this time confined to two specific days. 22. On 16 August 2005 the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant’s another claim. On 27 December 2005 and 17 May 2006 the Court of Appeal and the Supreme Court respectively upheld that ruling. 23. On 24 April 2008 the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory’s administration and trade union again him. 24. On 2 June 2008 the Podilskyy Court decided to refer the applicant’s claim in that part to the Shevchenkivskyy Court for examination. The applicant unsuccessfully challenged that referral before higher-level courts. 25. On 9 June 2009 the Shevchenkivskyy Court started the proceedings. According to the applicant, this set of his proceedings is pending.
| 1 |
train
|
001-110948
|
ENG
|
NLD
|
CHAMBER
| 2,012 |
CASE OF EMIN v. THE NETHERLANDS
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
|
6. The applicant, Mr Galib Myumyum Emin, is a Bulgarian national who was born in 1977 and as far as the Court is aware now lives in Bulgaria. 7. The applicant arrived in the Netherlands in November 2004. He never obtained legal residence. On 21 July 2006 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to impose an exclusion order (ongewenstverklaring) on the applicant pursuant to the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) as he had been convicted of a serious criminal offence and sentenced to imprisonment for three years. 8. The applicant was released from prison on 5 April 2007. That same day the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) ordered the applicant to be taken into aliens’ detention (vreemdelingenbewaring) with a view to his expulsion from the Netherlands. 9. Also on 5 April 2007, the applicant appealed the decision to take him into aliens’ detention to the Regional Court (rechtbank) of The Hague, sitting in ‘s-Hertogenbosch. 10. The applicant was released from aliens’ detention on 11 April 2007 but informed the Regional Court that he wanted to pursue his appeal in order to obtain compensation. In support of his appeal, the applicant argued inter alia that the exclusion order imposed on him had in the meantime become based on incorrect grounds as Bulgaria had since joined the European Union (“EU”) and the criteria for imposing an exclusion order on EU citizens were more stringent. 11. On 23 April 2007 the Regional Court upheld the applicant’s appeal. It held that the Deputy Minister had neglected to initiate activities to expel the applicant from the Netherlands while he was still in prison following his criminal conviction. Furthermore, the Regional Court considered that the Deputy Minister had not assessed, at the time the decision was taken to place the applicant in aliens’ detention, whether the criteria in force for imposing an exclusion order applied to the applicant. For these reasons the Regional Court held that the applicant’s aliens’ detention had been unlawful from the outset. The Regional Court however declined to award compensation to the applicant as he had been convicted of a serious criminal offence and an exclusion order had also been imposed on him. 12. On 25 April 2007 the applicant filed a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the decision of the Regional Court not to award him compensation even though his aliens’ detention had been declared unlawful from the start. 13. On 10 May 2007 the Council declared the appeal inadmissible since, pursuant to article 84 sub d of the Aliens Act 2000, no further appeal lay against a refusal to award compensation. 14. Section 106 of the 2000 Aliens Act (Vreemdelingenwet 2000) provides: “1. If the Regional Court orders the lifting of a measure deprivative of liberty, or if the deprivation of liberty is lifted even before the request for the lifting of that measure is considered, it may grant the alien compensation at State expense. Damage shall include non-pecuniary damage. ...” 15. In so far as the above provision proves insufficient or inappropriate to the purpose, it is also possible for former detainees to seek compensation for a wrongful act, or tort, on the part of public authority (onrechtmatige overheidsdaad) by taking civil proceedings against the State and claiming compensation for damages based on the argument that the detention in question constituted a wrongful act within the meaning of Article 6:162 of the Civil Code. Article 6:162 of the Civil Code provides: “1. A person who commits a wrongful act (onrechtmatige daad) against another which is attributable to him, must repair the damage suffered by the other in consequence. 2. Except where there is a ground of justification, the following acts are deemed to be wrongful: the violation of a right, and an act or omission violating a duty imposed by law or a rule of unwritten law pertaining to proper social conduct. 3. A wrongdoer is responsible for the commission of a wrongful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles (de in het verkeer geldende opvatting).”
| 0 |
train
|
001-72033
|
ENG
|
SWE
|
CHAMBER
| 2,006 |
CASE OF ELLI POLUHAS DÖDSBO v. SWEDEN
| 1 |
No violation of Art. 8
|
András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
|
8. In 1938 the applicant married an Austrian national of Ukrainian origin who had entered Sweden that same year. Five children were born of the marriage. The family lived in Fagersta, where the applicant’s husband worked as a sales manager until his death on 11 May 1963. His ashes were buried in a family grave at a cemetery in Fagersta. The grave has room for at least eight other urns. The contract on the burial plot is to expire on 31 December 2019, but will automatically be renewed for twenty-five years when a new burial takes place there. Moreover, the person in possession of the right to the burial plot when the contract is about to expire is entitled to renew it. 9. In 1980 the applicant moved to Västerås to be closer to her children. The distance between Fagersta and Västerås is 70 kilometres. 10. On 15 August 1996 the applicant requested the cemetery authorities (Västanfors-Västervåla Kyrkogårdsförvaltning) to allow the transfer of her husband’s urn to her family burial plot in Stockholm, which had been established in 1945 and had room for thirty-two urns. The applicant’s parents were buried there and the applicant intended to be buried there after her death. Stockholm is situated 180 kilometres from Fagersta. The applicant submitted in addition that she had no connection to Fagersta any more, that all her children agreed to the removal and that she was sure her husband would not have objected to the transfer. 11. By a decision of 16 September 1996, her request was refused by the authorities in deference to the notion of “a peaceful rest” under the Funeral Act (Begravningslagen, 1990:1144). 12. On appeal, the County Administrative Board in Västmanland (Länsstyrelsen i Västmanlands Län) upheld the refusal. 13. The applicant appealed to the County Administrative Court in Västmanland (Länsrätten i Västmanlands Län) which, by a decision of 5 September 1997, found against her. It stated as follows: “Pursuant to Chapter 1, section 6, of the Funeral Act, remains or ashes which have been buried in a cemetery may not be removed from a burial plot in order to be buried in another burial plot. However, permission may be granted if there are special reasons therefor and the place to which the remains or ashes are to be removed has been determined. According to the explanatory notes to the Act (Prop. 1990/91:10, pp. 35-37), the decision on a request for the removal of remains or ashes shall be restrictive, having regard to the deceased’s right to a peaceful rest. Determination [of such a request] should be guided by the wishes expressed by the deceased whilst alive. As a general rule, it must be assumed that such a wish, if expressed, was taken into account when the burial took place. The paramount condition for allowing a transfer is obviously that it would not contravene the wishes expressed by the deceased when alive. Moreover, some connection between the deceased and the intended destination would usually be required. In the present case [the applicant’s husband] worked as a sales manager at the Fagersta factory until 1958. He died on 11 May 1963, and the urn containing his ashes was placed in grave no. 208/017, quarter no. 208, in Västerfors. [The applicant’s husband] came from Ukraine and had a Catholic Church tradition. It appears that he did not express any wishes about his burial when he was alive. The County Administrative Court makes the following assessment: Making an overall assessment, the County Administrative Court finds that [the applicant’s husband] did not have a closer natural connection to Stockholm than he had to Fagersta. No other reasons have been submitted which could justify the disturbance of the peace of the grave after thirty-four years.” 14. The applicant’s request for leave to appeal was refused by the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm) on 29 October 1997, and by the Supreme Administrative Court (Regeringsrätten) on 22 February 2000. 15. The applicant died on 21 February 2003. In accordance with her wishes, she was buried in her family burial plot in Stockholm. 16. Domestic provisions of relevance to the present case are to be found in the Funeral Act 1990 (Begravningslagen – “the Act”), which came into force on 1 April 1991. Previously, they were contained in the Funeral Service Act 1957 (Lagen om jordfästning m.m.). It is mainly the parishes of the Church of Sweden which are responsible for burial grounds (Chapter 2, section 1, of the Act) and for decisions concerning, inter alia, graves and burials. It is also in the first instance for the church authorities to determine requests to move the remains or ashes of a deceased person (Chapters 5, 6 and 7 of the Act). A decision may be appealed to the county administrative board (Chapter 11, section 6, of the Act). Further appeals lie with the competent administrative court of appeal and, subject to the granting of leave to appeal, with the Supreme Administrative Court (Chapter 11, section 7, of the Act). When a person dies, his or her wishes concerning cremation and burial should, as far as possible, be followed (Chapter 5, section 1 of the Act). This was also the rule under the Funeral Service Act 1957, the legislation applicable at the time of the applicant’s husband’s death. If there is a dispute between the survivors about where the burial should take place, it is for the county administrative board to decide (Chapter 5, section 4, of the Act). Once remains or ashes have been buried, moving them from one place to another is in principle not allowed. However, permission to move remains or ashes may be granted if special reasons exist and if the place to which they will be moved has been clearly stated (Chapter 6, section 1, of the Act). However, the grave must not be opened in such a way that the remains or ashes are damaged (Chapter 2, section 13, of the Act). The provisions of Chapter 6, section 1, of the Act are based on respect for the sanctity of the grave. This is also why the provisions regarding the removal of remains and ashes are restrictive; a deceased’s grave must be left in peace and may only be disturbed under special circumstances. According to the explanatory notes to the Act (Government Bill 1990/91:10, p. 35), the removal of remains or ashes may be permitted if a mistake occurred at the time of burial, if the remains of a husband, wife, parent or young child are to be brought together or, in some cases, if a refugee or immigrant wishes to take the remains of a deceased relative back to his or her country of origin. The deceased’s own wishes should serve as guidance for the transfer decision. When such wishes are not known, regard should be had to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life. If, however, the cemetery is situated in a place where the deceased lived only temporarily, removal may be permitted. In addition, the deceased should have had some connection with the place to which the remains are to be removed. According to the explanatory notes (ibid., pp. 36-37), examples of such a connection could be that the deceased grew up in that place, had relatives or a family grave there, or perhaps had a holiday home there. As regards husbands and wives, it may be permitted to move one of the deceased’s remains to bring them together in a common grave, especially if the one who died last cannot, for some reason, be buried in the same place as the first. Particular regard may be had to the wishes of the last survivor concerning the common burial place. 17. In 1994 the Supreme Administrative Court ruled on several cases concerning the interpretation of Chapter 6, section 1, of the Act (Regeringsrättens Årsbok 1994 ref. 93 I-IV). These judgments reveal a restrictive interpretation. For instance, the fact that the surviving relatives have moved, that there is a long distance between the burial place and their new home, or that public transport to a burial place may be lacking, are not considered to be sufficient grounds for a transfer. In three cases the Supreme Administrative Court, referring to the explanatory notes to the Act and the reasons stated in the requests, found that those reasons were not sufficient to permit removal of the deceased’s remains or ashes. These cases concerned, respectively, a fiancée who wanted to move her fiancé’s remains, a husband who wanted to move his wife’s remains, and a daughter who wanted to move her father’s remains. In another case, however, which concerned a mother’s request to move her child’s remains to her husband’s burial place, the Supreme Administrative Court found that there were sufficient reasons to allow the transfer. In the case concerning a daughter’s request to move her father’s remains, the former wanted to bury the latter in the same cemetery as the one in which her recently deceased mother had chosen to be buried. The Supreme Administrative Court noted that the complainant’s father had lived and worked in Malmö, and was buried there in his grandfather’s family grave. Having regard to the father’s connection to Malmö, the Supreme Administrative Court found no reason to presume that his burial there had been a mistake, and it held that there were no other sufficient reasons, after thirty years, to permit the removal of the remains.
| 0 |
train
|
001-96098
|
ENG
|
UKR
|
CHAMBER
| 2,009 |
CASE OF PANCHENKO v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
4. The applicant was born in 1957 and lives in Brovary, Ukraine. 5. The applicant is a disabled war veteran. From 1994 he was on a special list of persons to be allocated an apartment by the State on priority basis (see paragraph 38 below). 6. In May 1997 the applicant instituted proceedings in the Brovary Town Court (“the Town Court”) against Brovary Town Council, requesting the court to order the defendant to provide him with an apartment on a priority basis. 7. On 17 July 1997 the court dismissed the applicant's claim. 8. The applicant appealed and on 19 August 1997 the Kyiv Regional Court (since June 2001 the Kyiv Regional Court of Appeal) upheld the lower court's judgment. 9. In August 2001 the applicant instituted proceedings in the Town Court against the Brovary Town Executive Committee, the Kyiv Regional State Administration and the Ministry of Defence of Ukraine, requesting the court to order the defendants to provide him with a apartment on a priority basis and seeking compensation for non-pecuniary damage. 10. On 10 December 2001 the court dismissed the applicant's claims. 11. On 14 March 2002 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed the lower court's judgment and remitted the case to it for fresh consideration. 12. In the course of subsequent hearings before the Town Court the applicant withdrew some of his claims, eventually requesting the court only to order the Ministry of Defence of Ukraine to provide him with an apartment on a priority basis. 13. On 27 November 2002 the Town Court dismissed the applicant's claim. On 27 December 2002 the same court rectified certain clerical errors in its judgment. 14. On 6 June 2003 the Court of Appeal quashed the judgment of 27 November 2002 and rendered a new one, ordering the Ministry of Defence of Ukraine to provide the applicant with an apartment within three months of the judgment becoming final. Apparently, this judgment was not appealed against. 15. On 20 October 2003 the State Bailiff's Service instituted proceedings to enforce this judgment. 16. In May 2004 the applicant requested the Court of Appeal to change the means of enforcement of the judgment of 6 June 2003. In particular he sought replacement of the in-kind award with monetary compensation to him in the amount of 225,332.40 Ukrainian hryvnias (UAH). 17. On 27 May 2004 the court rejected that request, indicating that the matter should be examined by the Town Court. 18. On 13 October 2004 the Town Court allowed the applicant's request in part, ordering the Ministry of Defence of Ukraine to pay Brovary Town Council the above-mentioned sum in order to purchase an apartment for the applicant. 19. On 12 May 2005 this sum was transferred to the bank account of Brovary Town Council. 20. On 16 May 2005 the State Bailiff's Service terminated the enforcement proceedings against the Ministry of Defence of Ukraine as the judgment of 6 June 2003 as amended by the decision of 13 October 2004 had been enforced. 21. On 26 May 2005 Brovary Town Council authorised the Brovary Town Executive Committee to arrange the purchase of an apartment for the applicant in compliance with the judgment of 6 June 2003 as amended by the decision of 13 October 2004. 22. According to the Government, the sum awarded on 13 October 2004 was insufficient to purchase an apartment for the applicant on the secondhand market due to the dramatic increase in real estate prices. For that reason, having invited tenders, on 30 August 2005 the Brovary Town Council concluded a contract with an appropriate company for the construction of an apartment for the applicant. 23. By 2007 the apartment at issue had been constructed, and on 14 August 2007 the Brovary Town Executive Committee issued the applicant with a housing warrant (ордер на заселення житлової площі). On several occasions the applicant was invited to take that warrant but to no avail. 24. On 3 July 2008 the Town Court found the applicant to be abusing his rights (namely, by evading concluding the tenancy contract and, accordingly, paying the tenancy fee) and ordered him to take the housing warrant and move into the apartment within ten days. In that regard enforcement proceedings were instituted against the applicant but the judgment of 3 July 2008 has not yet been enforced. 25. In November 2007 the applicant instituted proceedings in the Town Court against the Brovary Town Executive Committee, seeking to annul the defendant's decision of 14 August 2007 to issue him with the housing warrant. In particular, he pleaded that the floor space of the apartment allocated to him was less than that guaranteed by the domestic law and that the apartment had been purchased as a result of an unlawful tender. On 8 September 2008 the court dismissed his claims as unsubstantiated. It is not clear whether the applicant appealed against that decision. 26. According to the applicant, though, the judgment has still not been enforced. He did not inform the Court about the events set out in the preceding paragraphs (23-25). 27. In October 2005 the applicant instituted administrative proceedings in the Town Court against Brovary Town Council, seeking enforcement of the judgment of 6 June 2003 as amended by the decision of 13 October 2004. In view of the increase in real estate prices, the applicant also sought an additional sum of money to be paid by the defendant as compensation for pecuniary damage as a result of the alleged inactivity. 28. On 28 October 2005 the court dismissed the applicant's claim on account of procedural shortcomings (in particular, for failure to pay the court fee). 29. On 17 February 2006 the Court of Appeal quashed that decision and remitted the matter of the admissibility of the applicant's claim to the Town Court for fresh consideration. 30. On 24 November 2006 the Town Court dismissed the applicant's claim as unsubstantiated. 31. On 26 February 2007 the Court of Appeal upheld that judgment. 32. On 25 September 2008 the Higher Administrative Court quashed the lower courts' decisions and discontinued the proceedings, having found that the claim should be examined under the civil procedure. 33. On 31 October 2006 the applicant requested the General Prosecutor's Office to institute criminal proceedings against Brovary Town Council, alleging embezzlement and misuse of budgetary funds. 34. On 15 December 2006 the prosecutor refused to institute criminal proceedings as requested. The applicant appealed against that decision to the Town Court. 35. On 3 August 2007 the Town Court quashed the decision in question and referred the matter back for additional investigation. Subsequently the prosecutor refused to institute the proceedings in question on several occasions and the applicant successfully challenged those refusals before the Town Court. 36. Apparently the investigation is still pending. 37. Under section 61 of the 1983 Housing Code publicly owned dwellings shall be used on the basis of a tenancy contract concluded between the tenant and the relevant authority. 38. The Military Servicemen Legal and Social Protection Act (no. 2011-XII of 20 December 1991, as amended at the material time) sets forth that the State provides the military servicemen with, among other benefits, appropriate dwelling (section 12). Those servicemen who have retired due to their service-related injuries and diseases are entitled to housing on a priority basis (section 12 § 4). 39. Under section 6 § 1 of the State Housing Fund Privatisation Act (no. 2482-XII of 19 June 1992, as amended at the material time) the dwelling occupied by the military servicemen who enjoy benefits under the above Military Servicemen Legal and Social Protection Act shall be granted free of charge into private property of these military servicemen. 40. The Veterans of War and Their Social Protection Guarantees Act (no. 3551-XII of 22 October 1993, as amended at the material time) guarantees that disabled war veterans shall be housed within two years, at maximum, of submitting an appropriate application, provided that their existing accommodation does not comply with the relevant housing standards (section 13 § 18). 41. The State Social Housing Fund Act (no. 3334-IV, valid since 1 January 2007) provides the same guarantees to the veterans of war (sections 11 and 12). Under section 3 § 5, however, social dwellings are not subject to privatisation. 42. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). 43. Under section 33 of the Enforcement Proceedings Act the bailiff and the parties to the enforcement proceedings (debtor and creditor) are entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision.
| 1 |
train
|
001-91063
|
ENG
|
TUR
|
CHAMBER
| 2,009 |
CASE OF İPEK AND OTHERS v. TURKEY
| 3 |
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
4. The applicants were born in 1985 and live in Diyarbakır. At the time of the events they were sixteen years old. 5. According to the official documents, in connection with an ongoing investigation against an illegal armed organisation, namely the PKK (the Workers’ Party of Kurdistan), the police received information that the second applicant, a suspected member of that organisation, had arrived from the rural area in order to conduct activities in cities on behalf of the organisation. Having established the second applicant’s address in Diyarbakır, the police conducted a search of the premises, on 1 December 2001 at 1.20 a.m., and arrested the second applicant. The other applicants, who were also present during the house during the search, were similarly arrested and taken into police custody in order to establish any link they might have had with the organisation. The police did not find anything illegal or incriminating during the search. 6. On the same night, at around 2.15 a.m., the applicants were taken for a medical examination at the Diyarbakır State Hospital. 7. According to the custody records, the police informed the fathers’ of first and the third applicant and the second applicant’s mother of their arrest and detention. 8. On 2 December 2001 the police searched the house of the first applicant but did not find anything illegal or incriminating. 9. Upon the request of the police, the Diyarbakır public prosecutor (hereinafter the prosecutor) extended the applicants’ detention for two days on 3 December 2001. 10. On the same day, the applicants were questioned by the police. Since they were accused of offences falling within the jurisdiction of the State Security Courts, they could not benefit from the assistance of a lawyer despite their age. 11. The custody records noted the end of the applicants’ custody at 10.40 a.m. on 4 December 2001. 12. Later the same day, the applicants were taken for a medical examination at the Bağlar Medical Clinic. 13. Afterwards, the applicants were first brought before the prosecutor and then to the Diyarbakır State Security Court (hereinafter the SSC). The latter, after having heard them, ordered their remand in custody. 14. On 5 December 2001 the prosecutor, relying mainly on the basis of the applicants’ statements obtained during the pre-trial investigation, filed a bill of indictment with the SCC accusing the second applicant of membership of an illegal organisation and the other applicants of aiding and abetting that organisation. The charges were brought under Articles 168 and 169 of the Turkish Criminal Code respectively. 15. At the first hearing held before the SSC, on 5 February 2002, the applicants were released pending trial. 16. No further documentation has been submitted by the parties regarding these proceedings before the SSC. 17. A description of the relevant domestic law at the material time can be found in the Ahmet Mete v. Turkey judgment, no. 77649/01, §§ 17-18, 25 April, and the Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005). 18. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further. The detention of juveniles in police custody should be supervised by the competent authorities. ” “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
| 1 |
train
|
001-106041
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,007 |
PHOCAS v. FRANCE
| 3 |
Inadmissible
|
Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
|
The applicant, Mr Christian Phocas, is a French national who was born in 1943 and lives in Pierrevert. He was represented before the Court by Mr Frédéric Weyl, a lawyer practising in Paris. . The applicant is a civil servant and the father of three children. His pension was calculated on 2 September 2003 by an order of 7 July 2003. However, the calculation did not take account of the service credits for children established in Article L. 12 of the Civil and Military Pensions Code then in force, which provided: “Under conditions determined by a regulation of the Prime Minister, the following service credits shall be added to the periods of service actually completed: ... (b) A service credit granted to female civil servants for each legitimate child, each natural child of established paternity and each adopted child, and, subject to the condition that they have been brought up for at least nine years before reaching their twenty-first birthday, for each of the other children listed in paragraph II of Article L.18.” By a judgment of 29 November 2001 the Court of Justice of the European Communities held that Article L. 12 was contrary to the principle of equal pay as laid down in the Treaty establishing the European Community. Following that judgment, the Conseil d’Etat held, in a judgment of 29 July 2002 concerning Mr G., a litigant other than the applicant, that Mr G. was entitled to the service credit provided for in Article L. 12. On 4 August 2003 the applicant requested a review of his pension with a view to obtaining the service credits to which he considered he was entitled in respect of his three children. He submitted that he should be awarded three years of service credits in respect of his three children, by strict reference to the Conseil d’Etat’s analysis in its judgment in favour of Mr G. on 29 July 2002, and also the principle of equal pay for men and women, which precluded civil servants being refused entitlement to the benefit of the provisions on the ground of their sex. On 21 August 2003 a new Act amended the provisions of Article L.12 of the Pensions Code. Section 48 I stated: “Under the conditions determined by a decree of the Conseil d’Etat, the following service credits shall be added to the periods of service actually completed: ... (b) For each legitimate child and each natural child born before 1 January 2004... civil servants and military personnel shall receive a service credit fixed at one year, in addition to the periods of service actually completed, provided that they have interrupted their employment in the conditions determined by the decree of the Conseil d’Etat ....” Section 48 II was worded as follows: “The provisions of Article L. 12(b) of the Civil and Military Retirement Pensions Code resulting from the wording of [sub-subsection] 2 of [Part] I shall apply to pensions calculated from 28 May 2003.” The above-mentioned decree of the Conseil d’Etat was adopted on 26 December 2003. On 15 September 2003 the Minister for the Economy and Finance rejected the applicant’s request in the following terms: “... Given the date of calculation of your pension, a service credit is payable only if you can provide evidence of having interrupted your employment on the birth of your children. If that condition is satisfied, it will then be necessary to consider whether the duration of that interruption does in fact correspond to the duration due to be fixed by the forthcoming decree.” On 23 September 2003 the applicant lodged an application with the Marseilles Administrative Court, seeking judicial review of the order of 7 July 2003 awarding the pension and of the decision of the Minister for the Economy and Finance refusing to review the applicant’s pension entitlement. He alleged that since the order of 7 July 2003 containing the calculation of his pension had failed to take account of his situation as a father of three children, it had disregarded his rights under Article L.12b of the Pensions Code, which was intended to apply to both female and male civil servants, and was thus discriminatory. He also maintained that, given the refusal to review his pension, the new Act had been applied retrospectively. When the Constitutional Council had decided that there could be no retrospective effect for female civil servants, the resulting situation had established discrimination, since, for the same retirement date, women continued to be covered by the old provisions whereas men were subject to the new, retrospective provisions. The applicant concluded that there had been a violation of Article 1 of Protocol No. 1 and of the principle of non-discrimination. In a number of judgments, in particular that of 29 December 2004, the Conseil d’Etat adjudicated in cases identical, both in law and in fact, to the applicant’s case. On the complaint based on Article 1 of Protocol No. 1, the Conseil d’Etat held that, while section 48 II of the Act of 21 August 2003 “retrospectively [deprived] civil servants whose pension [had been] calculated after 28 May 2003 of entitlement to the credit, the principle and the amount of which were certain..., that retrospective effect, applicable to a period of less than three months, constitute[d] an interference with the asset in question which was justified, in line with the legislature’s intention, by public-interest considerations related to the desire to ensure that the announcement of the tabling of the Bill did not lead to an increase in litigation.” It concluded that “this interference, which [did] not affect the substance of the right to a pension but only one of the elements of its calculation, [was proportionate] to the aim thus pursued.” As for the complaint based on Article 6 § 1 of the Convention, the Conseil d’Etat considered that the enactment of section 48, on a date preceding the application submitted by the litigants, at a time when no dispute existed between them and the State concerning the calculation of their pensions, had had neither the aim nor effect of influencing the outcome of pending judicial proceedings and that it had thus not deprived those concerned of their right of access to a court in order to assert their rights. On the basis of those considerations, the Marseilles Administrative Court dismissed the applicant’s application on 24 October 2005. In view of the aforementioned judgments of the Conseil d’Etat, the applicant did not lodge an appeal on points of law. By a judgment of 29 November 2001, the Court of Justice of the European Communities held that the principle of equal pay precluded limiting to women credits granted for the purpose of calculating a retirement pension to persons who had raised their children, whilst men who had raised their children were excluded from entitlement to the credit. It held that Article L. 12(b) of the Civil and Military Retirement Pensions Code, which introduced, for the calculation of pensions, a service credit of one year for each child, limited to female civil servants, was incompatible with the principle of equal pay as laid down in the Treaty establishing the European Community and the Agreement annexed to Protocol No. 14 on Social Policy annexed to the Treaty on European Union. On 29 July 2002 the Conseil d’Etat, which had stayed proceedings pending the ruling of the Court of Justice, held that in so far as provisions were maintained which were more favourable to female civil servants who had raised their children, Mr G., who had raised [his] children himself, was entitled to the credit provided for in Article L. 12(b) of the Pensions Code.
| 0 |
train
|
001-72947
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,006 |
MAC-STRO S.R.L. v. MOLDOVA
| 4 |
Inadmissible
|
Nicolas Bratza
|
The applicant, “MAC-STRO” S.R.L., is a company incorporated in Moldova. On 4 July 2002 the applicant company (the applicant) bought goods, which were valued at 180,921 Moldovan lei (MDL) (the equivalent of 13,352.1 euros (EUR) at the time), from a Ukrainian company. On 8 July 2002 the applicant’s merchandise crossed the Moldovan border. On 12 July 2002 the applicant registered a customs declaration at the Chişinău Customs Office. On 2 August 2002 the Customs Department fined the applicant for failure to declare the imported goods within the legal time limit of 72 hours from the moment of crossing the border. The fine was imposed in accordance with the provisions of the Customs Code (see “Domestic Law” below) and represented forty percent from the total value of the goods and was set at an amount of MDL 72,368.40 (the equivalent of EUR 5,461.64 at the time). The applicant’s representative was also fined for failure to present relevant documents for the imported goods within the same legal time limit. The fine was imposed in accordance with the provisions of the Code of Administrative Offences and was set at an amount of MDL 180 (the equivalent of EUR 13.58 at the time). On 16 September 2002 the applicant brought an action against the Customs Department, seeking the annulment of the decision in respect of the fine imposed on it. On 22 November 2002 the Chişinău Regional Court ruled in favour of the applicant and annulled the Customs Department’s decision in respect of the applicant. The latter lodged an appeal against the judgment. On 3 June 2003 the Court of Appeal upheld the appeal lodged by the Customs Department and dismissed the applicant’s action. During the proceedings, the applicant’s representative admitted its failure to observe the legal time limit for lodging the customs declaration and gave reasons for the failure, but the Court of Appeal considered those reasons as irrelevant. The relevant provisions of the Customs Code of the Republic of Moldova of 20 July 2000 read as follows: “Article 176. Customs declaration filing deadlines 1. Customs declaration shall be filed within 72 hours following the crossing of the customs frontier. (...) ... Article 231. Types of Customs Regulations infringements which entail material liability The following Customs Regulations infringements shall entail material liability: ... 3) a failure to declare goods crossing the customs frontier according to the established procedure, or a false declaration, in the absence of elements constituting smuggling or other crimes; (...) ... Article 232. Penalties for Customs offences which entail material liability Legal entities and entities engaged in business activities without being incorporated as legal entities when committing offences specified in: a) Article 231(1)-(4), shall be subject to a fine in an amount equivalent to 40 to 100 percent of the value of goods which constitute the object of the offence with or without licence revocation;”
| 0 |
train
|
001-117860
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,008 |
EL MORSLI v. FRANCE
| 2 |
Inadmissible
|
Josep Casadevall
|
The applicant, Ms Fatima El Morsli, is a Moroccan national, who was born in 1980 in Tagzirt (Morocco) and resides in Marrakesh. The facts of the case, as submitted by the applicant, can be summarised as follows. The applicant is of the Muslim faith and wears the veil. Since 2001, she has been married to a French national who lives in France. She submitted that on 12 March 2002 she had gone to the Consulate-General of France in Marrakesh to request an entry visa to France so that she could join her husband, and that she was had not been authorised to enter the consulate premises because she had refused to remove her veil for the purposes of an identity check. The applicant had then submitted a visa application by registered letter, and her application had been refused. The applicant’s husband then lodged an appeal, on behalf of his wife, with the Appeals Board against the refusal to grant her an entry visa to France. On 25 June 2003 the Board dismissed his appeal as follows: “In accordance with the provisions of Article 5 of Decree 2000-1093 of 10 November 2000 relating to the Appeals Board for appeals against decisions refusing entry visas to France, I regret to inform you that the Board has dismissed the appeal you lodged on 1 July 2002 requesting re-examination of the decision by which the Consul-General of France in Marrakesh refused an entry visa to France to [the applicant]. It is up to [the applicant] to comply with the regulations in force in order to request a visa entry to France in accordance with the formal requirements.” The applicant’s husband then lodged a further appeal, still on behalf of his wife, with the Conseil d’Etat, invoking in particular the right of his wife to respect for her family life and the right to freedom of religion. On 7 December 2005 the Conseil d’Etat dismissed the appeal, giving the following reasons: “... The wearing of the veil or headscarf, by which women of the Muslim faith can express their religious convictions, may be restricted, particularly in the interests of public order. The documents in the file show that [the applicant] went to the French Consulate in Marrakesh on 12 March 2002 in order to request a visa and that as she refused to agree to the identity check, which has been set in place at the entrance to the Consulate for reasons of security and public order and required the temporary removal of her veil, she was not allowed access to the Consulate; that she then submitted a visa application by registered letter; that this written application, which did not, however, enable the person requesting the visa to be identified, cannot be regarded as a visa application in accordance with the formal requirements for issuing visas, which require the personal appearance of the applicant; that in citing this reason for refusing the visa application, the Board, which was not obliged to examine the application as regards right of entry since it was not submitted in accordance with the formal requirements, which can legally impose a temporary restriction on the wearing of the veil as the only means of identifying the applicant, did not err in law or infringe Article 9 of the Convention ... . Since the [applicant] refused to agree to this temporary restriction to allow her identity to be checked, she must be considered as having, on her own initiative, decided not to submit a visa application in accordance with the formal requirements; that consequently, she is not entitled to rely on the terms of Article 8 of the Convention... .”
| 0 |
train
|
001-92879
|
ENG
|
SVK
|
CHAMBER
| 2,009 |
CASE OF KVASNICA v. SLOVAKIA
| 3 |
Remainder inadmissible;Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
6. The applicant was born in 1962 and lives in Piešťany. 7. The applicant is a lawyer. He used to be a public prosecutor and is now a practising member of the Slovak bar association. 8. Between August 1999 and March 2001 the applicant acted as the legal representative of several industrial companies belonging to a group associated with a strategic steelworks in eastern Slovakia. For a period of time starting on 18 April 2001 he was on the board of directors of the company owning the works. 9. In 1999 the Minister of the Interior set up a special team of investigators to investigate large-scale organised criminal activities of a financial nature which were supposedly being committed in connection with a company belonging to the above group. The team was composed of officers from the financial police. 10. On an unspecified date the investigators charged an individual, I.C., with aggravated fraud. 11. On an unspecified date the investigators applied for judicial authorisation to tap the applicant’s telephone. At an unspecified time a judge of the Bratislava Regional Court granted the authorisation. The applicant’s professional mobile phone was subsequently tapped. 12. In November 2000 the applicant learned that calls from his phone were being intercepted; that the interception was being carried out by the financial police; and that the contents of his telephone communications were known outside the police. 13. On 5 January 2001 the applicant received an anonymous letter confirming the above information and advising him that the interception had taken place from October to December 2000 and had been carried out at the request of opponents of his clients. 14. On 31 May 2001 and 1 June 2001 a daily paper published interviews with the Minister of the Interior and the chief of the Police Corps. From those interviews the applicant understood that there had been confirmation that the interception had actually taken place. 15. Verbatim records of the applicant’s calls had been leaked to various interest groups, politicians and journalists, as well as to representatives of several legal persons. 16. Thus in September 2001 the daily Sme received by mail a transcript of the applicant’s telephone conversation with a journalist of Radio Free Europe. On 13 October 2001 Sme published a statement by a politician who had declared at a press conference that he possessed approximately 300 pages of copies of transcripts of the applicant’s telephone conversations. 17. In summer 2002 the applicant was informed that verbatim records of his conversations with third persons which had been made by the financial police were freely accessible on a website. They included conversations with his colleagues, clients, the representative of the other party in a case, and friends. The records had been manipulated in that they included statements which the applicant and the other persons involved had not made. 18. On 15 and 29 January 2001 the applicant informed the Inspection Service of the Ministry of the Interior (“the Inspection Service”) that he had been warned in a letter signed “member of the Financial Police” about the interception of his telephone. He claimed that the interception was unlawful and unjustified and accused one or more unknown police officers of having abused their official authority. The applicant stated that an appropriate investigation should be carried out into the matter in accordance with the law. 19. The director of the special division of the financial and criminal police (odbor zvláštnych úloh správy kriminálnej a finančnej polície) lodged a criminal complaint as, on the basis of his own examination of the case file, he had come to the conclusion that the interception contravened sections 36 and 37 (1) of the Police Corps Act 1993 (see Relevant domestic law and practice below). This was so in particular because it had not been based on any specific suspicion against the person being targeted and no specific purpose had been indicated. In his view, the members of the special investigative team had abused their official authority within the meaning of Article 158 of the Criminal Code. 20. On 10 May 2001 the judge who had authorised the interception made a written statement to the President of the Regional Court. The judge stated that the request for the authorisation had met all formal and substantive requirements. In his view, the police director had no authority to challenge the authorisation. The judge therefore considered it inappropriate to address the substance of the director’s objections. He nevertheless remarked, in general, that requests for authorisation were made in writing, but were submitted in person. The officer submitting the request had presented the case orally and the oral presentation was usually more comprehensive than the written request. As requests for authorisation had to be handled with the utmost urgency, judges had had no realistic opportunity to examine the case file or to check that the request for authorisation corresponded to the contents of the case file. Furthermore, the information in the case file was often obtained from unverifiable sources. Judges therefore had to rely on the information in the request for authorisation, which presupposed a certain element of trust. The judge further observed that there had been an enormous increase in the workload concerning tapping and that this was due, inter alia, to an interagency agreement which had been reached under the auspices of the Ministry of Justice (see Relevant domestic law and practice below) and had extended the jurisdiction of the Bratislava Regional Court in this area. In his view, questions of jurisdiction should not be regulated by “agreements” but by statute, which was not the case in relation to tapping. The judge stated that telephone tapping had been authorised on three previous occasions in the course of the investigation into the suspected extensive criminal transactions within the industrial group mentioned above. He had thus had sufficient and detailed knowledge about the applicant’s case. The judge associated himself completely with the decision taken, although the suspicion against the applicant might later have been dispelled. This was nothing unusual and happened in 10-20% of cases. 21. On 22 May 2001 the applicant asked the General Prosecutor to take measures with a view to eliminating unlawful interception and recording of telephone conversations. 22. On 20 June 2001 the Inspection Service questioned the applicant in connection with his complaint. According to the applicant, since then there has been no official communication concerning his complaint and he has not been informed of the outcome of the investigation. 23. On 21 June and 2 July 2001 the Inspection Service requested that the Ministry of the Interior discharge members of the special investigative team from the obligation of confidentiality in respect of the subject matter of the investigation. The Ministry agreed on 9 and 10 July 2001 respectively. 24. On 31 August 2001 the General Prosecutor’s Office informed the applicant, in reply to his above request of 22 May 2001, that the framework for the interference was defined by Article 22 § 2 of the Constitution and the relevant statutory provisions including the Police Corps Act 1993. Decree no. 66/1992 defined the court’s jurisdiction in such matters in cases where criminal proceedings had not been brought. The fact that the relevant issue was not governed by a law was only a formal shortcoming. Moreover, a draft law had been prepared to cover the relevant issue. 25. Between 5 and 20 September 2001 the Inspection Service questioned four members of the investigative team. Their depositions included, inter alia, the information that the operative part of the team had been colluding with the applicant; that the applicant had been in close contact with I.C. (see paragraph 10 above); that the applicant had been involved in several contractual transactions within the group, which had eventually harmed the interests of the steelworks; that the request for authorisation to tap the applicant’s phone had been based on the suspicion that he had committed the offences of aggravated fraud (Article 250 of the Criminal Code) and money laundering (Article 255 of the Criminal Code); that the request had been drafted without consultation of the case file; that the interception had been necessary because it had not been possible to move the investigation forward without it; and that after the interception had been compromised the case file had been made available to various officials, including the Minister of Justice, who at that time also acted as the Minister of the Interior ad interim. 26. On 21 September 2001 the Inspection Service dismissed the criminal complaint by the police director. It noted that a “committee of experts specialising in operational tasks” had been set up and “had detected no breach of the applicable regulations”. The interception had been authorised by a judge and had thus been lawful. There was no basis for scrutinising the judge’s decision. In conclusion, there was no case to answer. The decision has never been served on the applicant. 27. According to the applicant, he had lodged some ten criminal complaints between 2001 and 2003 about the interception of his telephone conversations and mishandling of the verbatim records. Without submitting further details the applicant indicated that those complaints had been rejected without an appropriate examination of the facts. 28. The chief editor of the daily Sme filed a criminal complaint after receipt of a transcription of the applicant’s telephone conversation with a journalist of Radio Free Europe. In the context of the proceedings a journalist of Sme was heard. On 14 November 2001 the police also heard the politician who had stated that he possessed 300 pages of copies of transcripts of the applicant’s telephone conversations. The applicant was involved in the proceedings as the injured party. 29. The parties have not informed the Court about the outcome of the proceedings. 30. In 2003 lieutenant colonel B., attached to the Inspection Service’s department specialised in combating corruption and organised crime, contacted the applicant and informed him that there was a general order within the Police Corps to reject all the applicant’s complaints. The police officer had been obliged to leave the police after he had started criminal proceedings upon one of the applicant’s complaints. In February and March 2003 that officer had complained to the Bratislava Higher Military Prosecutor’s office and to the General Prosecutor’s office about abuse of authority in the context of examination of the applicant’s complaints. 31. The Government submitted a standpoint of the General Prosecutor dated 8 February 2007. It indicates that the above decision of the Inspection Service of 21 September 2001 had been taken in accordance with the law. As to the criminal complaints which officer B. had lodged in 2003, an investigator had set the case aside, on 19 July 2006, on the ground that no offence had been committed in the context of examination of the applicant’s complaints. Finally, reference was made to the reply which the General Prosecutor’s Office had sent to the applicant on 31 August 2001. 32. Pursuant to Article 19, everybody has the right to protection against unjustified interference with his or her private and family life (§ 2) and against the unjustified collection, publication or other misuse of personal data (§ 3). 33. Article 22 guarantees the secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2). 34. In proceedings no. II. ÚS 254/03 an individual alleged, inter alia, a breach of Article 8 of the Convention in that his telephone had been tapped unlawfully. On 17 December 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It established that the interception had been authorised by a regional court judge in accordance with the relevant provisions of the Police Corps Act 1993. 35. In proceedings no. I. ÚS 274/05 (judgment of 14 June 2006) the Constitutional Court found a breach of an individual’s rights under Article 8 of the Convention on the ground that, contrary to the statutory requirement, two judicial decisions to authorise the interception of the plaintiff’s telephone contained no specific reasons justifying the interference. 36. The Code distinguishes between the procedure before the formal institution (commencement) of a criminal prosecution, which is governed by the provisions of Chapter 9, the procedure after the commencement of the prosecution but before the filing of the bill of indictment, known as the “preliminary proceedings” and governed by the provisions of Chapter 10, and the procedure in court which begins with the filing of the indictment and is governed by the provisions of Chapter 11. 37. The procedure before the institution of a criminal prosecution encompasses receiving and verifying information, obtaining documentation and explanations and securing evidence with a view to determining whether a criminal offence has been committed and whether it is justified to bring a formal prosecution in connection with it. As a general rule, eavesdropping and interception is not allowed at this stage of the proceedings (Article 158 § 4) unless such measures cannot be postponed or repeated within the meaning of Article 158 § 6. 38. The procedure before the commencement of a criminal prosecution ends with a formal decision either not to accept the criminal complaint (Article 158 § 2), or to refer the matter to the relevant authority dealing with minor offences or disciplinary or other matters (Article 159 § 1), or to refuse to take action (Article 159 §§ 1, 2 and 3), or to institute formal criminal proceedings (Article 160). 39. The scope of the jurisdiction and competence of criminal courts is defined in section 1 of Chapter 2. Proceedings at first instance are to be conducted before a district court unless the law provides otherwise (Article 16). 40. The Act governs the organisation and powers of the police. Section 2 (1) defines the tasks of the police. These include serving (a) to protect fundamental rights and freedoms, life, health, personal safety and property; (b) to detect criminal offences and to identify the culprits; (c) to detect illegal financial operations and money laundering; (d) to investigate criminal offences and to examine criminal complaints; and (e) to combat terrorism and organised crime. The provisions relevant in the present case read as follows: “Information technology devices Section 35 For the purpose of this Act information technology devices are, in particular, electro-technical, radio-technical, photo-technical, optical and other means and devices or their combinations secretly used for a) search for, opening and examination of consignments and their evaluation while using forensic methods, b) interception and recording of telecommunications, c) obtaining image, sound or other recordings. Section 36 1. The Police Corps is entitled to use information technology devices when complying with its tasks in the fight against terrorism, money laundering in the context of the most serious forms of criminal activities, in particular organised crime, ... tax evasion and unlawful financial operations, ... The preceding provision does not apply to contacts between an accused person and his or her defence counsel. 2. The Police Corps can use information technology devices also in respect of criminal activities other than those mentioned in sub-section 1 subject to the agreement of the person whose rights and freedoms will thereby be interfered with. Conditions of use of information technology devices Section 37 1. The Police Corps can use information technology devices only where the use of other means would render the investigation of criminal activities mentioned in section 36, identification of their perpetrators or securing evidence necessary for the purpose of criminal proceedings ineffective or considerably difficult. 2. Information technology devices can only be used subject to a prior written consent of a judge and for a period strictly necessary which however cannot exceed six months. That period starts running on the day when such consent has been given. 3. The judge who approved of use of information technology devices can, on the basis of a fresh request, extend the period, but for no longer than six months each time. 4. In exceptional cases, where no delay is possible and a written consent of a judge cannot be obtained, information technology devices can be used without such consent. However, the Police Corps must apply for a written approval by a judge without delay. If such consent is not given within 24 hours from the moment when the use of devices started or if the judge refuses to give his or her consent, the Police Corps must put an end to the use of information technology devices. Information thus obtained cannot be used by the Police Corps and they must be destroyed in the presence of the judge competent to decide on the request. 5. The Police Corps shall submit a request for approval of the use of information technology devices to a judge in writing; it must contain data about the person concerned, specify the device to be used, place, duration and reasons for its use. 6. The judge who gave consent to the use of information technology devices must examine on a continuous basis whether the reasons for their use persist; where such reasons no longer exist, the judge is obliged to immediately order that the use of the devices be stopped. 7. The Police Corps can use information technology devices without prior consent of a judge ... where the person whose rights and freedoms are to be interfered with has consented to such in writing... Section 38 1. When using information technology devices the Police Corps must constantly examine whether the reasons for such use persist. Where those reasons are no longer valid, the Police Corps must immediately put an end to the use of an information technology device. 2. The Police Corps must inform the judge who gave consent to the use of information technology devices of the termination of such use. 3. Information obtained by means of information technology devices can be used exclusively for attaining the aim set out in section 36. 4. The use of information technology devices can restrict the inviolability of one’s home, the privacy of correspondence and the privacy of information communicated only to the extent that it is indispensable. 5. Information obtained by means of information technology devices can exceptionally be used as evidence, namely where such information constitutes the only proof indicating that a criminal offence listed in section 36 was committed by a specific person and where such proof cannot be obtained by other means. In such case the relevant recording must be accompanied by minutes indicating the place, time, means and contents of the recording and the reason for which it was made.” 41. Section 69 deals with police information systems and databases. The police are entitled to set up and operate information systems and databases containing information about persons and facts which are relevant for their work (subsection 1). The police have the duty to protect the data stored in such systems from disclosure, abuse, damage and destruction (subsection 2). If the data are no longer needed, they must be destroyed or stored so that they are not accessible to anyone except a court (subsection 3). 42. Sections 35, 36(2), 37 and 38 of the Police Corps Act 1993 were repealed by Act 166/2003 Coll. on Protection of Privacy against Unjustified Use of Information Technology Devices (“Privacy Protection Act 2003”) which entered into force on 21 May 2003. 43. The Act governs the use of information technology devices without the prior consent of the person concerned. It does not extend to the use of such devices in the context of criminal proceedings which is governed by the Code of Criminal Procedure (section 1). 44. Section 2 defines the authorities entitled to use such devices (Police Corps, Slovak Intelligence Service, Military Intelligence Service, Railways Police, Corps of Prison and Justice Guards and Customs Administration). The devices used must be secured against tampering. Personnel involved in using the devices must undergo a lie-detector test at intervals fixed by the head of the authority concerned. 45. Section 3 allows for use of information technology devices only where it is necessary in a democratic society for ensuring the safety or defence of the State, prevention or investigation of crime or for the protection of the rights and freedoms of others. The information thus obtained cannot be used for purposes other than one of those enumerated above. 46. Pursuant to section 4, such devices can be used subject to prior approval by a judge within whose jurisdiction the case falls. Their use should be limited to a period which is strictly necessary and it should not exceed six months unless the judge grants an extension. The judge involved is obliged to examine on a continuing basis whether the reasons for the use of such devices persist. 47. In exceptional cases specified in section 5 the police can use the devices without the prior consent of a judge. In such cases, the judge must be notified within one hour after the use of the devices has started and a request for authorisation of such use must be submitted within 6 hours. In case of disapproval by the judge of such interference the data obtained must be destroyed. 48. Sections 7 and 8 govern the use and disposal of data obtained and the liability of the State in case of failure by the authorities concerned to comply with the law. 49. Pursuant to section 9 the National Council of the Slovak Republic (the Parliament) shall examine at its plenary meeting, twice a year, a report of its committee set up for the purpose of supervising the use of information technology devices. The report must indicate any unlawful use of the devices established. The report can be made available to the media. The authorities entitled to use information technology devices must make available to the above committee all relevant information within ten working days following the committee’s request. 50. The decree was issued, inter alia, pursuant to Article 391a § 2 of the Code of Criminal Procedure, which authorised the Minister of Justice to lay down further details of the procedure before district courts and regional courts “in dealing with criminal matters”. 51. Section 45 (1) obliged the presidents of each regional court to assign one judge to deal with matters concerning use of information technology devices. 52. The decree of 1992 was repealed by Decree no. 543/2005 with effect from 1 January 2006. 53. On 29 March 2000 a conference took place under the auspices of the Ministry of Justice. Representatives of the Ministry, the regional courts, the head office of the police and the office of the Prosecutor General took part. The participants agreed that matters concerning authorisation of wiretapping would be handled by the regional court in the judicial district in which the agency requesting it had its seat. 54. The amendment entered into force on 16 April 2002. It introduced, inter alia, subsections 2 and 3 to section 13 of the Courts and Judges Act. They provide that, as a general rule, authorisation for monitoring telecommunications falls within the jurisdiction of the regional courts. Territorial competence is conferred on the regional court in the judicial district in which the authority seeking the authorisation has its seat.
| 1 |
train
|
001-57736
|
ENG
|
DEU
|
CHAMBER
| 1,992 |
CASE OF CROISSANT v. GERMANY
| 3 |
No violation of Art. 6-1;No violation of Art. 6-3-c
| null |
6. Mr Klaus Croissant, a German national, is a lawyer who practises in Berlin. At the material time, he was facing criminal proceedings in the Stuttgart Regional Court (Landgericht) in connection with his activities as the lawyer of various members of the "Red Army Faction" (RAF). 7. Initially he was represented by two lawyers of his choice: Mr Baier, practising in Mannheim, and Mr Kempf, having his office in Frankfurt. Subsequently, on 2 August 1976, they were designated, at his request, to represent him as court-appointed defence counsel. The applicant had, moreover, chosen three further lawyers to assist in his defence, two of whom were French, but they did not participate in the criminal proceedings in question here. 8. On 11 January 1978, on an application by the prosecuting authority, the President of the Regional Court designated as third court-appointed defence counsel, Mr Hauser, a lawyer practising in Stuttgart. 9. Mr Croissant raised objections both to the appointment of a third defence counsel itself and to the choice of the person concerned. He objected in particular that Mr Hauser was a member of the Social Democratic Party (SPD), while he was fundamentally opposed to that party. He requested either that the decision appointing Mr Hauser be annulled or that the latter be replaced by Mr Künzel, who also had his office in Stuttgart. Mr Hauser for his part asked to be relieved of his duties in the case. The Regional Court dismissed both applications on 1 March 1978. On the first point it considered that it had been necessary to appoint a third defence counsel to ensure that the trial would take its course according to the principles laid down in the Code of Criminal Procedure and, in any event, that the accused was adequately represented throughout the trial, having regard to its possible length and to the size and complexity of the case. As to the other objection, it agreed that when selecting a lawyer to be appointed as defence counsel the court should, as a rule, endeavour to choose a lawyer in whom the defendant places confidence. This rule was formulated for cases where the defendant has no defence counsel and the court must appoint one. However, at Mr Croissant’s request, the court had appointed two defence counsel who enjoyed his full confidence. Nevertheless, when selecting the third court-appointed defence counsel, the court had not only taken into consideration which lawyer would offer the best guarantees for a proper and effective defence, having regard to the subject-matter of the trial, the factual and legal complexity of the case and the personality of the defendant. It had also tried to choose one in whom the defendant would probably be able to place confidence. Taking into account all the circumstances which were relevant for assessing whether Mr Hauser was a suitable person to defend Mr Croissant, the court held that the fact that Mr Hauser was a member of the SPD did not justify revoking his appointment: in so far as the defendant might wish the defence to make a sharp attack on the politics of this party, the other court-appointed counsel offered all the guarantees. Mr Hauser too had expressed the opinion that he was in a position to appear for the defendant in spite of their political differences. Finally, Mr Künzel was defending one of Mr Croissant’s former employees in other proceedings and the possibility of a conflict of interests could not be ruled out. 10. On 6 March 1978 the Stuttgart Court of Appeal (Oberlandesgericht) upheld this decision. It recalled that, according to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), an appointment to act as defence counsel could and should only be revoked when its purpose - that is, to ensure that the accused will be adequately defended and the proceedings properly conducted - is seriously endangered. On similar grounds as the first-instance court, it held that Mr Croissant had not established that this requirement was met in respect of Mr Hauser’s appointment. As to the appointment of a third defence counsel, the court found nothing to criticise. To appoint a further defence counsel having his office within the Regional Court’s jurisdiction had been objectively justified by reason of the length of the proceedings, which could not be predicted accurately, and the size and complexity of the case. As to Mr Hauser’s request to be discharged from the case, the court found that unjustified too. Neither Mr Croissant nor Mr Hauser maintained, nor was there anything to show, that the relations between them were so strained or they had quarrelled in such a way as to make a proper defence impossible. 11. Subsequently, Mr Croissant tried to secure the additional assistance of Mr Künzel, by choosing him as defence counsel, but to no avail. Under Article 137 para. 1 of the Code of Criminal Procedure, an accused may not be represented by more than three such lawyers (see paragraph 20 below) and he had already retained three counsel of his own choice (see paragraph 7 above). At the trial, which lasted seventy-three days, the applicant was represented by the three court-appointed defence counsel. 12. On 16 February 1979 the Stuttgart Regional Court convicted the applicant of supporting a criminal organisation and sentenced him to two years and six months’ imprisonment; he was also barred from practising his profession for a period of four years and ordered to pay the costs and expenses, including those which he had been compelled to incur himself. On 14 November 1979 the Federal Court of Justice (Bundesgerichtshof) dismissed Mr Croissant’s appeal on points of law. 13. On 27 December 1979 the costs office (Gerichtskasse) of the Regional Court set the costs and expenses at DM 239,439.30, including DM 209,683.20 for the fees and disbursements of the three court-appointed defence counsel. In an additional bill (Kostenrechnung) of 15 April 1981 it fixed the final amount at DM 253,246.16, DM 218,863.17 of which represented the lawyers’ fees and disbursements. The amount payable in respect of Mr Hauser was DM 63,012.79. 14. The applicant lodged an objection (Erinnerung) against this assessment, which he considered to be incompatible with Article 6 para. 3 (c) (art. 6-3-c) of the Convention. He argued that once free legal assistance had been granted no payment could subsequently be demanded, so that he was under no obligation to pay the court-appointed lawyers and in particular Mr Hauser, who had been imposed on him. On 20 November 1986 the Regional Court dismissed the objection; it referred to the opinion which prevailed in German case-law and literature on the subject, which opinion had been endorsed by the Commission in a decision of 6 May 1982 (application no. 9365/81, Decisions and Reports 28, p. 229). 15. Mr Croissant lodged an appeal (Beschwerde) in the Stuttgart Court of Appeal, based on the same grounds. He stressed their particular relevance to Mr Hauser, who had been appointed against Mr Croissant’s will. On 30 April 1987 the appeal was allowed in respect of two minor items (DM 113,70 in total), but was dismissed as to the main issue. The Court of Appeal held that the designation of a third court-appointed defence counsel had corresponded to a pressing need - ensuring an adequate defence -, on account of the scope and complexity of the case and in view of the probable duration of the trial. If the court, when making the appointment, had also purported to secure that the trial would take its legal course, it had rightly done so since that was a legitimate interest to be taken into account as well. As to the applicant’s arguments based on Article 6 para. 3 (c) (art. 6-3-c) of the Convention, the court endorsed the reasons given by the Regional Court. It added that the financial means of the defendant are immaterial for deciding whether or not the court should appoint a defence counsel. The question whether a convicted person is able to pay only arises after the criminal proceedings have ended. 16. On 23 June 1987 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain Mr Croissant’s constitutional appeal (Verfassungsbeschwerde), taking the view that it had no prospect of success. In the light of the Commission’s case-law, the court considered that it did not follow from Article 6 para. 3 (c) (art. 6-3-c) of the Convention that legal assistance was definitively provided free. It held that a convicted person’s obligation to pay costs and expenses derived from the fact that proceedings had been brought as a result of his own conduct. The principle of the "social state" (Sozialstaatsprinzip) and the right to a fair trial no doubt guaranteed that, where necessary, legal assistance be accorded to an indigent accused, but they did not require him to be definitively dispensed from paying the fees incurred. The law on legal costs and expenses made available other possibilities (arrangements for payment or stay of execution) to take effective account of the financial difficulties of the convicted person. Finally, the Court of Appeal’s conclusion regarding the necessity of appointing Mr Hauser as the third lawyer (see paragraph 15 above) was coherent and in any event had not been arbitrary. 17. In 1985 the applicant had already requested an extension of the time-limit for payment (Stundung), but this was refused by the President of the Stuttgart District Court (Amtsgericht) on 8 February 1988. After a first appeal (Beschwerde) had failed, his further appeal (weitere Beschwerde) was allowed on 18 August 1989, when the Stuttgart Court of Appeal quashed the earlier decisions and remitted the matter to the District Court. It considered that a decision to grant such an extension was primarily intended to facilitate the rehabilitation of a debtor who had already served his sentence. It was accordingly necessary to take account of the appellant’s argument that a rejection of his request would force him to make a declaration of assets (Offenbarungseid) and would hamper his efforts to resume practising as a lawyer. It was also necessary to bear in mind that the applicant had agreed to the inspection of his documents and accounts by a member of the Berlin Bar, in order to assess his income, and that the Federal Ministry of Justice had proposed to ask him to make a confidential statement under oath before a notary instead of a declaration of assets. Even though granting the extension would mean in reality that a large part of the debt would remain unpaid indefinitely, that did not justify a refusal; in any event it was unlikely that the total amount could ever be recovered. It was therefore necessary to reconsider the question and to determine whether it was possible to authorise smaller payments by instalments. 18. As a result, the President of the District Court granted several extensions of the time-limit, on the most recent occasion until March 1992. However, in October 1989, on his own initiative, Mr Croissant started to pay DM 50 per month, on the condition that this sum not be used to pay the court-appointed lawyers. 19. In 1985, 1987 and 1988 he had unsuccessfully sought to have the debt cancelled. A fourth such request, filed on 1 October 1990, led to an order made by the President of the Court of Appeal on 10 July 1991. Whilst dismissing the remainder of the application, he reserved, pending the ruling of the European Court of Human Rights, his decision on the payment of the fees and expenses of the court-appointed lawyers. 20. The following provisions of the Code of Criminal Procedure concerning assistance by defence counsel are relevant in the present case. "(1) The accused (Beschuldigter) may be assisted by a lawyer at any stage of the proceedings. He may not be represented by more than three lawyers of his own choice. (2) ..." "(1) The assistance of a defence counsel is necessary where: 1. the trial at first instance is conducted in the Court of Appeal or the Regional Court; ..." "(1) In the cases provided for in Article 140 (1) and (2), a defence counsel shall be appointed for an accused who has been officially charged before the court (Angeschuldigter) and is not yet represented by counsel, as soon as the accused is invited ... to make a statement on the indictment. (2) Where the necessity of a defence counsel only becomes apparent at a later stage, one shall be appointed immediately. (3) ... (4) ..." According to the case-law of the Federal Court of Justice and the Federal Constitutional Court, Article 141 (1) does not preclude a court from appointing, when it holds this to be necessary in the interests of justice, one or more defence counsel for an accused who is already represented by one or more counsel of his own choice. "(1) In so far as possible, the President of the court shall designate the lawyer to be appointed from among the lawyers admitted to plead in a court within the same jurisdiction. The accused shall be offered the opportunity of indicating a lawyer of his choice within a prescribed time-limit. Unless there are important reasons for not doing so, the President shall appoint the lawyer indicated by the accused. (2) ..." Under Articles 48 and 49 of the German Regulations on Lawyers (Bundesrechtsanwaltsordnung), a lawyer designated as court- appointed defence counsel is obliged to assume the defence, but may request that the appointment be revoked when there are weighty grounds for doing so. "1. The defendant shall bear the costs in so far as they ensue from proceedings brought on account of an offence for which he has been convicted ..." 21. The Land of Baden-Württemberg Law of 30 March 1971 on court costs provides as follows: "(1) The payment of legal costs and other debts provided for in Article 1 (1), nos. 5 to 9, of the Regulation on the recovery of costs ... of 11 March 1937 ... may be deferred where their immediate payment would cause exceptional hardship to the person liable to pay and if such a deferment does not jeopardise the debt ... (2) The debts referred to in paragraph 1 may be partly or wholly remitted : 1. if this seems appropriate in the pursuit of aims serving the public good; 2. where payment entails exceptional hardship for the person liable to pay; 3. where this is equitable on other specific grounds. The same applies in regard to the reimbursement or crediting of sums already paid. (3) The competent Minister shall take the decision provided for in paragraphs 1 and 2. In certain categories of cases he may delegate this power, in whole or in part, to subordinate authorities."
| 0 |
train
|
001-73360
|
ENG
|
GBR
|
CHAMBER
| 2,006 |
CASE OF DICKSON v. THE UNITED KINGDOM
| 2 |
No violation of Art. 8;No violation of Art. 12
|
Josep Casadevall;Nicolas Bratza
|
4. The applicants were born in 1972 and 1958, respectively. The first applicant is in prison (Dovergate Prison, Uttoxeter) and the second applicant lives in Hull. 5. In 1994 the first applicant was convicted of murder and sentenced to life imprisonment with a tariff of 15 years. He is imprisoned in a private prison and his earliest expected release date is 2009. He has no children. 6. In 1999 he met the second applicant, while she was also imprisoned, by correspondence through a prison pen pal network. She has since been released, although it is not clear when. In 2001 the applicants married. The second applicant already had three children from other relationships. 7. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. Their solicitors made representations to the Secretary of State, relying on the length of the relationship and the fact that, given the first applicant’s earliest release date and the second applicant’s age, it was unlikely that the applicants would be able to have a child together without the use of artificial insemination facilities. 8. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the policy”): “Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations: - whether the provision of AI facilities is the only means by which conception is likely to occur - whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent - whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI - whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release - whether there is any evidence to suggest that the couple’s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother - whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.” He then gave his reasons for refusal in the present case. On the one hand, the second applicant would be 51 years old at the earliest possible date of release of the first applicant so that the likelihood of her being able to conceive naturally was small. Both applicants were also in full agreement about their wish to conceive artificially. However, on the other hand, and in the first place, the relationship was established while they were in prison and had not been tested in the normal environment of daily life. Secondly, there was insufficient provision in place to provide independently for the material welfare of any child which might be conceived. Thirdly, there was little in the way of an immediate support network in place for the mother and any child which might be conceived. Fourthly, any child would be without a father for an important part of its childhood years. Fifthly, in light of the violence of the first applicant’s crime, there would be legitimate public concern that the punitive and deterrent elements of his sentence of imprisonment were being circumvented if he were allowed to father a child by artificial insemination. 9. The applicants sought leave to apply for judicial review of the Secretary of State’s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible in December 2003 on the basis that they had failed to exhaust domestic remedies (App. No. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal. 10. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v Secretary of State for the Home Department ([2001] 3 WLR 533). He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips in the Mellor case (see “Relevant Domestic Law and Practice” below) and commented: “... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2... Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State’s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...” He then noted that on occasions the Secretary of State had “dis-applied the policy” when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances. 11. Auld LJ then applied the policy to the present case: “To the extent that [the applicants have] suggested that he Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State’s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.” 12. The other judges also relied on the judgment in Mellor. Mance LJ said the following: “The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v the United Kingdom App No. 8186/78 at paragraphs 61 to 62, also recognised the potential relevance of more general considerations of public interest.” 13. The Secretary of State is empowered to make rules for the management of prisons by Section 47 of the Prison Act, 1952, which, in so far as material, provides as follows: “The Secretary of State may make rules for the regulation and management of prisons... and for the classification, treatment, employment, discipline and control of persons required to be detained therein...” 14. The relevant rules are the Prison Rules 1999 (SI 1999 No 728). Rule 4 provides as follows: “Outside Contacts (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.” 15. The long standing policy of the prison service, set out above in the letter of Secretary of State of 28 May 2003 was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years’ imprisonment to serve. His wife was 25 of age. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case. 16. They challenged the policy rather than its application to their case arguing that it was an unjustified interference with their Article 8 rights. They distinguished that policy from the policy on conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The Government argued that the policy was justified: (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single parent families. 17. The Court of Appeal considered, while the first reason did no more than restate the policy, the second and third reasons were legitimate justifications for the policy. In giving judgment for the court, Lord Phillips said (at paragraphs 44 ff): “[The Secretary of State] submitted that this passage demonstrated that public perception was a legitimate element of penal policy. I agree. Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. Furthermore, [the applicants’] submissions did not recognise the significance of the word “justified” in the phrase “justified public concern”. A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern... ... [the applicants] submitted that [the disadvantage of single parent families] was not a material consideration when formulating prison policy... Again, I do not agree. By imprisoning the husband the State creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners. For those reasons [the applicants have] failed to make out his case that the Secretary of State’s policy only to facilitate artificial insemination in exceptional circumstances is irrational. [The applicants] accepted that there were in this case no exceptional circumstances, and [they were] right to do so.” 18. For those reasons the court concluded that the policy was not a disproportionate interference with the applicants’ rights under Article 8. Lord Phillips remarked that, for any applicant claiming exceptional circumstances, the normal “starting point” should be the need to demonstrate that, if facilities for artificial insemination were not provided, conception would not just be delayed but prevented altogether.
| 0 |
train
|
001-105773
|
ENG
|
FRA
|
CHAMBER
| 2,011 |
CASE OF FABRIS v. FRANCE
| 3 |
No violation of Art. 14+P1-1
|
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger
|
5. The applicant was born in 1943 and lives in Orleans. 6. He was recognised at birth by his father, Mr F. 7. At the time of the applicant’s conception, his mother – Mrs M., née R – was married and two children had been born of that marriage: A., born in 1923, and J., born in 1941. 8. By a decree of 28 February 1967, the applicant’s mother and her husband, Mr M., were pronounced judicially separated. 9. By a deed of 24 January 1970, Mr and Mrs M. divided their property inter vivos between their two legitimate children, A. and J. Under the terms of the deed, which was signed before a notary, they retained a life interest by which the legitimate children agreed to let Mr and Mrs M. continue to enjoy possession of their property as life tenants for the rest of their lives. The deed also contained a provision for revoking the gift for the purposes of ensuring that the terms and conditions were complied with. Lastly, when the deed was signed Mr and Mrs M. declared that the two donees were their only offspring. 10. Mr M. died in 1981. 11. In a judgment of 24 November 1983 the Montpellier tribunal de grande instance declared the applicant to be the illegitimate child of Mrs M., after finding that his status of illegitimate child had been fully established. 12. The 1970 deed of inter vivos division (donation-partage) was challenged by the applicant on 26 January 1984 after it had been established in 1983 that he was Mrs M.’s son. No details have been provided regarding the outcome of that procedure. 13. The applicant’s mother died on 28 July 1994. The notary administering the estate informed the applicant by letter of 7 September 1994 that his rights were confined to the reserved portion of his mother’s estate since she had made a will bequeathing the disposable portion, that is, one quarter, to her son J. The notary told him that, as a child born of adultery, he was entitled to only half the share he would have received if he had been a legitimate child – namely, one eighth. He added that the applicant’s brother and sister, A. and J., were willing to pay him 298,311 French francs (FRF) in cash. He pointed out in that regard that in the event of the subsequent birth of a child, only a monetary abatement was possible and in no circumstances an abatement in kind. He asked the applicant to inform him whether A. and J.’s proposal was acceptable to him. 14. No agreement was reached between the three children. 15. By a writ of action dated 5 January 1998, the applicant brought proceedings in the Béziers tribunal de grande instance against the two children born of his mother’s marriage: A. and J. Relying on Article 1077-1 of the Civil Code, he sought an abatement of the inter vivos division, claiming a reserved portion of his mother’s estate equal to the share payable to his joint heirs from the assets of his mother’s estate, namely, one quarter of that estate, which was one eighth of Mr and Mrs M.’s joint estate. 16. After the Court had found against France in the case of Mazurek v. France, on 1 February 2000, France passed Law no. 2001-1135 of 3 December 2001, amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. That new Law came into force before the dispute that is the subject of the instant case was decided. It stipulated that its provisions were of immediate application to successions were already open on the date on which it came into force. Section 25(2)(2) of the Law specified that, subject to any prior agreement between the parties or final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person were applicable to successions that were already open on the date of publication of the Law in the Official Gazette of the French Republic and had not given rise to division prior to that date. 17. In his recapitulatory pleading of 20 February 2003, the applicant relied on the provisions of the Law of 3 December 2001. In his submission, that Law repealed the provisions of the Law of 3 January 1972 stipulating that the rights of heirs entitled as a result of that Law to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force. He argued that as those provisions of the Law of 1972 had been repealed, he was entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division had been signed on 24 January 1970. 18. In a judgment of 6 September 2004, the Béziers tribunal de grande instance held that the applicant was entitled to bring an action for abatement of the inter vivos division made by Mr and Mrs M. in 1970. It observed, inter alia, that section 14 of the Law of 3 January 1972, which had the effect of depriving illegitimate children of their inheritance rights where their parent had made gifts prior to the date on which that Law came into force, was contrary to Articles 8 and 14 of the Convention. The court held that that provision was also contrary to the Law of 3 December 2001, even if the latter had not expressly repealed the aforesaid section 14 of the Law of 1972. The court also found as follows: “Section 25(1) of the Law of 3 December 2001 provides that this Law is applicable to successions already open on the date on which it comes into force; subject to any prior agreement between the parties or final court decision, the provisions of this Law are applicable to successions already open on the date of publication of the Law in the French Official Gazette where these have not given rise to division prior to that date. In the present case there has not yet been division of Mrs M.’s estate; accordingly, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person will apply. Consequently, the repeal by the Law of 3 December 2001 of the provisions of the Civil Code introduced by the Law of 3 January 1972 render the new provisions incompatible with section 14 of the Law of 1972, this latter provision being already contrary to Article 14 and Article 8 of the European Convention on Human Rights. Indeed, it cannot reasonably be argued that the legislature, in enacting the Law of 3 December 2001, intended to maintain a provision contrary to the spirit and aim of the new Law. Mr Fabris must therefore be deemed entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division was signed on 21 January 1970. ... This court must therefore hold, in accordance with section 1 of the Law of 3 December 2001, that Mr Fabris has the same inheritance rights as his brother and sister with regard to his mother’s estate. ...” 19. The children born of the applicant’s mother’s marriage appealed. In a judgment of 14 February 2006, the Montpellier Court of Appeal set aside the lower court’s judgment and declared that the applicant was not entitled to bring an action for abatement of the inter vivos division made on 24 January 1970 by Mr and Mrs M. between their legitimate children. It held that such a ruling was not inconsistent with the general principle of equality of rights regardless of birth, as guaranteed by Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention. It observed that the sole purpose of section 14 of the Law of 1972 was to prohibit heirs who had acquired rights to a reserved portion of the estate under that Law – and extended by the Law of 3 December 2001 – from exercising them to the detriment of inter vivos gifts granted prior to 1 August 1972, without depriving the said heirs of their inheritance rights. It considered, above all, that there was objective and reasonable justification for section 14 of the Law of 1972 in the light of the legitimate aim pursued, namely, ensuring peaceful family relations by securing rights acquired in that context – sometimes long-standing ones – without at the same time creating an excessive imbalance between heirs. It pointed out that the provisions of the impugned section 14 were of limited scope both in terms of time and the type of voluntary disposition concerned. 20. The applicant lodged an appeal on points of law. In his opinion, which was communicated to the parties, the advocate-general at the Court of Cassation recommended dismissing the appeal. He made the following submissions to the judges of the First Civil Division of the Court of Cassation: “... The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of the Laws of 1972 and 2001. Whilst neither successions already opened, nor inter vivos gifts granted prior to the coming into force of the Law of 1972, could be challenged under that Law, the Law of 2001 allows illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that Law. That difference justifies a non-restrictive application of the provisions of the Law of 2001. Only where there has been actual division, or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened. On account of the action for an abatement, the succession already opened on the date of publication of the Law of 2001 cannot have “given rise to division” on the date of publication of that Law. I therefore find the submission that the Law of 3 December 2001 is not applicable difficult to sustain. The terms of section 14 of the Law of 3 January 1972, however, are entirely unambiguous. Heirs who have acquired rights under this Law to the reserved portion of the estate cannot exercise those rights “to the detriment of inter vivos gifts granted before the Law came into force”. Should, then, these provisions be deemed to have been tacitly repealed? Without having regard to the time factor, the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the two Laws that those governing the Law of 1972 have been tacitly repealed. Whilst the approach is different between the transitional provisions enacted in 1972 and those enacted in 2001, they do not, however, appear to me to conflict. By excluding any challenge to inter vivos gifts granted prior to the coming into force of the Law of 1972, the legislature intended to guarantee the legal security required by such gifts. There is nothing to justify calling that legal security into question in 2002, since the earlier transitional provisions complement those laid down by the Law of 2002. It is on those grounds that I invite you to dismiss the first ground of the appeal: the inter vivos gift made on 24 January 1970 cannot be called into question on account of inheritance rights arising from new rules concerning the determination of filiation. In that connection, whilst it remains debatable whether there had actually been division prior to publication of the Law of 3 December 2001, the existence of an inter vivos gift granted prior to the coming into force of the Law of 3 January 1972 is not in dispute. ...” 21. The Court of Cassation dismissed the appeal in a judgment of 14 November 2007. It found that the effect of section 25(2)(2) of the Law of 3 December 2001, in the version applicable to the facts of the present case, was that, subject to any prior agreement between the parties or a final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person were applicable only to successions that were already open on 4 December 2001 and had not given rise to division before that date. It found that as there had been division on Mrs M.’s death – that is, prior to 4 December 2001 – the above-mentioned provisions were not applicable. 22. An inter vivos division (donation-partage) is a deed by which a person divides his or her property during his lifetime among all his presumptive heirs (including, since the Law of 3 January 1972, children born of adultery). The deed must be drawn up before a notary and an inter vivos division can concern only present, not future, property. All the heirs must participate in the inter vivos division. The property being divided is valued on the date of the gift, and cannot subsequently be revalued. When making an inter vivos division, the donor determines the share of property to be distributed to his or her heirs. He or she can either divide the property into equal shares or give a larger share to one of his or her children, provided that this does not reduce the portion statutorily reserved to the heirs. Each child is entitled to a minimum share (the “reserved portion”) in his or her parents’ estate and can bring an “action for abatement” (Article 1077-1 of the Civil Code) if the division of the estate at the time of death infringes that right. The relevant provisions of the Civil Code read as follows: “Anyone shall be entitled to divide and distribute his assets and his rights among his presumptive heirs. This voluntary disposition may be made in the form of an inter vivos division or a will. It is subject to the formalities, conditions and rules prescribed for inter vivos gifts in the former case and those prescribed for wills in the latter case.” “If not all the assets or rights left by the donor or testator on the date of his death have been included in the division, those assets or rights not included shall be assigned or distributed in accordance with the law.” “An inter vivos division shall concern only present property. The gift and the division can be done by separate deeds provided that the donor signs both deeds.” 23. Law no. 71-523 of 3 July 1971 introduced Articles 1077-1 et seq. of the Civil Code, instituting the possibility of an action for abatement, and came into force on 1 January 1972. “A descendant who has not participated in the inter vivos division of the estate, or has received a lower share than his or her reserved portion, may bring an action for abatement if, when the succession is opened, there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion, regard being had to any voluntary dispositions from which he may have benefited.” “Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount, calculation of the reserved portion and reductions. An action for abatement cannot be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue. Such an action shall become time-barred five years after the death. A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion.” Section 13 of the Law of 3 July 1971 provided: “The provisions of this Law shall be directly applicable, irrespective of the date of the voluntary disposition in question, to successions opened after it comes into force. They shall also apply, subject to any contrary agreement, to estates that have not yet been liquidated, where no request for division of the estate has been lodged before 15 April 1971. ...” 24. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972 on filiation, provide: “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first-degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.” “Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.” “Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.” Section 14 of the Law of 3 January 1972 provided: “The inheritance rights instituted by the present Law or resulting from the new rules regarding determination of filiation shall not be exercised in respect of successions that have been opened before it came into force. The rights statutorily reserved to heirs that are instituted by the present Law or result from the new rules regarding determination of filiation shall not be exercised to the detriment of inter vivos gifts made before it came into force. ...” 25. On 4 December 2001 Law no. 20011135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person. Section 25 is worded as follows: “II. - The present Law shall apply to successions that are already open as of the date provided for in I, subject to the following exceptions: ... 2o Subject to any prior agreement between the parties or final court decision, the following shall apply to successions already open on the date of publication of the present Law in the Official Gazette of the French Republic and not having given rise to division prior to that date: the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person; ...” 26. According to the case-law of the Court of Cassation, an inter vivos division is a division of property in advance by which the donor’s property is divided between the joint donees and becomes a division of an inheritance on the donor’s death (Cass. Civ. I, 5 October 1994, Bull. 1994, I, no. 27). The First Civil Division of the Court of Cassation held that where an agreed division of property was challenged before a notary the inheritance was disputed and the estate could not therefore be regarded as having been liquidated (Cass. Civ. I, 7 February 1989, Bull. 1989, I, no. 66, appeal no. 86-19.537). 27. In a judgment of 15 May 2008, delivered after the judgment that is the subject of this case, the Court of Cassation held that the provisions of the Law of 3 December 2001 relating to the new inheritance rights of children born of adultery were applicable to a succession opened before 1 August 1972 where this had not given rise to a division prior to 4 December 2001. In that case, which concerned Polynesia, the succession had opened in 1962 (Cass. Civ. I, 15 May 2008, Bull. 2008, I, no. 139, appeal no. 06-19.331). The court gave the following reasons for its judgment: “Tafae X... died on 11 September 1962 leaving provision in his will for Mr Etienne F..., his son adopted under Tahitian law, as universal legatee, with a condition that he care for the two children conceived whilst he was bound by marriage to a person other than their mother: Mr Monoihere X... and Rita X..., the latter deceased on 19 April 1996, and whom he had recognised after the death of his wife. During the proceedings brought by Mr F... for recognition of his ownership of a plot of land known as “Atioro”, situated in Teahupoo, which he claimed belonged to Tafae X... and for division of that land into three shares, Mr Monoïhere X ... sought an abatement of the legacy on grounds of an infringement of the rights of the heirs entitled to a reserved portion of the estate. In dismissing Mr X’s claim, the Court of Appeal noted that the children born of adultery prior to the date on which the Law of 3 January 1972 came into force had no inheritance rights in respect of their parent’s estate, so had no legal basis for disputing the legacy left by Tafae X ... to Mr Etienne F .... In ruling thus, whereas the provisions relating to the new rights of children born of adultery were applicable to Tafae X’s estate ... as the division had not been made before 4 December 2001, the Court of Appeal, which added a condition to the Law not contained therein, infringed the above-mentioned provisions.” ...
| 0 |
train
|
001-90482
|
ENG
|
RUS
|
CHAMBER
| 2,009 |
CASE OF KHUDYAKOVA v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
5. The applicant was born in 1971 in Kazakhstan and currently resides in the town of Petrozavodsk in the Republic of Karelia in Russia. According to both Russian and Kazakh authorities, the applicant is a citizen of Kazakhstan. According to the applicant, the only citizenship she obtained was that of the former Soviet Union. 6. In October 1997 the applicant moved from Kazakhstan to the Republic of Karelia. 7. On 13 January 1998 the Kazakh police initiated criminal proceedings against the applicant on suspicion of large-scale fraud committed in 1997 in the town of Ust-Kamenogorsk. At the same time she was put on the list of fugitives from justice as her whereabouts were unknown. 8. On 22 January 1998 the Ust-Kamenogorsk Town Prosecutor of Kazakhstan authorised the applicant’s arrest. 9. On 7 February 2003 the Prosecutor General’s Office of the Russian Federation received a request for the applicant’s extradition sent by the General Prosecutor’s Office of the Republic of Kazakhstan. 10. On 7 August 2003, pursuant to the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor, the applicant was arrested in Petrozavodsk with a view to her extradition to Kazakhstan. According to the applicant, the police officers failed to explain why she had been arrested and detained. According to the Government, on the same day the applicant signed the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor and was informed of the reasons for her arrest and of the charges against her. The Government provided the Court with copies of the arrest warrant signed by the applicant on 7 and 8 August 2003. 11. Upon the applicant’s arrest she met with her lawyer, Mr Fleganov. 12. On 13 August 2003 the Karelia Prosecutor’s Office sent the extradition file to the Prosecutor General’s Office of the Russian Federation for examination of the extradition request. 13. On 15 August 2003 the applicant’s lawyer lodged a complaint with the Petrozavodsk Town Court contesting the grounds for his client’s detention. 14. On 2 September 2003 the Petrozavodsk Town Court on the request lodged by the Karelia Prosecutor’s Office ordered the applicant’s detention with a view to her extradition to Kazakhstan on the basis of Article 108 of the Code of Criminal Procedure. The Town Court held that the applicant was charged with a criminal offence punishable by a prison term of more than one year and that the extradition request was pending. The Town Court did not find it possible to apply a more lenient preventive measure, referring to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”) and the Russian Code of Civil Procedure. No time-limit for the applicant’s detention was set. This decision was upheld on appeal on 11 September 2003 by the Supreme Court of Karelia. 15. Later on 2 September 2003 the Petrozavodsk Town Court examined and dismissed the applicant’s lawyer’s complaint about the applicant’s detention lodged on 15 August 2003. Relying on Articles 61 and 62 of the 1993 Minsk Convention, the Town Court found that the applicant’s detention was lawful. The applicant appealed. On 9 October 2003 the Supreme Court of Karelia upheld that decision. 16. On 13 October 2003 the Deputy Prosecutor General of Karelia dismissed the applicant’s request to change the measure of restraint, noting that the Prosecutor’s Office of Karelia was not authorised to examine this issue. 17. On 20 October 2003 the Petrozavodsk Town Court again dismissed the complaint about the unlawfulness of the applicant’s detention. On 27 November 2003 the Supreme Court of Karelia quashed that decision due to procedural flaws and the Town Court’s failure to give reasons for its decision to dismiss the complaint. The case was remitted for fresh examination. 18. In the meantime, on 21 October 2003 the Karelia Prosecutor’s Office dismissed the applicant’s request to inform her about the results of the examination of her extradition file. 19. On three further occasions in October and November 2003 the applicant’s lawyer complained about the unlawfulness of the applicant’s detention to the Prosecutor’s Office. In his submissions Mr Fleganov claimed that Article 109 of the Russian Code of Criminal Procedure prescribed a maximum of two months’ detention pending trial without extension. As the detention period had not been extended following the expiry of that period on 7 October 2003, the applicant’s subsequent detention was unlawful. On 21 November and 1 and 11 December 2003 Karelia Prosecutor dismissed these complaints. The prosecutor held that the period of the applicant’s detention was not limited since the date and time for the applicant’s extradition were fixed neither by the 1993 Minsk Convention nor by the Code of Criminal Procedure. 20. The applicant and her lawyer complained to the Petrozavodsk Town Court about the unlawfulness of the applicant’s detention and the refusal of the Karelia Prosecutor’s Office to authorise her release. They claimed, in particular, that the applicant was not a citizen of Kazakhstan, that she had moved to Russia over six years earlier and that she could thus not be extradited to Kazakhstan. 21. On 17 December 2003 the Petrozavodsk Town Court dismissed the complaint. That decision was upheld on appeal on 16 February 2004 by the Supreme Court of Karelia. The domestic courts found that the applicant’s detention was in conformity with the provisions of the 1993 Minsk Convention. The request for the applicant’s extradition was under examination by the Prosecutor General of Russia and no final decision was taken. The courts further held that the applicant was to be detained until the final decision on her extradition had been taken, as neither the Minsk Convention, nor the Code of Criminal Procedure set any time-limit for the examination of an extradition request. The Town and Supreme courts found accordingly that the applicant’s detention and the actions of the Prosecutor’s Office were in accordance with law. 22. On 10 September 2004 the Petrozavodsk Town Court dismissed the applicant’s complaint about the unlawfulness of her detention, relying on the same grounds as in its decision of 17 December 2003. 23. On 14 October 2004 the Supreme Court of Karelia amended the decision of the Petrozavodsk Town Court of 10 September 2004 and ordered the applicant’s release. The Supreme Court found as follows: “According to Article 109 § 3 of the Code of Criminal Procedure detention over twelve months may be extended only in exceptional circumstances if the person is charged with a serious or particularly serious criminal offence. This extension is to be granted following a request filed by an investigator with the consent of the Prosecutor General of Russia or his Deputy. Taking into consideration Article 466 § 1 of the Code of Criminal Procedure the issue of subsequent extension of detention may be decided by a court only in exceptional circumstances prescribed by law and on a request lodged by a prosecutor. It appears from the material of the case-file that the prosecutor has not lodged such a request. The offence of which the applicant has been accused does not relate to particularly serious offences ...” 24. The Supreme Court concluded as follows: “The reasonable time for the applicant’s detention (fourteen months) had expired ... The Town Court’s referral to the fact that no time-limit was set, either by the 1993 Minsk Convention or by the Code of Criminal Procedure, for the examination of an extradition request was of no relevance to the rights and freedoms of the applicant, who had been held in detention without being charged and without any decision on her extradition for more than one year.” 25. According to the applicant, she was released on 18 October 2004. The Government did not comment on this issue. 26. On 8 September 2005 the Office of the Prosecutor General of Russia informed the Deputy Prosecutor General of Kazakhstan that it was not possible to grant the extradition request in respect of the applicant, since the time-limit for criminal prosecution for the offence (two years) had expired. 27. On 16 December 2003 the applicant and her son, a minor, sought refugee status and interim asylum at the Migration Department of Karelia. On 20 February 2004 the Migration Department dismissed the applicant’s request as unsubstantiated. On 15 June 2004 the applicant’s appeal was rejected by the Head of the Migration Department. 28. On 22 October 2004 the Petrozavodsk Town Court dismissed a complaint lodged by the applicant about the refusal to grant her refugee status and interim asylum. 29. Meanwhile the applicant asked the Petrozavodsk Town Court to establish as a legal fact that she had lived on the territory of Russia since November 1997. On 28 October 2004 the Town Court dismissed the application, having found that establishing that fact would not have any effect on the applicant’s rights and freedoms. 30. On 29 July 2003 the Petrozavodsk police initiated criminal proceedings on suspicion of burglary. 31. On 10 September 2003 the applicant, being detained pending extradition, confessed to the burglary and sent her self-incriminating statement to the police. She was subsequently questioned by the police in the presence of her lawyer. 32. On 29 October 2003 the case investigator terminated the proceedings against the applicant for lack of corpus delicti. The investigator found that the applicant had confessed to the crime in order to hinder her extradition to Kazakhstan. 33. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 34. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Kazakhstan are parties, provides as follows: “1. When executing a request for legal assistance, the requested authority applies the laws of its own State ...” “1. The Contracting Parties shall ... on each other’s request extradite persons who find themselves in their territory, for criminal prosecution or to serve a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. A request for extradition (требование о выдаче) shall include the following information: (a) the title of the requesting and requested authorities; (b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certified copy of a detention order. ...” “Upon the receipt of a request for extradition the requested Contracting Party takes immediate measures aiming at detaining or arresting the person whose extradition is sought ...” “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In the event of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest ...” 35. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. Where there is urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 36. Chapter 13 of the Code of Criminal Procedure (“Measures of restraint”) governs the application of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. A custodial measure may only be ordered by 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 “Placement in custody”). The time-limit for detention pending investigation is fixed at two months (Article 109 “Time-limits for detention”). 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). A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within three days of its issue (Articles 108 § 10 and 109 § 2). A custodial measure may be revoked or modified by a judicial decision if it is no longer considered necessary (Article 110 “Revoking or modifying the measure of restraint”). 37. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Articles 462-463 state that a decision to extradite a person upon a request from another country is taken by the Prosecutor General or his deputy. Article 462 states that a person’s detention finishes when either the Prosecutor General, or his deputy decides on the extradition request. Article 466 governs application of measures of restraint with a view to extradition. Paragraph 1 deals with the situation where a request for extradition is not accompanied by a detention or arrest order issued by a foreign court. In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “in accordance with the procedure provided for in the present Code”. Paragraph 2 establishes that, if a foreign judicial decision on placement in custody is available, a prosecutor may place the person in detention or under house arrest. In that eventuality no confirmation of the foreign judicial decision by a Russian court is required. If a foreign court has authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. 38. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status. 39. Chapter 15 (“Petitions”) provides that suspects, defendants, victims, experts, civil plaintiffs, civil defendants, and their representatives may petition officials to take procedural decisions that would secure the rights and legitimate interests of the petitioner (Article 119 § 1). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.). 40. In the case of Mr A., concerning his detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no. 72-005-19, 8 June 2005): “The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], the person arrested at the request of a foreign state, may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).” 41. Verifying the compatibility of Article 466 § 1 of the Code of Criminal Procedure with the Russian Constitution, the Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 42. In the Constitutional Court’s view, the absence of a specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests. 43. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure, or in excess of the time-limits fixed in the Code. 44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision in Mr Nasrulloyev’s case (see above), for the purpose in particular of elucidating the procedure for extending a person’s detention with a view to extradition. 45. The Constitutional Court dismissed the request, finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of courts of general jurisdiction. 46. Mr Seidenfeld, a US citizen, was arrested in Russia on 9 December 2005 because his extradition was sought by Kazakhstan. Upon receipt of the formal extradition request, on 30 December 2005 a Russian court ordered his detention sine die, pending extradition. Mr Seidenfeld complained to the Constitutional Court that the provisions of the Code of Criminal Procedure which permitted his detention without a judicial decision were incompatible with the Constitution. 47. The Constitutional Court reiterated its constant case-law that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 48. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.
| 1 |
train
|
001-111347
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,012 |
COLON v. THE NETHERLANDS
| 3 |
Inadmissible
|
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
|
1. The applicant, Mr Ferdinand Jozef Colon, is a Netherlands national born in 1947 who lives in Amsterdam. He was represented before the Court by Mr H.A. Sarolea, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties and as apparent from documents available to the public, may be summarised as follows. 3. In response to a rise in violent crime in the city of Amsterdam the Burgomaster (Burgemeester) of that city gave an order designating certain areas as security risk areas (veiligheidsrisicogebieden). Relying on section 151b of the Municipalities Act (Gemeentewet), the Burgomaster designated most of the old centre of Amsterdam as a security risk area for a period of six months on 20 November 2002. By virtue of such a decision, a public prosecutor (Officier van Justitie) was empowered, in accordance with section 52(3) of the Arms and Ammunition Act (Wet Wapens en Munitie), to order that for a randomly selected period of twelve hours any persons present in the designated area might be subjected to a search for the presence of weapons. The process came to be known as “preventive searching” (preventief fouilleren). 4. The reasoning on which the order was based referred to statistics of incidents involving the use of weapons (shootings, knifings, robberies, fatal and non-fatal casualties) in each of the areas concerned. It was observed that such incidents occurred most often in the old centre of the city, especially around the Wallen (the red-light district), the central station and around the concentrations of restaurants, bars and places of entertainment. 5. By order of 26 June 2003 the Burgomaster designated the same area as a security risk area for another twelve months based on the fact that weapons were still being confiscated during searches and there had been insufficient decrease in the number of violent crimes. 6. On 19 February 2004 the applicant, while in the designated security risk area, was stopped by police acting on orders of the public prosecutor to conduct searches of every person present in the security risk area. The applicant refused to submit to a search. He was then arrested (aangehouden) and taken to a police station, where he refused to give a statement (verklaring). 7. On 27 January 2005 a single-judge chamber (politierechter) of the Amsterdam Regional Court (rechtbank) convicted the applicant of failing to obey a lawful order under article 184 of the Criminal Code (Wetboek van Strafrecht). He was sentenced to a fine of 150 euros (EUR). 8. The applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof), which acquitted him of all charges on 23 September 2005. The Court of Appeal considered that section 151b of the Municipalities Act imposed stringent requirements with regard to the decision to designate an area as a security risk area, especially in the light of individuals’ freedom of movement and respect for the right to privacy. The Burgomaster’s decisions (including the one dated 26 June 2003) did not meet the requirements of section 151b as the Burgomaster had failed to give any reasons why the security risk area had to be designated for such lengthy periods and cover such a large area. Accordingly, the decisions were not in conformity with Articles 5 and 8 of the Convention either. 9. The Advocate General (Advocaat-Generaal) at the Amsterdam Court of Appeal lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad) against the judgment of the Court of Appeal. 10. After the applicant submitted his application to the Court, the Supreme Court, on 20 February 2007, granted the appeal lodged by the Advocate General. The Supreme Court held that in considering the validity of the designation order the criminal judge should follow the approach of administrative courts in the matter. On that basis, and quoting from a judgment of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) of 9 November 2005 (Administrative Law Reports (AB Rechtspraak Bestuursrecht) 2006, no. 90), it found that the Burgomaster had a wide margin of appreciation (beoordelingsmarge) in assessing the need for any such order after consultation with the public prosecutor. It was for him or her to balance the interests involved, including public order and individual private life, against each other. The designation order should be limited in time and in area to what was necessary (noodzakelijk) to maintain public order. The Burgomaster’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned. The role of the criminal courts was limited to assessing the lawfulness and reasonableness of the Burgomaster’s decision. 11. Considering the case in this light, the Supreme Court held that the Court of Appeal had correctly considered that the Burgomaster’s decision of 26 June 2003 had to be read in conjunction with his original decision of 20 November 2002. Nevertheless, in finding that insufficient reasons had been given for the decision of 26 June 2003 the Court of Appeal had failed to take into account the extensive report which had formed the basis for the 20 November 2002 decision. The Supreme Court therefore quashed the judgment of the Court of Appeal and remitted the case to the Court of Appeal for re-hearing. 12. In a judgment of 12 December 2007, the Amsterdam Court of Appeal found that the Burgomaster had given sufficient reasons for his decision of 26 June 2003 by referring to the considerations contained in the original decision of 20 November 2002. The Court of Appeal further considered that any interference with the applicant’s rights under Article 8 of the Convention and Article 2 of Protocol No. 4 had taken place in the interests of the protection of public order and in accordance with the margin of appreciation awarded to States. For those reasons the Court of Appeal found the applicant guilty of failing to obey a lawful order, but imposed no sentence on him. 13. The applicant did not lodge an appeal on points of law against this judgment. 14. By decision of 24 June 2004 the Burgomaster again designated the same area as a security risk area for the next twelve months as weapons were still being confiscated even though the number of violent crimes had decreased significantly. 15. On 16 June 2005 the Burgomaster again designated the same area of the centre of Amsterdam as a security risk area, this time for a period of twenty-four months. 16. On 7 October 2005, the Burgomaster, taking into account the judgment of the Court of Appeal (see paragraph 8 above), issued a decision altering the original decision of 16 June 2005 by designating the same area as a security risk area for twelve months instead of the original twenty-four. The Burgomaster also set out more extensive reasons for his decision, including a breakdown of the decrease in weapon-related crimes following the introduction of preventive searching in the security risk areas. For Amsterdam city centre alone, it was noted that numbers of weapons-related incidents had dropped to 728 between 1 November 2002 and 1 July 2003, down from 773; between 1 July 2003 and 1 July 2004, from 728 to 640; between 1 July 2004 and 1 July 2005, from 640 to 500. In 95% of all preventive search operations until then at least one weapon had been found. 17. On 2 November 2005 the applicant lodged an objection (bezwaar) against the decision of the Burgomaster of 7 October 2005. The applicant submitted that the designated security risk area was too large and that there were insufficient reasons for including the different districts, considering the impact on people’s right to respect for their privacy and freedom of movement. The applicant further alleged that the percentages used by the Burgomaster to support his decision had been calculated in such a way as to make his policy seem more effective than it really was. 18. On 1 February 2006, whilst awaiting the outcome of his objection, the applicant also applied for a provisional measure (voorlopige voorziening) on the same grounds as his objection. 19. On 9 March 2006 the provisional-measures judge (voorzieningenrechter) of the Amsterdam Regional Court declared the applicant’s request inadmissible on the ground that the applicant did not appear to have a direct interest in the decision of the Burgomaster dated 7 October 2005 and that presumably the applicant’s objection would be declared inadmissible for the same reason. 20. On 1 June 2006 the Burgomaster declared the applicant’s objection inadmissible as the applicant could not be regarded as a person with a direct interest (belanghebbende) as required by article 1:2 of the General Administrative Law Act (Algemene wet bestuursrecht). The Burgomaster held that a person could only be said to have a direct interest if that interest was strictly personal, real and direct and could be identified objectively. According to the Burgomaster, the applicant neither lived in the security risk area nor had a paid job which required him to be in the area at regular set times. The fact that the applicant claimed to be engaged in volunteer work and paid social visits to friends in the designated area did not suffice to give him a direct interest. 21. The applicant did not appeal against this decision to the Regional Court; the reason he gives is that the designation order of 7 October 2005 was due to expire on 30 June 2006. 22. The municipality of Amsterdam commissioned the COT Institute for Safety and Crisis Management (COT Instituut voor Veiligheids- en Crisismanagement), a body based in The Hague, to produce a series of evaluation reports on preventive searches in the security risk areas. The Court has studied two of these, which contain data pertaining to the time of the events complained of. 23. On 11 May 2006 the COT Institute for Safety and Crisis Management published a report entitled “Evaluation of preventive body searches in Amsterdam: The current situation” (Evaluatie Preventief Fouilleren in Amsterdam: De stand van zaken). It covered the period between November 2002 and March 2006. 24. In Amsterdam city centre, between November 2002 and May 2003 one weapon had been found for every 28 persons searched. Between July 2003 and May 2004 one weapon had been found for every 37 persons searched; between July 2004 and June 2005, again, one weapon for every 37 persons searched; and between July 2005 and March 2006, one weapon for every 40 persons searched. In Amsterdam South-East, which has a far more modern and open layout than the old city centre, there were generally far fewer weapons found until the search operations were planned to cover times and places at which the risk of violent incidents was highest; the number of weapons found then rose to one per 28 persons searched. The report mentioned that the operations that had had the greatest effect in relation to the police manpower invested had lasted for five hours or less, which could be explained by the loss of the advantage of surprise as an operation dragged on for longer. 25. The number of incidents involving the use of weapons had dropped during this period. In Amsterdam city centre, between November 2002 and May 2003 there had been 747 such incidents; between July 2005 and March 2006, only 488, or 34.7% fewer. The number of muggings in this area dropped from 254 to 130, a reduction of 48.8%. In Amsterdam South-East, the number of weapons-related incidents had dropped by 29.4% in comparison of the same periods. Within the area of jurisdiction of the Amsterdam-Amstelland Police Force as a whole, the total decrease had been 14.3%; if the security risk areas were excluded, it had been 6.6%. 26. The evaluation report mentions the applicant’s case, which at the time the report was published was still pending before the Supreme Court. 27. The report recommended that random searches be continued in the same two areas, given their obvious effectiveness. It also made further proposals aimed at increasing efficiency. 28. In May 2007 the COT Institute for Safety and Crisis Management published a report entitled “Evaluation of preventive body searches in Amsterdam: Gains, incidents involving weapons and hot spots” (Evaluatie Preventief Fouilleren in Amsterdam: Opbrengsten, wapenincidenten en hot spots). It was noted that searches had become more efficient, which had allowed more persons to be searched within a given time. Between July 2006 and April 2007 one weapon had been found for every 52 persons searched in Amsterdam city centre; in Amsterdam South-East, the corresponding figure was one weapon for every 40 persons searched. 29. Numbers of weapons-related incidents had continued to decline. As compared to the period from April 2003 until March 2004, between April 2006 and March 2007 there were 35% fewer such incidents (565, down from 864); in Amsterdam South-East, 16.5% fewer (532, down from 591). 30. The frequency of weapons-related incidents had increased by 6.4% in Amsterdam outside the security risk areas; within the area of jurisdiction of the Amsterdam-Amstelland Police Force as a whole, there had been a reduction of 4.4%. 31. The report identified seven “hot spots” outside the existing security risk areas where incidents involving the use of weapons were frequent. In two of them the problem was so serious that preventive searches should be carried out there too. 32. By letter dated 27 May 2009 the applicant informed the Court that the same area had been designated as a security risk area for the seventh consecutive time. 33. Article 184 of the Criminal Code, in its relevant part, provides: “1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a second-category fine. ...” 34. Section 151b of the Municipalities Act provides: “1. The local council (raad) may by municipal bye-law authorise the Burgomaster to designate an area, including buildings open to the public (and their grounds) situated therein, as a security risk area in the event of a public order disturbance caused by the presence of weapons, or if there is a serious fear of such a disturbance occurring. In a security risk area a public prosecutor may exercise the powers referred to in section 50, subsection 3, section 51, subsection 3 and section 52, subsection 3 of the Arms and Ammunition Act. 2. The Burgomaster shall not designate a security risk area without first consulting with the public prosecutor in the consultations referred to in section 14 of the 1993 Police Act (Politiewet 1993). 3. The designation of a security risk area is of a limited duration and covers a geographical area that is no greater than strictly necessary for maintaining public order. 4. The decision to designate a security risk area must be recorded in writing and state both the area to which it applies and its period of validity. If the situation is so urgent that the Burgomaster is unable to record the decision in writing in advance, he or she must both record the decision in writing and make it public as quickly as possible. 5. The Burgomaster shall notify the local council and the public prosecutor referred to in subsection 2 of the designation of a security risk area as quickly as possible. 6. As soon as the public order disturbance caused by the presence of weapons or the serious fear of such a disturbance occurring as referred to in subsection 1 has abated, the Burgomaster shall revoke the designation of the security risk area. Subsection 5 applies mutatis mutandis.” 35. Section 155 of the Municipalities Act, in its relevant part, provides: “1. Any member of the council may put questions orally or in writing to the Burgomaster and Aldermen or the Burgomaster as the case may be (Een lid van de raad kan het college of de burgemeester mondeling of schriftelijk vragen stellen.) ...” 36. Section 155a of the Municipalities Act, in its relevant part, provides: “1. The council may, at the proposal of one or more of its members, order an investigation into the administration carried out by the Burgomaster and Aldermen or the Burgomaster as the case may be (het door het college of de burgemeester gevoerde bestuur). ...” 37. Section 14 of the 1993 Police Act provides: “The Burgomaster and the public prosecutor shall hold regular consultations with the head of the territorial unit of the regional police force within whose territory the municipality or part of it is located, and if necessary with the regional police force commander (korpschef), about the discharge by the police of their duties.” 38. Section 52(3) of the Arms and Ammunition Act provides: “In areas that have been designated by the Burgomaster as security risk areas in accordance with section 151b, subsection 1 of the Municipalities Act, the public prosecutor may order that any individual can be subjected to a search of his clothing to establish whether he has firearms, ammunition or offensive weapons in his possession. The public prosecutor’s order shall describe the designated area and state the order’s period of validity, which may not exceed twelve hours. The order shall also explain the facts and circumstances that form the basis for concluding that it is necessary to exercise the power to subject any individual to a search of his clothing to establish whether he has weapons or ammunition in his possession.” 39. At the relevant time, the 1994 general municipal bye-law (Algemene Plaatselijke Verordening) of Amsterdam applied. Its section 2.5A provided: “In the event of a public order disturbance caused by the presence of weapons, or if there is a serious fear of such a disturbance occurring, the Burgomaster may designate public highways and buildings (and their grounds) situated along them as a security risk area.” 40. According to section 8:1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), anyone with a legal interest may challenge an administrative decision before the Regional Court, provided that he or she has first lodged an objection with the administrative body that has taken the decision in issue (section 7:1). A further appeal lies to the Administrative Jurisdiction Division of the Council of State (at the relevant time, section 37 of the Council of State Act (Wet op de Raad van State)). 41. The Supreme Court has held that a conviction under Article 184 § 1 of the Criminal Code is possible only if the order disobeyed by the accused was given by an official within the limits of his or her lawful authority (see its judgment of 11 December 1990, Netherlands Law Reports (Nederlandse Jurisprudentie) 1990, no. 423). From this it follows that the criminal court has a responsibility of its own to determine whether the statutory regulation on which the order is based is actually binding, and whether the order has been lawfully given; if the issue is raised by the defence, the criminal court must answer it, irrespective of whether or not the accused has first addressed these matters before the competent administrative tribunals (see the Supreme Court’s judgment of 24 September 2002, Netherlands Law Reports 2003, no. 80). 42. In a decision of 9 March 2005, Administrative Law Reports 2005, no. 251, the Administrative Jurisdiction Division of the Council of State dismissed an appeal lodged against the designation of much of the centre of the town of Den Helder as a security risk area on Friday and Saturday nights. Identifying the designation order as delegated legislation (besluit van algemene strekking), it held that persons wishing to contest such an order had to demonstrate an individual interest which sufficiently distinguished them from others. It noted that the appellant did not reside, or work, or carry on a business in that area; was not compelled for any other reason to remain there for any length of time; and had no rights to immovable property there either. In view of, in particular, the times at which the designation order was in force, the stated fact that the appellant had been a resident of Den Helder for many years; went out in the area concerned; and was wont to visit friends and family there was insufficient to distinguish her individual interest from that of others. 43. Moreover, no violation of Article 8 of the Convention or Article 2 of Protocol No. 4 to the Convention could be found since there was no certainty that the appellant would ever actually be searched, and since in any case there was no particular need for the appellant to be within the area concerned with any regularity; any interference with her rights was therefore so uncertain that it could not be considered a reasonably foreseeable consequence of the designation order. That being so, there was no “arguable claim” for the purposes of Article 13 of the Convention either. 44. In its above-mentioned decision of 9 November 2005 (Administrative Law Reports 2006, no. 90), the Administrative Jurisdiction Division allowed an appeal brought by the Burgomaster of Utrecht against the suspension of a designation order by the provisional measures judge (voorzieningenrechter) pending reconsideration of the order on its merits. It found that the Burgomaster had a wide margin of appreciation in assessing the need for any such order after consultation with the public prosecutor. It was for him or her to balance the interests involved, including public order against individual private life, against each other. The designation order should be limited in time and in area to what was necessary to maintain public order. The Burgomaster’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned. 45. In the particular case, these requirements had been met, given the frequency of incidents involving the use of firearms in the area and the number of weapons found during earlier searches. Although searches constituted an interference with the right to respect for “private life” within the meaning of Article 8 of the Convention, given the margin of appreciation of the domestic authorities the Burgomaster could reasonably consider such measures in pursuit of the interests of public safety and the prevention of disorder or crime to answer a “pressing social need” and to meet the requirement of proportionality.
| 0 |
train
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001-121630
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ENG
|
AZE
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ADMISSIBILITY
| 2,013 |
ABBASOV AND OTHERS v. AZERBAIJAN
| 4 |
Inadmissible
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Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
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1. The applicants, Mr Rauf Abbasov, Mr Azer Abbasov, Mr Elshad Mammadov, Mr Zabil Najizade, Mr Etibar Agayev, Mr Ganimat Zayidov, Mr Mehman Aliyev and Mr Shahveled Namazov, are Azerbaijani nationals and live in Baku. They were represented before the Court by Mr R. Hajili, Mr E. Sadigov and Mr K. Agaliyev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants who are all independent journalists or journalists who support the political opposition, decided to hold a demonstration in support of freedom of the media in Azerbaijan. 4. By a letter sent in early June 2007, the applicants informed the Baku City Executive Authority (“the BCEA”) of their intention to hold a demonstration in the form of a march from Dakar Square to a small square near the Heydar Aliyev Petroleum Refinery in Baku. 5. By a letter of 9 June 2007 the BCEA authorised the applicants to organise a march from the Hazi Aslanov Metro Station to Ukraine Square and then to assemble and continue demonstrating in Ukraine Square. The authorised time period for the demonstration was from 5 p.m. to 7 p.m. on 12 June 2007. 6. The applicants were not satisfied with the location proposed by the BCEA because it was too distant from the city centre and at the time there were road works underway around Ukraine Square, making it hard for them to hold a demonstration there. 7. For the above reasons, and without formally notifying the BCEA, the applicants changed the location of their demonstration to the Sabir Park in the city centre. 8. On 12 June 2007 a total of twenty-five to thirty journalists (including the applicants) holding banners with various slogans gathered at the Sabir Park and attempted to hold a demonstration. However, approximately five to ten minutes after the demonstration began, several police cars approached the park and about thirty police officers from the Sabail District Police Office began dispersing the demonstrators. 9. Four of the applicants, Mr Rauf Abbasov, Mr Zabil Najizade, Mr Ganimat Zayidov and Mr Shahveled Namazov, were forcibly dragged into police cars and taken to Police Station No. 9 of the Sabail District Police Office. They were held in the police station for more than two hours but were subsequently released. 10. On 12 July 2007 the applicants brought an action against the Sabail District Police Office claiming that they had been ill-treated by the police during the dispersal of the demonstration and that their rights of freedom of assembly and freedom of expression had been violated. 11. On 20 July 2007 the Sabail District Court refused to admit the applicants’ civil claim as they had failed to pay the court fees in the manner and amount required by law. 12. On 18 September 2007 the Baku Court of Appeal rejected an appeal by the applicants and upheld the first-instance court’s inadmissibility decision. The Baku Court of Appeal found that the applicants’ original claim had not complied with the procedural requirements of the Code of Civil Procedure concerning the form and content of civil claims, and that the applicants had failed to attach any documentary evidence in support of their claim, apart from photocopies of several photographs. 13. On 12 December 2007 the Supreme Court upheld the Baku Court of Appeal’s decision. The Supreme Court’s decision was sent to the applicants on 10 January 2008. 14. On 30 November 2010 the application was communicated to the respondent Government. On 15 July 2011 the Government submitted a friendly-settlement proposal within the framework of the proceedings before the Court, and on 21 July 2011 the Court sent the proposal to the applicants. 15. At the beginning of August 2011, several articles were published in the Azerbaijani media concerning the Government’s friendly-settlement proposal to the applicants. Some of the articles are described below. 16. On 2 August 2011 an article was published on the website of the Yeni Musavat newspaper. The article was accompanied by six photographs in which all of the applicants, except Mr Etibar Agayev and Mr Ganimat Zayidov, are present, together with other persons. The article was entitled “The Government Offer 40,000 Euros to Eight Journalists” (“Hakimiyyət 8 jurnalistə 40 min avro təklif edir”) and read, in its relevant part, as follows: “...The current situation is that the Government are ready to pay the 40,000 euros in compensation that the journalists claim. The respondent party is trying to prevent the adoption of a new court judgment against Azerbaijan and the examination of the case before the European Court by proposing a friendly settlement to the journalists. Yesterday, the applicant journalists, except for E. Seyidaga [Agayev] and G. Zahid [Zayidov], met at the office of the Yeni Musavat newspaper and assessed the current situation. The common opinion of the participants in the discussion was that in comparison with the unlawfulness to which the journalists had been subjected the amount of the proposed compensation was low. Moreover, they concentrated on two options for reaching a final decision. The first option is a conditional agreement. Thus, in that case the applicants would accept the friendly-settlement proposal on the condition that they obtained the punishment of the court judges and police officers who had used violence against them. In that case, the Government would eradicate the causes which created this situation. The second option is for the above-mentioned case to continue before the European Court of Human Rights until the final stage. The journalists also stated during the discussions that if there was a decision, it would be the first decision concerning Article 11 of the Convention in respect of Azerbaijan. This is important for democracy and free speech in Azerbaijan ... Following this interesting discussion, the journalists decided to discuss the issue again in the coming days in the presence of the director of the Media Rights Institute, Rashid Hajili ...” 17. Another article dated 1 August 2011, the day before, was published on the website of Radio Liberty. The article, entitled “The Azerbaijani Government Propose Friendly Settlement to Eight Journalists” (“Azərbaycan hakimiyyəti 8 jurnalistə barışıq təklif edir”), was written by S. Akifgizi. It was stated in the article that Mr Shahveled Namazov, one of the applicants, had informed Radio Liberty that the Azerbaijani Government had proposed a friendly settlement to the eight journalists that included compensation of 40,000 euros. Mr Shahveled Namazov also stated that the journalists could not reach a consensus as some of them wanted to accept the Government’s proposal. He further continued as follows: “The common opinion was that we cannot be satisfied solely with the compensation; our right of assembly has been violated. Some of us are in favour of pursuing a judgment by the European Court because such a judgment will become a precedent”. 18. In the same article, another applicant, Mr Rauf Abbasov, was also quoted. He stated that in their claim they had requested the punishment of the police officers who had used violence against them, as well as the punishment of the judges of the first-instance court who had dismissed their action. He continued as follows: “However, these assurances were not secured in the proposal by the Azerbaijani Government; if they were secured, it would be possible to withdraw the application”. 19. On 2 August 2011 an interview with one of the three representatives of the applicants before the Court, Mr Rashid Hajili, was published on the website of the Voice of America radio station. The article was entitled “Rashid Hajili: The European Court’s Decision May Positively Influence the Judicial System and Legislation of the Country” (“Rəşid Hajılı: Avropa Məhkəsinin qərarı ölkədəki məhkəmə sisteminə və qanunvericiliyə müsbət təsir edə bilər”). The relevant parts of the interview read as follows: “Question: Do the journalists agree with the friendly-settlement proposal? Answer: I, as a lawyer, informed each journalist of, and sent them, the Government’s proposal. They have to make clear their decision separately, as well as to decide together by discussing it. Question: What do the Government propose? Who are the applicant journalists? Answer: The applicants are the director of the Turan Information Agency, Mehman Aliyev, the editor of the Azadliq newspaper, Ganimat Zahid [Zayidov], the journalist Shahveled Chobanoglu [Namazov], the editor-in-chief of the Yeni Musavat newspaper, Rauf Arifoglu, and reporters at that newspaper Azer Aykhan [Abbasov], Zabil Mugabiloglu [Najizade], Elshad Mammadli [Mammadov] and Etibar Seyidaga [Agayev]. Our claim was for 5,000 euros for each applicant plus the payment of additional cost and expenses. The Government offered to pay the non-pecuniary damage claim in full, but did not offer to pay the court and legal costs. Question: Would the European Court adopt a judgment if there was no agreement between the journalists and the Government? Answer: If the applicants do not accept the Government’s offer, the European Court will probably continue with its examination of the case. It is true that justification has to be given for why the friendly settlement was not accepted. The justification has to be accompanied by arguments. If the Court considers that the justification is not supported by arguments, it could discontinue the case. It may strike the case out of the list and inform the applicants of the acceptance of the Government’s proposal. Question: The media writes that there is disagreement between the applicant journalists. Some of the applicants want to accept the Government’s proposal, other journalists will not accept the friendly-settlement proposal as the Government do not guarantee freedom of assembly. They seek the adoption of a judgment by the European Court in order to have a judicial precedent. What do you think about this? Answer: Discussion of the friendly-settlement proposal in the media does not comply with the rules on confidentiality. On the other hand, if the victim journalists make the issue public, it is also their right. I have not yet received the final decision from the applicants ...” 20. By a letter of 12 September 2011, the applicants informed the Court of their refusal to accept the Government’s friendly-settlement proposal.
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train
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001-61055
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ENG
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TUR
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CHAMBER
| 2,003 |
CASE OF AKTAŞ v. TURKEY
| 1 |
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
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Ireneu Cabral Barreto
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11. The applicant was born in 1973 and lives in Derik, Turkey. 12. The case concerns the circumstances of the death of the applicant's brother, Mr Yakup Aktaş. According to his death certificate, Mr Yakup Aktaş, who was born in 1964, died in Mardin, Turkey, on 25 November 1990. He left a widow and also a daughter who had been born earlier that year. 13. The applicant alleges that the death of Yakup Aktaş resulted from torture following his arrest. The Government deny this. 14. The facts of the case being in dispute, the Commission appointed Delegates who took evidence in Ankara on 19 and 20 November 1997. They heard the applicant and the following witnesses: the applicant's brother Mr Mahmut Aktaş, the Public Prosecutor Şevki Artar, Professor Dr Özdemir Kolusayın, Dr Hüseyin Sarı and Dr Güneş Pay. 15. On 18 November 1997, while evidence was being taken in a different case, the Acting Agent of the Government submitted that, for their security, ten members of the gendarmerie who had been summoned to appear before the Delegates in the present case should give evidence in the absence of the applicant and his relatives and be shielded from the view of the applicant's representatives by a screen. On 19 November 1997 the Government extended that request to include a further witness: the member of the gendarmerie who had investigated Yakup Aktaş's death on behalf of the Mardin Provincial Administrative Council. Having deliberated, the Delegates decided not to comply with the request for a screen. However, they suggested to the Acting Agent that the eleven witnesses give their evidence on a day when neither the applicant nor his relatives would be present in the Palace of Justice. The Acting Agent informed the Delegates that the eleven witnesses would not give evidence in those circumstances, whereupon the Delegates invited the Government to submit their request to the Commission in writing, giving full reasons for it in respect of each witness. 16. Further documentary material was submitted by the parties during the hearing. On 20 November 1997 the Acting Agent showed four photographs of a body said to be that of Yakup Aktaş. They were not marked with any kind of identifying information, either on the front or on the back. At the conclusion of the hearing the Delegates requested the Government to submit further information, a number of documents and two sets of copies of the photographs with the negatives. That request was subsequently confirmed by a letter dated 26 November 1997. On the same day the parties were also requested to inform the Commission of the names of any witnesses they might still wish to be heard. 17. On 8 December 1997 the Government were reminded of an outstanding request for the name of the doctor who pronounced Yakup Aktaş dead. 18. By a letter dated 23 December 1997 the Government submitted a doctor's note relating to one of the witnesses who had not appeared before the Delegates and a number of other documents. One of these was a copy of a letter dated 10 December 1997 from the Chief Public Prosecutor at Mardin to the Ministry of Justice (General Directorate of International Law and External Relations) to the effect that the requested negatives of the four photographs were not in the file at the Mardin Assize Court or in the possession of the Mardin Provincial Gendarmerie Headquarters. 19. By a letter dated 5 February 1998 the Government informed the Commission that it had not proved possible to trace the name of the doctor who had pronounced Yakup Aktaş dead. 20. On 12 February 1998 the Government were reminded that not all the information and documents mentioned in the Commission's letter of 26 November 1997 had been submitted. In reply, the Government stated in their letter of 20 March 1998 that all requested documents had been provided to the Commission. On 27 March 1998 the Commission provided the Government with a list of the information and documents which had yet to be submitted. 21. On 12 March 1998 the parties were informed that the Commission was expected to examine the state of the proceedings on the application at its session beginning on 14 April 1998 and that, unless a reply to the question concerning witnesses contained in the Commission's letter of 26 November 1997 was received beforehand, it would be assumed that they did not wish any further witnesses to be heard. 22. By a letter dated 15 April 1998 the Government requested that five witnesses, all officers in the gendarmerie, be heard. They stressed, however, that all necessary security measures should be taken. On 20 April 1998 the Government were requested to inform the Commission why such special arrangements were necessary and in what way the present case fell to be distinguished from other cases in which evidence from members of the security forces had been heard. They were further requested to specify the security measures they sought. 23. By a letter dated 20 April 1998 the Government submitted the two sets of copies of the photographs that had been requested by the Commission in its letter of 26 November 1997. 24. By a letter dated 5 May 1998 the Government asked the Commission to hear the five witnesses they had proposed in the absence of both the applicant and his representatives so that they would not be recognised. 25. On 23 May 1998 the Commission examined that request. It decided not to accede to it in so far as it related to the hearing of the witnesses in the absence of the applicant's representatives. The parties were informed of the Commission's decision on 27 May 1998, the Government being requested to confirm that the five witnesses could be heard under normal conditions. 26. By a letter dated 27 May 1998 the Government submitted information that had been requested by the Commission in its letter of 26 November 1997. 27. On 4 June 1998 the Government were again reminded that not all the information and documents mentioned in the Commission's letter of 26 November 1997 had been submitted. 28. By a letter dated 5 June 1998 the Government submitted observations concerning the hearing of the five witnesses. They again requested that the witnesses be heard in the absence of the applicant and his representatives, failing which they would not give evidence. 29. By a letter dated 23 June 1998 the Government submitted information requested by the Commission in its letter of 26 November 1997. They added that some documents referred to in the Commission's reminder letter of 4 June 1998 had already been submitted. 30. On 4 July 1998 the Commission examined the Government's observations of 5 June 1998 pertaining to the hearing of the five witnesses. It decided that it would not reverse its decision of 23 May 1998. The parties were informed of the Commission's decision on 6 July 1998 and were also invited to submit their written submissions on the merits. At the same time the Commission specified a document the Government had not yet provided. 31. By a letter dated 9 July 1998 the Government submitted a number of observations on the merits of the case. 32. By a letter dated 4 September 1998 the Government submitted the document specified in the Commission's letter of 6 July 1998. 33. The applicant's brother Yakup Aktaş was arrested on 18 November 1990 by the Derik district gendarmerie. Prior to his arrest he had been in good health apart from a minor venereal infection for which he had received treatment. After his arrest Yakup Aktaş was taken to Dr Adnan Parkan for an examination. Dr Parkan issued a certificate stating that Yakup Aktaş showed no signs of having been beaten or subjected to force or violence. 34. The next morning (19 November 1990) Mahmut Aktaş, another of the applicant's brothers, visited Yakup Aktaş and saw that he was in good health. Later that morning Yakup Aktaş was transferred to the Mardin interrogation centre, where he was held until his death. He died shortly after 7.30 p.m. on 25 November 1990. A post-mortem examination and a full autopsy were performed at 10 p.m. that same evening. As neither yielded a positive finding as to the exact cause of death, the reports of the two examinations and specimens taken from Yakup Aktaş's body were sent to the Institute of Forensic Medicine of the Ministry of Justice. The forensic examination concluded that it was not possible to determine the cause of death from the information available. 35. The body was returned to the applicant and other members of his family prior to the burial. They observed the injuries which were also described in the reports of the post-mortem examination, the autopsy and the forensic examination. The injuries described were consistent with death by deliberate asphyxiation, and thus with the evidence of the consultant pathologist engaged by the applicant. 36. On 26 November 1990, the day after Yakup Aktaş's death, the applicant lodged a complaint with the public prosecutor at Derik concerning his brother's death. However, the investigation did not begin until 30 November 1990, no search for evidence took place at all and the witnesses were not interviewed until March 1991. 37. The questioning of Yakup Aktaş by the two gendarme officers who were subsequently prosecuted had come to an end on 23 November 1990, that is two days before Yakup Aktaş's death. Yakup Aktaş had shown no signs of illness or pain in the period between 18 and 23 November 1990, either during questioning or between sessions. Had he done so, the regiment's doctor would have been available. Yakup Aktaş's pale complexion and his need to drink large quantities of water suggested a connection with his medical history of two urinary infections. 38. Despite the fact that 25 November 1990 was a Sunday, all measures and precautions required by Yakup Aktaş's sudden illness had been taken in order for him to receive immediate medical attention. Thus, the persons in charge had been alerted to the situation at once and Yakup Aktaş was transferred to hospital without delay. Likewise, an investigation had been commenced immediately and the applicant had subsequently been able to intervene in the criminal proceedings against the gendarme officers. A large number of statements from witnesses had been obtained. The accused officers were acquitted because of a lack of sufficient factual and medical evidence. 39. On 25 November 1990 a post-mortem examination and full autopsy were performed on the body of Yakup Aktaş at the Mardin State Hospital. His body was identified by Captain Mehmet Göçmen, commander of the Mardin provincial central gendarmerie. The report on those examinations (see paragraphs 153-160 below) stated, inter alia, that since the exact cause of death had not been established, tissue samples of internal organs had been taken and dispatched to the Institute of Forensic Medicine. 40. At 8.10 p.m. on 25 November 1990 an inspection of the interrogation centre of the Mardin provincial gendarmerie was carried out by four members of the gendarmerie (see paragraph 61). 41. On 27 November 1990 a public prosecutor at Derik ruled that he had no jurisdiction ratione loci to deal with the applicant's complaint that his brother Yakup Aktaş had died as a result of torture at the hands of intelligence officers at the interrogation centre of the Mardin provincial gendarmerie. The case file was transmitted to the Mardin Public Prosecutor's Office. 42. The Mardin Public Prosecutor Şevki Artar decided on 29 November 1990 that he had no jurisdiction ratione materiae and referred the investigation to the Mardin Provincial Administrative Council. Major Dursun Şeker was appointed to conduct the investigation. 43. On 20 February 1991 the Institute of Forensic Medicine issued a report, from which it appeared that the exact cause of death could not be established (see paragraphs 161-164 below). 44. Between 13 and 20 March 1991 a number of persons, including the applicant, made statements to Major Dursun Şeker. On 21 March 1991 Major Dursun Şeker issued a report (see paragraphs 125-129). The recommendation contained therein, that gendarme officers Major Aytekin Özen and Master Sergeant Ercan Günay should not face prosecution, was adopted by the Mardin Provincial Administrative Council in its decision of 6 June 1991. The Council of State overturned that decision on 24 June 1992 on the automatic appeal to which the decision was subject and ordered that Major Aytekin Özen and Master Sergeant Ercan Günay be charged with the offence of unintentional homicide (Article 452 of the Criminal Code) and should stand trial at the Mardin Assize Court. In its decision the Council of State held that it appeared from the report of the post-mortem examination and autopsy that Major Özen and Master Sergeant Günay had caused Yakup Aktaş's death by beating him during interrogation. 45. On 23 September 1992 the Mardin Assize Court decided that it was not competent to try the case and transferred it to the Ankara Assize Court. In its decision of 26 October 1992 the latter court also declined jurisdiction and transferred the file to the Court of Cassation in order to have the jurisdiction issue settled. On 29 December 1992 the Court of Cassation quashed the decision of the Mardin Assize Court of 23 September 1992, finding that it did have jurisdiction. 46. The proceedings against Major Aytekin Özen and Master Sergeant Ercan Günay on a charge of having caused Yakup Aktaş's death by beating during interrogation commenced at the Mardin Assize Court on 3 March 1993. The applicant was given permission to take part in the proceedings as an intervening party. On 3 March 1993 the Assize Court found that the decision of the Council of State of 24 June 1992, committing the two defendants for trial, did not contain the minimum information required by law concerning the identities of the accused. For this reason it transmitted the file to the Council of State. On 19 March 1993 the Council of State held that its decision of 24 June 1992 contained sufficient information to enable the identities of the defendants to be determined. It returned the file to the Mardin Assize Court. 47. Hearings took place before the Mardin Assize Court on 12 May, 7 July, 21 September, and 23 November 1993, and 2 February, 30 March, and 11 May 1994. On the latter date the defendants Major Aytekin Özen and Master Sergeant Ercan Günay were acquitted. 48. The applicant lodged an appeal on points of law with the Court of Cassation. It was rejected on 6 February 1995. 49. The documentary evidence obtained by the Commission and the transcript of the hearing before the Commission's Delegates have been transmitted to the Court and are in the case file. 50. The parties submitted various documents to the Commission. These related to the investigation and court proceedings and included statements from the applicant and witnesses concerning their version of the events in issue in this case. The Government also submitted copies of four colour photographs said to have been taken of the body at the Mardin State Hospital. 51. The Commission, when drawing up its report under former Article 31 of the Convention, had particular regard to the following documents: 52. At about 4 p.m. on 18 November 1990 the applicant's brother Yakup Aktaş had been apprehended in Derik. While still there, he had been taken to the local health clinic where he had been issued with a medical report stating that he was not suffering from any medical complaint whatsoever. The following morning Yakup had been taken to the interrogation centre at the Mardin provincial gendarmerie headquarters. A week later, on 25 November 1990, the applicant's uncle Süleyman had been informed that Yakup had died. Süleyman Aktaş had taken delivery of Yakup's body at the morgue of Mardin State Hospital on 26 November 1990. 53. As the relatives of Yakup were waiting in a convoy of vehicles the security forces had escorted the hearse to the cemetery at Derik and ensured an immediate burial. During that time, strict security measures had been imposed on the district; entry into or exit from the district was prohibited and helicopters patrolled overhead. A delegation of the Human Rights Association (HRA) had been refused entry to the district. 54. The person who had washed Yakup's body had observed bruises and scratches to both wrists and arms and the back. The back of the head had been entirely crushed and blood was still flowing from it. There was also an injury to the forehead. The authorities had claimed that Yakup had died as a result of a heart attack but the injuries observed on Yakup's body constituted proof of the fact that he had died as a result of torture. 55. The applicant stated that he wished to file a complaint concerning the death of his brother, Yakup Aktaş, whose body had been delivered to the family that day (26 November 1990). Yakup had been taken to Mardin eight days previously for interrogation and had died under interrogation. In the applicant's opinion, the death was not due to natural causes but had been brought about by torture. A healthy person would not have died for no apparent reason. He demanded the prosecution and conviction of the persons responsible for Yakup's death. 56. The applicant requested that a second autopsy be performed, stating that the original autopsy might have been carried out in such a way as to conceal the real cause of death. 57. This record describes how Yakup Aktaş was confronted with a fellow suspect, one Ali Alay. Ali Alay said that Yakup Aktaş was the person who had given him banknotes. Yakup Aktaş confirmed that he had given Ali Alay approximately ten million Turkish liras (TRL) in banknotes wrapped in a newspaper. 58. During a confrontation between another fellow suspect, Osman Önen, and Ali Alay, the latter stated that he had given the money received from Yakup Aktaş to Osman Önen. Osman Önen confirmed having received money from Ali Alay. 59. The record is signed by Captain Mehmet Göçmen as the person who conducted the identification procedure. It further contains the thumbprints of Ali Alay and Osman Önen. A handwritten note underneath the name of Yakup Aktaş states that it had been assumed that Yakup Aktaş would sign the record at a later stage but that his death had prevented him from doing so. 60. This report is signed by Lance Corporals Ali Yavaş and Mustafa Tüylek and by Master Sergeants Yusuf Karakoç, Mehmet Yılmaz, Mustafa Ten, Süleyman Altuner, Üzeyir Nazlım and Ramazan Baygeldi. It states that at around 7.30 p.m. on 25 November 1990 sounds were heard in cell no. 18. The door of the cell was opened and the occupant was found unconscious, having convulsions and thrashing from side to side. An attempt was made to contact Senior Major Haşim Üstünel, the head of the intelligence unit, but when he proved unavailable Colonel Enver Uysal, commander of the Mardin provincial gendarmerie, was informed. On Colonel Uysal's instructions the detainee, who was established to be Yakup Aktaş, was taken to hospital by car. On examination at the hospital it was determined that Yakup Aktaş had died in transit. 61. This record is signed by Senior Colonel Pekcan Cengiz (deputy commander of the 22nd Border Brigade), Senior Major Haşim Üstünel, Sergeant Major Ali Yavaş and Master Sergeant Yusuf Karakoç. It states that on the verbal instructions of the Mardin provincial security command the signatories of the record arrived at the interrogation centre of the Mardin provincial gendarmerie at approximately 8.10 p.m. on 25 November 1990. After an inspection and search of the premises it was established that the interrogation centre was equipped with modern equipment and that there were no tools or instruments that could be used to torture, torment or use force against persons interrogated there. It was further established that the interrogations were carried out using modern techniques and in accordance with the instructions. An examination of the detention area showed that the cells, which had been designed for one detainee, could easily accommodate three, that the necessary medical checks were made and that the needs of the detainees were met. The authors of the record concluded that any inhuman treatment of detainees there was out of the question. 62. The Public Prosecutor, Şevki Artar, informed the Institute of Forensic Medicine that on 25 November 1990 an autopsy had been performed on the body of Yakup Aktaş, who had died that same day at the Mardin State Hospital after having been taken suddenly ill at the Mardin provincial gendarmerie headquarters, where he was detained. Given that it had not proved possible to determine the exact cause of death it had been decided that tissue samples from the body should be sent to the Institute of Forensic Medicine and that the Institute's opinion be sought as to the exact cause of death. 63. This decision mentions “gendarme officers serving at the intelligence and interrogation department of the Mardin provincial gendarmerie” as being accused of the offence of torture, and the date of the offence is given as 25 November 1990. It relates how Yakup Aktaş was taken into custody by officers serving at the aforementioned department on 19 November 1990 following rumours to the effect that he had connections with the PKK, an illegal organisation. After Yakup Aktaş's death at Mardin State Hospital, where he had been taken after being taken suddenly ill on 25 November 1990, an inconclusive autopsy had been performed and tissue samples had been sent to the Institute of Forensic Medicine. 64. The decision further refers to the statement made by the applicant before the Derik Public Prosecutor on 26 November 1990 in which the applicant alleged that his brother Yakup had died as a result of being tortured during interrogation. 65. Since the incident involved the conduct of civil servants, it was decided in accordance with Article 4 § 1 of Decree no. 285 to refer the case file to the Mardin Provincial Administrative Council. 66. In this statement the applicant is referred to as the “complainant”. The statement which he had made to the Derik Public Prosecutor on 26 November 1990 was read out to him. The applicant stated that his brother Yakup Aktaş had been apprehended in Derik on 18 November 1990 and had been transferred to the Mardin gendarmerie interrogation centre on 19 November 1990. At that time the applicant had been at university in Diyarbakır. He had been informed three days later that his brother had been taken into custody, whereupon he had returned to Derik to run Yakup's grocery shop. On the morning of 26 November 1990 Yakup's body had been brought to Derik and it was then that he had learned of his brother's death. 67. He remembered that Yakup had once had an illness (a pustule on the penis) for which he had received medical treatment, but he could not recall exactly when this had been. Other than this he was not aware of Yakup having suffered any medical complaints. 68. Yakup had died at the interrogation centre and it was very probable that he had been tortured. However, the applicant did not know for certain whether torture was the cause of death. That fell to be decided by the doctors performing the autopsy and the Institute of Forensic Medicine. If Yakup had died as a result of torture, he wanted the culprits punished. However, if death had occurred by natural causes it had been God's will. 69. Finally, it is recorded that the statement was read out to the applicant, who confirmed its accuracy by signing it. 70. In this interview Mahmut Aktaş was asked whether he had any complaints in relation to his brother Yakup Aktaş, who had fallen ill on 25 November 1990 at the Mardin interrogation centre and had died in hospital. He was also asked whether Yakup had been suffering from an illness previously. 71. He replied that he did not know whether Yakup had had an illness prior to his arrest. Even if Yakup had been ill and had received medical treatment he had not been aware of the fact. They shared the same house and he did not recall Yakup having any medication at home. On the day of Yakup's arrest, 18 November 1990, two police officers had come to Mahmut's bakery and said that Yakup had to attend the police station to pay a fine. Mahmut had sent an employee to his home to alert Yakup. The police superintendent had taken Yakup to the gendarmerie where Yakup had undergone a medical examination. Yakup had been kept at the gendarmerie overnight. He had visited Yakup the following morning and found him in good health and not suffering from anything. Yakup had been transferred to Mardin the same day. 72. Whilst in Mardin on 26 November 1990 he had been informed that Yakup had died at the hospital after being taken ill at the interrogation centre and that his body had been taken to Derik. If Yakup's death was the result of torture he wanted to see the culprits punished. However, if death had occurred by natural causes then it had been God's will and there was nothing for him to say. 73. It was recorded in the statement that it had been read out to him following which he confirmed its accuracy by signing it. 74. Ms Dediye Aktaş, Yakup Aktaş's mother, was asked the same questions as Mahmut Aktaş (see paragraph 70 above). She stated that her son Yakup had been called to the gendarmerie on 18 November 1990 upon which he had been apprehended and sent to the Mardin gendarmerie. One week later she had been informed of his death. Her son had not been suffering from any illness when he was arrested. He had not to her knowledge been ill or treated for any illness previously. As she was illiterate, she was not familiar with the content of the medical reports on her son's death, nor did she know what cause of death had been given. She knew that her son had been beaten to death and wished to lodge a complaint against all those responsible. She confirmed the accuracy of her statement with a thumbprint after it had been read out to her. 75. Alaattin Aydın, a police constable serving with the Derik district police force, stated that on 18 November 1990 the Derik district gendarmerie had requested Yakup Aktaş's arrest. Together with a colleague he had asked Yakup Aktaş's brother Mahmut to tell Yakup to go to the police station to pay a fine for a minor offence. He had met Yakup Aktaş while he was on the way to the police station. He had not noticed anything unusual about him. Yakup Aktaş had been taken to the district gendarmerie headquarters and handed over to Senior Sergeant İlhan Keskin. 76. İlhan Keskin, a Senior Sergeant in the gendarmerie in charge of administrative affairs at the Derik district gendarmerie headquarters, stated that on 18 November 1990 Major Aytekin Özen of the interrogation centre had telephoned him and given him instructions to arrest Yakup Aktaş. He had contacted the Derik police superintendent and had brought the matter to his attention. In the afternoon two police officers had brought Yakup Aktaş to the gendarmerie headquarters. He had had Yakup Aktaş examined by Dr Adnan Parkan at the district health centre in accordance with usual practice. He had then received the report of the medical examination. Yakup Aktaş's name had been entered in the custody record and he had spent the night in the cells at the district gendarmerie headquarters. 77. The following morning (19 November 1990), the witness had blindfolded Yakup Aktaş and taken him to the Mardin interrogation centre where, some time before noon, he had delivered him into the hands of Master Sergeant Mustafa Ten. In his opinion, Yakup Aktaş had appeared listless, nervous and anxious. Also, Yakup Aktaş had been somewhat overweight. It was an established fact that Yakup Aktaş had provided assistance and supplied guns to the PKK. 78. Dr Adnan Parkan stated that Yakup Aktaş had been brought to him for a medical check-up on 18 November 1990 after his arrest by the district gendarmerie. The signature on the medical report bearing that date was his. He had drawn up the report after asking Yakup Aktaş whether he had been beaten to which Yakup Aktaş had replied that this was not the case. He had not asked Yakup Aktaş to undress and thus had not conducted an external physical examination since the purpose of the check-up had been to ascertain whether or not Yakup Aktaş had been beaten. 79. He did not remember whether or not he had previously examined Yakup Aktaş but, since the data contained in the register of the health clinic were correct, it must have been the case that Yakup Aktaş had come to see him on two occasions. Yakup Aktaş's illness had been diagnosed as urethritis. He did not think that that disease was the cause of death since otherwise it would have been stated in the autopsy report. He knew Yakup Aktaş because he ran a grocery shop in the district. Yakup Aktaş had been a little overweight. He described Yakup Aktaş as a respectful, polite person. 80. Colonel Uysal, commander of Mardin provincial gendarmerie, stated that although the interrogation centre was situated on the premises of the Mardin provincial gendarmerie and although the interrogation unit appeared to form part of the intelligence unit, the position was in fact completely different in practice. The interrogation centre functioned as the interrogation centre for the Mardin provincial security command. Persons to be taken into custody would be apprehended by the Mardin provincial central gendarmerie on the orders of the security command. 81. He would receive a list with the names of the persons who had been taken into custody but it was the personnel serving at the interrogation unit who decided which suspects were to be interrogated by which officers. As provincial gendarmerie commander he would frequently attend interrogations. Such inspections were general in nature. He had never witnessed any ill-treatment being meted out at the interrogation sessions he had attended. 82. Early in the evening of 25 November 1990 Sergeant Major Ali Yavaş had telephoned him to say that a detainee named Yakup Aktaş had fallen ill and that they wanted to take him to hospital. He had ordered that Yakup Aktaş be taken to hospital immediately. Approximately half an hour later Ali Yavaş had informed him that Yakup Aktaş had been hospitalised but had died before the doctor could intervene. Thereupon, the public prosecutor's office had been informed of the incident and the necessary investigations had commenced. He was not aware of the cause of death but did not think that Yakup Aktaş had died as a result of torture. The interrogation building was in complete conformity with sanitary requirements and persons being held for interrogation were never ill-treated. 83. He had subsequently been told by the head of the interrogation unit that Yakup Aktaş had been interrogated by Master Sergeant Ercan Günay and Major Aytekin Özmen. He had never seen Yakup Aktaş. 84. In this statement Captain Göçmen is introduced as a gendarme captain, commander of Mardin provincial central gendarmerie. He was asked whether it was correct that Yakup Aktaş had been taken with two coaccused for mutual identification under his, Göçmen's, supervision. He stated that the interrogation of suspects was carried out by interrogation personnel serving under the command of the intelligence unit of the provincial gendarmerie. Related correspondence bore his signature because he was the officer in charge of judicial matters. Prior to the confrontation for identification purposes of Yakup Aktaş with his two coaccused he had been asked to go to the interrogation centre. The information included in the mutual identification record had been furnished by the persons identified. The signature at the bottom of that record was his and its content was true. 85. Senior Major Üstünel, head of the intelligence unit at the Mardin provincial gendarmerie, explained that the interrogation centre was one of the five sections attached to his intelligence unit. However, the interrogation centre functioned under the command and direction of the provincial security command. Persons to be interrogated were detained by the provincial central gendarmerie, which was responsible for bringing them before the courts. Therefore, the interrogation centre did not operate under his orders. 86. Interrogations were carried out by interrogation personnel stationed at the interrogation centre. On 25 November 1990 there had been a total of fourteen members of staff at the interrogation centre, consisting of four lance corporals, nine master sergeants and intelligence officer Major Aytekin Özen who had been posted at the interrogation centre since August 1990 in order to direct the interrogation activities and render them more effective. 87. He had been informed of Yakup Aktaş's death by Sergeant Major Yavaş, who had telephoned him at home with the news. Yakup Aktaş had fallen ill and been taken to hospital but had died before the doctor could intervene. Upon hearing this news the witness had gone to the provincial gendarmerie headquarters. Meanwhile, he had given instructions for the public prosecutor to be informed. The provincial gendarmerie commander had also been present at the headquarters. When the public prosecutor arrived they went to the hospital. He had seen the body for the first time at the autopsy but there had been nothing that had attracted his attention. He did not think that Yakup Aktaş had been tortured because during the one and a half years he had been in his post he had never seen or heard of anyone being mistreated, let alone tortured, at the interrogation centre. 88. Ali Yavaş stated that he was a gendarme with the rank of lance corporal serving at the intelligence unit of the Mardin provincial gendarmerie and head of the interrogation centre. 89. He stated that he had been on leave on the day Yakup Aktaş was taken into custody (19 November 1990). Upon his return on 23 November 1993 he had visited all the persons detained at the interrogation centre, including Yakup Aktaş in cell no. 18. Yakup Aktaş had been listless, nervous and frightened. No interrogations had taken place on Saturday 24 or Sunday 25 November. The interrogations of Yakup Aktaş had been carried out by Major Aytekin Özen, who was in charge of the coordination of the interrogation centre, and Sergeant Ercan Günay. On 23 November Major Aytekin Özen had gone on leave and Master Sergeant Ercan Günay had gone to Adana on an assignment. Therefore, Yakup Aktaş had not been interrogated on 23, 24 or 25 November. 90. On 25 November, while he was in the canteen, he had been informed by Master Sergeant Yusuf Karakoç, the duty officer at the interrogation centre, that Yakup Aktaş had fallen ill. He had ordered a vehicle and had informed Colonel Enver Uysal of the matter. He had then gone to the interrogation centre and seen Yakup Aktaş being taken out of his cell in a blanket. He had helped Yakup Aktaş onto the back seat of the car. He had observed that Yakup Aktaş was breathing and had checked for and found a pulse. He had taken Yakup Aktaş to the accident and emergency department at the State Hospital, where after an examination, the doctor pronounced him dead. 91. It had been established before Yakup Aktaş was taken to the interrogation centre that he had helped and sheltered members of the PKK. Yakup Aktaş had given TRL 30,000,000 and five Kalashnikov rifles and ammunition to the PKK. 92. Yusuf Karakoç, a Master Sergeant in the gendarmerie serving at the intelligence unit of the Mardin provincial gendarmerie, stated that Major Aytekin Özen had ordered Yakup Aktaş to be brought to the interrogation centre after it had been established from statements made by members of the PKK and documents that had been seized that Yakup Aktaş had provided assistance, shelter and supplies to that organisation. On 19 November 1990 Yakup Aktaş had arrived at the interrogation centre and a medical certificate and permission from the public prosecutor to take Yakup Aktaş into custody had been obtained. He had been the duty officer that day. During his shift he had arranged for the doors of the cells to be opened at around 6 p.m., midnight, 3 a.m. and 7 a.m. to check on the detainees. On each occasion Yakup Aktaş, who was in cell no. 18, had told him that he had no problems. He did not observe anything unusual in Yakup Aktaş's behaviour. 93. He was also the duty officer on 25 November 1990. Both before and after noon he had checked on Yakup Aktaş and had not noticed anything unusual about him. As the evening meal was about to be served, the private distributing the meals had come to see him and told him that he had heard strange voices coming from cell no. 18, that Yakup Aktaş had been banging on the door and that when the private had looked into the cell Yakup Aktaş had told him that he was ill. Upon receiving this information the witness said that he had immediately gone downstairs to the detention area. The private standing guard had opened the door to cell no. 18. When the witness called out to Yakup Aktaş there had been no response. Yakup Aktaş had been seated and had fainted. The witness had immediately taken him out of the cell to make sure that he got some fresh air. A private had supported Yakup Aktaş on one arm but he had been unable to stand up in his condition and had therefore been laid on a blanket. The witness had given instructions for the relevant superiors to be informed and for a car to be made ready. Meanwhile, Sergeant Major Ali Yavaş had arrived. 94. With the blanket serving as a stretcher, Yakup Aktaş had been taken to the car and driven to the hospital. He was still breathing when he was taken outside. Later, the witness had been informed that Yakup Aktaş had died at the hospital. 95. Yakup Aktaş had been interrogated by Major Aytekin Özen and Master Sergeant Ercan Günay. The witness did not have any information concerning the methods that had been used. While he was certain that Yakup Aktaş had not been tortured, he did not know the cause of his death. 96. Üzeyir Nazlım stated that he was a Master Sergeant in the gendarmerie serving at the intelligence unit of the Mardin provincial gendarmerie. He had checked on Yakup Aktaş in cell no. 18 while on guard duty on 21 and 24 November 1990. Yakup Aktaş had been listless, nervous and anxious. Master Sergeant Yusuf Karakoç had taken over the guard duty from him on 25 November 1990. On that day he had heard that Yakup Aktaş had become ill and had died in hospital. 97. Yakup Aktaş had been interrogated by Major Aytekin Özen and Master Sergeant Ercan Günay. He did not know how many times Yakup Aktaş had been interrogated or what methods had been used. He had neither seen nor heard Yakup Aktaş being subjected to torture during interrogation. 98. Ramazan Baygeldi, a Master Sergeant in the gendarmerie serving at the intelligence unit of the Mardin provincial gendarmerie, said that he had seen Yakup Aktaş on 19 November 1990 on his arrival at the interrogation centre. As far as he could see, Yakup Aktaş did not appear to be suffering from any kind of illness, although he was somewhat overweight. He had been detained in cell no. 18 and interrogated by Major Aytekin Özen and Master Sergeant Ercan Günay. 99. The witness had been on guard duty on 20 and 24 November 1990. As part of his duties he had personally asked the detainees about their health five times during the day and the night. The inactivity displayed by Yakup Aktaş had attracted his attention. Nevertheless, when he had asked him if he was ill, Yakup Aktaş had replied that he had no problem. If a detainee complained of aches and pains medical supplies were available at the interrogation centre. Moreover, such detainees were examined by the doctor on duty at the headquarters. 100. He had not heard anything about Yakup Aktaş having been tortured or beaten while in detention and had not seen any such treatment. 101. While on guard duty at the detention area of the interrogation centre on 22 November 1990 this Master Sergeant in the gendarmerie had checked on Yakup Aktaş in cell no. 18 a number of times. He had not observed anything unusual. Yakup Aktaş had been interrogated by Major Aytekin Özen and Master Sergeant Ercan Günay. The witness had neither seen nor heard Yakup Aktaş being subjected to torture. In the evening of 25 November 1990 he had heard that Yakup Aktaş had become unwell and had died at the hospital to which he had been taken. 102. Mehmet Yılmaz, a master sergeant in the gendarmerie serving in the intelligence unit of the Mardin provincial gendarmerie, stated that he had seen Yakup Aktaş while on guard duty on 22 November 1990. On that day he had ordered the doors of the cells to be opened three times in the morning and twice in the evening and had asked the detainees if they had any problems. He had spoken to Yakup Aktaş who had been in cell no. 18. He had not observed anything unusual in his behaviour and Yakup Aktaş had not complained to him about being ill. As he had been resting in the canteen on 25 November 1990 he had heard the news that Yakup Aktaş had fallen ill and had died at the hospital. He had no information about any torture. 103. This master sergeant in the gendarmerie stated that he could not remember whether or not he had seen Yakup Aktaş, who had fallen ill in his cell on 25 November 1990 and had subsequently died in hospital. Yakup Aktaş had been interrogated by Major Aytekin Özen and Master Sergeant Ercan Günay. The witness had not heard anything about Yakup Aktaş having been tortured during interrogation, nor had he seen anything of the sort. 104. Mustafa Tüylek, a lance corporal in the gendarmerie, stated that although he had been at the interrogation centre when Yakup Aktaş had been detained there, he had not been on guard duty at the time and so could not remember having seen Yakup Aktaş, who had been taken ill and had died in hospital. 105. The witness, a corporal in the gendarmerie, stated that he remembered having been on guard duty at the detention area of the interrogation centre on 20 November 1990. During his turn of duty he had let Yakup Aktaş and other detainees out of their cells at meal times and when they needed to go to the lavatory. He had not observed any signs that Yakup Aktaş might be ill. 106. He had again been on guard duty on 25 November 1990. He had gone to the room where the detainees were served their meals, which was near cell no. 18. He had heard somebody knocking on a cell door. In reply to his question, “Which number?”, he had received the answer, “Number 18”. He had unfastened the bolt on the door and asked what the matter was. In a very low voice Yakup Aktaş had replied that he was ill and in a bad state. Although Yakup Aktaş was standing up the witness realised that he was seriously ill and had immediately gone to inform Master Sergeant Yusuf Karakoç, the duty officer. Master Sergeant Karakoç had informed their superiors of the situation. Yakup Aktaş had been helped into a vehicle that had been summoned and was taken to the hospital. The witness had later heard that Yakup Aktaş had died either in the hospital or on the way there. 107. During the hours he had been on guard duty in the detention area he had not heard any unusual voices in cell no. 18. He had not observed anything unusual about Yakup Aktaş on the occasions he was removed from and returned to his cell, blindfolded. 108. The witness, a private in the gendarmerie serving at the intelligence unit of the Mardin provincial gendarmerie, stated that as part of his guard duty at the detention area he would let detainees out of their cell when they needed to go to the lavatory or when they went for their meals. He would also give the detainees water if they asked for it. While carrying out those duties he had not observed anything unusual about Yakup Aktaş's behaviour and the latter had not mentioned any sickness to him. Yakup Aktaş had not been taken out of his cell to be interrogated while he was on duty. He had not witnessed Yakup Aktaş being beaten. 109. Ercüment Erbil, a private in the gendarmerie, stated that he had been on guard duty for some of the time that Yakup Aktaş had been detained. While on duty, he would open the doors of the cells when detainees were served meals or water, when they needed to go to the lavatory or when they were sent to the interrogation centre. He had taken Yakup Aktaş from his cell to the interrogation room two or three times. On the occasions he had accompanied Yakup Aktaş from the interrogation room back to his cell Yakup Aktaş had been in the same condition as when he had been taken from his cell. The witness had not seen Yakup Aktaş being tortured by Major Aytekin Özen or Master Sergeant Ercan Günay. Neither had he observed any traces of torture on Yakup Aktaş's body. If Yakup Aktaş had been tortured in the interrogation room, he would, at very least, have heard their voices. Yakup Aktaş had not been taken to the interrogation room on the last days before his death. 110. The witness was a private in the gendarmerie. He stated that he had seen Yakup Aktaş when on guard duty in the period from 19 to 25 November 1990. He had taken Yakup Aktaş out of his cell several times to take him to the lavatory, to the area where meals were served and to the interrogation room. He had not observed anything unusual about Yakup Aktaş. There had been no difference in Yakup Aktaş's appearance between the moment his cell door was opened and he was blindfolded and taken to the interrogation room and the moment he returned from the interrogation room. He had not seen Yakup Aktaş being tortured or observed any signs of torture on Yakup Aktaş. 111. On 25 November 1990 he had been on guard duty between 6 p.m. and midnight. The private serving the meals had told him that the detainee in cell no. 18 had fallen ill and said that they should inform the duty officer, Master Sergeant Yusuf Karakoç. He had gone to cell no. 18, had opened the door and had seen Yakup Aktaş sitting on a blanket. Master Sergeant Karakoç had then arrived. A private had held Yakup Aktaş by one arm and he had been taken out of the interrogation room. He remembered very clearly that Yakup Aktaş had been fine the day before. He was unable to recall whether or not Yakup Aktaş had been taken to the interrogation centre on 25 November 1990. (The Commission understood this last sentence to mean that Private Bora was unable to recall whether or not Yakup Aktaş had been interrogated on 25 November 1990.) 112. This witness, a private in the gendarmerie, stated that he was the driver of a Renault car belonging to the interrogation centre. On 25 November 1990 he had been informed by Sergeant Major Ali Yavaş that one of the detainees had fallen ill and needed to be taken to hospital. He had helped to carry the detainee from the interrogation centre on a blanket. The detainee had been taken to the hospital in a seated position on the back seat of the car. A few minutes later at the hospital they – it is not clear from the text of the statement who are meant by “they”; presumably hospital staff –had said that the detainee had died. He had not heard anything about the detainee having been tortured at the interrogation centre. 113. In his statement, Major Aytekin Özen is introduced as an intelligence officer serving in the Gendarme Public Order Command. He explained that following clashes between the PKK and security forces in a village in Mardin province on 1 August 1990 a large number of documents had been seized. It had been possible to determine from the documents, inter alia, which people in the region, particularly in the districts of Kızıltepe and Derik, had collaborated with the PKK. Subsequently, a large number of people, including Yakup Aktaş, had been taken into custody. The task of interrogating them had been divided up between the personnel of the interrogation centre of the Mardin provincial gendarmerie. Although the witness's posting was at the Gendarmerie Public Order Command, he had been assigned to the interrogation centre in order to alleviate pressure of work and had been given the task of interrogating a specific group. 114. Ali Alay, one of the persons who had been taken into custody, had made a statement incriminating Yakup Aktaş. Yakup Aktaş was said to have given financial support to the PKK. The witness had referred the matter to the commander of the Mardin provincial gendarmerie who had instructed him to contact the Derik district gendarmerie after also informing the head of the intelligence unit. In coordination with the Derik district police force the Derik district gendarmerie had then arranged for Yakup Aktaş's arrest and had brought him to the interrogation centre on 19 November 1990. 115. Meanwhile, the witness and his assistant, Master Sergeant Ercan Günay, had interrogated Ali Alay and a person named Osman Önen, who had surrendered to custody voluntarily. 116. He had first interrogated Yakup Aktaş one or two days after his arrest. Yakup Aktaş had denied the accusations made against him by Ali Alay. Ali Alay had then been brought into the interrogation room and had been asked to relate once more his account of Yakup Aktaş's involvement with terrorists. At that point he had observed that Yakup Aktaş had suddenly started to perspire and had turned slightly pale. Yakup Aktaş had asked for water and it had been provided immediately. Although Yakup Aktaş had initially continued to say that Ali Alay was slandering him, he was sweating profusely and eventually confessed his guilt. During this time he had requested seven or eight glasses of water. The witness had asked him whether there was a reason for him drinking so much. Yakup Aktaş had replied that he was a little unwell, that he needed to drink a lot of water and could not go to sleep without having drunk a full jug of water. Because he knew that Yakup Aktaş had had a medical check prior to being taken into custody, he had not made too much of this. 117. Despite his confession it was clear that Yakup Aktaş was nevertheless attempting to conceal the involvement of others. Therefore, the witness had given Yakup Aktaş one day to reflect and sent him back to his cell. 118. The following day, which must have been either 21 or 22 November, they had again interrogated Yakup Aktaş in the presence of Ali Alay. Yakup Aktaş had been overexcited and again wanted to drink water. Finally, Yakup Aktaş had given the name of his accomplice. The witness had thanked Yakup Aktaş for his cooperation and told him that they would not cause him any more discomfort. 119. Meanwhile, he had had a statement prepared concerning Osman Önen, Ali Alay and Yakup Aktaş, whom they had brought face to face at the beginning. He was not sure, however, if the three suspects had signed it, as the interrogation centre had been crowded and matters of signatures were generally dealt with just before detainees were transferred. He nevertheless thought that Osman Önen and Ali Alay had signed the statement. 120. On 23 November 1990 he had gone on one week's leave. While at home in Ankara on 26 November 1990 he had received the news of Yakup Aktaş's death. He had been informed that he had fallen ill and had died on the way to hospital. Nevertheless, the witness said that his conscience was clear: Yakup Aktaş had not been subjected to the slightest physical force. He was certain that neither he nor Master Sergeant Ercan Günay had done anything to precipitate Yakup Aktaş's death. He also did not think it likely that Yakup Aktaş would have been subjected to any kind of torture after 23 November. There had been more than ten ranked members of staff at the interrogation centre and it was impossible that such a thing could have been kept out of sight. 121. Ercan Günay, a Master Sergeant in the gendarmerie, stated that he had been serving at the Mardin provincial gendarmerie interrogation centre since 18 September 1990. Together with Major Aytekin Özen he had undertaken the task of interrogating Yakup Aktaş. He did not remember interrogating Yakup Aktaş on the day the latter arrived at the interrogation centre (19 November 1990). The next day Major Aytekin Özen and himself had questioned Yakup Aktaş for one or two hours about the amount of TRL 30,000,000 which Yakup Aktaş was known to have given to the PKK. During this interrogation Yakup Aktaş had appeared frightened and apprehensive; his face had turned white and he had been a little shaky. Yakup Aktaş had rejected all their claims. The following day Yakup Aktaş had been confronted with two co-accused after which he had confessed his guilt. No kind of torture whatsoever had been used on him. The witness did not know whether Yakup Aktaş had suffered from any illness in the past. During his interrogation Yakup Aktaş had asked for water several times. He had also been a little overweight. 122. On 23 November 1990 the witness had been sent to Adana on an assignment and Major Aytekin Özen had gone on leave the same day. Since according to the procedures and distribution of tasks within the interrogation centre detainees could only be questioned by the same officers, Yakup Aktaş had not been interrogated on 23, 24 or 25 November. 123. Osman Önen was one of Yakup Aktaş's co-accused. He was asked how long he had been kept in custody at the Mardin interrogation centre, whether he had been confronted with Yakup Aktaş and if so, whether the latter had borne any signs of torture. In reply Osman Önen stated that he could not remember the exact date but that he had been taken into custody at the interrogation centre towards the end of 1990. He had been detained for nineteen days. Over a period of ten days he had been interrogated twice a day. On one occasion the blindfold he had been wearing had been partially removed and he had recognised Ali Alay. He had then been blindfolded once again and for that reason had been unable to see whether there was another person in the room. He did not know whether Yakup Aktaş had been in the room at that time but he had not seen him. His circumstances in custody had been difficult. It was as a result of this that he had made a false statement accusing Ali Alay of giving money to a terrorist. 124. He had been kept in cell no. 19. There were cells adjacent to and opposite his. He did not know whether anyone had been detained in them. After his release he had heard that Yakup Aktaş had died under interrogation at the time when he, Önen, had also been in custody. He had not heard Yakup Aktaş's voice in the interrogation centre. 125. This report lists the applicant, his brother, Mahmut Aktaş, and their mother, Dediye Aktaş, as complainants. The allegation investigated was that of manslaughter during torture and the accused were Major Aytekin Özen and Master Sergeant Ercan Günay. The report then lists the identities of 25 witnesses who had made statements before Major Dursun Şeker, followed by a short summary of the incident and of the statements of the accused and the witnesses. 126. The summary of the incident describes how the applicant had alleged that his brother, Yakup Aktaş, had been tortured to death by interrogation personnel of the interrogation centre of the Mardin provincial gendarmerie, where Yakup had been taken on 19 November 1990. On 25 November 1990 Yakup Aktaş had fallen ill in his cell and had died after being admitted to hospital. The summaries of the statements of Major Aytekin Özen and Master Sergeant Ercan Günay mention that they had interrogated Yakup Aktaş once and that they had confronted him with his co-accused once. 127. The report then goes on to list as “Other Evidence” the documents that had been examined by Major Şeker, including statements incriminating Yakup Aktaş, duty rosters, the record of the inspection of the interrogation centre (see paragraph 61 above), the entries in the register of the Derik health clinic concerning Yakup Aktaş (see paragraph 151 below), the medical report issued by Dr Adnan Parkan (see paragraph 152 below), the report of the post-mortem examination and autopsy (see paragraphs 153-160 below) and the report issued by the Institute of Forensic Medicine (see paragraphs 161-164 below). 128. In the subsequent “Analysis of The Evidence”, it is stated, inter alia, that Major Özen and Master Sergeant Günay interrogated Yakup Aktaş once for one or two hours and that they supervised the confrontations between Ali Alay and Yakup Aktaş and between Ali Alay and Osman Önen that had been arranged for the purposes of mutual identification. In a paragraph in which reference is made to the fact that Yakup Aktaş had been diagnosed with urethritis, Major Şeker observed that according to the statements made before him, Yakup Aktaş had been excessively thirsty and had drunk a remarkable quantity of water. This section of the report also contains the following paragraph: “During his first interrogation ... Yakup Aktaş denied that he had given financial support to the [PKK] organisation and later, when he was confronted by the person to whom he had delivered money, he confessed to the crime. The witnesses state that from that moment on the aforementioned person (that is to say, Yakup Aktaş) had been noticeably subdued, depressed and nervous. It is very probable that Yakup Aktaş had reached such a mental state as a result of his thinking that the security forces knew that he had bought five Kalashnikov guns from the gun smuggler ... and he went into an extreme mental depression and death occurred in this mental atmosphere.” 129. The report concluded that Yakup Aktaş's death had not been caused by torture, force, violence or harsh treatment and for this reason Major Dursun Şeker proposed that no criminal prosecution be instigated against Major Özen and Master Sergeant Günay. 130. A pre-trial review was held on this date. The court decided, inter alia, to issue a rogatory letter requesting the Ankara Assize Court to obtain Major Özen's defence submissions and to issue a summons requiring Master Sergeant Günay to appear as a defendant. It adjourned the proceedings until 3 March 1993. 131. The applicant was present and the court granted him permission to intervene in the proceedings. He was asked to state his complaint and his evidence. He stated that the deceased, Yakup Aktaş, was his brother. Yakup Aktaş had been taken by the gendarmerie for interrogation. After one week the family had received notification that Yakup had died. Yakup had not been suffering from any health problem prior to his arrest. Given that he had died unexpectedly, the family had filed a complaint as they believed that he had been tortured to death during the interrogation. He had not personally seen evidence that Yakup had been tortured and it would have been impossible for him to do so, since the family had been denied access to Yakup while he was under interrogation. Moreover, Yakup was already dead by the time the family arrived at the hospital. He had seen Yakup's body some twelve hours after Yakup's admission to hospital. He had observed abnormal bruising and signs of beating to the outer section of both arms, the forehead and the soles of the feet. Yet shortly after Yakup's arrest a medical report had been issued, in which the presence or absence of any such signs should have been noted. 132. The applicant further confirmed that the content of his statement of 26 November 1990 to the Derik public prosecutor was correct. 133. The report of the post-mortem examination and the autopsy of 26 November 1990 and the report of the Institute of Forensic Medicine of 20 February 1992 (which should presumably read 21 February 1991) were read out. The applicant stated that he had no comments on the autopsy report but was not satisfied by the report of the Institute of Forensic Medicine. However, he did not think that there was anything else that could be done. 134. The court decided to issue a rogatory letter to the Ankara Assize Court requesting Major Özen's defence submissions and to issue a summons requiring Master Sergeant Günay to appear. It further decided to issue rogatory letters to the Assize Courts of Buldan and Pazaryolu in respect of the public prosecutors Şevki Artar and Ekrem Şendoğan who were to be asked whether, according to the autopsy report, the body of Yakup Aktaş bore any traces of torture within the eight days preceding death. Finally, the court decided to issue witness summons to the other persons whose signatures appeared on the autopsy report, including Dr Güneş Pay and Dr Erol Aksaz, and the witnesses whose statements had been taken by Major Dursun Şeker. The court adjourned the proceedings until 21 September 1993. 135. The applicant's brother, Mahmut Aktaş, who was also an intervener in the proceedings, stated that his brother Yakup had been in custody for one week when the news of his death was received. Apart from when Yakup was detained in Derik, he had not been able to see him in detention. Yakup had had not been suffering from any illnesses whatsoever. He had washed Yakup's body; there had been a wound on the forehead and traces of beating on the right side of the back and on the arms. He believed that Yakup had died as a result of torture. The report of the post-mortem examination and autopsy and the report of the Institute of Forensic Medicine were read out. Mahmut Aktaş stated that he had nothing to say about the autopsy report but that the Institute of Forensic Medicine's report was not true. 136. Counsel for the defendants stated that, in view of the present posting of his client, Master Sergeant Ercan Günay, his defence submissions should be heard by the Ankara Assize Court. The court decided to issue a rogatory letter to that effect. It also decided, inter alia, to instruct the Sivrihisar Criminal Court of First Instance to take a statement from Dr Adnan Parkan. It adjourned the proceedings until 23 November 1993. 137. The court noted that a number of statements had been received from other courts in Turkey as a result of the rogatory letters that had been issued. The interveners requested that they be granted more time to study those statements. They also said that the defendants had tortured their brother, Yakup Aktaş, for three days and that when he had gone into a coma one of the defendants had taken leave and the other had been transferred to another post. Since they believed that this had been done intentionally they demanded that the defendants be arrested. 138. The court examined three witnesses: a hospital orderly, a clerk and the driver who had taken the autopsy officials to the morgue. Although all three confirmed that their signatures appeared on the autopsy report of 26 November 1990, none could remember the incident in issue. 139. The court adjourned the proceedings until 2 February 1994. 140. The interveners, including the applicant, did not attend this hearing. The court examined five master sergeants, Yusuf Karakoç, Mustafa Ten, Süleyman Altuner, Murat Gömek and Ramazan Baygeldi. They all stated that a military doctor carried out examinations every day in the detention area of the interrogation centre. Some of them added that the interrogation centre conformed to the requisite standards and that the rooms where interrogations were conducted were not equipped with sound insulation. Therefore, if Yakup Aktaş had been tortured or subjected to violence during his interrogation then the sounds of his cries and screams would have been audible outside those rooms, but they had not heard anything of that nature. According to Master Sergeants Yusuf Karakoç and Ramazan Baygeldi, the defendant Major Özen had gone on leave four or five days before the day Yakup Aktaş had died. As far as Master Sergeant Mustafa Ten could remember, Major Özen had left three to four days before that day but he was unable to recall whether the defendant Master Sergeant Günay had been at his post or out on assignment on the day in question. Master Sergeant Baygeldi said that Master Sergeant Günay had gone on an assignment two or three days before the day Yakup Aktaş died. These five witnesses confirmed the content of the statements they had made before Major Şeker after they had been read out to them. 141. The court further noted that additional statements had been received from other courts in Turkey in reply to rogatory letters. The public prosecutor and counsel for the defendants stated that the principal witnesses had been heard and that those witnesses who had not yet been heard were gendarmes who had said in their preparatory statements – the Commission assumed that “preparatory statements” meant the statements taken by Major Dursun Şeker – that they had no knowledge of the incident. They submitted, therefore, that it would be sufficient for the preparatory statements to be read out. The court accepted that submission and decided not to summon those witnesses; the preparatory statements were read out. 142. In respect of the merits of the case the public prosecutor said that there was insufficient evidence to convict and submitted that the defendants should be acquitted. Counsel for the defendants agreed with the public prosecutor's position, adding that no prosecution need have been instigated and that the Council of State had probably only decided to refer the case to court because of the fact that there had been a death. The court then decided to acquit the defendants as the charges against them had not been proved. 143. The statement was requested by the Mardin Assize Court in its rogatory letter of 28 January 1993. The decision of the Council of State of 24 June 1992 (see paragraph 44 above) was read out to Major Aytekin Özen and he was asked to submit his defence and evidence concerning the charge against him. 144. Major Aytekin Özen denied having struck Yakup Aktaş during his interrogation. Nor had he seen anybody else do so. He had gone on leave to Ankara while Yakup Aktaş remained in custody. On the third day of his leave he had been informed of Yakup Aktaş's death, and had cut short his leave and returned to his post. At a later stage one of Yakup Aktaş's relatives must have filed a complaint against him and he had become the subject of an investigation. The Mardin Provincial Administrative Council had reached a unanimous decision to the effect that he should not be prosecuted. However, the Council of State had subsequently accepted that the report of the post-mortem examination and autopsy constituted evidence against him that Yakup Aktaş's death had been caused by beating. He expressed his amazement that he had been committed for trial given that he had no stage struck Yakup Aktaş. He could also categorically affirm that Yakup Aktaş had not been beaten by Master Sergeant Ercan Günay. Finally, he confirmed that the statements he had made previously were correct. 145. The statement was requested by the Mardin Assize Court in its rogatory letter of 21 September 1993. The decision of the Council of State of 24 June 1992 was read out to Master Sergeant Ercan Günay. He made a statement in the presence of his defence counsel. 146. Master Sergeant Ercan Günay stated that he had been an interrogating officer on the date of the incident. Together with his colleague, Major Aytekin Özen, he had interrogated Yakup Aktaş, who was suspected of having provided assistance to the PKK on various occasions. However, he had not beaten Yakup Aktaş. He had then been sent to Ankara on an assignment for two or three days. Upon his return to Mardin he had learned that Yakup Aktaş had fallen ill, had been taken to hospital and had died there. Accordingly, he denied the charge against him. His counsel added that it appeared from the report of the autopsy and the report issued by the Institute of Forensic Medicine that the exact cause of Yakup Aktaş's death could not be established. In spite of this the Council of State had decided that the defendants should stand trial. However, his client had not had anything to do with the offence with which he had been charged. 147. The statement was requested by the Mardin Assize Court in its rogatory letter of 12 July 1993. Public Prosecutor Şevki Artar stated that the public prosecutor's office had been informed that a person detained at the investigation and interrogation unit of the Mardin provincial gendarmerie had fallen ill and died as he was being transported to hospital. Together with Public Prosecutor Ekrem Şendoğan he had gone to the Mardin State Hospital where he had attended the autopsy that had been performed by medical experts. He confirmed the content of the relevant report. As was mentioned in that report, during the external examination of the deceased, bruising, possibly resulting from trauma, had been observed on the right arm, on the inside of the right arm and near the right wrist. Other than the marks indicated in the report, they had not observed any other signs which could be attributed to torture. 148. The judgment stated that evidence had been taken from the following persons: Master Sergeants Yusuf Karakoç, Mustafa Ten, Süleyman Altuner, Murat Gömek, Ramazan Baygeldi and Üzeyir Nazlım; Lance Corporals Ali Yavaş, Ferruh Çileşoğlu, Mehmet Yılmaz and Mustafa Tüylek; Private Hüseyin Bekir Günel; Police Constable Alaattin Aydın; Captain Mehmet Göçmen; Colonel Enver Uysal; Private İbrahim Olgun; Senior Major Haşim Üstünel; and Corporal Hüseyin Hamamcıoğlu. All these witnesses had testified that the deceased had been detained in order to be interrogated, that the military doctor looked after detainees on a daily basis and that detainees were referred to hospital if they were ill, and that they had never seen any detainees being ill-treated. 149. The Mardin Assize Court referred to the finding of the post-mortem examination that Yakup Aktaş presented cyanosis covering the head and various superficial ecchymotic areas on the head, both arms and the back. Reference was further made to the report of the Institute of Forensic Medicine which concluded that it was not possible to determine the exact cause of death. 150. The defendants were acquitted since it had not been possible to obtain wholly incontrovertible evidence that would allow the court conscionably to decide that the defendants had caused death by torture. 151. The name Yakup Aktaş and the comment “urethritis” are included in the entries for 22 March and 2 October 1990 as nos. 4,489 and 13,452 respectively. 152. This report states that Yakup Aktaş had been brought to the health clinic and that on examination had not presented any signs of beating, or of being subjected to force or violence. 153. This report states that following information received by telephone at 8.30 p.m. on 25 November 1990 to the effect that an individual had died whilst being taken to Mardin State Hospital after being taken suddenly ill at the investigation and interrogation unit at the Mardin provincial gendarmerie headquarters, the chief public prosecutor had, in view of the seriousness of the incident, instructed Public Prosecutors Şevki Artar and Ekrem Şendoğan to go to the hospital where they arrived at 10 p.m. An expert medical witness, Dr Güneş Pay, was present and, again owing to the seriousness of the matter, a second expert medical witness, Dr Erol Aksaz, was immediately appointed. 154. The body was identified as being that of Yakup Aktaş by Captain Mehmet Göçmen, commander of the Mardin provincial central gendarmerie. Captain Göçmen stated that Yakup Aktaş had been detained on suspicion of involvement with the PKK. Captain Göçmen had been informed that Yakup Aktaş had suddenly fallen ill at approximately 7.30 p.m. and had been taken to the Mardin State Hospital, where he died. 155. Subsequently, the clothes were removed from the body and a photographer brought in from gendarmerie headquarters took a number of photographs from various angles. 156. On external examination of the body the head was observed to be covered with a mask-like mauve discoloration (cyanosis) starting from the upper section of the thorax, 15 cm below the jaw towards the thorax, and covering the complete surface of the neck including the ears and the back of the neck. The head was examined manually and the bone structure was observed to be intact. In the frontal section of the forehead, 3 cm above the middle of the left eyebrow, was a one- or two-day-old graze measuring 1 x 0,5 cm consistent with trauma. The examination of the neck revealed normal articulation with no breakage or pathological disorder. 157. On the outer section of the left arm humerus and parallel to the axis of the body an area of ecchymosis measuring 10 x 2 cm consistent with blunt trauma was observed. The left forearm and hand, including the fingers, were covered with extensive ecchymoses. On the outer section of the upper right arm humerus and parallel to the axis of the body was an area of ecchymosis measuring 4 x 1 cm consistent with trauma; 5 cm below this was another area of ecchymosis 4 x 2 cm in size. Under the right armpit and starting near the back was a clean cut, 8 cm in length and 3 cm in width, perpendicular to the axis of the body and trailing towards the middle of the armpit. There was a further ecchymotic area on the right forearm near the wrist. One half of the outer surface of the left foot was covered with a widespread ecchymotic area. The soles of the feet were covered with dirt and calluses. The manual examination of the back revealed an 8 cm long scar, seven to eight days old, in the shape of a half moon on the right shoulder blade. Rigor mortis had started to develop. With the exception of the findings stated above, there were no other pathological diagnoses or signs of injuries caused by sharp, pointed instruments, firearms or otherwise. 158. On the basis of these findings the doctors observed that the cyanosis covering the head could be consistent with a heart attack or with another incident occurring either before or after death. The findings of the external examination, none of which were by themselves capable of causing death, did not allow the exact cause of death to be established. For this reason it was decided to perform a full autopsy. The expert medical witnesses estimated that death had occurred three to four hours previously. 159. On the subsequent internal examination of the head, the thorax and the abdomen no abnormalities were observed. The urethra was found to be positioned normally and no pathological finding was made in this respect. In view of the failure to establish the exact cause of death, it was decided to send tissue samples from the body to the Institute of Forensic Medicine in order for the exact cause of death to be determined. Sections from both lobes of the brain, the whole heart, sections from both lungs, sections from the liver and spleen, the whole of the stomach and its contents, a section of the intestine and its contents, sections from both kidneys and a blood sample were taken, placed in glass containers with a formaldehyde solution and sealed. 160. The time indicated at the bottom of the report is 2.50 a.m. It is signed, inter alia, by both public prosecutors and both doctors. 161. This report, signed by Professor Dr Özdemir Kolusayın and Dr Hüseyin Sarı, refers to the letter of the Mardin public prosecutor dated 29 November 1990 in which it is requested that the exact cause of death be established. There then follows a summary of the report of the postmortem examination and autopsy (see paragraphs 153-160 above). 162. In the macroscopic examination of the internal organs, performed at the morgue specialist department of the Institute of Forensic Medicine, the heart was found to weigh 400 grams, no peculiarities were observed in the samples other than hyperaemia, and the lungs were found to be of a hard and solid consistency and of a multicoloured appearance. 163. The report issued by the specialist chemical analyses office dated 28 December 1990 stated that no alcohol, tranquillisers, stimulants or toxic materials had been found in the internal organs. 164. According to the histopathological report dated 12 February 1991 there had been post-mortem changes to the heart, liver, kidneys and brain; hyperaemia and acute swelling were observed in the lungs; the septal capillaries were full of red blood cells; the alveolar septa were torn in places and the alveolar cavities had expanded. 165. This report was commissioned by the applicant and submitted on 2 May 1995. Dr Milroy was a registered medical practitioner, Senior Lecturer in Forensic Pathology at the University of Sheffield, United Kingdom, and Consultant Pathologist to the British Home Office. 166. On the basis of the report of the post-mortem examination and autopsy and the report of the Institute of Forensic Medicine Dr Milroy concluded that no natural disease had been found to contribute to or account for death. The body had shown injuries to the arms and foot which were in keeping with blows to those areas. The extensive bruising of the left forearm could have been due to the deceased having used his arms to try and ward off blows. The injuries in these areas were referred to as defence injuries which typically involved the forearm and hands. They might also involve the feet if the feet were used to shield blows. The cut to the right arm suggested that it had been inflicted with a sharp implement such as a knife. 167. The injuries appeared to have been inflicted whilst the deceased was in custody. The scar described as being seven to eight days old could have been inflicted during custody. Given that dating of scars was not accurate this injury could have been more recent. 168. In the absence of any natural disease process to cause death and with the presence of obvious injuries which were not self-inflicted, the possibility that the deceased was a victim of an unnatural disease process had to be seriously considered. Poisoning as a cause of death could be excluded from the toxicological examination performed. However, there were a number of possible mechanisms to account for the appearances. The first of these was traumatic or crush asphyxia. In this type of death the chest was pinioned in such a way as to prevent breathing. Crucifixion caused death in a similar manner, as did so-called Palestinian hanging where the hands were tied behind the back and the body was suspended from the tied arms which would cause respiratory failure if the position was held for a sufficient length of time. The second possible mechanism was the placing of a plastic bag over the face or head, which was well recognised to lead to death. This would not leave any specific external signs. Finally, in a choke hold or carotid sleeper an arm was held across the neck. In choke holding it was held across the front of the neck, frequently damaging the structures in the neck, particularly the laryngeal cartilages. With carotid sleeper a similar hold was placed, but with the neck being held in the crook of the arm so that the carotid arteries were occluded. Application of either hold could prove fatal. 169. Dr Milroy did not accept that Yakup Aktaş had died as a result of a heart attack. In every death the heart would stop, but this was a mode of death and not a cause of death. Moreover, neither in the autopsy nor in the microscopic (histopathological) examination had any heart disease been found. In the absence of natural disease and with clear injuries present on the deceased, death as a result of torture must be a very strong possibility in this case. 170. In respect of the autopsy Dr Milroy remarked that it was not clear to what extent the physicians performing it had had training and experience in forensic pathology. The autopsy report did not appear to contain a detailed description of the internal appearance of the neck. This was a major omission in detailing a death in custody, especially in view of the description of cyanosis of the head and neck. Moreover, injuries in persons having died whilst in custody should be documented and photographed and unlawful methods of killing had to be considered. It was not clear that such a thorough investigation had been conducted in this case. The inability of the doctors performing the autopsy to conduct a microscopic examination, which was an integral part of any post-mortem examination, suggested that they may have lacked the necessary experience to have conducted this examination. 171. The photographs show the naked body of a man laid down on what is, presumably, a mortuary slab. The colour reproduction in particular is of poor quality, tingeing everything with a green hue. The first photograph shows part of the chest as well as the left side of the face. A mark is visible on the forehead, between the left eyebrow and the hairline. Cyanosis in the shape of a mask cannot be observed but the left ear appears bluish. 172. In the second photograph, the body lies on its left side and the back of the body is portrayed. It is not possible to see the whole of the right shoulder blade. No half-moon shaped scar is visible. The third and fourth photographs show the body lying on its back. For the third photograph, the photographer would have stood near the feet of the body; the feet are not visible and of the head only the tip of the nose and the bearded chin can be observed. There appears to be a reddish area of discoloration on the left forearm. For the fourth photograph, the photographer would have stood to the right of the body near the knees. The right side of the face, part of the neck and chest, the right arm, a small part of the left forearm, and the rest of the body down to almost the top of the knees can be seen. No cyanosis is visible. On the outside of the right arm there appears to be a welt-like reddish mark stretching down from the middle of the shoulder to halfway to the elbow. The reddish area of discoloration on the left forearm can also be observed in this photograph. 173. The evidence of the six witnesses heard by the Commission's Delegates may be summarised as follows: 174. The applicant stated that he had been born in 1970 and was a lawyer by profession. Apart from Yakup, he had seven other brothers and sisters. He was the second youngest. 175. The last time he had seen his brother Yakup had been one week prior to the latter being taken into custody. Yakup had seemed to be in good health and had in fact never had an illness. He had not heard of an illness called urethritis. 176. He had been in Diyarbakır, where he was studying, when his elder brother had informed him of the fact that Yakup had been taken into custody. He had immediately returned to Derik and had arrived home on the same day as Yakup had been apprehended. 177. Yakup had been a tradesman and a delegate of the True Path Party (Doğru Yol Partisi, “DYP”). He had never been arrested before. 178. The applicant had not seen Yakup in detention. During interrogation a detainee was not allowed any visitors for seven days. The family had gone to Mardin to try and see Yakup many times but had not been allowed to do so. He had gone to the public prosecutor's office in Mardin but this had not resulted in permission being granted to the family to see Yakup and neither had any information of the charges brought against Yakup been forthcoming. Members of the DYP had tried to intercede, but to no avail. At the Derik gendarmerie station the family had been told not to worry as Yakup would be released. 179. A week after Yakup's arrest, his uncle Süleyman had been contacted by the Derik gendarmerie station with the news that Yakup's body could be collected from Mardin. The family had brought the body home on 26 November 1990 and this was where he had seen the body. He had noticed that certain parts had been removed for the autopsy, including parts of the brain. Apart from the scars caused by that, he had seen the mark of an injury on Yakup's forehead. In his opinion this injury had been caused by a blow, as it did not have the appearance of a boil or of an injury that might have come about as a result of scratching, for example. There had also been marks on the hands, under the soles of the feet and on the elbows. 180. Later that day he had gone to the public prosecutor in Derik stating that Yakup's was no normal death. Although at that time he was not familiar with the content of the health report drawn up by Dr Parkan (see paragraph 152 above), he knew that every person taken into custody would first be taken to the health centre for an examination. He did not know what kind of tests this examination entailed. When Yakup's body had been released to his uncle Süleyman, officials had said that Yakup had died of a heart attack. The family had not believed this and he had therefore requested another autopsy. Asked why he had not told the prosecutor of the wounds he had seen on Yakup's body, he said that this must have been because he had been in shock but also because the prosecutor had not asked him about it. Nevertheless, he had clearly stated that Yakup's death had been brought about by torture. He had read and signed the record of his statement to the prosecutor. 181. Yakup's body had remained at the house for one night and the burial had taken place the next day. He conceded that the text of his statement to the HRA (see paragraphs 52-54 above), which he had drawn up himself, was somewhat ambiguous. His family had not been prevented from burying Yakup but pressure had been brought to bear on them to hold the funeral on the same day the body was delivered to the family, that is to say 26 November 1990. This had been because the authorities feared trouble. However, the family and the district chairman of the DYP had pleaded with the chief superintendent of police to be allowed to hold the funeral the next day so that the body could be kept at home for one night in accordance with local custom. There had been security forces all over Derik until the body had been buried. Neither a delegation of the HRA nor the press had been allowed to attend the funeral. 182. Major Dursun Şeker, who had been appointed investigator by the Emergency Region Governor, had summoned his mother, his brother Mahmut and himself to Derik police station on 14 March 1991 to take statements from them. Although as an investigator Major Şeker was supposed to put questions objectively, the interview had not been conducted in such a manner at all. He felt that Major Şeker's questions had been designed to protect Major Şeker's own personnel and to cover up the incident. He felt that psychological pressure had been brought to bear on him. For instance, Major Şeker had asked questions like, “Why are you making a complaint? Why do you not believe that your brother died of a heart attack? Why do you not believe that the cause of death is not torture?” Major Şeker had further commented: “There is no need for you to complain. We would not do such a thing”; and also: “It is wrong for you to think like that about security forces personnel. The allegations of torture are wrong.” 183. Major Şeker had not asked him whether he had seen Yakup's body or what its condition was, but both his mother, his brother Mahmut and himself had told Major Şeker that Yakup's death was a result of torture. It had been his brother Mahmut who had told Major Şeker that Yakup had had a small pustule on his penis for which he had received medical treatment, as the applicant had not been aware of this previously. When the record of his statement to Major Şeker (see paragraphs 66-69 above) was put to him, he denied having said to Major Şeker: “If death has occurred because of natural causes, it is God's will”. Yakup had been a very healthy man who would not have died of natural causes within a week and it was therefore not possible that he would have described Yakup's death as God's will. Moreover, why would he have said such a thing when only two months prior to that he had complained to the public prosecutor of torture? Therefore, the record of his statement to Major Şeker was not completely accurate. He had been told to sign the record and had not read it. 184. Subsequently, the Provincial Administrative Council had decided that no prosecution was to be instituted. That decision had been overturned by the Council of State which had referred the case to the Mardin Assize Court. Although according to the law that court had jurisdiction ratione materiae as well as ratione loci, it had declined to exercise it, for the sole purpose of delaying the proceedings. Following a decision by the Ankara Assize Court that it had no jurisdiction either, the Court of Cassation had decided that it was the Mardin Assize Court which was the competent court to deal with the case. However, in the meantime two years had passed. 185. He had been an intervening party in the criminal proceedings and had attended many hearings. He characterised the trial as disorganised and said that the case had not been actively prosecuted. It was his opinion that the two accused ought to have been in custody while the trial was proceeding but the public prosecutor had told the court that it was not necessary to arrest the two men. In fact, the accused had not attended court even once to give evidence and on some occasions their counsel had also failed to attend. Most of the witnesses had moved to different places and their testimonies had not been obtained. In spite of all the available evidence the two accused had been acquitted. 186. It was put to him that, despite his objections voiced to the Derik public prosecutor on 26 November 1990, he had told the Mardin Assize Court on 7 July 1993 that he had nothing to say about the autopsy report or the report of the Institute of Forensic Medicine. He explained that although the report of the Institute of Forensic Medicine had not satisfied him, as he had also pointed out to the Assize Court, according to the law there was no organisation above the Institute of Forensic Medicine. Furthermore, by that time three years had passed and his family had not wanted another autopsy carried out. 187. As reported by the Commission, several times during his testimony this witness became very emotional and cried. 188. Mr Mahmut Aktaş said that he had been born in 1963. He was an elder brother of the applicant and Yakup Aktaş. At the relevant time, Yakup had been married and had a six-month-old baby. Yakup's widow and child continued to live with him. Following the death of their father in 1987 Yakup and himself had become the heads of the family, looking after the younger brothers and sisters who were still at school. They had lived in the same house. He had been very close to Yakup. They had both been traders and every day they used to go together to the marketplace, where they both had business premises. They had both enjoyed the sport of wrestling and would frequently wrestle together of an evening. Although he was older than Yakup, Yakup had been the stronger. 189. He had last seen Yakup alive on the morning after his arrest. Yakup had been held overnight at the Derik gendarmerie. He had gone there and had found Yakup sitting in the canteen. He had observed Yakup to be in good condition. He had brought Yakup breakfast but because Yakup had been handcuffed he had only given him a glass of milk. Yakup did not know why he had been arrested. He had asked Yakup whether the gendarmes had done anything to him, which Yakup had denied. Then a gendarme had taken Yakup out of the canteen and half an hour later he had observed Yakup being put in a vehicle and driven away. 190. Like Yakup, he was also a delegate of the DYP. He had gone to see the district chairman of the DYP who had found out from the gendarmerie that Yakup had been taken to Mardin. Although the family had attempted to gain access to Yakup this had been refused. 191. At 6 a.m. on Monday 26 November 1990 – although he said 25 November 1990, the Commission considered that this was a mistake since 25 November 1990 was a Sunday – Mr Mahmut Aktaş had gone to the Provincial Governor's office in Mardin, thinking that would be a likely day for detainees to be brought before the court and hoping that he would be able to see Yakup if that happened. Around midday he had been approached by an acquaintance from Derik who had told him that Yakup had died and his body taken to Derik. 192. He had subsequently learned that at around 7 a.m. the gendarmes had come looking for him. As they had not found him at home, they had gone to his uncle Süleyman who had been taken to Mardin State Hospital. At the entrance to the hospital his uncle had been met by the captain of the gendarmerie who had asked what relation Süleyman was to Yakup. When Süleyman said that Yakup was his elder brother's son, the captain had extended his hand and had said, “Please accept my condolences. Yakup died yesterday evening.” Upon this, his uncle had made telephone calls to Derik and all the relatives and many acquaintances had immediately rushed to Mardin: almost half the population of Derik had gone there, including fellow shopkeepers who had closed their shops. In view of the large number of cars, the security forces had brought the body back to Derik under military escort. 193. When Yakup's body had arrived home the chief superintendent of police had demanded that it be buried immediately. Since he had not yet returned from Mardin, his brother had refused. Upon his return in the evening they had pleaded with the chief superintendent, saying that there was not enough light left to arrange a funeral that night. 194. Yakup's body had been laid out in the house. He and the imam had washed the body. Yakup's forehead, above the left eye, had sunk in and appeared as if it had been hit with a piece of metal. The shoulders were bruised and had turned purple and black. On the right hand side of the lower back there had been a mark in the shape of a six-day-old new moon. There had been red and black bruising on the arms and on the back of the legs, from the calves down to the lower legs. There had been blood coming from the tip of a toe. The left hand side of Yakup's face was all bruised. 195. He had not accompanied his younger brother to the public prosecutor but another brother had done so. He had stayed behind to receive the people coming to express their condolences. 196. There had been no problem with Yakup's health or strength. On the day of his arrest, Yakup had been cutting firewood. 197. In March 1991 the witness had been summoned to the police station, together with his mother and brother Eshat. There, Major Dursun Şeker had not asked about the injuries he had seen on Yakup's body but only if Yakup had had an illness. The witness had replied that he had not and had in fact been stronger than he was. Major Şeker had said that Yakup had visited the health centre in relation to a urinary problem. He had said to Major Şeker that this might have been the case. He had also told Major Şeker that Yakup had been murdered by torture and that he wanted the perpetrators prosecuted. The witness said to the Delegates that even if Yakup had gone to the doctor's with a urinary problem this had not been around the time of his arrest. 198. He denied having said to Major Şeker that if Yakup's death was the result of natural causes this would have been God's will. He had not dared or considered reading the record of his statement when Major Şeker had given it to him to sign. 199. Public Prosecutor Şevki Artar stated that he was born in 1961. In November 1990 he had been working as public prosecutor in Mardin. He had left Mardin in 1991. 200. He remembered having attended the post-mortem examination and autopsy that had been performed on Yakup Aktaş's body on 25 November 1990, although he had no clear recollection of the details. He had been telephoned at home by the gendarmerie and been informed that a person had become ill while in custody and had died on the way to hospital. 201. In view of the importance of the incident he had contacted the chief public prosecutor who had instructed him to have a second public prosecutor attend the autopsy also. The seriousness of the incident, referred to in the beginning of the report of the post-mortem examination and autopsy (see paragraph 153 above), had lain in the fact that a person had died while in the custody of the security forces and also in the fact that this kind of incident could cause speculation. He illustrated this by relating how previously there had been speculation that terrorists who had surrendered to the authorities had been killed by the security forces when they had in fact been killed by other terrorists. Moreover, there had been allegations to the effect that when an autopsy report was drawn up by a public prosecutor, only some of the findings would be listed and certain matters would be omitted altogether. If two prosecutors attended, they could act as witnesses for each other if the need arose. 202. The four photographs submitted by the Government (see paragraphs 171-172 above) were shown to him and he was reasonably certain that the body depicted in the photographs was that of the man on which he had performed the post-mortem examination on 25 November 1990. They had been taken by the photographer of the Mardin provincial gendarmerie. The negatives would usually be kept at the offices of the photographer's employer. 203. In a post-mortem examination it was the public prosecutor who would dictate the findings, drawing on the expertise of the doctor present. However, an autopsy would be performed by a doctor. In the present case, it had not been possible to determine the exact cause of death from the post-mortem examination, although the doctors had suggested at the end of the examination that the death could have resulted from a heart attack. For this reason it had been decided that a full autopsy should be performed. As the exact cause of death had not appeared from the autopsy either, a joint decision had been taken to send tissue samples from the body to the Institute of Forensic Medicine. 204. Although they had been able to observe in the process of the autopsy that the heart had been of normal appearance, he did not know whether this meant that cardiac failure had been ruled out. He did not agree with the suggestion that by the end of the autopsy the doctors and he himself would have had good grounds for suspecting that death had been caused by beating. On the contrary, the doctors had determined during the post-mortem examination that the injuries observed on the body could not have constituted the cause of death. 205. He was not aware that the form of torture known as “Palestinian hanging” could lead to death by asphyxiation. As he had never heard of this form of torture, he did not know whether Yakup Aktaş's injuries were consistent with somebody having been subjected to such treatment. 206. If, in the course of the post-mortem examination, any opinion, provisional or otherwise, had been expressed as to the possible cause of the blunt traumata with which some of the observed areas of ecchymosis were consistent, this would have been recorded in the report. Given that such traumata could have many different causes he did not think it likely that the doctors would have been able to determine their exact cause from a post-mortem examination. Forensic experts might be able to establish the exact cause, and this might also be determined in a subsequent judicial investigation. Asked whether it had not occurred to him to enquire of the doctors whether the marks on the body were consistent with ill-treatment while in custody, he said that they had probably assumed that this would be determined by the subsequent investigation. 207. When asked whether it would not have been extremely important to find out immediately whether or not there had been any instrument or object present in the place of detention capable of having produced the injuries found on the body, he said that the cause of those injuries had not yet been established. In reply to the subsequent question whether a search for an object capable of producing such injuries was not precisely how the cause of the injuries might be established, he conceded that this was probably the case. Given that he had had no jurisdiction in the matter, however, he had not given an instruction for the interrogation rooms at Mardin provincial gendarmerie headquarters to be inspected. In any event, it had been established that these injuries were not the cause of death. 208. He had attended the post-mortem examination and the autopsy in his capacity of public prosecutor because time had been of the essence. However, pursuant to Article 4 § 1 of Decree no. 285 establishing a state of emergency regional governorate it was not him but the Mardin Provincial Administrative Council which was the competent authority to investigate the incident. He was familiar with the fact that one of Yakup Aktaş's brothers had lodged a complaint with the Derik Public Prosecutor's Office. The complaint had been transferred to him because the Derik Public Prosecutor had no jurisdiction in the matter. However, the incident would have been investigated regardless of whether or not a complaint had been brought. 209. On 29 November 1990 he had issued a decision of lack of jurisdiction in which he confirmed that the Mardin Public Prosecutor's Office had no jurisdiction. He had transferred the file to the Mardin Provincial Administrative Council. In his opinion, the most important part of the investigation had already been carried out by that stage, namely the examinations to establish the exact cause of death. After that, the only thing left to do was to take statements from witnesses and suspects. 210. In its investigation, the provincial administrative council had the same powers as a public prosecutor. He did not know at what stage the Mardin Provincial Administrative Council had been alerted to the incident – it might have been informed at the same time as he. In proceedings before the provincial administrative council an investigator would be appointed who was responsible for the collection of evidence. He thought that in a case like the present the investigator would not be a member of the gendarmerie in view of the fact that the case involved the gendarmerie. 211. He had only found out that a criminal prosecution had been instituted when he had been asked to testify by a rogatory letter at his new post in Buldan. The Mardin Assize Court had requested the Court in Buldan to take his statement in order to check the accuracy of the autopsy report and to confirm his signature. 212. Professor Dr Kolusayın had been an expert in forensic medicine since 1977. He was not a pathologist. He had become a professor in 1988. From 1975 until 1982 he had worked at the morgue specialist department of the Institute of Forensic Medicine, performing autopsies in an expert capacity . From 1982 until 1992, and therefore at the time relevant to the present case, he had been the administrator of the morgue specialist department. From 1992 until 1996 he was President of the Institute of Forensic Medicine (“the Institute”). 213. The witness was asked to explain certain parts of the report issued by the Institute on 20 February 1991 which bore his signature. He confirmed that the findings of the post-mortem examination and autopsy performed in Mardin had been set out at the beginning of that report. 214. In relation to the findings of the post-mortem examination he explained that a “mauve coloured cyanosis” was a dark blue discoloration of the skin. “Thorax” meant chest. An ecchymotic area referred to bruising, ecchymoses constituting the proof of a blunt trauma. The axis of the body was the vertical line that passed through the centre of the body. The humerus was the bone of the upper arm. 215. The hyperaemia, observed in the macroscopic examination of the tissue samples of the internal organs, referred to the appearance of the organs which contained more than the normal amount of blood. This in itself could have many causes, such as illness or poisoning. 216. After the macroscopic examination the samples had been prepared for microscopic examination and sent to a pathologist. The changes to the heart, liver, kidneys and brain that had occurred after death had been observed in this histopathological examination. It had further revealed hyperaemia in the lungs as well as acute swelling, meaning expansion, of the alveoli in particular. In the alveolar septa, that is the walls separating the alveoli, the capillary walls had been enlarged and had contained great quantities of red blood cells. In some places the alveolar septa had been ruptured, causing the alveolar cavities to enlarge. These were not changes that would occur after death. The rupturing of alveolar septa could occur in patients suffering from emphysema or chronically obstructed lungs, but also in persons who had met with a violent death or, as it was known in forensic medicine, a forcibly induced death such as strangulation, hanging or pressure exerted on abdomen or chest. However, in the case of a forcibly induced death one would expect to see red blood cells in the alveolar cavities in addition to tears in the septa, and this had not been observed. 217. The report did not admit of a conclusion as to whether the swelling of the lungs had been due to a disease or had occurred after death. Given that it was limited to the breakdown at cell level it could have been caused by cells decomposing. The fact that the lungs were of a hard and solid consistency had pointed to pneumonia but the histopathological examination had not revealed any infected cells which would have supported such a finding. Despite the fact that the heart at 400 grams had been observed to have been abnormally enlarged, the death had not been attributed to a disease. 218. The public prosecutor at Mardin had requested that the exact cause of death be established. As the findings of the examinations had not revealed very specific information it had not been possible to determine the exact cause. Even in the most advanced centres of forensic medicine approximately 5% of autopsies were inconclusive. Prior to 1990 they would have referred the question of the cause of death to the First Specialist Committee of the Institute if they themselves had been unable to establish the cause of death. However, the policy had been changed and they had been advised that as long as the public prosecutor did not request it, they should not send their reports to this Committee but rather evaluate their own findings and send them to the office of the public prosecutor. If the public prosecutor had only asked for the cause of death, as opposed to the exact cause, the Institute would have provided him with possible causes. In view of the breakdown in the heart and the septa, the witness suggested that death had possibly, but without certainty, been due to heart failure. 219. Furthermore, the Institute could only work on the basis of the information with which it was provided. In the present case, they had been told that Yakup Aktaş had suddenly fallen ill while in detention and had died in hospital. If death had occurred at the place of detention its cause might have been tied to mechanical asphyxia. Mechanical asphyxia was death caused by prevention of breathing by mechanical pressure. Typical examples would be hanging, strangulation by hand or rope, and death caused by pressure on the abdomen/chest. In the latter form of asphyxiation cyanosis of the face, resembling a mask, could appear. 220. When it was pointed out to the witness that according to the report of the post-mortem examination and autopsy Yakup Aktaş had died on the way to hospital (see paragraph 153 above) rather than at the hospital as mentioned in his report, he explained that he must have relied on the information contained in the official summary of the incident compiled by the public prosecutor which would have been attached to the autopsy report when it was sent to the Institute. 221. The marks observed on the body were not from the kind of violent trauma that could cause death. The signs of trauma described in the report were superficial: a skin abrasion on the forehead, ecchymoses on the arms. In the case of severe trauma the ecchymoses would not have been on the surface and there would have been broken bones and internal haemorrhaging. 222. Asked whether the extensive bruising on the left forearm and the hands were consistent with Yakup Aktaş having used his arms to try and prevent blows from striking the rest of his body, the witness said if the bruising had been caused by numerous blows he would have expected there to be spaces between the ecchymoses. He explained that blows delivered by a cane or a stick would result in ecchymoses in the shape of lines, and in the shape of railroad tracks if delivered by a truncheon. 223. The cut described in the report of the post-mortem examination would have been inflicted by an implement with cutting properties. In his estimation, the cut must have been inflicted less than seven or eight days previously, since it should have healed within seven days. 224. When the report was drawn up he had not had access to the photographs taken in Mardin; otherwise they would have been mentioned. On being shown the photographs, the witness remarked that the cyanosis described in the report of the post-mortem examination was not visible. In addition, in deaths caused by heart or lung failure the cyanosis might not be as large as a mask but would be visible on the ears and lips. On the body in the photographs the lips were pale. Also, some of the ecchymoses described in the post-examination report were visible, but not all. 225. Since there was no visible deformation of the head the skull did not appear crushed as alleged by the applicant in his statement to the HRA (see paragraph 54 above). Nevertheless, it would have been possible for the applicant to think that the skull had been fractured if he had seen the body after the autopsy, during which the bony part of the skull had been removed. 226. He confirmed that in every forensic autopsy the neck should be examined internally. 227. Dr Hüseyin Sarı stated that he had been born in 1960. At the beginning of 1991 he had been working as an expert of forensic medicine at the morgue specialist department of the Institute of Forensic Medicine. 228. At the morgue specialist department two types of work were carried out: autopsies, and examination of internal organ samples sent to the department from elsewhere. In the course of autopsies performed by the department photographs would be taken. No general guidelines existed as to how such photographs should be taken; whether, for example, maximum contrast should be shown to delimit areas of discoloration. Those photographs that were considered necessary as evidence later on would be taken. However, it was rare for internal organ samples to be accompanied by photographs. 229. He confirmed that in the present case the Mardin public prosecutor had requested the exact cause of death to be established. However, it was not the case that a public prosecutor would ever ask for a possible or probable cause of death. Therefore, he would have to be certain of the cause of death before offering his opinion. According to international medical literature between 2% and 8% of autopsies were inconclusive. He estimated that the percentage of inconclusive autopsies at the Institute would lie somewhere between those two figures. 230. He described cyanosis as a lesion related to an increased amount of carbon dioxide in the blood. It could only be observed visually and could not be detected by examining samples of skin tissue. Cyanosis did not only occur after death, but in cases where it had occurred before death it had to be clinically verified since the changes of gases which took place after death could result in erroneous positive findings. Therefore, a post-mortem evaluation alone did not always give the correct result and could give rise to the suspicion that the deceased had been suffering from a disease or that death had been caused by asphyxiation. 231. Asked if there was a disease which could cause the lungs to be of a hard and solid consistency and of a multicoloured appearance, as described in the Institute's report, he said that these findings had been made in the macroscopic examination and pointed to lung oedema or pneumonia. A histopathological examination was required to distinguish oedema from pneumonia. In the present case, the histopathological examination had not revealed anything to support those findings. In any event, the fixative used to prevent the disintegration of the internal organs would lead to a hardening of those organs. 232. Although there had thus been no findings made of a disease this did not necessarily lead to the conclusion that the cause of death had been unnatural. For example, the heart, liver, kidneys and brain had undergone post-mortem changes and had not been evaluated. Post-mortem changes occurred for two reasons: one being the time that had elapsed between the death and the autopsy and the other a mishap in the course of transportation of the tissue samples. If the proper fixative was used and proper transportation procedures followed, such a sample would not undergo any change. 233. The marks of the traumata described in the report of the post-mortem examination had been rather small and simple, and most of them had been located on the arms and legs. In his opinion, the cause of death could not be determined from those traumata alone. 234. In all autopsies an internal examination of the neck would be carried out. 235. Dr Güneş Pay said that he had been born in 1967. He had graduated from medical school in August 1990. As part of his medical training he had had one or two months' training in forensic medicine. Only those students wanting to specialise in forensic medicine would be given extensive training. In November 1990 he had been working as a general practitioner at the Mardin State Hospital. 236. The witness confirmed that he had participated in the post-mortem examination and autopsy on the body of Yakup Aktaş and that he had signed the report dated 26 November 1990. Dr Aksaz, with whom he had performed the autopsy, was a surgeon. Since the autopsy had been performed seven years previously he had no clear recollection of the events and based his replies mainly on the content of his report. Moreover, at the present time he was specialising in neurology, not forensic medicine, and it had been years since he had last performed an autopsy. 237. Although he could not remember exactly, he assumed that he must have participated in other autopsies before the one which he performed on the body of Yakup Aktaş. This would be part of a general practitioner's duty if there was no expert in forensic medicine at the place where the general practitioner was performing his obligatory service. While working in Mardin for nearly one year he had performed many autopsies. 238. He was referred to the phrase in the report reading: “With the exception of the findings stated above, there were no other pathological diagnoses or signs of injuries caused by sharp, pointed instruments, firearms or otherwise.” He explained that this did not mean that in those “findings stated above” he had found marks of such instruments. 239. The fact that rigor mortis had begun to set in was one of the reasons why death had been estimated to have occurred three or four hours earlier. However, the purple colour of the corpse had also served as an indication of that. He confirmed that if a person died in hospital, and if it was a properly run hospital, the time of death would be recorded and it would not be necessary to give an estimate of this time in the subsequent examination. 240. He could not remember whether or not an internal examination of the neck had been carried out but he noted that nothing was mentioned about it in the report. He thought that if such an examination had been performed it would have been recorded, but it was also possible that if nothing unusual had been found in the course of that examination it had been omitted from the report altogether. He knew that in theory an internal examination of the neck area would be conducted in cases of death by hanging or by strangulation by hand or by rope. He did not think, however, that he had performed an autopsy on the body of a person having met with such a death. 241. As the autopsy had taken place such a long time ago he was unable to confirm that the photographs shown to him were of the person on whom he had performed the autopsy. The cyanosis described in the report was not visible in the photographs. Nevertheless, he was certain that there had been cyanosis as two doctors had come to that conclusion and had recorded it in the report. All but two of the marks visible on the body in the photographs corresponded with those recorded in the report. The cut, 8 cm in length, was not visible in the photographs and neither was the lesion above the scapula. Perhaps this was due to the quality of the photographs. 242. He had not formed any provisional view as to a likely or possible cause of death in the light of the marks he had seen. 243. The Commission's Delegates had also called as a witness Süleyman Aktaş, the uncle of the applicant and the person to whom Yakup Aktaş's body had been delivered. During the hearing, the applicant's representatives informed the Delegates that Süleyman Aktaş was too old and frail to travel to Ankara. 244. Dr Erol Aksaz, the second doctor who had performed the autopsy, did not attend the hearing as, according to the explanation given by the Acting Agent of the Government at the hearing, it was not possible for him to leave his post, no replacement being available. On 23 December 1997 the Government provided the Commission with a doctor's note dated 21 November 1997 prescribing Dr Erol Aksaz three days' rest. 245. On 18 and 19 November 1997 the Acting Agent informed the Commission's Delegates that the following members of the gendarmerie would only give evidence if certain security measures were put in place: Major Aytekin Özen; Master Sergeant Ercan Günay; Captain Mehmet Göçmen; Senior Major Haşim Üstünel; Sergeant Major Ali Yavaş ; Master Sergeant Yusuf Karakoç; Corporal Hüseyin Hamamcıoğlu; Private Ercüment Erbil; Private Mehmet Bora; Senior Sergeant İlhan Keskin; Major Dursun Şeker. 246. In that connection, the Acting Agent submitted that most of these gendarmes were constantly exposed to terrorist attacks and would only feel secure if they were able to avoid confrontation with the applicant or his relatives and if a screen were placed between them and the applicant's representatives. 247. The Commission's consideration of this request is summarised in paragraph 15 above. 248. Following the hearing in Ankara, the Government requested that five members of the gendarmerie (Senior Major Üstünel, Master Sergeants Günay and Karakoç, Senior Sergeant Keskin and Sergeant Major Yavaş) be given the opportunity to give evidence. They insisted that these witnesses should not be seen either by the applicant or by his representatives and that the hearing should therefore take place in the absence of both. 249. The Commission's decisions on this request are summarised in paragraphs 25 and 30 above. 250. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security forces and members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 251. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor. 252. The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.” 253. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). It is a criminal offence to subject someone to torture or ill-treatment (Articles 243 and 245) or to issue threats (Article 191). 254. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, with the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 255. The public prosecutor has no jurisdiction with regard to offences alleged to have been committed by members of the security forces in the State of Emergency Region. Article 4 § 1 of Decree No. 285 provides that all security forces under the command of the Regional Governor (see paragraph 251 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to a provincial or district administrative council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by a provincial administrative council not to prosecute is subject to an automatic appeal to the Council of State. 256. Article 125 of the Constitution provides as follows: “All acts or decisions of the Administration are subject to judicial review ... The Administration shall be liable for damage caused by its own acts and measures.” 257. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist offenders when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 258. Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing. 259. Any illegal act by civil servants, be it a crime or a tort, which causes pecuniary or non-pecuniary damage may be the subject of a claim for compensation in the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Compensation for pecuniary loss may be awarded by the civil courts pursuant to Article 46 of the Code of Obligations and for non-pecuniary damage pursuant to Article 47.
| 1 |
train
|
001-121175
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,013 |
TU AND CO AB v. SWEDEN
| 4 |
Inadmissible
|
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Paul Lemmens
|
1. The applicant, TU & Co AB, is a Swedish limited liability company, which has its seat in Stockholm. The applicant company was represented before the Court by Mr T. Bodström, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr A. Rönquist, of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant company runs the restaurant Undici Restaurant & Bar (Undici) in the centre of Stockholm. On 27 September 2007, the Social Council (Socialtjänstnämnden) decided to revoke Undici’s licence to serve alcoholic beverages on its premises. The decision was based partly on several reports from the Police Authority regarding disorder and excessive serving of alcohol on the premises and partly because the restaurant had served liquor by the bottle after 1 a.m. (which was prohibited). Moreover, the applicant company had failed to report to the authorities that its parent company, which was also its majority owner, was subject to liquidation as well as to report changes in the ownership structure of this company. 4. The applicant appealed against the decision and asked to have its alcohol licence back. On 8 November 2007, the County Administrative Court (länsrätten) of Stockholm held an oral hearing in the case during which the two shareholders of the applicant company and its parent company were heard as well as five witnesses, four at the request of the applicant. Both the shareholders and one of the witnesses, the liquidator of the applicant’s parent company, were heard about the circumstances relating to the liquidation and the applicant company’s ownership structure. The court also had written evidence at its disposal, inter alia, the applicant company’s register of shareholders from 2000 and its annual report from 2006. 5. On 21 November 2007, the court partly granted the applicant company’s appeal in that it repealed the revocation of the licence but gave the applicant company a warning instead. In its reasoning, the court stated that it was common ground between the parties that there had been changes in the ownership structure of the parent company and that this company had been liquidated. However, in the court’s view, these circumstances were not reason enough to revoke Undici’s licence to serve alcoholic beverages since the restaurant business was still run in the same way by the same persons. Turning to the issue of public disorder, the court noted that it was undisputed that disorder had occurred on seven different occasions and endorsed the Social Council’s view that this constituted grounds for revoking Undici’s licence to serve alcoholic beverages. However, having regard to the fact that almost all of the incidents had occurred during student parties, and to the applicant company’s assurance that such parties would never take place again, as well as the applicant company’s implementation of new policy documents, it found specific reasons to believe that the applicant company had a genuine will to deal with the problems which had previously occurred and, consequently, that the intervention could be limited to a warning. 6. The Social Council appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm which, on 17 March 2008, decided to grant leave to appeal. The applicant company, as well as the Social Council, requested that an oral hearing be held in the case. The applicant company asked to hear the two shareholders previously heard before the County Administrative Court and four witnesses, three of whom were to be heard in person before the court. Only one of the witnesses, an advocate, had not been heard before the County Administrative Court and he was to testify that there was no reason to revoke the applicant company’s alcohol licence due to the changes in the ownership structure or the liquidation of the main shareholder. 7. On 18 June 2008, the Administrative Court of Appeal rejected the applicant company’s request for an oral hearing as being unnecessary and invited the applicant company to make its concluding submissions in the case, at the latest on 14 July 2008. The applicant company was granted an extension of time-limit and finalised its submissions in writing on 18 August 2008. 8. On 15 October 2008, the Administrative Court of Appeal repealed the County Administrative Court’s judgment and ruled in favour of the Social Council. The judgment was based on the fact that changes in the ownership structure and the shareholder’s liquidation had not been reported to the relevant authority. Additionally, it noted that a number of police reports indicated that repeated disruptions of public order had occurred, such as fighting and serving alcoholic beverages to young people and that people had been so intoxicated that the police had taken them into custody, including a person who was only 15 years old at the time. In the court’s view, it was an aggravating circumstance that the disruptions of public order were primarily related to student parties, involving mostly young people. Moreover, it was noted that a waitress, on 8 March 2007, had left a pitcher of liquor on a table for guests at the restaurant after 1 a.m. The Administrative Court of Appeal, referring to the fact that the applicant company had previously received warnings for failing to respect the rules for serving alcoholic beverages, did not find any specific reasons to limit the intervention to a warning. 9. The applicant company appealed to the Supreme Administrative Court (Regeringsrätten) and requested the court to hold an oral hearing. In response to a question by the court, the applicant company specified that it requested the oral hearing only if leave to appeal was granted. 10. On 24 October 2008, the Supreme Administrative Court refused leave to appeal. 11. The basic provisions mainly applicable in the present case are laid down in the Alcohol Act (Alkohollagen, 1994:1738). On 1 January 2011, this Act was replaced by a new Alcohol Act (2010:1622). Hereafter, reference is made to the older, now repealed, Act, which was in force at the time relevant to the present case. 12. An overriding principle of the Act is restraint in connection to serving alcoholic beverages. In accordance with Chapter 3, section 4, of the Act, the sale of beverages falling under the Act shall be conducted in such a manner that harmful effects are prevented as far as possible. Any person engaged in the sale of alcoholic beverages shall ensure that order and sobriety prevail at the point of sale. Under Chapter 6, section 2, of the Act, the serving of alcoholic beverages shall be conducted with restraint and may not lead to inconvenience with respect to public order and sobriety. Under the City of Stockholm’s guidelines for licences to serve alcoholic beverages, neither serving nor consumption of entire bottles of spirits (helrör) is allowed after 1.00 a.m. 13. Moreover, a person to whom a licence has been granted shall notify the licensing authority in the event of any change in the activity significant for the supervision. Notice shall also be given of important changes of ownership. Notice shall be given in advance. If the circumstances giving rise to the duty of notification could not have been foreseen, notification shall instead be made without delay (Chapter 8, section 3). 14. The municipality shall revoke a licence to serve alcoholic beverages if such inconveniences as referred to in Chapter 6, section 2, occur more than occasionally (Chapter 7, section 19, point 2). The municipality shall also revoke a licence to serve alcoholic beverages if the licensee does not comply with the provision of the Act applying to the service or licence, or with applicable provisions or conditions pursuant to the Act (ibid, point 3). 15. Instead of revocation, a licence may be issued with a warning if, for special reasons, a warning is deemed sufficient (Chapter 7, section 20). In accordance with the travaux préparatoires (Government Bill 1994/95:89, p. 110), an example of such special reasons is that the licensee has taken appropriate measures to correct the circumstances so that it may be assumed that the business will in future be operated in accordance with the applicable provisions. 16. Appeal against a decision rendered by the Social Council under the Alcohol Act lies to the administrative courts. However, in these cases leave to appeal is required for the Administrative Court of Appeal to consider an appeal on the merits against a decision or judgment delivered by the County Administrative Court (Section 34 a of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291, hereinafter “the 1971 Act”). Likewise, leave to appeal is required for the Supreme Administrative Court to consider on the merits an appeal against a decision or judgment delivered by the Administrative Court of Appeal (Section 35 of the 1971 Act). 17. Section 9 of the 1971 Act is worded as follows: “The procedure shall be in writing. Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” 18. The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. 19. The travaux préparatoires to the 1971 Act emphasise that an oral procedure can be advantageous for the investigation of a case in two respects in particular. Firstly, such a hearing may be needed in order to examine a witness, expert or party or in cases where a party has difficulty expounding his or her claim in writing. Secondly, an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute. In the latter case, the procedure is typically of a preparatory nature. Moreover, the oral form of procedure envisaged in the 1971 Act is not to be seen as an alternative to the written form, but rather as a complement to that form (see the Government Bill 1971:30, p. 535). 20. Furthermore, the travaux préparatoires to the 1971 Act underlined, in connection with the provision in section 9 of the Act concerning the right of a party to an oral hearing in certain cases, that while serious consideration should be given to the wishes of a party for such a hearing, the party could hardly be allowed to have a decisive influence in the matter. The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case, but it should also be possible to accord significance to other factors, for example, if the case is very important for the party and a hearing would give him a better understanding of the importance of the decision to be given in the case. One particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute (see Government Bill 1971:30, p. 537). 21. In recent years the Supreme Administrative Court has set aside a number of decisions on appeal and referred cases back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts (see, for example, RÅ 2002 ref. 23, RÅ 2003 note 68, RÅ 2004 note 65, RÅ 2007 note 171 and RÅ 2009 note 73). 22. A comprehensive summary of the issue of compensation for violations of the Convention in the Swedish legal order can be found in Eskilsson v. Sweden ([dec.], no. 14628/08, 24 January 2012) and Eriksson v. Sweden (no. 60437/08, §§ 27-36, 12 April 2012).
| 0 |
train
|
001-99026
|
ENG
|
RUS
|
CHAMBER
| 2,010 |
CASE OF KAMALIYEVY v. RUSSIA
| 3 |
Remainder inadmissible;No violation of Art. 8;Violation of Art. 34;Just satisfaction reserved
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
7. The first applicant was born in 1958. He is currently serving a prison sentence in Uzbekistan. His representatives have had no contact with him since his expulsion. The second applicant was born in 1958 and lived in the Tyumen Region, Russia. She died in August 2008. 8. According to the first applicant, then named Tursinov, he arrived in Russia from Uzbekistan in 1997. The Government disputed the date of the first applicant's arrival in Russia, pointing to the absence of any documents in connection with it. 9. On 29 November 2000 he obtained Russian internal identity papers (“the passport” in question). 10. On 28 December 2000 the first applicant married the second applicant and took her surname, Kamaliyev. On 16 February 2001 he obtained a new passport, containing his new name. 11. In their submissions of September and December 2008 the Government stated that at the relevant time the first applicant had been in a valid marriage concluded in Uzbekistan in 1979, from which he had four children. They submitted a copy of the certificate of the first applicant's marriage, issued by the Namangan Department of the Ministry of Justice of Uzbekistan in April 2008. 12. On 10 January 2004 a new Russian internal passport was issued to the first applicant, who had reached the age of forty-five. 13. On 10 February 2006 the Federal Migration Service (FMS), following an internal investigation, established that the first applicant's passport had been issued in breach of the lawful procedure and declared it invalid. The FMS found that the first applicant had obtained a Russian identity document without having properly obtained Russian nationality and that his name had not been entered in the relevant registers. The first applicant had never applied for, or received Russian nationality and the identity document in question could not be held as proof to the contrary. The head of the police unit which had issued the passport had been subjected to disciplinary measures for breaching the relevant legislation. 14. In February 2006 the police, aided by the FMS, seized the applicant's internal passport. It appears that after that the first applicant remained in Russia without obtaining any other residence documents. 15. On 6 March 2006 the Prosecutor's Office of the Central District of Tyumen found that the archives of the passport service which had issued the first applicant's passport in 2000 had been destroyed in January 2005, in line with instructions issued at the time. It concluded that there were no reasons to open a criminal investigation into the actions of the officers of that department. 16. On 16 March 1999 the deputy prosecutor of the Namangan Region in Uzbekistan issued a decision to charge and detain the first applicant for attempted subversion of the constitutional regime. It appears that some time later an international search warrant was issued. 17. On 31 October 2005 the head of the police department of the Namangan Region in Uzbekistan informed his counterpart in the Tyumen Region that the first applicant was being sought in Uzbekistan for a breach of State security and asked him to locate the applicant. The same letter indicated the first applicant's address in Tyumen and stated that he had unlawfully obtained a Russian passport. 18. On 9 February 2006 the applicant was arrested with a view to extradition and placed in the Tyumen Region temporary detention centre no. IZ-72/1 (ФГУ ИЗ-72/1). 19. On 23 March 2006 the deputy Prosecutor General of Uzbekistan requested the applicant's extradition on the ground that he was charged with belonging to an extremist religious organisation, known as “Wahhabi”, incitement of religious hatred and attempted subversion of the constitutional regime. The crimes had been committed in 1990-1993. 20. On 5 May 2006 the Kalininskiy District Court examined a request by the Tyumen Regional Prosecutor to have the applicant placed in detention with a view to his extradition to Uzbekistan, where he was accused of inciting racial, national or religious hatred, attempted subversion of the constitutional regime, and the creation and leadership of extremist organisations of a religious, separatist, fundamentalist nature, or other prohibited organisations, crimes which were defined by Articles 156 § 2 (d), 159 § 3 (b) and 244 § 2 respectively of the Criminal Code of Uzbekistan. 21. The court, having noted that those acts were also punishable under Articles 282 § 2, 280 and 282-1 of the Criminal Code of the Russian Federation and that the applicant was an Uzbek citizen, ordered that the applicant be placed in detention pending extradition. The court noted that the applicant had unlawfully obtained a Russian passport. 22. On 20 December 2006 the Deputy General Prosecutor refused to extradite the first applicant because the acts with which he had been charged did not constitute a crime under Russian law and because the prescription period for other acts had expired. 23. On 26 December 2006 the Tyumen Regional Prosecutor ordered the applicant's release. 24. On 1 August 2006 the first applicant requested the Tyumen Regional Department of the FMS to grant him refugee status. In his application he indicated that he had Uzbek nationality, but that in 2000 he had received a Russian passport and had married the second applicant. The first applicant gave the unstable economic and political situation and absence of work as the reasons for his departure from Uzbekistan. He denied that he had ever committed a crime in Uzbekistan. 25. On 11 November 2006 he was questioned by officials of the FMS about the details of his claim. In the questionnaire the first applicant indicated his nationality as Uzbek and submitted details of his national identity papers. He also submitted that he had divorced his first wife in 1996 in Uzbekistan. As regards his Russian passport, the first applicant submitted that a relative of his wife had helped him to obtain the documents. That man, whose name he could not recall, had died in 2002. As to his fear of persecution in Uzbekistan, the first applicant explained that he had learned of the criminal proceedings pending against him there when he was detained in Russia in February 2006. He denied having any connection to the charges brought against him and stated that he did not believe that he would have a fair trial in Uzbekistan. The first applicant also stated that he feared for his safety in that country. 26. The outcome of this request is unclear. The first applicant did not refer to this application in the subsequent proceedings. 27. On 23 November 2007, during an identity check, the applicant was arrested in Tyumen as an unlawfully resident alien. 28. On the same day the Tsentralnyy District Court of Tyumen reviewed the applicant's administrative offence case. According to the transcript of the hearing, the first applicant stated that he had lived in Russia since 1997, had traded in fruit and then married. He stated that in 2006 his Russian passport had been taken away from him as part of the procedure for obtaining nationality, but that he did not know the outcome of that procedure. He denied having committed any violations of the Russian legislation. When asked by the judge whether he had been aware that a search warrant had been issued for him in Uzbekistan, the first applicant replied that he had not committed any crimes. He also stated that he had changed his family name because of his marriage. The District Court found the first applicant guilty of a violation of the residence rules for aliens, in that he had failed to take any steps to get a residence permit or to obtain nationality by legal means. It imposed a fine of 2,000 Russian roubles (RUB) and ordered that the first applicant be expelled from Russia. 29. On 30 November 2007 the applicant's lawyer lodged an appeal against the decision of 23 November, arguing that the extradition would sever the applicant's ties with his Russian family, in view of the ensuing five-year ban on re-entering the country. He therefore asked the Regional Court to alter the sentence and not to order the first applicant's deportation. 30. On 3 December 2007, on instructions from the first applicant, “Civil Assistance” (Комитет “Гражданское содействие”) an NGO which specialises in providing assistance to refugees from Central Asia, submitted to the European Court of Human Rights a request for suspension of the first applicant's extradition to Uzbekistan. They stated that the first applicant had been charged in Uzbekistan with crimes against the state security and membership of a religious organisation, that he would certainly be detained upon arrival and that the risk of torture for this category of persons was recognised by all available international sources. In that letter the representative indicated that the next flight from Tyumen to Uzbekistan was scheduled for 2 a.m. on 5 December 2007 (4 December 2007, 10 p.m. CET). There is a two-hour difference between Moscow and CET and another two-hour difference between Tyumen and Moscow. 31. On the same day, on 3 December 2007, the Court indicated to the Russian Government that, under Rule 39 of the Rules of Court, it was adopting an interim measure for suspension of the extradition. The letter to the Government, indicating the application of a preliminary measure, was received by the Office of the Representative at 7.50 p.m. CET. According to the Government, on 4 December 2007 the information about the application of the interim measure was forwarded to the Ministry of the Interior and the FMS. 32. The applicants' representative submitted that on 4 December 2007 she had forwarded a copy of the Court's letter of 3 December 2007 indicating the preliminary measure to the office of the Tyumen Prosecutor's Office and the Main Department of the Interior of the Tyumen Region. 33. On 4 December 2007 the Tyumen Regional Court held a hearing in the absence of the first applicant and his legal counsel. The court established that the applicant was a citizen of Uzbekistan, that the Russian passport had been issued in breach of the relevant provisions, that the applicant had not submitted a request for naturalisation to the competent police department and that, according to the consular register of the Ministry of Foreign Affairs, he had not obtained Russian nationality. Equally, between 10 February 2006, the date on which his passport had been confiscated, and 23 November 2007, the day on which his identity papers were checked, the applicant had been unlawfully present on the territory of Russia and had taken no steps to declare his residence. The court held that the argument with regard to the potentially lengthy separation of the applicant and his wife and that alleging the applicant's lack of fault in the issue of the Russian passport were incidental. The court upheld the decision of 23 November 2007. 34. The applicants' representative informed the Court of that decision on the same day. On 4 December 2007 the Court forwarded an additional letter to the Office of the Representative, alerting them to the decision of the Tyumen Regional Court and drawing their attention to the fact that the first applicant's expulsion from Tyumen had been scheduled for 5 December 2007, 2 a.m. local time. This letter reached the Office in Moscow at 10.30 p.m. 35. On 5 December 2007 at 2.25 a.m. local time the first applicant was deported to Uzbekistan. 36. According to the applicants, upon his arrival in Tashkent the first applicant was arrested and charged with the crimes for which his extradition had been sought from Russia earlier. The second applicant informed the Court in February 2008 that in January 2008 she had received a phone call from her husband's relatives in Uzbekistan. They claimed that he had been detained at the Namangan Detention Facility and that he had been subjected to torture. After that she was unable to reach the first applicant's relatives by phone. 37. In response to the Court's request, in December 2008 the Government submitted that they had obtained unofficial information that on 26 February 2008 the first applicant had been tried and found guilty in Namangan. He was sentenced to eleven years in prison for incitement to racial hatred, attempts to overthrow the constitutional regime and participation in prohibited religious organisations. The Government had no further information about the first applicant's whereabouts from the Uzbek authorities. They indicated that as the first applicant had been a national of Uzbekistan and did not have Russian nationality, there were no legal grounds for the Russian authorities to intervene on his behalf. The applicants' representatives had no way of contacting him in detention. It appears that in 2008 he was serving his sentence in the Tashkent Region. 38. On 20 August 2008 the second applicant died. 39. For a summary of the relevant Russian law and practice on issues of detention, extradition and expulsion of foreign nationals, see Muminov v. Russia (no. 42502/06, §§ 45-62, 11 December 2008). 40. For a review of the situation in Uzbekistan at the relevant time, see Muminov (cited above, §§ 67-72) and Ismoilov and Others v. Russia (no. 2947/06, §§ 74-79, 24 April 2008).
| 1 |
train
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001-58228
|
ENG
|
BGR
|
GRANDCHAMBER
| 1,999 |
CASE OF NIKOLOVA v. BULGARIA
| 1 |
Preliminary objection rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
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Luzius Wildhaber
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8. The applicant, Mrs Ivanka Nikolova, is a Bulgarian national born in 1943 and residing in Plovdiv. 9. The applicant used to work as a cashier and accountant in a State-owned enterprise. An audit undertaken in the enterprise at the beginning of 1995 revealed a cash deficit of 1,290,059 levs. In February 1995 the applicant was given a copy of the final act of the audit, which contained the auditors’ opinion that, inter alia, she had made deliberately false entries in the accounting books and had thus misappropriated funds. 10. On 15 March 1995 criminal proceedings were brought against the applicant. In the following months the investigator (следовател), Mr S., questioned her in the framework of these proceedings. 11. On 24 October 1995 the applicant was arrested and charged under Article 203 § 1 in conjunction with Article 201 of the Criminal Code (Наказателен кодекс) with misappropriation of funds in large amounts. 12. On 24 October 1995 investigator S. heard the applicant in the presence of her lawyer and decided to detain her on remand. On the same day, without having heard the applicant, a prosecutor from the Regional Prosecutor’s Office (Окръжна прокуратура) in Plovdiv confirmed the investigator’s decision to detain her. 13. On 6 November 1995 the applicant appealed against her detention to the Chief Public Prosecutor’s Office (Главна прокуратура). In accordance with the established practice the applicant’s lawyer lodged the appeal with the Regional Prosecutor’s Office. He stated that the applicant had not attempted to abscond or to obstruct the investigation during the six months since she had become aware of the criminal charges against her; that she was no longer working as a cashier or accountant and could not, therefore, commit other crimes; and that the applicant had undergone gynaecological surgery and had still not recovered completely. 14. On 9 November 1995, before transmitting the appeal to the Chief Public Prosecutor’s Office, a prosecutor of the Regional Prosecutor’s Office confirmed the decision to detain the applicant on remand. The prosecutor found that the applicant was charged with a serious crime punishable by more than ten years’ imprisonment and that “therefore, the [detention on remand] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the Code of Criminal Procedure (Наказателно процесуален кодекс)” (see paragraph 30 below). The prosecutor further stated that the question whether or not Article 152 § 2 of the Code should be applied was to be assessed by the investigator and by the supervising prosecutor. In the applicant’s case the investigator and the supervising prosecutor had not applied Article 152 § 2 of the Code “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful. 15. By decision dated 15 December 1995 and registered on 28 December 1995 the Chief Public Prosecutor’s Office dismissed the applicant’s request for release. A further appeal against her detention on remand was dismissed by the Chief Public Prosecutor’s Office by a letter of 12 January 1996. 16. On 14 November 1995 the applicant appealed to the Plovdiv Regional Court (Окръжен съд) against her detention on remand. In his written submissions to the Court the applicant’s lawyer stated, inter alia, that the decision to detain the applicant on remand had been based solely on the gravity of the charges against her whereas other important factors had not been taken into account. Thus, the applicant had a permanent address where she lived with her husband and two daughters. Also, the applicant had known about the criminal charges against her for more than six months prior to her arrest but had made no attempt to abscond or obstruct the investigation. Furthermore, the evidence against the applicant was weak, it having been established that six other persons had been in possession of a key to the cashier’s office. The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge. However, there was nothing to show that the applicant had been the author of the false entries in the accounting books. The applicant’s lawyer also invoked his client’s medical condition and enclosed medical certificates. 17. In accordance with the established practice the applicant’s lawyer lodged his appeal and submissions through the Regional Prosecutor’s Office. 18. On 4 December 1995 the Regional Prosecutor’s Office transmitted the appeal together with the investigator’s file to the Regional Court. The covering letter, prepared by the prosecutor, stated, inter alia: “I consider that the appeal should be dismissed and that the detention on remand should be confirmed as being lawful. The charges concern a serious wilful crime within the meaning of Article 93 § 7 of the Criminal Code and, [therefore], in accordance with Article 152 § 1 of the Code of Criminal Procedure, the imposition of detention is obligatory. The present case does not fall under Article 152 § 2 of the Code of Criminal Procedure: [it] does not involve a situation where the accused has no possibility of absconding or reoffending, as required by the Supreme Court’s practice [follows a reference to the Supreme Court’s practice – see paragraph 31 below].” 19. On 11 December 1995 the court examined the case in camera, without the participation of the parties, and dismissed the appeal. The court stated, inter alia: “[The charges against the applicant] concern a serious crime within the meaning of Article 93 § 7 of the Criminal Code, that is, a crime under Article 203 of the Criminal Code, punishable by ten or more years’ imprisonment. In this respect there exists the requirement, under Article 152 § 1 of the Code of Criminal Procedure, that detention on remand shall be imposed. ... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her current state of health has been submitted. It follows that currently there exist no circumstances requiring the modification of the measure ‘detention on remand’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.” 20. On 19 January 1996 the applicant was examined by three medical experts who had been asked by the investigator in her case to establish, inter alia, whether the conditions of detention were dangerous for her health. In a report of the same date the experts found that the problems related to the surgery which she had undergone more than a year ago did not affect her condition, and that she could remain in detention. 21. On 5 February 1996 the applicant was urgently transferred to hospital due to pain in her gall bladder. On the same day she underwent surgery. 22. On 15 February 1996 the investigator in the applicant’s case appointed another group of medical experts to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention. 23. On 19 February 1996 the applicant’s detention on remand was discontinued in view of her health problems by an order of the Regional Prosecutor’s Office. The applicant was put under house arrest. 24. In June 1996 the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with a proposal to submit an indictment in court. On an unspecified date the competent prosecutor returned the case to the investigator for further clarifications. 25. According to the relevant provisions of the Code of Criminal Procedure and to legal theory and practice, the prosecutor performs a dual function in criminal proceedings. During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court. At the judicial stage he is entrusted with the task of prosecuting the accused. 26. The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (Articles 48 § 2 and 201 of the Code of Criminal Procedure). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding. 27. Under Article 86 of the Code of Criminal Procedure, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (Article 43 of the Code). 28. An accused can be detained on remand by decision of an investigator or prosecutor. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (Code of Criminal Procedure, Articles 152, 172, 201-03 and 377-78). 29. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or who has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings. In practice this frequently occurs. The Supreme Court has found that a former investigator who was appointed prosecutor may represent the prosecution at the trial of the same accused person on whose case he had been working as an investigator. As both the investigator and the prosecutor performed investigative functions there was no legal obstacle (реш. от 9.5.1995 по н.д. No. 125/95 на ВС II н.о., бюл. кн. 5/96, стр. 7). 30. Article 152 §§ 1 and 2 provides as follows: “(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime. (2) In the cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused absconding, obstructing justice or reoffending.” “(1) Мярка за неотклонение задържане под стража се взема за тежко умишлено престъпление. (2) В случаите по ал. 1 мярката за неотклонение може да не се вземе, ако няма опасност обвиняемият да се укрие, да осуети разкриването на обективната истина или да извърши друго престъпление.” According to Article 93 § 7 of the Criminal Code a crime is “serious” if it is punishable by more than five years’ imprisonment. 31. According to the Supreme Court’s practice Article 152 § 1 of the Code of Criminal Procedure requires that a person charged with a “serious wilful crime” shall be detained on remand. The only exception is provided for under Article 152 § 2 of the Code, which empowers the prosecutor not to detain an accused where it is clear, beyond doubt, that there is no danger of absconding or reoffending. Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or aged, or who is detained on other grounds such as serving a sentence (опред. No. 1 от 4.5.1992 по н.д. 1/92 на ВС II н.о., Сб. 1992/93, стр. 172; опред. No. 4 от 21.2.1995 по н.д. 76/95 на ВС II н.о.; опред. No. 78 от 6.11.1995 по н.д. 768/95 на ВС II н.о.; опред. No. 24 по н.д. 268/95 на ВС, I н.о., Сб. 1995, стр. 149). 32. In some more recent decisions the Supreme Court has nevertheless embarked on analysis of the particular facts to justify findings that there existed a danger of absconding or reoffending (опред. No. 76 от 25.7.1997 по н.д. No. 507/97 на ВС II н.о., бюл. кн. 9-10/97, стр. 5; опред. No. 107 от 27.5.1998 по н.д. 257/98 на ВС II н.о., бюл. кн. 3-4/98, стр. 12). 33. Article 152 § 5 of the Code of Criminal Procedure, as in force at the relevant time, provided as follows: “The detained person shall be provided immediately with a possibility of filing an appeal before the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.” “На задържания се осигурява незабавно възможност да обжалва мярката за неотклонение пред съответния съд. Съдът се произнася в тридневен срок от подаването на жалбата с определение, което е окончателно.” 34. The First Criminal Division of the Supreme Court has held that, in deciding on appeals against detention on remand, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order (опред. No. 24 от 23.5.1995 по н.д. 268/95, I н.о. на ВС, Сб. 1995, стр. 149). 35. According to the practice at the relevant time, the court examined appeals against detention on remand in camera, without the participation of the parties. If the appeal was dismissed, the court did not notify the detained person of the decision taken. An amendment of the Code of Criminal Procedure of August 1997 introduced the requirement that appeals against detention on remand be examined at a hearing with the participation of the detainee. 36. In a decision of 17 September 1992 the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once (опред. No. 94 по н.ч.х.д. 754/92, I н.о. на ВС, Сб. 1992-93, стр. 173). Until the amendment of the Code of Criminal Procedure in August 1997 periodic judicial review of the lawfulness of detention on remand was only possible at the trial stage, when the criminal case was pending before a court.
| 1 |
train
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001-96372
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ENG
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GBR
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ADMISSIBILITY
| 2,009 |
FRIEND AND OTHERS v. THE UNITED KINGDOM
| 2 |
Inadmissible
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David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
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1. These two applications challenge various bans on fox hunting and the hunting of other wild mammals with dogs in the United Kingdom. The first application has been lodged by Captain Brian Leonard Friend, a British national who was born in 1939 and lives in Axminster, Devon. He is referred to below as the first applicant. His application relates to his challenge to the ban on hunting in Scotland and his challenge, in separate legal proceedings, to a similar ban in England and Wales. The second application has been lodged by the Countryside Alliance and ten other applicants whose details are set out in the appendix. They are all represented by Clifford Chance LLP. The Countryside Alliance is a non-governmental organisation, which seeks to influence legislation and public policy that has an impact on the countryside, rural people and their activities. At the time of the domestic proceedings set out below, it had around 100,000 ordinary members and 250,000 associate members. The ten other applicants are British nationals who claim to have been affected by the ban in different ways. The Countryside Alliance and the ten other applicants in this application are referred to below as the second applicants. They sought to challenge the ban on hunting in England and Wales only. 2. On the basis of the facts as stated in the domestic proceedings and by the applicants before this Court, the cultural and social background to hunting can be summarised as follows. Hunting with hounds has a long history in rural Britain. While it encompassed the hunting of deer, hare and mink, before the bans took effect, the principal quarry were foxes. These were traditionally hunted as vermin in order to protect farm stock. Over time, hunting of various quarries evolved such that the activity was organised in a particular area around a “Hunt”. The modern Hunt usually involves a pack of hounds, horseback riders and others who follow the hounds on foot. Any given Hunt now has its own particular customs and practices, including codes, dress, etiquette and hierarchy. The hunting season traditionally runs from early autumn until spring; most Hunts go out twice a week in that period, though larger Hunts may do so more frequently. Within each Hunt there is a Master of Hounds and other positions. Hunts are regulated by the Masters of Hounds Associations. Various charitable, community and social events have grown up around Hunts across the country. Members of the hunting community share the responsibilities for the organisation of the Hunt, for example caring for the hounds of a Hunt; those involved also have a common duty to repair any damage to the land on which the Hunt takes place. 3. In her witness statement before the High Court (see paragraph 6 below), which was characterised by that court as “largely unchallenged factually”, the President of the Countryside Alliance, Baroness Mallalieu, also stated that hunting was supported by the vast majority of farmers and land owners who allowed it to take place on privately owned land. She also averred that, in England and Wales, there were 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There were 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs were only a proportion of the total number of packs in Wales. 4. In the case of Adams v. the Scottish Ministers (see paragraph 32 below), the Inner House of the Court of Session relied on a report prepared by the Rural Affairs Committee of the Scottish Parliament, which found that ten mounted hunts operated in Scotland and that two hunts based in Northumberland, England, regularly visited the Scottish Borders region. 5. In December 1999, the Home Secretary asked a committee under the chairmanship of Lord Burns to inquire into the various aspects of hunting and its impact. It was also asked to inquire into the consequences of any ban and how it might be implemented. After conducting hearings across England and Wales, the Burns Committee reported in June 2000. It did not address whether hunting should be banned but said that it believed its report would help inform the debate that followed its publication. In December 2000, the Government introduced the Hunting Bill 2000 in the House of Commons, which offered three choices: regulation, supervision or prohibition of hunting. The Bill was not enacted as the House of Commons voted for prohibition and the House of Lords voted for supervision, which meant the Bill could not pass before the 2001 General Election. A second Bill was introduced by the Government in 2002 which banned deer hunting and hare coursing but permitted fox, hare and mink hunting subject to registration. This was amended by the House of Commons to reject registration in favour of a ban on hunting, subject to exceptions. The registration system was reinstated by the House of Lords. In the following session of Parliament, the House of Commons passed a Bill which banned hunting, again subject to exceptions. This Bill became law (the Hunting Act 2004 – the 2004 Act) without the approval of the House of Lords pursuant to the Parliament Acts 1911 and 1949. For the provisions of the 2004 Act, see paragraph 30 below. 6. The first and second applicants challenged the legality of the 2004 Act by way of judicial review, arguing that it was incompatible with their rights under the Convention. A separate but related challenge was brought based on European Community law and the freedom to provide goods and services under Articles 28 and 49 of the EC Treaty. 7. Having reviewed the factual evidence before it, as well as the Burns Report, the High Court considered the impact the ban would have on the applicants. It stated: “85. We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual claimants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual claimants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not. ... The Hunting Act will have a substantial general adverse effect on the lives of many in the rural community in England and Wales. It will have a direct effect on a significant number of individuals, of whom the individual claimants are representative. Some of these effects may not be immediate, but much of it is likely to happen in the short to medium term.” 8. The High Court found, however, that the ban did not interfere with the private lives of any of the claimants. Nor was there an interference with their right to respect for their homes with regard either to those applicants who had land over which hunts passed or those whose homes were tied to their employment or business insofar as their employment or business would be affected by the ban. There was similarly no interference with the applicants' rights under Article 11 § 1. It also found that Article 14 was not applicable since membership of the hunting community was not a personal characteristic amount to a status analogous with those contained in that Article. The High Court was, however, prepared to accept that there was an interference with their rights under Article 1 of Protocol No. 1, though that interference mainly, if not entirely, constituted control of use, not deprivation of property. 9. The precise nature of that interference was a matter of dispute between the parties. The applicants alleged that there were eleven interferences with property, grouped under three heads. First, in respect of land, there were interferences arising from: (i) the use of land to hunt by the owner; (ii) permitting others to hunt over one's own land; (iii) the value of land; (iv) expense associated with the removal of buildings and equipment which was of use only in the hunting industry; and (v) the reinstatement of land which had been modified specifically for hunting with dogs. Second, in respect of the livelihoods of certain of the applicants, there were interferences with: (vi) an individual's job and/or livelihood; (vii) the benefit of an existing contract of employment or contract for services related to hunting and (viii) goodwill in and/or the value of existing businesses which were reliant on the hunting industry for a large proportion of their income or the viability of their business. Third, in respect of other property, there were interferences as regards (ix) dogs; (x) horses and vehicles; and (xi) miscellaneous hunting equipment. 10. It was conceded by the Government that the 2004 Act interfered with the property covered in (i), (ii), (ix), (x) and (xi) above and that Article 1 of Protocol No. 1 would be engaged to the extent that the Act had the indirect consequence of diminishing the values of land or other property or of damaging the goodwill of a business. The High Court agreed. In addition, “livelihood” was to be regarded as falling between the marketable goodwill of a business, which was a possession, and a loss of future income, which was not. To the extent that the Inner House of the Court of Session in Adams (see below) had regarded “livelihood” as a possession, the High Court declined to follow its ruling on that point. 11. Having reached these conclusions on Articles 8 § 1, 11 § 1, the High Court nevertheless examined whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 of the Convention and whether it was proportionate under Article 1 of Protocol No. 1. That examination was joined to its examination of whether the Act was justified for the purposes of the restrictions it placed on the free movement of goods and services as guaranteed by European Community law. It found that, for Articles 8 § 2 and 11 § 2, the 2004 Act pursued the legitimate aims of the prevention of disorder, protection of health or morals and the protection of the rights and freedoms of others and, for Article 1 of Protocol No. 1 and Article 14 (if the latter were applicable), that it pursued “legitimate objectives of public policy”. The Act was also in accordance with and prescribed by law for the purposes of Articles 8 § 2 and 11 § 2; no claim could be made that it lacked legal certainty or adequate procedural safeguards. 12. The first and second applicants' claimed that the Act was disproportionate because the House of Commons had adopted a more restrictive measure than that proposed by the Government and, further, that the Act itself promoted cruelty to foxes because it only allowed them to be shot, which, in certain cases, wounded but did not kill outright. The High Court rejected this argument, and instead found there was sufficient material for the House of Commons to conclude that hunting with dogs was cruel and that it was open to it to decide that legislative schemes other than a ban were unworkable. In the High Court's view, the balance to be struck between the legitimate aim pursued and the interference with rights and freedoms it engendered was: “intrinsically a political judgment and a matter of domestic social policy, incapable of measurement in any scientifically calibrated scale, upon which the domestic legislature had a wide margin of discretion.” 13. The High Court also found that, contrary to the first applicant's submissions, no issues arose in respect of Articles 9, 10, 17 and 53 of the Convention. Claims originally made under Articles 6 and 7 made by the applicants were not pursued before the court. 14. The High Court gave the second applicants permission to appeal in respect of their claims under Articles 8 and 11 and Article 1 of Protocol No. 1 and refused the first applicant permission to appeal. The second applicants duly appealed to the Court of Appeal and the first applicant renewed his application for permission to appeal before that court. 15. Further evidence and witness statements were provided to the Court of Appeal. The Government submitted that since the passage of the 2004 Act, hunts had continued in alternative forms such as drag or trail hunting, where mounted riders and hounded pursued an artificial scent rather than live quarry; the applicants adduced evidence that this was an inferior and unrealistic alternative. 16. In respect of Article 8, the Court of Appeal found that it was not engaged and added: “We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act feared by the [applicants] will in fact eventuate... But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the [Government] shows that things appear to have gone on very much as before, even if trail-hunting is regarded as a very inferior form of sport to the real thing.” 17. The court reached a similar conclusion in respect of Article 11: “We entirely agree with both of our predecessor courts [the High Court and the Court of Session – see below] that it cannot be said that the Hunting Act interferes with the right of the [applicants] to assemble. All that it does is to prohibit a particular activity once the [applicants] have assembled. Moreover, the Hunting Act has now been in force for over a year, and the hunts have been assembling in greater numbers than ever. If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by the Hunting Act, that will be a matter for them.” 18. On Article 1 of Protocol No. 1, the Court of Appeal followed the approach of the High Court in accepting that that provision would only be engaged to the limited extent conceded by the Government. The Court of Appeal also upheld the reasoning of the High Court as to the legitimate aims pursued by the 2004 Act and its proportionality. That conclusion applied equally to Article 1 of Protocol No. 1 and Articles 8 and 11 if, contrary to its conclusions, those Articles were engaged. 19. The Court of Appeal found that the first applicant's renewed application for permission to appeal, brought in respect of his separate claims under Articles 9, 14, 17 and 53, should be refused as it had no reasonable prospect of success. It also refused the second applicants permission to appeal to the House of Lords. The second applicants then petitioned the House of Lords and, on 7 November 2006, an Appeal Committee of the House of Lords gave leave to appeal (see paragraph 24 below). 20. The Protection of Wild Mammals (Scotland) Act was passed by the Scottish Parliament on 13 February 2002 and entered into force on 1 August 2002. The 2002 Act prohibited the hunting of all wild mammals (except rabbits and rodents) with dogs (see relevant domestic law and practice at paragraph 31 below) 21. Together with one other petitioner, the first applicant, as a member of the Berwickshire Hunt, sought judicial review of the Act, contending that it was not within the legislative competence of the Scottish Parliament, inter alia, because it was incompatible with Articles 8 – 11, 14, 17 and 53 of the Convention. 22. The petition was dismissed by the Outer House of the Court of Session on 20 June 2003. The Lord Ordinary found that Article 8 was not engaged: hunting was a complex social activity, carried on under public gaze, which clearly extended beyond the sphere of purely private life. He also dismissed the argument made by the first applicant and his copetitioner that Article 8 was engaged because hunting was so intrinsic to their way of life as to be their primary characteristic. Their case had to be distinguished from the gypsy lifestyle at issue in Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001I and the Saami way of life at issue in G. and E. v. Norway, nos. 9278/81 and 9415/81, Commission decision of 3 October 1983, Decisions and Reports (DR) 35, p. 30. A person's profession or recreation might assume great importance in his life but that was quite different from the situation where an activity was so closely associated with the way of life of a particular group that it fell to be regarded as integral to the individual personality of every member of that group. Furthermore, the hunting community could not be regarded as a distinct ethnic group. The Lord Ordinary rejected the applicant's submissions that Articles 9, 10 and 11 were engaged but indicated that, had he found any of Articles 8 – 11 to be engaged, he would nevertheless have held that the Scottish Parliament was entitled to come to the view that the ban was necessary in a democratic society and pursued the legitimate aim of the protection of morals. For the Lord Ordinary Article 14 could not apply because hunters could not be regarded as having a personal characteristic or status for the purposes of that Article; fox hunting was a common activity engaged in by a heterogeneous group of individuals. To the extent that the first applicant continued to rely on it before him, the Lord Ordinary did not regard Article 17 as relevant to the case. The same consideration applied to Article 53: it did not confer any rights on which the petitioners could rely. 23. The applicant appealed to the Inner House of the Court of Session. By this time, the Second Division of the Inner House had already given its judgment in Adams v. the Scottish Ministers, where, in a separate judicial review challenge brought by the Scottish hunting community, it had found the 2002 Act to be compatible with Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1 (see paragraph 32 below). On 27 September 2005, an Extra Division of the Inner House refused the first applicant's appeal. It found no reason to depart from the conclusions of the Second Division in Adams or the Lord Ordinary in the present case that Articles 8 – 11 and 14 were not engaged. It also upheld the Lord Ordinary's ruling in respect of Article 17 and the Article 53 submission was not pursued before the Inner House. The first applicant appealed to the House of Lords (see below). 24. On 28 November 2007 the House of Lords gave judgment on the first applicant's appeal from the Inner House of the Court of Session and the second applicants' appeal from the Court of Appeal. It unanimously dismissed both appeals. 25. In the second applicants' appeal, Lord Bingham of Cornhill found that Article 8 was not engaged, judging the applicants' complaints to be “far removed from the values which Article 8 existed to protect”. Fox-hunting was a very public activity and therefore no analogy could be drawn between it and any of this Court's cases where the notion of personal autonomy was found to underlie the right to respect for private life. Nor could any analogy be drawn with G and E, cited above, or Buckley v. the United Kingdom, 25 September 1996, Reports of Judgments and Decisions 1996IV, where the applicants belonged to distinctive groups, each with a traditional culture and lifestyle at issue that was so fundamental as to form part of its identity. The hunting community could not be portrayed this way. That certain of the applicants were prohibited from hunting on their land was not an interference with the right to respect for their home since, in ordinary usage, such land could never be described as home. For those applicants who complained that they stood to risk losing their homes from the hunting ban, this was not the necessary or intended consequence of the 2004 Act and none of them had been evicted or might ever be. Finally, the applicants relied on the case Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004VIII, as authority for the proposition that there would be an interference through loss of livelihood as a result of the ban but, for Lord Bingham, this was a very extreme case which could be distinguished on its facts. Lord Bingham was not content to treat Article 11 as inapplicable: the right to assemble was of little value if the applicants, having assembled to act in a certain way, were prohibited from carrying out that activity. He then took the same approach as the High Court and Court of Appeal in considering whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 and, to the extent that Article 1 of Protocol No. 1 applied, whether the Act was a proportionate interference with the right to property. He concluded that it was: respect had to be paid to the recent and closely-considered judgment of Parliament. Finally, for Lord Bingham, no claim could be made under Article 14 as no personal characteristic of any of the applicants could be described as an “other status” under that Article. 26. Lord Hope of Craighead and Baroness Hale of Richmond agreed with Lord Bingham, save that neither found Article 11 to be engaged. For them, it was insufficient simply to find that Article 11 did not apply on the grounds that the effect of the ban was not to prohibit the assembly of a hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled. Instead, Lord Hope found Article 11 to be inapplicable because that Article did not guarantee a right to assemble for purely social purposes. The applicants' position was no different from that of any other persons who wished to assemble in a public place for sporting or recreational purposes. It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy. Baroness Hale agreed: the kind of assembly protected by Article 11 had to be read alongside Article 10 and the democratic values those Articles sought to protect. 27. Lord Brown of Eaton-under-Heywood agreed that Article 8 was not engaged but stated his strong wish that it were otherwise and that the scope of Article 8 should be developed by this Court. He also agreed that Article 11 was not engaged but that Article 1 of Protocol No. 1 was. As to proportionality, Lord Brown was prepared to accept that moral objection to hunting as expressed in the 2004 Act was sufficient justification for the “comparatively slight” interference with the applicant's property rights. However, under Article 8 § 2 he regarded the test to be much stricter and was unable to regard such an ethical objection to hunting as a sufficient basis for holding the ban to be necessary. 28. Lord Rodger of Earlsferry agreed in particular with the reasons given by Lord Brown and also found that Article 8 was not engaged. He accepted that certain activities could be regarded as integral to a person's identity and so form part of their private life for the purposes of Article 8. He also considered the activities which Princess Caroline had been photographed doing in public in Von Hannover v. Germany, no. 59320/00, ECHR 2004V (horse riding, riding her bicycle, playing tennis and going to the market) and suggested that if photographing her doing these things interfered with her rights under Article 8, then a law banning her from these activities would have constituted a greater interference. However, a distinction had to be drawn between, on the one hand, doing such activities simply for one's own enjoyment and the development of one's personality and, on the other, carrying out the same activity for a public purpose, where one could not be said to be acting for personal fulfilment alone. In the latter, a person might still be developing his or her personality through the activity but would have left the sphere in which they would be entitled to the protection of Article 8. He agreed with the Inner House of the Court of Session in Adams that a hunt took on the character of spectator sport and a public spectacle and thus that the applicants were not entitled to the protection of Article 8. 29. The first applicant's appeal was dismissed for the same reasons. Lord Hope delivered the lead speech with which the other four law lords concurred, subject to their opinions in the appeal brought by the second applicants. He upheld the finding of the Lord Ordinary and the Extra Division that Articles 17 and 53 had no relevance to the first applicant's basic argument that the Protection of Wild Mammals (Scotland) Act was outside the legislative competence of the Scottish Parliament because it was incompatible with the Convention. He also upheld the lower courts' findings that Articles 8–11 and 14 were not engaged. To the extent that it was necessary to consider the justification for the 2002 Act, Lord Hope considered that there was adequate factual information to entitle the Scottish Parliament to conclude that foxhunting inflicted pain on the fox and that it constituted cruelty. The question of necessity was “pre-eminently one for the Parliament”. 30. Section 1 of the 2004 Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1 of the Act. Under section 4, it is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt. Exempt hunting includes: (i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: (a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; (b) that it does not involve the use of more than two dogs; nor (c) the use of one dog below ground otherwise than in accordance with paragraph 2 of the Schedule. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. Further exemptions, subject to conditions, are made for the hunting of rats and rabbits, the retrieval of hares which have been shot, for falconry, for the recapture or rescue of a wild mammal, and for research and observation of a wild mammal. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs. Section 5 bans hare coursing, which is defined as “a competition in which dogs are, by the use of live hares, assessed as to skill in hunting hares”. A person guilty of an offence under the 2004 Act is liable on summary conviction to a fine of up to GBP 5,000. Conviction may lead to the forfeiture of any dog, vehicle or other article used for the purpose of prohibited hunting. 31. Section 1 of the 2002 Act makes it a criminal offence deliberately to hunt a wild mammal, for the owner or occupier of his land to permit it to be used for that purpose and for the owner of a dog to permit it to be used for the same. By section 10 rabbits and rodents are excluded from the definition of a wild mammal. Exemptions are made in sections 2 – 5 (subject again to conditions) for stalking and flushing from cover, falconry and shooting, retrieving and locating wild mammals. Section 6 gives the Scottish Ministers the power to specify further “excepted activities”, which will not constitute an offence under section 1. By section 8(1) a person guilty of an offence under the Act is liable on summary conviction to imprisonment for up to 6 months or a fine of up GBP 5,000 or both. 32. The petitioners in this case sought to challenge the 2002 Act by way of judicial review, similarly relying on Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1. They were unsuccessful at first instance before the Lord Ordinary in the Outer House of the Court of Session. They appealed to the Second Division of the Inner House of the Court of Session, which dismissed the appeal on 28 May 2004. The Inner House took note of an expert report submitted by the petitioners, which found that the end to traditional foxhunting would bring the “collapse of an entire social and cultural world” and result in “profound and deeply felt social and cultural impoverishment” in the Scottish Borders. However, Articles 8, 11 and 14 were not engaged. For Article 1 of Protocol No. 1, the Inner House found that the Act did not amount to de facto expropriation of possessions related to hunting (in particular one of the petitioner's hounds) but rather control of the use of property and thus there was no requirement for the Act to provide a scheme of compensation. It was accepted that Article 1 of Protocol No. 1 was engaged to the extent that the Act restricted the use to which the petitioners put their land and hounds. The Inner House also sustained the finding of the Lord Ordinary that one of the petitioner's economic interest in making his livelihood as a self-employed manager of foxhounds was a possession within the meaning of that Article. In doing so, it relied on this Court's rulings in Tre Traktörer AB v. Sweden, 7 July 1989, Series A no. 159; Van Marle and Others v. the Netherlands, 26 June 1986, Series A no. 101 and the Commission's decision in Karni v. Sweden, no. 11540/85, 8 March 1988, Decisions and Reports (DR) 55, p. 157. However, for that livelihood and the other possessions of the petitioners, the Scottish Parliament had struck an appropriate balance: it had conducted extensive inquiries before legislating and had acted within the scope of its discretion in judging that foxhunting should be prohibited.
| 0 |
train
|
001-73367
|
ENG
|
CZE
|
CHAMBER
| 2,006 |
CASE OF METZOVÁ v. THE CZECH REPUBLIC
| 4 |
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award
| null |
4. The applicant was born in 1946 and lives in Brno. 5. On 29 May 1992 the applicant introduced before the Prague 4 District Court (obvodní soud) an action seeking the division of matrimonial property. According to the Government, the action was notified to the court on 1 June 1992. On 3 November 1992 the applicant’s former husband submitted his written comments on 295 pages. 6. On 8 September 1994 the District Court held a hearing which was adjourned in order to have an expert report drawn up. On 8 November 1994 an expert was appointed. 7. On 5 May 1995 the court invited the parties to an information meeting scheduled for 29 June 1995. However, the parties did not attend. 8. On 14 September 1995 another hearing was held in the absence of the defendant. On 17 November 1995 the expert informed the court that due to the defendant’s failure to cooperate, he was not able to draw up the opinion. On 11 December 1995 the court ordered the parties to cooperate with the expert. 9. On 19 January 1996 the defendant notified the court that due to his illness, he could not submit the relevant documents, which he finally did on 16 February 1996. On 19 February 1996 the case file was sent to the expert who, in the meantime, had been withdrawn. On 25 March 1996 a new one was appointed. The case file was sent to him on 23 June 1996. On 11 October 1996 the expert, having been urged to do so on 23 September 1996, sent the case file back to the court stating that due to his workload, he did not have time to prepare the report. On 19 December 1996 the court appointed another expert and, on 6 February 1997, it sent him the case file. 10. On 24 February 1997 the expert informed the District Court that he did not have necessary documents. On 7 March 1997 the court met the expert. On 17 March 1997 it invited the parties to submit a copy of an entry in the Land Registry and a copy of a land map. On 27 May 1997 the court pressed the expert to prepare his opinion. He replied on 13 June 1997 that he still did not have the necessary documents. On 1 July 1997 the court then imposed a procedural fine on the defendant who, on 29 July 1997, appealed. On 10 December 1997 the expert presented his report. 11. At a hearing held on 15 January 1998, the parties expressed their willingness to reach a friendly settlement. Another hearing was held on 5 March 1998. The defendant submitted his comments on the expert report on 1 April 1998. A week later, the court ordered the expert to amend his report in accordance with the defendant’s objections, which he did on 14 May 1998. At the same time, it appointed an expert to assess the value of movable property. She submitted her expert report on 24 November 1998. 12. On 29 December 1998 another expert was appointed to assess the value of other items. The expert informed the court, on 22 January 1999, that he was not sufficiently qualified for this work. On 27 January 1999 the court appointed a new expert who, however, repetitively did not take out the case file. The court then appointed another expert, to whom the case file was sent on 28 June 1999. The expert report was submitted on 10 August 1999. 13. In a judgment of 2 March 2000 the District Court, having held three hearings on 14 October, 3 February and 2 March 2000 respectively, delivered a judgment by which it divided the matrimonial property. 14. On 12 May 2000 the defendant appealed. On 30 May 2000 the judge dealing with the case requested the president of the court to withdraw her from the proceedings following the defendant’s insulting statements about her. She said that she felt biased. On 21 June 2000 the Prague Municipal Court (městský soud) granted her request. 15. On 10 July 2000 the case was assigned to another judge who, on 20 July 2000, invited the defendant to supplement his appeal. He complied on 20 August 2000. Five days later, the case was sent to the Municipal Court which, however, sent it back with a request to supplement it. 16. On 7 September 2000 the parties were ordered to pay court fees. On 26 October 2000 the case was again brought to the Municipal Court which, on 16 February 2001, quashed the lower court’s judgment and remitted the case to it for further consideration. 17. On 1 March 2001 the applicant was invited to amend her action in accordance with the guidelines of the Municipal Court. On 4 April 2001 she objected that the appellate court’s decision was incomprehensible. On 11 April 2001 the court delivered a rectifying resolution. On 4 July 2001 the applicant supplemented her action. On 16 July 2001 the defendant was invited to make his comments. Having been urged to do so on 4 September and 11 October 2001 respectively, he complied on 23 October 2001. 18. In a judgment of 29 January 2002 the District Court again decided on the distribution of the matrimonial property. On 11 March 2002 both parties appealed. On 19 March 2002 they were invited to supplement their appeals. The defendant complied on 27 March 2002, amending his arguments on 17 April 2002, after a lawyer had been appointed for him on 8 April 2002. The applicant presented her amendment on 23 May 2002. 19. On 31 October 2002 the court received the defendant’s comments on the applicant’s appeal. On 11 January 2003 the defendant “rectified” his appeal. On 6 February 2003 the case file was sent to the Municipal Court. On 22 April 2003 the defendant asked the court to grant him time to adduce further documentary evidence. On 13 May 2003 he submitted new comments on the applicant’s appeal. On 2 June 2003 the case file was submitted to the appellate court. 20. On 1 August 2003 the defendant requested that a public hearing be adjourned. 21. On 15 October 2003 the Municipal Court appointed an expert to amend the expert report. The expert complied on 1 December 2003. 22. In a decision of 5 February 2004 the court upheld the District Court’s judgment. On 30 March 2004 this decision became final. 23. On 26 May 2004 the defendant filed an appeal on points of law (dovolání). On 12 August 2004 the case file was sent to the Supreme Court (Nejvyšší soud) which, on 1 September 2004, suspended the enforcement of the judgment. It appears that the proceedings are still pending.
| 1 |
train
|
001-67352
|
ENG
|
TUR
|
CHAMBER
| 2,004 |
CASE OF MARAŞLI v. TURKEY
| 4 |
Violation of Art. 10;Violation of Art. 6-1;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
| null |
4. The applicant was born in 1956 and lives in Germany. 5. The applicant wrote an article entitled “Kurdistan: will it become a common colony of Europe?” in “Newroz”, a weekly newspaper published in Istanbul. 6. The article read: “The Turkish bourgeoisie has being advancing their intention of associating with the European Community since the date of the Treaty of Rome. However, the economic and political problems of Turkey have not been solved since that date. The conditions for association have not been established either. On the other hand, the founders of the European Union are not keen on taking on board a huge problem with its fifteen million unemployed people and serious economic and social problems. Considering the still unresolved problems of German unification and the unexpected economic integration of East European countries, the acceptance of Turkey by the Community definitely seems impossible. However, Europe does not want to keep out Turkey completely. It is keen on keeping Turkey within its hinterland as an investment area and a market. The dilemma of either being part of Europe or outside Europe is a common thread. Briefly, the structural problem of Turkey and the unwillingness of Europe for association with it intersect. On the one hand, the pressures on Turkey from the various institutions of European association on matters such as “Democracy”, “Human Rights”, “the Kurdish Problem”, etc. reflect the reaction of domestic public opinion in Europe. On the other hand, these pressures are being used as an excuse to keep Turkey out. The above issue has to be emphasised in order to point out the defects in the sincerity both of the approaches to the solution of the Kurdish problem and the idea that the European institutions are the purest supporters of democracy and human rights. The customs union seems an acquired right or an opportunity for Turkey. However, it also seems very difficult for Turkey, having regard to her political and economical problems. The way to the customs union and the European Union will result in important changes for the Kurdish National Movement. In the first instance, Kurdistan, already shared by the colonialist Middle East States, will become a common colony of Europe along with her Turkish part. Accordingly, Kurdistan's political and social problems which originate from her colonial status will be directly addressed to Europe. It will become easier for Turkey to control Kurdistan by economic means than has been the case with its control through military force and political violence. This means that Kurdistan will become an economic and political environment for Turkey such that she will have neither the need for, nor the possibility to keep, Kurdistan as a classic colony. One of the direct political effects of this situation will be Europe's insistence on the direct application of its rules to solve the Kurdish problem. Europe is closely interested in both national matters and in the Kurdistan problem and has its own experiences of colonialism. Another political effect is that most of the Kurdish refugee organisations in Europe are supporting and promoting the European solution. This approach considers the future of the Kurdish community in a Turkish Republic associated with Europe. Kurdish intellectuals in Europe are also supporting this approach and conveying their political message to Kurdistan. Any possible tension with Europe will have a direct effect on the politics of the subject groups. The improvement of relations or a possible customs union with the European Union will benefit this approach and will have increased political effect or will gain more acceptance from the Turkish Government in consequence. However, the Kurdish Revolution has already abolished the classical colonial conditions and has stressed the need for a local/national solution. The dimensions of the problem and the strict militarist bureaucracy of the Turkish political structure prove that Europe is not and will not be the determining factor for either Turkey or Kurdistan.” 7. On 13 February 1995 the public prosecutor at the Istanbul State Security Court accused the applicant of disseminating propaganda against the unity of the Turkish nation and the “indivisible unity of the State”. He requested, inter alia, that the applicant be convicted under section 8 of Law No. 3713. He relied on the terms of the above article in support of his application. During the proceedings an amendment to section 8 entered into force (Law no. 4126) and, in consequence, the public prosecutor pressed for the applicant's conviction on the strength of the new amendment which increased the level of the fine for the offence with which he was charged but reduced the term of imprisonment which could be imposed. 8. In the proceedings before the Istanbul State Security Court the applicant acknowledged that he had drafted the article and asserted that the expression of an opinion could not constitute an offence. 9. On 13 December 1996 the Istanbul State Security Court, composed of three judges including a military judge, found the applicant guilty as charged. It ruled that the impugned article referred to a particular region of Turkey as “Kurdistan” and that the applicant's comments, taken as a whole, amounted to separatist propaganda. The court sentenced the applicant under section 8(1) of Law no. 3713, as amended by Law no. 4126, to one year, eight months and ten days' imprisonment and a fine of 111,111,111 Turkish liras (TRL) (847 euros (EUR)), to be paid in twenty monthly instalments. 10. On 12 June 1997 the Court of Cassation upheld the judgment of the State Security Court. The judgment of the Court of Cassation was deposited with the Registry of the first-instance court on 10 July 1997. 11. The relevant domestic law and practice in force at the material time are outlined in the following judgments: İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §§ 41-42, 10 October 2000; Mehdi Zana v. Turkey, no. 26982/95, § 21, 6 April 2004; Özel v. Turkey, no. 42739/98, §§ 20-21, 7 November 2002; and Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003.
| 1 |
train
|
001-117134
|
ENG
|
UKR
|
CHAMBER
| 2,013 |
CASE OF SALAKHOV AND ISLYAMOVA v. UKRAINE
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
|
6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea. 7. On 30 September 2005 the first applicant tested HIV positive. 8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below). 9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status. 10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints. 11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial. 12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed. 13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively. 14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT. 15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints. 16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication. 17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear. 18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above). 19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him. 20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection. 21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre. 22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation. 23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son. 24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society. 25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court). 26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention. 27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray. 28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment. 29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision. 30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case. 31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation. 32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day. 33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee. 34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as inpatient medical treatment. 35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital. 36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress. 37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother. 38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release. 39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly. 40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release. 41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided. 42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7. 43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count being 48 cells/mm3), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses. 44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant. 45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT. 46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health. 47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention. 48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication. 49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation. 50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final. 51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”. 52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”. 53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health. 54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008. 55. On 2 August 2008 the first applicant died. 56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death. 57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed. 58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter. 59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows: “1. Medical care to persons in custody is the duty of the police medical staff. 2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel. 3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards. 4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.” 60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above). 61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated. 62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned. 63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007. 64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors. 65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment. 66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court. 67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions: “1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication). 2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.” 68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation. 69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions: (1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)? (2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct? (3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO? (4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant? (5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008? (6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct? (7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences? (8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant? 70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report. 71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1). 72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified). 73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified. 74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment. 75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death. 76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows: “The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.” There is no information in the case file on any further developments in this investigation or its outcome. 77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities. 78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard. 79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination. 80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint. 81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention. 82. The Court has not been made aware of any further developments. 83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4). 84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007). 85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage (безчинства 86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term. 87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “a. Access to a doctor ... 35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.” b. Equivalence of care 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” 88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010.
| 1 |
train
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001-95823
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ENG
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DEU
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ADMISSIBILITY
| 2,009 |
MEIXNER v. GERMANY
| 4 |
Inadmissible
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Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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The applicant, Mr Rolf Friedrich Meixner, is a German national who was born in 1937 and lives in Schwalmstadt. On 21 March 1986 the Frankfurt Regional Court convicted the applicant, who had previously served a prison sentence for, inter alia, sexual assault, rape and theft, of triple murder in coincidence with two offences of aggravated robbery, falsification of documents and fraud, and sentenced him to life imprisonment. The court held that the applicant, who had committed the offences while on probation, acted intentionally, in two cases motivated by greed (Habgier) and to make another offence possible (Ermöglichung einer Straftat), and in one case to conceal an offence (Verdeckung einer Straftat). Based on an expert opinion it further held that the applicant tended to be brutal, had sadistic tendencies and was antisocial. On 26 October 2002, having first served the remainder of the previous sentence after probation had been revoked, fifteen years of the sentence had been served and the applicant became eligible for parole. On 13 October 2004 the prison authorities imposed certain restrictions on the applicant, inter alia solitary confinement. All restrictions were suspended again until, at the latest, 7 December 2004. By decision of 9 August 2005 the Gießen Regional Court found the restrictions unlawful as far as they were still in place after 13 November 2004. In April and May 2004 the applicant asked for a relaxation of the conditions of his detention, inter alia, prison leave (Hafturlaub) and leave to meet with his lawyer. The prison authorities refused the request; they found the risk that the applicant would use such leave to commit crimes or flee was too high. On 17 January 2006 the Kassel Regional Court dismissed an appeal by the applicant. The court held that the prison authorities had not abused their discretion when refusing the prison leave. As to the request for leave to meet his lawyer, it argued that the lawyer could visit the applicant in prison. On 14 July 2006 the Frankfurt Court of Appeal dismissed an appeal by the applicant. On 27 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving reasons. In view of his renewed request for a suspension of his sentence on probation in October 2003 the Gießen Regional Court ordered an expert opinion on the question whether the applicant continued to present a danger; the expert examined the applicant on 11 and 12 November 2004. On 7 February 2006 the Gießen Regional Court, after having heard the applicant and having regard to a report by the prison authorities as well as the expert opinion, refused to suspend the applicant’s life sentence on probation and decided that the “particular seriousness” of the applicant’s guilt warranted the continuation of his imprisonment until he had served twenty-five years. It primarily relied on the expert’s opinion, explained by him in person during a hearing, who had diagnosed a dissocial and narcissistic personality disorder and concluded that the risk of the applicant again committing crimes when released had not substantially decreased. The Regional Court found that these findings alone warranted the refusal of a suspension of the sentence on probation in due consideration of the interests of the security of the public. It further noted that the applicant had been convicted of three offences of murder, committed shortly after he had been released from prison and while still on probation. Although the Regional Court observed that in view of his age it was unlikely that the applicant’s personality would change, it pointed out that a suspension of his sentence on probation could still become possible once he no longer presented a danger because of old age and related health problems. On 21 July 2006 the Frankfurt Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional Court’s findings that the degree of guilt, the circumstances of the crimes and the applicant’s personality, as well as his refusal of therapy, necessitated his further imprisonment, at least until he had served twenty-five years. On 24 July 2007 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant for adjudication. It found no fault in the lower courts’ detailed and reasoned decisions to refuse the suspension of the applicant’s sentence on probation and to order that he should remain in prison pursuant to the life sentence until he had served at least twentyfive years. Since the applicant had submitted neither a 1999 expert opinion he had referred to nor the 2005 expert opinion the Federal Constitutional Court could especially not find a violation of the lower courts’ duty to clarify the relevant facts (Aufklärungspflicht). Finally, it held that the lower courts had, as far as could be determined without having read the convicting judgment which the applicant had not submitted, correctly determined the “particular seriousness” of the applicant’s guilt. Pursuant to these provisions the court shall suspend the execution of the remainder of a sentence of imprisonment for life and grant probation, if, inter alia, fifteen years of the sentence have been served, the degree of the convicted person’s guilt does not require its continued execution and if this can be justified upon consideration of the security interests of the general public. When taking the decision, the following shall be taken into consideration; the personality of the convicted person; his previous history; the circumstances of his act; the extent to which the legal interest would be threatened in the event of recidivism; the conduct of the convicted person while serving his sentence; his living conditions; and the effects suspension could be expected to have.
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train
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001-106668
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ENG
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BGR
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CHAMBER
| 2,011 |
CASE OF AUAD v. BULGARIA
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Violation of Art. 3 (in case of expulsion to Lebanon);Violation of Art. 13;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award
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George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva
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7. The applicant was born in 1989 in Ain alHilweh, a Palestinian refugee camp located on the outskirts of Saida, Lebanon (see paragraphs 5255 below). He currently lives in Sofia, Bulgaria. 8. On 24 May 2009 the applicant arrived illegally in Bulgaria and on 7 July 2009 applied for asylum, citing his fear that if he returned to Lebanon he would be killed or ill-treated by members of the Islamic militant group Jund alSham (see paragraphs 59, 60, 62, 78, 80 and 81 below). His identity was established on the basis of a certificate issued on 26 November 2008 by the Palestine Liberation Organisation. 9. The applicant’s story was that he, like his father who had gone missing in 1991, was a member of Fatah (see paragraphs 59 and 60 below). He had been appointed to a salaried position in the movement with the protection of its head of security in Ain alHilweh, colonel Maqdah (see paragraphs 54, 55 and 84 below). His job had consisted in organising rallies in support of various Palestinian organisations, commemorations of the Palestinian revolution and protests against the founding of Israel. In early 2009, a neighbour of his who was a member of Jund alSham had been killed, the killing having been facilitated by information supplied by a friend of the applicant, also a member of Fatah. In reprisal, members of Jund alSham had killed the applicant’s friend. To protect himself, the applicant had moved to his sister’s house, located in a part of the camp which was under the control of Fatah. In July 2009 armed men had fired rounds at his sister’s house, shouting his name. Later on colonel Maqdah had told the applicant that those men had been members of Jund alSham seeking revenge for their associate’s killing, that he was not able to protect him from them, and that he should leave Lebanon. 10. In August 2009 the applicant tried to leave Bulgaria with false documents. He was arrested by the police at the BulgarianGreek border. On 21 August 2009 the Petrich District Court approved a plea bargain whereby the applicant pleaded guilty to offences of illegally crossing the border and trying to deceive a public officer by using an official document issued to another person. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 Bulgarian levs. 11. In a decision of 29 October 2009, the State Refugees Agency refused to grant the applicant refugee status, but granted him humanitarian protection under section 9(1)(3) of the Asylum and Refugees Act of 2002 (see paragraph 29 below). The reasons for the decision described the applicant’s story, as related by him, and continued: “Bearing in mind the situation in the Palestinian [refugee] camp [Ain alHilweh],which is characterised by serious armed clashes between ‘Fatah’ and militants from ‘Jund alSham’, there are grounds to grant the applicant humanitarian protection, due to the real risk of infringements consisting of personal threats against his life in a situation of internecine armed conflict. Refugee camps in Lebanon have their own system of governance. Camp administrations are not elected by popular vote, but reflect the predominance of one or more groups or formations that constantly vie for territorial control, which often leads to armed clashes. In an interview for the news agency IRIN of April 2008, the head of security of ‘Fatah’ in Lebanon colonel Maqdah said that ‘Fatah’ will take care of security in all Palestinian camps in order to put an end to the spread of radical groups. ... The applicant states that he has been a member of ‘Fatah’ since 2006, but there are no acts of persecution against him by the authorities or by another political organisation that the State is unable to oppose. He does not point to any of the other relevant grounds under section 8(1) of the Asylum and Refugees Act justifying fear of persecution, such as race, religion, nationality, membership of a particular social group, or political opinion or belief. That leads to the conclusion that there are no grounds to grant asylum under the Asylum and Refugees Act [of 2002]. The [applicant] does not raise grounds justifying the application of section 9(1)(1) or (1)(2) of [the Act]. The evidence in the file points to grounds to grant humanitarian protection. There are indications of circumstances falling within the ambit of section 9(1)(3) of [the Act]. The abovementioned circumstances show that there are grounds to take into account [the applicant]’s personal situation in connection with the general social and political situation in the Palestinian camps in Lebanon. The evidence gathered during the proceedings shows that there is a real danger and risk of encroachments upon [the applicant’s] life and person. Under section 75(2) of the [Act], the [applicant]’s assertions, set out in detail in the record drawn up by the interviewing official, must be presumed to be truthful. ... As required by section 58(7) of [the Act], the State National Security Agency was invited to make written comments. Those comments, dated 21 August 2009, contain no objection to granting the [applicant] protection in the Republic of Bulgaria.” 12. The applicant did not seek judicial review of the refusal to grant him refugee status. 13. During that time he was settled, together with other Palestinians, in a housing facility operated by the State Refugees Agency. 14. On 17 November 2009 an agent of the State Agency for National Security proposed to expel the applicant on national security grounds and to place him in detention pending the carrying out of that measure. In support of the proposal he said that the applicant was a member of Usbat alAnsar, which he described as a Sunni terrorist organisation acting in close cooperation with Hamas, Jund alSham, Ansar Allah and others (see paragraphs 54, 5961 and 78 below). The applicant was alleged to have taken part in “wet jobs” for the organisation and in the assassinations of more than ten members of a Palestinian political party; he was being sought by the Lebanese authorities in connection with that. He was a relative of one of the leaders of Usbat alAnsar. The available information showed that the applicant followed strictly the organisation’s ideas and would unhesitatingly follow the orders of its leaders. This had been confirmed by partner security services. It had also been established that the applicant kept contacts with two asylum seekers who were known to adhere to a terrorist organisation active in Ain alHilweh. One of them had been implicated in the killing of a member of a Palestinian political party and kept close contacts with Usbat alAnsar and Fatah alIslam (see paragraph 65, 72, 74, 78 and 81 below). All of that showed that the applicant by reason of his previous and current activities presented a serious threat to the national security of Bulgaria, and that his presence in the country discredited it as a reliable partner in the fight against international terrorism. 15. On 17 November 2009 the head of the State Agency for National Security made an order for the applicant’s expulsion. He also barred him from entering or residing in Bulgaria for ten years, “in view of the reasons set out in [the abovementioned] proposal and the fact that his presence in the country represent[ed] a serious threat to national security”. The order relied on sections 42 and 44(1) of the Aliens Act 1998. No factual grounds were given, in accordance with section 46(3) of the Act (see paragraph 33 below). The order further provided that it was to be brought to the attention of the applicant and was immediately enforceable, as provided by section 44(4)(3) of the Act (see paragraph 34 below). 16. Concurrently with that order the head of the State Agency for National Security made an order for the applicant’s detention pending deportation (see paragraphs 42 and 43 below). He reasoned that the information featuring in the proposal showed that the applicant would try to prevent the enforcement of the expulsion order, and accordingly directed that the detention order should be immediately enforceable. He also instructed the immigration authorities urgently to take all necessary steps to enforce the expulsion order. 17. On 20 November 2009 the applicant was arrested and placed in a special detention facility pending enforcement of the expulsion order. He submits that when brought there he was informed about the two orders against him but was not given copies of them. 18. On 19 May 2011, in view of the impending expiry of the maximum permissible period of detention pending deportation – eighteen months (see paragraph 44 below), the head of the State Agency for National Security made an order for the applicant’s release. The applicant was set free the following day, 20 May 2011. He was placed under the obligation to report daily to his local police station. He submits that he is currently without any identification documents, means of support, or the possibility to work. 19. On 4 December 2009 the applicant made an application for judicial review of the expulsion order. He also challenged his detention. He argued that the order was unlawful and that he had not engaged in any illegal activities while in Bulgaria. 20. On 23 March 2010 the applicant, having acquainted himself with an excerpt of the proposal for his expulsion and other documents in the file, asked the court to order the authorities to specify – if need be, subject to restrictions resulting from the use of classified information – what was the basis for their belief that he was being sought by the Lebanese authorities “in connection with the killing of members of Palestinian political parties”, as noted in the proposal. He also asked the court to order the authorities to specify whether they had used special means of surveillance to gather information about him; if yes, to order them to produce a copy of the requisite warrant and other documents. 21. The Supreme Administrative Court heard the case on 27 April 2010. 22. In a memorial filed on that date the applicant argued that the data on which the authorities had relied to order his expulsion were incorrect, vague, unverified, internally inconsistent and unreliable. It was not true that he was a member of Usbat alAnsar; quite the opposite, he was being sought by terrorist organisations, and had for that reason fled Lebanon. His relative referred to as a terrorist in the proposal was in fact an official of a school administered by the United Nations. There were no concrete elements in support of the assertion that he was being sought by the Lebanese authorities. The Bulgarian authorities had not tried to verify that through official channels, as was possible under the treaty between Bulgaria and Lebanon for mutual cooperation in criminal matters. The lack of concrete information on those issues prevented him from presenting evidence to rebut the allegations against him. He also pointed out that the State Agency for National Security had not objected to his receiving protection in Bulgaria during the asylum proceedings (see paragraph 11 above). Lastly, he drew attention to the fact that he had been granted humanitarian status on the basis of a risk to his life, and argued that his expulsion would breach the principle of “nonrefoulement” and Article 3 of the Convention. 23. In a final judgment of 22 June 2010 (реш. № 810 от 22 юни 2010 г. по адм. д. № С4/2010 г., ВАС, VІІ о.), the Supreme Administrative Court upheld the expulsion order in the following terms: “The order was issued on the basis of the reasons set out in proposal no. T65347/17.11.2009 and the factual ground featuring in section 42(1) of the Aliens Act [of 1998 – see paragraph 33 below] – the alien’s presence in the country poses a serious threat for national security. The proposal for imposing the coercive measure in issue says that [the applicant] was born on 30 November 19[8]9 in the refugee camp ‘Ain alHilweh’. He became a member of the terrorist radical Islamic organisation ‘Asbat alAnsar’, which is active on the territory of that camp. That organisation works in close cooperation with similar organisations, including ‘Hamas’. The [applicant] was member of a ‘wetwork’ squad that targeted also members of a Palestinian political party. It is not in dispute that the applicant is a relative of [A] who, according to operative information, is one of the leaders of ‘Asbat alAnsar’. He follows strictly the organisation’s ideas and would carry out without hesitation the orders of its leaders. [The applicant] entered the territory of the county in June 2009 and applied for asylum. However, in August that year he tried to leave the country with forged documents, heading towards western Europe. He was arrested by the border police at [a checkpoint at the BulgarianGreek border]. [On] 21 August 2009 the Petrich District Court ... approved a plea bargain whereby [the applicant] pleaded guilty to offences under Articles 279 § 1 and 318 of the Criminal Code[: illegal crossing of the border and trying to deceive a public officer by using an official document issued to another person]. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 [Bulgarian] levs. According to operative information, he is in contact with [B] and [C], who are present in the country as asylum seekers. There is information that M.I. is also a member of Jund alSham and has taken part in the assassination of a member of ‘Fatah’ in ‘Ain alHilweh’, in connection with which he is being sought by the Lebanese authorities. [C] is an adherent of the terrorist organisation ‘Asbat alAnsar’ and takes part in a human trafficking channel from Lebanon to western Europe that is used by members of Lebanese terrorist organisations. It is known that there are contacts between [D] and individuals who reside in western Europe and who sympathise with ‘Jund alSham’. The proposal makes a reasoned assumption that, due to his earlier and present activities the [applicant] presents a serious threat to the security of the Republic of Bulgaria, within the meaning of section 4 of the State Agency for National Security Act [of 2007], and his presence in the country is liable to discredit our country as a reliable partner in the fight against international terrorism. The written evidence in the case includes excepts nos. RB 20200100103T63594, 95 and 96 of 12 April 2010. By decision no. 513 of 29 October 2009, the State Refugees Agency refused to grant [the applicant] refugee status. The assertions in the application that [the applicant] resides lawfully on the territory of the country have not been proven. The negative assertions in the application that he has not taken part in unlawful activities cannot be regarded as established, because the specialised agency has made findings in that regard. Under section 46(3) of the Aliens Act [of 1998], expulsion orders do not point to the factual grounds for the imposition of the coercive measure; those grounds are contained in the proposal for its imposition. The proposal shows that there are indications of encroachments on national security, falling within the remit of the State Agency for National Security under section 4(1)(11) and (14) of the State Agency for National Security Act [of 2007]: international terrorism and crossborder organised crime, which creates a threat for national security. The existence of such indications does not require proof beyond doubt of acts directed against the security of the county. There are sufficient grounds to impose a coercive measure if there are indications which can lead to a reasonable assumption that the applicant’s presence creates a serious threat to national security. The factual data gathered through operative methods and set out in proposal no. RB 20200100103T65347 of 17 November 2009 constitute grounds to make a reasonable assumption that this applicant’s presence does create a serious threat to national security. The existing data about the applicant’s activity on the country’s territory show the existence of the grounds set out in section 42 of the Aliens Act [of 1998 – see paragraph 33 below]. A coercive measure, such as that envisaged by section 42 of the Aliens Act, has a preventive character, it aims to prevent actions directed against the country’s security. For it to be imposed, it is not necessary to carry out a full inquiry into the information that has been gathered or seek proof for it, because this is not a case involving the imposition of an administrative sanction. The applicant’s statement, made in open court, that he does not wish to be returned to Lebanon, where his life is under threat, is irrelevant for the present proceedings. Under section 42(2) of the Aliens Act, the withdrawal of the right of an alien to reside in the Republic of Bulgaria and the imposition of a ban on entering its territory inevitably flow from the imposition of the coercive measure under subsection 1 – expulsion. The order complies with the legal requirements. The coercive measure has been imposed by the competent authority under section 44 of the Aliens Act [of 1998], in due form and in compliance with the rules of administrative procedure, the substantive law norms and the aim of the law, and for those reasons the application for judicial review must be rejected as illfounded.” 24. The legal challenge to the applicant’s detention pending deportation (see paragraph 19 above) was transmitted to the Sofia City Administrative Court. In the course of the ensuing proceedings the court was provided with an excerpt of the expulsion proposal. In a final judgment of 9 February 2010 (реш. № 2 от 9 февруари 2010 г. по адм. д. № С66/ 2009 г., САС, І о.), it upheld the order for the applicant’s detention, finding that it had been made by a competent authority, in proper form, in line with the applicable substantive and procedural rules, and in conformity with the aim of the law. It went on to say that there was enough evidence that the applicant would try to hinder the enforcement of the order for his expulsion. 25. On an unspecified date in the summer of 2010 the Sofia City Administrative Court, acting of its own motion, as required under new section 46a(4) of the 1998 Aliens Act (see paragraph 45 below), reviewed the applicant’s continued detention (адм. д. № 3872/2010 г., САС). It confirmed it for a further six months. 26. On 7 December 2010, again acting of its own motion, the Sofia City Administrative Court confirmed the applicant’s detention for a maximum of a further six months, until 20 May 2011 (опр. № 4227 от 7 декември 2010 г. по адм. д. № 9061/2010 г., САС, І о.). It noted that the detention had already lasted almost twelve months and by law could be prolonged for a maximum of eighteen months. There existed impediments to the enforcement of the order for the applicant’s expulsion. He did not have the required travel document that would enable him to enter Lebanon. In spite of three requests, the Lebanese embassy had failed to issue such a document. The case thus fell within the ambit of section 44(8) of the Aliens Act 1998 (see paragraph 44 below). 27. Article 27 of the Constitution of 1991 provides as follows: “1. Aliens who reside in the country lawfully cannot be removed from it or delivered to another State against their will except under the conditions and in the manner provided for by law. 2. The Republic of Bulgaria shall grant asylum to aliens persecuted on account of their opinions or activities in support of internationally recognized rights and freedoms. 3. The conditions and procedure for granting asylum shall be established by law.” 28. Bulgaria acceded to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees on 12 May 1993, and they came into force in respect of it on 10 August 1993. 29. Section 9(1)(3) of the Asylum and Refugees Act of 2002 provides that individuals forced to leave or stay out of their country of origin because they faced a real risk of suffering death or illtreatment as a result of an internal or an international conflict are to be granted humanitarian protection. Section 9(2) makes it clear that the risk may stem from the authorities or from organisations against which the authorities are unable or unwilling to act. Section 9(5) provides that aliens cannot be granted humanitarian protection if in part of their country of origin there is no real risk of serious encroachments and there they can freely and lastingly enjoy effective protection. Under section 75(2), when the authorities determine an asylum application they have to take into account all relevant facts concerning the applicant’s personal situation, country of origin, or relations with other countries. The section also provides that when an applicant’s statement is not supported by evidence, it must be presumed to be true if the applicant has endeavoured to substantiate his or her application and has provided a good explanation for the lack of evidence. Section 58(7) requires the authorities processing asylum applications to obtain written comments by the State Agency for National Security. 30. Section 4(3) provides that individuals who have been granted protection under the Act or have entered Bulgaria to seek such protection cannot be returned to the territory of a country where their life or freedom are at risk on account of their race, religion, nationality, membership of a social group, their political opinions or views, or where they may face a risk of torture or other forms of cruel, inhuman or degrading treatment or punishment. However, section 4(4), which reflects a rule laid down in Article 33 § 2 of the 1951 Convention, provides that that benefit may not be claimed by aliens where there are grounds to regard them as a danger to national security. There is no reported caselaw under that provision. 31. Section 67(1) provides that expulsion orders are not enforced until the asylum proceedings have been concluded. By section 67(2), expulsion orders are revoked if the person concerned has been granted asylum or humanitarian protection. However, those two provisions are not applicable to, inter alia, aliens whose presence in the country may be regarded as dangerous for its national security (section 67(3)). 32. A detailed description of the evolution of the law governing expulsion on national security grounds until 2009 can be found in paragraphs 1826 of the Court’s judgment in the case of C.G. and Others v. Bulgaria (no. 1365/07, 24 April 2008) and paragraphs 3036 of the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, 11 February 2010). The relevant provisions are contained in the Aliens Act 1998, as amended, and the regulations for its application. 33. Section 42(1) of the Act provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order. However, expulsion orders issued on national security grounds do no indicate the factual grounds for imposing the measure (section 46(3)). Under section 42(2), expulsion must be accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. 34. Expulsion orders issued on national security or public order grounds are immediately enforceable (section 44(4)(3)). However, if expulsion cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be suspended until the relevant obstacles have been overcome (section 44b(1)). 35. Expulsion orders may be challenged before the Supreme Administrative Court, whose judgment is final (section 46(2)). The lodging of an application for judicial review does not suspend the enforcement of the order under challenge (section 46(4)). 36. Article 166 § 2 of the Code of Administrative Procedure of 2006 provides that a court examining an application for judicial review may suspend the enforcement of the administrative decision under review, even if the administrative authority has directed that it should be immediately enforceable, if enforcement might cause the applicant harm that is considerable or hard to redress. Suspension requests are heard in open court and determined by means of a ruling that is amenable to appeal (Article 166 § 3). In a decision of 27 January 2009, the Supreme Administrative Court held that the enforcement of expulsion orders issued on national security grounds could not be suspended. If immediate enforcement was required by statute, it could be suspended by the court only if the same statute specifically allowed that, whereas section 46(4) of the Aliens Act 1998 expressly precluded that possibility (опр. № 1147 от 27 януари 2009 г. по адм. д. № 393/2009 г., ВАС, петчленен състав). 37. In an interpretative decision of 8 September 2009 (тълк. реш. № 5 от 8 септември 2009 г. по тълк. д. № 1/2009 г., ВАС, ОСК), the Plenary Meeting of the Supreme Administrative Court stated that Article 166 § 2 applied even where the immediate enforceability of administrative decisions was required by statute, provided that the law did not expressly preclude judicial review. The effect of that ruling on the possibility of suspending the enforcement of expulsion orders issued on national security grounds is unclear. 38. Section 44a of the Aliens Act 1998, added in 2001, provides that an alien whose expulsion has been ordered on national security or public order grounds cannot be expelled to a country where his or her life or freedom would be in danger, or where he or she may face a risk of persecution, torture, or inhuman or degrading treatment. In its early caselaw under that provision, the Supreme Administrative Court accepted that the State Refugees Agency could apply it when dealing with asylum requests (реш. № 5848 от 17 юни 2002 г. по адм. д. № 7864/2001 г., ВАС, ІІІ о.; реш. № 6048 от 24 юни 2002 г. по адм. д. № 1298/2002 г., ВАС, ІІІ о.; реш. № 7102 от 16 юли 2002 г. по адм. д. № 994/2002 г., ВАС, ІІІ о.; реш. № 9203 от 16 октомври 2002 г. по адм. д. № 4948/2002 г., ВАС, ІІІ о.; реш. № 10069 от 12 ноември 2002 г. по адм. д. № 996/2002 г., ВАС, ІІІ о.). However, in a judgment given in 2003 (реш. № 1400 от 18 февруари 2003 г. по адм. д. № 8154/2002 г., ВАС, ІІІ о.), the court held that the Agency had no power to rule on the application of section 44a and that this matter fell within the remit of the immigration authorities. In a 2007 judgment concerning an application for judicial review of a deportation order, the court examined, albeit briefly, the substance of a claim under that provision (реш. № 9636 от 15 октомври 2007 г. по адм. д. № 2222/2007 г., ВАС, ІІІ о.). However, in three 2008 judgments it held that the prohibition spelled out in section 44a does not concern the lawfulness of an expulsion order as such, but merely bars its enforcement. While in two of those cases the court went on to examine, albeit briefly, the substance of the claim that the person concerned was at risk (реш. № 6787 от 5 юни 2008 г. по адм. д. № 11461/2007 г., ВАС, ІІІ о.; реш. № 6788 от 5 юни 2008 г. по адм. д. № 11456/2007 г., ВАС, ІІІ о.), in the third it refused to do so, saying that solely the authorities in charge of executing an expulsion order have the power to apply section 44a (реш. № 7054 от 12 юни 2008 г. адм. д. № 10332/2007 г., ВАС, ІІІ о.). There are no reported cases concerning the application of section 44a by the immigration authorities. 39. If a deportee does not have a document allowing him or her to travel, the immigration authorities must provide one by contacting the embassy or the consulate of the State whose national he or she is. If that is not possible, such a document should be provided through the consular department of the Ministry of Foreign Affairs (regulation 52(1) of the regulations for the application of the Aliens Act 1998, issued in 2000, and superseded on 5 July 2011 by regulation 74(1) of the new regulations for the application of the Act). 40. Under regulation 71 of the new regulations for the application of the Aliens Act 1998 (superseding regulation 48 of the old regulations), in cases where expulsion orders are enforced through removal by air, the person concerned is to be escorted by immigration officers to his or her country of citizenship or another country of his or her choice to which he or she may be admitted. 41. A detailed history of the provisions of the Aliens Act 1998 governing detention of deportees may be found in paragraphs 3742 of Raza (cited above). The current regime is as follows. 42. Section 44(5) provides that if there are impediments to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station. 43. Under section 44(6), it is possible to detain a deportee in a special detention facility if his or her identity is unknown, if he or she hampers the enforcement of the expulsion order, or if he or she presents a risk of absconding. Under section 44(10), deportees are placed in the detention facilities pursuant to special orders that have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section 44(6). 44. Under section 44(8), which was enacted with a view to transposing Article 15 §§ 5 and 6 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals (see paragraphs 4648 below), detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months. 45. Section 46a provides for judicial review of the orders for the detention of deportees by the competent administrative courts. The application must be lodged within three days of their being issued, and does not stay their enforcement (subsection 1). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). In addition, every six months the head of any facility where deportees are being held must present to the court a list of all individuals who have been there for more than six months due to problems with their removal from the country (subsection 3). The court must then rule, on its own motion and by means of a final decision, on their continued detention or release (subsection 4). When the court sets aside the detention order, or orders a deportee’s release, he or she must be set free immediately (subsection 5). 46. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals came into force on 13 January 2009 (Article 22). Under Article 20, the Member States of the European Union were required to transpose the bulk of its provisions in their national laws by 24 December 2009. 47. Recital 16 of the Directive reads as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.” 48. Article 15 of the Directive, which governs detention for the purpose of removal, provides, in so far as relevant: “1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the thirdcountry national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. ... 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the thirdcountry national concerned, or (b) delays in obtaining the necessary documentation from third countries.” 49. On 10 August 2009 the Sofia City Administrative Court made a reference for a preliminary ruling by the European Court of Justice (“ECJ”), enquiring about the construction to be put on various paragraphs of that Article. 50. In his opinion, Advocate General Mazák expressed the view, inter alia, that it was important to note that the periods laid down in Article 15 §§ 5 and 6 of the Directive defined only the absolute and outside limits of the duration of detention, that it was clear from their wording that any detention prior to removal must be for as short a period as possible and may be maintained only as long as removal arrangements are in progress and executed with due diligence, and that detention must be brought to an end when the conditions for detention no longer exist or when there is no longer any reasonable prospect of removal. He went on to say that those maximum periods of detention were part of a body of rules intended to ensure that detention is proportionate, in other words that its duration is for as short a period as possible and, in any event, not for longer than the six months or the eighteen months provided for. 51. In its judgment of 30 November 2009 (Saïd Shamilovich Kadzoev v. Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti, case C357/09), the ECJ noted, inter alia, that the objective of Article 15 §§ 5 and 6 was to guarantee in any event that detention for the purpose of removal does not exceed eighteen months. It went on to rule that those provisions must be interpreted as meaning that the period during which enforcement of the deportation order has been suspended because the person concerned has challenged it by way of judicial review is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned remains in detention during that procedure. The court further ruled that Article 15 § 4 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15 §§ 5 and 6, corresponds to a reasonable prospect of removal, and that such a reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods. 52. There are twelve “official” Palestinian refugee camps in Lebanon: two in the north of the country, near Tripoli, five in the centre (four near Beirut and one near Baalbek), and five in the south (two near Saida and three near Tyre). In addition, there are dozens of informal gatherings, sometimes referred to as “unofficial camps”, spread throughout the country. The majority of Palestinian refugees in Lebanon are those displaced during the ArabIsraeli war of 1948 and their descendants. More Palestinians arrived in 1967 after the SixDay War, and in the 1970s after they were expelled from Jordan. The refugees fall into three categories: those registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“the UNRWA”) (“registered refugees”), who are also registered with the Lebanese authorities; refugees registered with the Lebanese authorities but not with the UNRWA (“non-registered refugees”); and refugees registered neither with the UNRWA nor with the Lebanese authorities (“nonID refugees”). According to the UNRWA, on 30 June 2010 there were 427,057 registered refugees in Lebanon; 226,767, or 53.1% of them, were living in the “official” camps. However, according to a report by the International Crisis Group (see paragraphs 76 and 77 below), many observers believe that the numbers cited by the UNRWA are inflated and fail to take account of the impact of the 197590 Lebanese Civil War and subsequent waves of Palestinian departures; according to their estimates, in 2009 the refugees were between 200,000 and 250,000. There are an estimated 10,000 to 35,000 nonregistered refugees and 3,000 to 5,000 nonID refugees. By law, Palestinian refugees in Lebanon are considered foreigners and are subject to various restrictions (for details, see Amnesty International: Exiled and suffering: Palestinian refugees in Lebanon, October 2007). 53. Ain alHilweh (other transliterations from Arabic include Ain alHelweh, Ein elHilweh, Ein alHelweh, and Ayn Hilwa) is one of the two “official” camps located near Saida (Sidon). It was established at the outskirts of the town in 1948 to accommodate refugees from northern Palestine. After displacements resulting from the Lebanese Civil War, it became the biggest refugee camp there, in terms of both population and area. According to the UNRWA, it contains more than 47,500 registered refugees; according to the abovementioned International Crisis Group report (see paragraphs 76 and 77 below), the number is closer to 70,000. It covers an area of about two square kilometres, and is one of the most densely populated camps. Like the other Palestinian refugee camps in Lebanon, it is not controlled by the Lebanese authorities, but by local Palestinian factions. The Lebanese Army has checkpoints at the entrances to the camp. 54. In an article published on 7 January 2010 following a visit by a correspondent to Ain alHilweh, the Hong Kongbased newspaper Asia Times Online described the camp as divided into two sections, Upper and Lower streets, which led to a network of arterial alleyways. Lower Street was regarded as the bastion of the radical Islamists in the camp. According to a local figure quoted in the article, there were three broad coalitions inside the camp: the Tahalof (Cooperative), the Palestinian Liberation Organization, and Islamic factions. The Tahalof consisted of seven factions, including the Islamic Resistance Movement (Hamas) and Palestinian Islamic Jihad. The Palestinian Liberation Organization faction was made up of five groups and was dominated by Fatah. The Islamic faction comprised three groups: Asbat alAnsar, Harakat Mujahideen Islamiyah, and Ansar Allah. The article went on to mention interFatah conflicts inside the camp, saying that they centred on veteran Fatah leader Mounir Maqdah and his rival Mahmoud AbdulHameed AlIssa. Maqdah was described as being regarded as a renegade by some Fatah leaders, partly because of his close links to Palestinian Islamists. However, a minority faction in Fatah viewed his links to Islamists as a vital asset. 55. The United Kingdom Home Office Country of Origin Information Report on Lebanon, issued in July 2006, says the following about Ain alHilweh: “6.142 ... ‘There are many displaced Palestine refugee families in this camp who were forced to flee from Tripoli and other areas of the country during the hostilities in the eighties. Ein elHilweh has endured much violence, particularly between 19821991, which resulted in a high number of casualties and near total destruction of the camp. Shelters are small and very close to each other. Some still have zinc sheet roofing. UNRWA constructed a multi-storey housing complex in 19931994 to accommodate 118 displaced families mainly from Nabatieh camp, which was destroyed during the [sic] 1973 by Israeli military action. A number of displaced refugees continue to live on the edge of the camp in extremely poor conditions.’ ... ... 6.145 A 2003 paper by Are Knudsen, ‘Islamism in the Diaspora: Palestinian refugees in Lebanon’, states that ‘Ayn Hilwa, the most conflictridden camp in the country is surrounded by barbed wire and legal entry is only possible through a few checkpoints guarded by the Lebanese army, with secondary checkpoints manned by armed guards representing the popular committees.’ 6.146 According to Knudsen’s 2003 paper, Ein elHilweh’s political actors can be divided into three groups: loyalist, Islamist and oppositional. Knudsen detailed the different groups as follows: ‘The ‘loyalists’ are secular groups formed around PLO’s largest faction Fateh and share its secular ideology and political programme. The ‘Islamists’ are a heterogeneous mix of Palestinian and Lebanese Islamists with divergent ideologies and political agendas. While some remain ideologically opposed to Fateh and its policies visàvis Israel (Hamas, Islamic Jihad), others seek to break Fateh’s political hegemony in Lebanese refugee camps, if necessary by violent means (Osbat alAnsar). The ‘oppositional’ camp is likewise a heterogeneous coalition of secular parties, many of them breakaway factions from Fateh itself, which find a common ground in their difference with Fateh and the loyalists over their policy of appeasement vis-à-vis Israel. In the camps there is also a diverse range of committees and groups whose main function is not political but bureaucratic. Still, control of the popular committees and trade union groups does provide political gains and leadership of them is therefore coveted and sometimes turns violent.’ 6.147 The same source also contained a table listing the various political actors in Ein elHilweh, which categorised them into the ‘loyalist’, ‘Islamist’ or ‘oppositional’ groups: [Loyalist, which includes Fatah; Islamist, which includes the Ansar Group; and Oppositional]. 6.148 A June 2003 Middle East Intelligence Bulletin (MEIB) article recounted, in detail, the various groups and power struggles within Ein elHilweh over the last two decades. The article states that ‘Ain alHilweh, the largest Palestinian refugee camp in [then] Syrianoccupied Lebanon, has been linked to virtually every case of alQaeda activity in Lebanon, while renegade terrorists residing in the camp have been tied to the global terror network’s operations in Jordan, Turkey and elsewhere in the region.’ The article noted that, despite the status of Ein elHilweh as a ‘zone of unlaw’ serving Syrian interests, Damascus did not directly control most operatives within the camp and that the most radical groups were in fact antiSyrian. 6.149 The article also reported that Ein elHilweh was the stronghold of the Fatah movement during the late 1980s, that the Abu Nidal Organisation [ANO] had been defeated by Fatah in a bloody threeday war for control of the camp in September 1990 and also recounted the rebellion of Col. Mounir Maqdah against Yasser Arafat’s command. With Iranian finances and Hezbollah logistical support, he began training his own militia and ‘By 1995, Maqdah’s dissident faction [the Black September 13 Brigade], backed by proSyrian leftist groups, had established dominance over mainstream Fatah forces in the camp, in part because many of Arafat’s most loyal commanders had been transferred to the West Bank and Gaza.’ MEIB noted that ‘Hamas and Islamic Jihad, which had only a limited presence in the camp until the mid1990s, coordinated closely with Maqdah and were allowed to distribute Iranian funds to expand their bases of support.’ 6.150 Esbat alAnsar, the League of Partisans, has also had a presence in Ein elHilweh for over two decades and, ‘In the [sic] late 1998, Esbat alAnsar began receiving significant funding from alQaeda, thoroughly transforming both its infrastructure and its goals. The group’s military wing, which now paid recruits monthly salaries for the first time, grew to a force of 150300 fighters, dozens of whom were sent to bin Laden’s training camps in Afghanistan.’ Due to its increased financial resources, the group was able to buy weapons and also move more freely, as members could now pay the bribes needed to pass through Lebanese security checkpoints. The latter benefit meant that ‘It quickly established close links with radical Islamists in the northern port of Tripoli and the nearby Badawi and Nahr elBared refugee camps.’ 6.151 Syrian concerns over the rise of Islamist groups in the camp resulted in the Syrian authorities allowing Fatah to reassert its authority in the Ein alHilweh, which included Mounir Maqdah who had rejoined Fatah in late 1998, primarily by pouring Palestinian Authority (PA) funds into the camp. However, with the in absentia conviction of Fatah’s leader in Lebanon, Sultan Abu alAynayn [based in Rashidieh camp], of forming an armed gang and the subsequent arrest of three senior Fatah officials, Syrian support of Fatah’s authority in Ein el-Hilweh was again curtailed, seemingly in favour of Esbat alAnsar. 6.152 MEIB also recounted the presence of other groups in Ein elHilweh, such as Jamal Suleiman’s Fatah’s Martyrs’ Battalion; the Popular Front for the Liberation of Palestine (PFLP); the 10 to 20 fighters who constituted the remnants of the Dinniyeh Group – initially a 200300 strong group of Islamic militants who, in January 2000, had failed in an attempt to establish an Islamic ‘ministate’ in north Lebanon – who fled to Ein elHilweh following the defeat of the group by 13,000 Lebanese troops; and the Esbat alAnsar breakaway group – Esbat alNour – which was led by the eldest son of the original group’s founder: ‘[Abdullah] Shreidi attracted only a few dozen of the [Esbat al-Ansar] movement’s fighters, as well as the Dinniyeh militants for whom he had provided shelter.’ The article states that ‘Another small, but important alQaeda affiliate is AlHaraka alIslamiya alMujahida (The Islamic Struggle Movement), led by Sheikh Jamal Khattab, the imam of AlNour Mosque in the Safsaf neighbourhood of Ain alHilweh.’ 6.153 MEIB detailed the fluctuating nature of power within the camp, reporting on the various outside influences of the Syrian and Iranian regimes, Hezbollah and AlQaeda, and also the political and physical conflicts between the groups inside Ein elHilweh.” 56. The United Kingdom Border and Immigration Agency periodically issues Operational Guidance Notes (“OGNs”) which evaluate the general, political and human rights situation in a given country and provide guidance on the nature and handling of the most common types of asylum or subsidiary protection claims by persons fleeing that country. 57. The latest OGN on Lebanon was issued on 10 June 2009. It noted that Palestinian refugees were not able to obtain Lebanese citizenship and were not nationals of any other country. Thousands of Palestinians did not have any form of identification and were not receiving assistance from UNRWA. Some 20,000 Palestinians were believed to have been naturalised as Lebanese. However, it appeared that the status of some of the naturalised Palestinians was not secure as there were reports that their Lebanese nationality could be annulled. 58. The OGN referred to two immigration tribunal rulings (KK IH HE (Palestinians – Lebanon – camps) Palestine CG [2004] UKIAT 00293, and MM and FH (Stateless Palestinians, KK, IH, HE reaffirmed) Lebanon CG [2008] UKAIT 00014 (4 March 2008)), which found that the general treatment of Palestinians by the Lebanese authorities and the conditions in the Palestinian refugee camps in Lebanon were not such as to reach the threshold of severity that triggers the application of Article 3 of the Convention. On that basis, the OGN concluded that while the situation for Palestinians in Lebanon was poor with some differential treatment due to statelessness, conditions in the camps did not reach the threshold to establish either persecution or a breach of human rights. 59. With regard to claims based on fear of the Lebanese authorities due to membership of a Palestinian group, the OGN noted that the Palestinian political scene in Lebanon consisted of three broad categories. The first was members of the Palestinian Liberation Organisation, including Fatah, the Popular Front for the Liberation of Palestine, the Democratic Front for the Liberation of Palestine and several other less significant factions. The second category consisted of the Alliance of Palestinian Forces, known as Tahaluf, founded in 1993 in opposition to the Oslo peace accords. Its members did not recognise Israel and advocated armed struggle. It had regrouped into eight factions which enjoyed close relations with Syria: Hamas, Islamic Jihad, the Popular Front for the Liberation of PalestineGeneral Command (PFLPGC), Fatah alIntifada, alSaiqa, the Palestinian Popular Struggle Front, the Palestinian Liberation Front, and the Palestinian Revolutionary Communist Party. The third category comprised Jihadileaning Islamist forces, an eclectic assortment of movements that espoused the use of violence rather than a coherent or organised group. It included Usbat alAnsar, Hizb alHaraka alIslamiyya alMuhahida, and Ansar Allah, which engaged with the Lebanese State and Army. More extreme movements rejected any dealing with Lebanese institutions or Fatah and included Jund alSham, Usbat alNour, and other less significant groups. 60. According to the OGN, Fatah generally boasted a strong, often dominant, presence in the camps in south Lebanon, including Ain alHilweh. However, the camp was “a microcosm of the Palestinian political universe”, with all PLO, Tahaluf and Jihadi factions being represented and perpetually competing for influence and power, which resulted in frequent clashes. Palestinian militant groups continued to capitalise on the lack of government control within the camps. Some of those groups, such as Usbat alAnsar and Jund alSham, had been able to find safe haven within the camps, most notably in Ain alHilweh. In March 2008 heavy clashes had erupted in the camp between Jund alSham militants and fighters of Fatah. They had exchanged rocket fire for four hours until a ceasefire had been agreed following mediation by another Islamist group. A Fatah leader had said at least four people had been wounded in the clashes. The Jund alSham fighters would leave the camp and Fatah security agents would take control. The Lebanese army had blocked the entrance to the camp while allowing civilians to leave. A Palestinian official had said that the militants of Jund al-Sham had been angered by Fatah’s seizure of a commander of the group and his handover to the Lebanese army. The captive had been suspected of links to militant groups outside Lebanon. On 15 September 2008 a Jund alSham member had been killed in further clashes between the group and Fatah. Reports had said the Lebanese army had taken up positions at the entrance of the camp just metres away from the fighting. 61. On the basis of that information, the OGN concluded the following: “In assessing any risk from the Lebanese authorities to those who claim to have been a member of an armed Palestinian group, the type of group and level of involvement will need to be considered. Consideration should also be given to the reasons for leaving a refugee camp and how the claimant was able to avoid the authorities when leaving Lebanon. In general, the Lebanese authorities do not enter Palestinian camps. Palestinian groups operate autonomously in refugee camps and in the majority of cases would be able to offer the protection needed from within these camps. Claimants who have not been directly involved in criminal or militant acts and who support more moderate groups, such as Fatah, are unlikely to have come to the attention of or be of interest to the Lebanese authorities. A grant of asylum or Humanitarian Protection would not usually be appropriate in such cases. However, if it is accepted that the claimant has been involved in armed groups of particular interest to the Lebanese authorities, such as the Abu Nidal Organisation, Asbat AlAnsar/Al Nur and Jund alSham, or can otherwise demonstrate adverse interest and inability to access protection, it may be appropriate to grant asylum. Case owners should note that members of armed Palestinian groups have been responsible for numerous serious human rights abuses. If it is accepted that a claimant was an active operational member or combatant of an armed Palestinian group and the evidence suggests he/she has been involved in such actions, then case owners should consider whether one of the Exclusion clauses is applicable. Case owners should refer such cases to a Senior Caseworker in the first instance.” 62. With regard to claims based on fear of Islamic Palestinian Groups in the Ain alHilweh, such as Usbat al-Ansar, Jund al-Sham, or the Fatah Revolutionary Council (also known as Abu Nidal Organisation), the OGN observed that although Fatah’s control was weak, claimants could seek their protection. It went on to note that the refugee camps were outside the government’s control, which meant that in those areas the Lebanese authorities would not be able to offer sufficiency of protection from extremist Palestinian groups. However, the authorities would be able to offer protection outside the camps. A further option was internal relocation. Since the threat was localised in specific camps, relocation to another camp or elsewhere in Lebanon was feasible and not unduly harsh. In that respect, the OGN referred to two immigration tribunal rulings: BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004, and MA (Lebanon/Palestine, fear of Fatah, relocation) Palestine [2004] UKIAT 00112, and reached the following conclusion: “Within the [A]in [a]lHilweh camp there have been in the past, and continue to be, various factions of extremist Palestinian groups struggling for power leading to occasional outbreaks of violence. In individual cases consideration needs to be given as to why the claimant would be of interest to the extremist Palestinian groups and the level of that interest. The Tribunal have found that it is not unduly harsh to relocate between camps in Lebanon. Many of the most extreme groups have limited support in Lebanon, especially outside the refugee camps. It is therefore considered that a claimant could find safety in another camp or elsewhere in Lebanon where the specific extremist Palestinian group he fears does not have a significant presence. Protection may also be available to the claimant from other Palestinian groups, particularly Fatah. Therefore a grant of asylum or Humanitarian Protection would not usually be appropriate for claims on this basis.” 63. With regard to claims based on fear of Palestinian groups on account of collaboration with their enemies, the OGN observed that, since the Government of Lebanon did not exercise control over the Palestinian refugee camps, armed groups could operate relatively freely there. Therefore, sufficiency of protection would not generally be available from the Lebanese authorities inside the camps. For those who feared persecution at the hands of a rival group, protection inside the refugee camp could be available from another group. There was no evidence to show that the Lebanese authorities would be unwilling or unable to offer protection outside the refugee camps to those fearing Palestinian groups. Another option was internal relocation. The law provided for freedom of movement, and the Lebanese authorities generally respected that right, with some limitations. They maintained security checkpoints, primarily in military and other restricted areas. There were few police checkpoints on main roads or in populated areas. The security services used those checkpoints to conduct warrantless searches for smuggled goods, weapons, narcotics, and subversive literature. Few Palestinian groups had influence outside the refugee camps and relocation to another camp or elsewhere in Lebanon was not likely to be unduly harsh. In that respect, the OGN referred to the abovementioned ruling in BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004, and to the ruling in WD (Lebanon – Palestinian – ANO – risk) Lebanon CG [2008] UKAIT 00047, and concluded as follows: “Consideration needs to be given to the level of involvement as a collaborator, who the claimant worked for, what information the claimant was in a position to give and their position in that group. In the majority of cases within the refugee camps the Lebanese authorities would not be able to provide sufficiency of protection. However, few Palestinian groups have influence outside the refugee camps and the Lebanese authorities would be in a position to offer sufficiency of protection in the remainder of the country. However if the claimant is a known Israeli collaborator the Lebanese authorities might not offer protection. Internal relocation to another camp away from a particular Palestinian group feared would not be unduly harsh. Therefore in the majority of cases a grant of asylum or [h]umanitarian [p]rotection would not usually be appropriate.” 64. This report, issued on 8 April 2011, noted, inter alia, the following: “The law does not specifically prohibit torture or cruel, inhuman, or degrading treatment or punishment, and there were reports government officials employed such practices. According to human rights groups – including Amnesty International (AI), the Lebanese Association for Education and Training (ALEF), and HRW – torture was common, and security forces abused detainees. Human rights organizations reported torture occurred in certain police stations, the Ministry of Defense (MOD), and the ISF’s intelligence branch and Drug Repression Bureau detention facilities in Beirut and Zahle. ... Former prisoners, detainees, and reputable local human rights groups reported the methods of torture and abuse applied included hanging by the wrists tied behind the back, violent beatings, blows to the soles of the feet, electric shocks, sexual abuse, immersion in cold water, extended periods of sleep deprivation, being forced to stand for extended periods, threats of violence against relatives, deprivation of clothing, withholding of food, being deprived of toilet facilities, and continuous blindfolding. ... The law provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights for citizens but placed limitations on the rights of Palestinian refugees. The government cooperated with the UN Relief and Works Agency for Palestinian Refugees (UNRWA), the UNHCR, and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, and other persons of concern. The government maintained security checkpoints, primarily in military and other restricted areas. On main roads and in populated areas, security services used a few police checkpoints to conduct warrantless searches for smuggled goods, weapons, narcotics, and subversive literature. Government forces were unable to enforce the law in the predominantly Hizballahcontrolled Beirut southern suburbs and did not typically enter Palestinian refugee camps. According to UNRWA, Palestinian refugees registered with the MOI’s Directorate of Political and Refugee Affairs (DPRA) may travel from one area of the country to another. However, the DPRA must approve transfer of registration for refugees who reside in camps. UNRWA stated the DPRA generally approved such transfers. ... ... The amount of land allocated to official refugee camps in the country has only marginally changed since 1948, despite a fourfold increase in the registered refugee population. Consequently, most Palestinian refugees lived in overpopulated camps subject to repeated heavy damage during multiple conflicts. Poverty, drug addiction, prostitution, and crime reportedly prevailed in the camps, although reliable statistics were not available. In accordance with a 1969 agreement with the PLO, PLO security committees, not the government, provide security for refugees in the camps.” 65. These reports, issued on 5 August 2010, contained the following observations in respect of Lebanon: “While the threat of terrorist activity kept Lebanese security agencies on high alert throughout the year, 2009 was characterized by increased governmental efforts to disrupt suspected terrorist cells before they could act. The Lebanese Armed Forces (LAF), in particular, were credited with capturing wanted terrorist fugitives and containing sectarian violence. Several designated terrorist organizations remained active in Lebanon. HAMAS, The Popular Front for the Liberation of Palestine (PFLP), the Popular Front for the Liberation of PalestineGeneral Command (PFLPGC), Fatah alIslam (FAI), alQa’ida (AQ), Jund alSham, the Ziyad alJarrah Battalions, and several other splinter groups all operated within Lebanon’s borders. Hizballah, which is a legal entity and a major political party, is represented in Lebanon’s cabinet and parliament. In 2009, terrorist violence and counterterrorist activity included the following incidents: ... – In July, the Lebanese Army arrested Syrian citizen Mounjed alFahham at Beirut International Airport. Investigations revealed that alFahham intended to smuggle out of Lebanon FAI spiritual leader Oussama Chehabi, known as Abou Zahra; FAI leader Abdel Rahman Awad; and Abdel Ghani Jawhar, wanted for 2008 attacks against LAF soldiers in Tripoli. – On August 19, an LAF intelligence unit arrested Lebanese citizen Wissam Tahbish, reported to be a key member of Jund alSham. Tahbish was the primary suspect in the 1999 assassination of four Lebanese judges in Sidon. ... LAF commanders stressed that it has strengthened its surveillance capabilities over the 12 Palestinian camps and four Syrian-backed Palestinian military bases within its borders. Nevertheless, a porous border with Syria, weak internal camp security, and LAF reluctance to enter the Palestinian refugee camps all contributed to fears of another confrontation with an armed group, similar to the 2007 Nahr alBarid conflict. The most widely predicted venue for such a clash is in Lebanon’s most populous refugee camp, Ain al-Hilweh, near the southern city of Sidon. The camp is well known for HAMASFatah violence and as a suspected safe haven for fugitive FAI terrorists.” 66. In his tenth semiannual report on the implementation of Security Council resolution 1559 (2004), issued on 21 October 2009 (S/2009/542), the SecretaryGeneral of the United Nations said, inter alia, the following: “33. While the situation in most of the 12 Palestinian refugee camps remains relatively stable, the threat of internal violence that could potentially spill over into surrounding areas exists in a number of camps. Indeed, some of the refugee camps, in particular Ain elHilweh, continue to provide safe haven for those who seek to escape the authority of the State. In Ain elHilweh camp, several incidents were registered during the reporting period. On 16 June, two unidentified masked men opened fire at a Fatah officer, Ahmad Abul Kol. He was shot dead, while another individual was injured. The incident was followed by continuous shooting in different areas inside the camp over several days. Other shooting incidents were reported over the last months. 34. Notwithstanding these incidents, closer cooperation between Palestinian camp authorities and Lebanese authorities improved camp security during the reporting period. More needs to be done to contain potential tension in the camps. 35. The conditions of hardship inside Palestinian refugee camps are strengthening radical groups and therefore living conditions of Palestinian refugees in Lebanon should be improved, in the best interest of the wider security situation in the country. ... ” 67. In his eleventh report on the implementation of Security Council resolution 1701 (2006), issued on 2 November 2009 (S/2009/566), the SecretaryGeneral of the United Nations said, inter alia, the following: “42. The security situation in the UNRWA-administered Palestinian refugee camps remained relatively calm, with only minor incidents during the reporting period. This positive development is largely due to increased cooperation and coordination between Palestinian camp authorities and Lebanese security agencies. I remain, however, concerned about reports of threats to the United Nations posed by militant extremist groups present in Lebanon. Some of those elements have sought shelter in Palestinian refugee camps, including Ain elHilweh camp at Saida, to which Lebanese security agencies do not have access.” 68. In his twelfth report on the implementation of Security Council resolution 1701 (2006), issued on 26 February 2010 (S/2010/105), the SecretaryGeneral of the United Nations said, inter alia, the following: “38. On 15 February clashes between members of Fatah and members of radical Islamist movements broke out in the Palestinian refugee camp of Ain elHilweh, near Saida. One person was killed as a result of the fighting before calm was restored to the camp. This incident disrupted an otherwise generally calm situation in the camps. Lebanese authorities have continued to welcome cooperation arrangements with Palestinian authorities on security issues in the camps. ....” 69. In his eleventh semiannual report on the implementation of Security Council resolution 1559 (2004), issued on 19 April 2010 (S/2010/193), the SecretaryGeneral of the United Nations said, inter alia, the following: “34. The situation inside the Palestinian refugee camps remains a source of concern, although it has been generally calm over the reporting period. On a few occasions, security incidents were reported, in particular on 15 February, when fighting between members of Fatah and a radical Islamist movement in Ain alHilweh resulted in one fatality. The refugee camps continue to provide a safe haven for those who seek to escape the State’s authority, such as militants, extremists, criminals and arms smugglers, in addition to Palestinian armed factions across all party lines. Internal violence could potentially spill over into surrounding areas. While security coordination and cooperation between the Lebanese security agencies and the Palestinian factions have improved, Lebanese authorities do not maintain a permanent presence inside the camps ... More needs to be done to contain potential tension in the camps. ...” 70. In his twelfth semiannual report on the implementation of Security Council resolution 1559 (2004), issued on 18 October 2010 (S/2010/538), the SecretaryGeneral of the United Nations said, inter alia, the following: “28. While the situation in most of the 12 Palestinian refugee camps remains relatively stable, the threat that internal violence could spill over into surrounding areas still exists in a number of camps. Some of the camps continue to provide safe haven for those who seek to escape the authority of the State. During the reporting period, security sources registered several incidents in and around refugee camps involving the use of weapons. 29. Notwithstanding those incidents, closer cooperation between Palestinian camp authorities and Lebanese authorities has improved camp security. Meanwhile, Lebanese authorities do not maintain a permanent presence inside the camps ... More will need to be done to contain potential tension in the camps. 30. The situation of Palestinian refugees living in Lebanon remains, by and large, dire. For many years, the United Nations has urged the Government to improve the conditions in which Palestinian refugees live in Lebanon, without prejudice to the eventual resolution of the Palestinian refugee question in the context of a comprehensive peace agreement in the region, in particular given the detrimental effects of dismal living conditions on the wider security situation. ....” 71. In his Fourteenth report on the implementation of Security Council resolution 1701 (2006), issued on 1 November 2010 (S/2010/565), the SecretaryGeneral of the United Nations said, inter alia, the following: “39. The security situation inside the Palestinian refugee camps has been generally calm during the reporting period, with only a few incidents reported, thanks to increased cooperation on security issues between Palestinian factions and Lebanese security agencies. On 7 September, tensions rose in Ain alHilweh camp when a group believed to have sympathies for AlQaida publicly threatened to assassinate a local Fatah leader responsible for security cooperation with Lebanese authorities.” 72. In his fifteenth report on the implementation of Security Council resolution 1701 (2006), issued on 28 February 2011 (S/2011/91), the SecretaryGeneral of the United Nations said, inter alia, the following: “33. Lebanese authorities point to the good cooperation existing between the Lebanese Armed Forces and Palestinian security officials in the 12 official Palestinian refugee camps in the country. Only one major incident was reported in the Palestinian refugee camps in Lebanon during the reporting period. This involved the assassination in the Ain elHilweh camp on 25 December 2010 of Ghandi Sahmarani, a member of the disbanded Jund alSham group. Following his murder, a bomb was planted in a building that allegedly belongs to Fatah alIslam in Ain elHilweh; the bomb caused only material damage. Lebanese authorities attributed the assassination to in-fighting between rival groups in Ain elHilweh camp.” 73. In his thirteenth semiannual report on the implementation of Security Council resolution 1559 (2004), issued on 19 April 2011 (S/2011/258), the SecretaryGeneral of the United Nations said, inter alia, the following: “38. The situation in most of the 12 Palestinian refugee camps in Lebanon has remained relatively stable, although a few shooting incidents and explosions have been registered in some of the camps, in particular in Ain alHilweh, where, as recently as 31 March, clashes erupted between rival groups inside the camp. The threat of internal violence that could potentially spill over into surrounding areas still exists in a number of camps, as some of them continue to provide safe haven for those who seek to escape the authority of the State. 39. Notwithstanding those incidents, Lebanese authorities have acknowledged the existence of good cooperation between the Lebanese Armed Forces and Palestinian security officials in the camps. However, Lebanese authorities do not maintain a permanent presence inside the camps, despite the fact that the Cairo agreement of 1969 — which permitted the presence of Palestinian armed forces in the refugee camps — was annulled by the Lebanese Parliament in 1987. More will need to be done to contain potential tension in the camps. 40. The situation of Palestinian refugees living in Lebanon remains, by and large, dire. The United Nations continues to urge the Lebanese authorities to improve the conditions in which Palestinian refugees live in Lebanon, without prejudice to the eventual resolution of the Palestinian refugee question in the context of a comprehensive peace agreement in the region, in particular given the detrimental effects of dismal living conditions on the wider security situation.” 74. In its 2011 report on Lebanon, Amnesty International noted, inter alia, the following: “Palestinian refugees continued to face discrimination, which impeded their access to work, health, education and adequate housing. At least 23 recognized Iraqi refugees were reported to have been deported while scores of other refugees and asylumseekers were detained in what may amount to arbitrary detention. At least 19 people were convicted following unfair trials of collaboration with or spying for Israel; 12 of them were reported to have been sentenced to death. Reports continued of torture in detention. ... ... More than 120 individuals suspected of involvement with the Fatah alIslam armed group, detained without charge since 2007, continued to await trial before the Judicial Council. Most were allegedly tortured. ... ... – The trial began of Maher Sukkar, a Palestinian refugee, and 10 others before a military court on securityrelated offences including ‘forming an armed gang to commit crimes against people and property’. No investigation was carried out into his allegation that he ‘confessed’ under torture in April while held incommunicado. ... ... Reports continued of torture and other illtreatment of detainees and few steps were taken to improve the situation. However, the authorities did permit a visit of the UN Subcommittee on Prevention of Torture to the country in May [the report from that visit, which took place between 24 May and 2 June 2010, is still confidential], and in November announced that they would criminalize all forms of torture and illtreatment. Detainees continued to be held incommunicado, allegations of torture were not investigated and ‘confessions’ allegedly given under duress were accepted as evidence in trials. The government failed for a further year to submit its first report under the UN Convention against Torture, which Lebanon ratified in 2000. It also failed to establish an independent body empowered to inspect detention centres, as required by the Optional Protocol to the Convention against Torture to which Lebanon became party in 2008. 75. In its 2011 report on Lebanon, Human Rights Watch said that a number of detainees, especially suspected spies for Israel and armed Jihadists, had told the organisation that their interrogators had tortured them in a number of detention facilities, including the Ministry of Defence and the Information Branch of the Internal Security Forces. 76. The International Crisis Group is a nongovernmental organisation based in Brussels. Its stated aim is to “prevent and resolve deadly conflict”. It has field representations in, inter alia, Beirut, Damascus and Jerusalem. 77. In a comprehensive report on the Palestinian refugee camps in Lebanon (Nurturing Instability: Lebanon’s Palestinian Refugee Camps, issued on 19 February 2009) it described in detail the main political actors in the camps, the situation in each of them, the evolution of LebanesePalestinian relations since 1948, the status of the refugees, the interfactional conflicts in the camps, the conflicts within the Palestinian Liberation Organisation and Fatah, the failures in the management of the camps, and the spread of jihadism in them. The relevant parts of the report read as follows: “A number of analysts argued that power struggles within Fatah and widespread corruption within the movement are a reason for growing chaos within the camps. They have undermined the credibility and effectiveness of important institutions, such as the Armed Struggle Organisation and contributed to security breakdowns. Perhaps most important, neither the PLO nor Fatah has been able to deal effectively with the challenge of jihadi groups that reject the organisation’s nationalist project, strategy and alliances. In Ain al-Helweh for example, a conflict between two Fatah leaders significantly weakened the movement. Crisis Group interviews, Palestinian officials and residents, Beirut and Palestinian camps, April-December 2008. Some observers believe that violent acts in Ain al-Helweh attributed to jihadis were perpetrated by Fatah members opposed to [Abbas] Zaki [, a local Fatah leader]. ... This view was echoed by other Palestinian and Lebanese officials and sheikhs. ...” 78. In relation to jihadism in the camps, the report noted the following: “By the late 1980s, several converging factors promoted the rise of a salafist jihadi current in the camps: the absence of any dominant political force on the Lebanese Palestinian scene; the camps’ seclusion and isolation from the rest of the country; deteriorating living conditions; and the wider spread of Islamism throughout the Middle East. The collapse of the peace process in the late 1990s intensified the process. Taking advantage of young refugees’ identity crisis, socioeconomic despair and leadership vacuum, groups such as Jund alSham, Usbat alAnsar, Usbat alNour, alHaraka alIslamiyya alMujahida and, more recently, Fatah alIslam, prospered. This was particularly true in the North, a traditional Sunni stronghold which lacks a powerful Lebanese leadership, and in Ain alHelweh, which – unlike the other camps – is not under any single faction’s control. In Ain alHelweh in particular, jihadi groups presented themselves as alternatives to a PLO leadership viewed by many as discredited and corrupt and which the Islamists accused of capitulating to Israel and the West by renouncing Palestinian rights, notably the right of return. ... Largely beyond the state’s reach, the camps have become de facto sanctuaries for weapons but also for Lebanese and Palestinian fugitives sought by Lebanese authorities, including very often for minor offences. Caught in the camps and with no realistic prospect on the outside, they form a sizeable pool of potential jihadi recruits. Militant groups offer protection, a social network and, in some cases, a cause in which to believe. A PLO official remarked: ‘They are trapped in the camps and have no future outlook. They fear they will live the rest of their lives as fugitives and thus are easily manipulated’. ... ... the groups have a vested interest in maintaining the status quo in the camps, avoiding state interference and reaching tacit understandings with a variety of local actors. In Ain alHelweh, Usbat alAnsar is now seen by all Palestinian factions – including Fatah, its traditional foe – as a fullfledged participant in the camp’s security structure. Likewise, the leader of alHaraka alIslamiyya alMujahida, Sheikh Jamal Khattab, helps mediate between major Palestinian factions and more militant groups in Ain alHelweh. Ain alHelweh provides a good example of how local actors seek to avoid clashes with jihadi groups. For Hizbollah, a confrontation could deepen sectarian tensions, thereby further exposing it to the charge of being a narrow Shiite group. ... For its part, Fatah is wary of a confrontation with Usbat alAnsar whose outcome would not be guaranteed. The Future Movement and in particular the Hariri family fear that a crisis with jihadi groups could jeopardise their hegemony over the Sunni community. During a 2004 crisis, Usbat alAnsar joined in efforts to force Jund alSham from one of the camp’s northern neighbourhoods. ...” 79. The United States Committee for Refugees and Immigrants is a nongovernmental organisation founded in 1911 to serve refugees and immigrants and defend the rights of refugees, asylum seekers, and internally displaced persons worldwide. It publishes annual World Refugee Survey and Refugee Reports. 80. In its 2009 country profile on Lebanon, issued on 17 June 2009, it noted, inter alia, the following: “Clashes between Fatah and the fundamentalist, reportedly al Qaedainspired group Jund alSham in [A]in [al]Hilweh camp killed several Palestinians. Fighting killed three[:] a Jund alSham leader and two other Palestinians in July. Three died and three were wounded in a gun battle in midSeptember, and about a week later an explosion killed one and wounded four.” 81. In a news report of 21 March 2008 the BBC described Jund alSham (“Soldiers of Greater (or historic) Syria”) as a radical splinter group formed in 2002. The report said that the group had been blamed or had claimed responsibility for a number of bombings and gun battles in Lebanon and Syria. The previous years it had fought Lebanese troops after joining a revolt by fellow Islamic militant group Fatah alIslam which was centred on the northern Palestinian refugee camp of Nahr alBared. 82. On 17 May 2007 the news service IRIN, a nonprofit project of the United Nations Office for the Coordination of Humanitarian Affairs, reported that two Fatah members had been killed the previous week in clashes with Jund alSham in Ain alHilweh. It said that the group, whose active fighters were believed to number fewer than fifty out of an estimated membership of up to two hundred and fifty, had frequently been blamed by the Syrian authorities for a string of failed attacks in Syria over the previous two years. A revenge attack on 15 May 2007 by unidentified gunmen in the camp had wounded two Jund alSham members. 83. On 5 August 2007 IRIN reported that on 4 June 2007 fighters from Jund alSham, which it described as a loosely knit “takfiri” group – which Palestinians had said had no leader and had all but disbanded – had attacked a Lebanese Army checkpoint outside Ain alHilweh. The report said that the group was based in a small stretch of noman’sland known as Taamir, between the boundary of Ain alHilweh and one of the Lebanese Army checkpoints that overlooked the camp. Following the attack, Ansar Allah, another Palestinian Islamist group, had been tasked with heading an eightymember security force to control two of the camp border checkpoints, including the one overlooking the Jund alSham stronghold. The other camp border checkpoints, as well as security inside the camp, had remained the task of Fatah. The report went on to say that Fatah militants had had regular deadly clashes with Jund alSham over the previous six months, and also faced a challenge from other armed and more radical Palestinian groups, such as the Popular Front for the Liberation of Palestine General Command or Usbat alAnsar. 84. On 29 April 2008 IRIN reported that on 21 March 2008 heavy clashes had broken out between Fatah and members of Jund alSham. The fighting, which had prompted at least one hundred families to flee the camp, had been triggered after Fatah had seized a commander of Jund alSham who had fought the Lebanese Army the previous summer, and had handed him over to that Army. Fatah’s security chief in Lebanon, Mounir Maqdah, had told the agency that while the Jund alSham commander had been seized without enough coordination with other factions in Ain alHilweh, new security arrangements would ensure that no militants could exist beyond the reach of the interfactional committees. 85. In a recent incident, on 2 January 2010 a Fatah member was wounded during a halfhour skirmish with members of Jund AlSham. However, from reports in the press it appears that after that the situation in the camp calmed down and that on 4 August 2010 the two groups’ leaders in Ain alHilweh made a truce. 86. On 25 December 2010 the television network AlJazeera reported that a senior Jund alSham commander, Ghandi Sahmarani, had been found murdered in Ain el-Hilweh. It said that the death of Sahmarani “could be a major blow for [Jund alSham], which has had several leaders and members either killed or fleeing its ranks in the past few years”. 87. On 3 January 2011 the Lebanese news website NOW Lebanon reported on the latest developments with Jund alSham. The report said, inter alia, that colonel Issa, appointed by Palestinian President Mahmoud Abbas in May 2010 as the head of the Fatah security in the camps, had said that Fatah and other factions present in Ain alHilweh, mainly Usbat alAnsar, had reached a peace agreement. After talks, Usbat al-Ansar leaders had given Issa a free mandate to annihilate the threat he said jihadists and radicals posed to the camp’s security. Issa was quoted as saying that “[a]fter some battles with these factions, some died, many of them were captured and handed over to the Lebanese authorities, and those that were left fled. These groups took advantage of the instability in Lebanon and infiltrated the camp, and when we realized that they were among suspects in explosions taking place around stores, we started dealing with them with security means, we captured many of them, went to battle with some, and some, like I said, fled”. He had also said that some of the jihadists had left for Europe, adding that “[t]hey were originally in the ‘emergency’ area [at the outskirts of the camp] and started fleeing bit by bit. Some left to France, some to Belgium, some to Sofia in Bulgaria”. He had said that in midDecember 2010, five of the runaways had been sent back to Lebanon by the Bulgarian authorities. Among them had been Youssef Kayed, a rogue former Fatah member who had rebelled against the central command, Anwar alSidawi and Imad Karroum, both wanted by the Lebanese authorities. The report went on to say that according to another Fatah official in Ain alHilweh, what was left of the radical Islamists was no longer a threat without the head of the militant group. “The phenomenon of Jund alSham is over in the camps now and does not constitute a threat anymore,” he had told NOW. 88. In an article of 26 April 2011, titled “Fatah and Jund alSham clash in Ain alHilweh”, the Lebanese newspaper The Daily Star reported that during the previous weekend there had been armed clashes, with an exchange of missiles, between Fatah and members of Jund alSham. They had started after two unidentified individuals had refused to obey the commands of the security forces at a checkpoint. Jund alSham militants had joined the conflict after reportedly coming under fire from Fatah.
| 1 |
train
|
001-61836
|
ENG
|
SVK
|
CHAMBER
| 2,004 |
CASE OF TAM v. SLOVAKIA
| 3 |
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
8. The applicant was born in 1943 and lives in Bratislava. 9. On 11 August 1993 the applicant consulted a doctor to whom he complained of health problems due to the fact that his neighbour had tried to poison him. The doctor sent the applicant to the hospital in Ružinov in an ambulance. The accompanying document established by the doctor indicated that the applicant suffered from paranoid schizophrenia. In it the doctor requested that the applicant be treated as an in-patient. According to the applicant, he stayed in the central reception unit of the hospital in Ružinov for about ten minutes and during this time two injections were administered to him. Subsequently the applicant was brought against his will to the mental hospital in Pezinok. The chief physician of that hospital ordered that the applicant be released on 26 August 1993. 10. On 19 August 1993 the Bratislava-vidiek District Court gave a decision in which it found that the applicant was held in a mental hospital lawfully. The reasons for this decision read as follows: “The psychiatric hospital in Pezinok admitted Karol Tám, as an ill person, without his consent. The court took evidence with a view to assessing whether the grounds for his admission were lawful and concluded that the person concerned has suffered from a mental illness requiring treatment in a mental hospital.” 11. The District Court’s decision of 19 August 1993 was served on the applicant on 20 September 1996. On 1 October 1996 the applicant appealed and claimed that he had been taken to the mental hospital unlawfully. 12. On 30 April 1998 the Bratislava Regional Court quashed the District Court’s decision of 19 August 1993. The Regional Court found that the first instance court had failed to establish the relevant facts and had committed errors of both a legal and procedural nature. In particular, the District Court had not taken formal decisions to bring proceedings concerning the lawfulness of the applicant’s examination in a mental hospital and to appoint a guardian for the applicant as required by Article 191b §§ 1 and 2 of the Code of Civil Procedure. Furthermore, the District Court had not heard the applicant and the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified. The case was sent back to the District Court for a new adjudication. 13. In a letter dated 21 January 1999 a judge of the Bratislava III District Court (which had taken over the cases pending before the former Bratislavavidiek District Court) informed the applicant that the case would not be proceeded with as proceedings concerning the lawfulness of his placement in a mental hospital had never been formally brought. 14. On 26 February 1999 the Bratislava Regional Court instructed the District Court to deliver a decision on the case. 15. On 6 July 1999 the Bratislava III District Court discontinued the proceedings. The decision stated that the applicant had been released on 26 August 1993 and, therefore, the reasons for proceeding further with the case had fallen away. The applicant appealed on 9 August 1999. He claimed that his deprivation of liberty had been unlawful and that he had not been informed that a guardian had been appointed to represent him. 16. On 31 May 2000 the Bratislava Regional Court upheld the District Court’s decision of 6 July 1999. 17. At the relevant time the following constitutional provisions were in force. 18. Pursuant to Article 11, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms. 19. Article 144(1) provides that judges are independent and bound only by law. 20. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide. 21. The following relevant provisions of the Code of Civil Procedure were in force at the time when the applicant was deprived of liberty. 22. Article 191a (1) provided that medical institutions should inform a court, within twenty-four hours, that a person had been placed in their premises against his or her will. 23. Pursuant to Article 191b (1), the court in the district of which the medical institution was located should start proceedings, of its own initiative, with a view to establishing whether such a person’s deprivation of liberty was justified. 24. Paragraph 2 of Article 191b provided that the court should appoint a guardian for the person concerned unless he or she had a representative. 25. Under paragraph 3 of Article 191b, the court should hear the person concerned as well as the doctor treating him or her with a view to establishing whether the placement in the medical institution was lawful. 26. Paragraph 4 of Article 191b required that the court decide, within seven days after a person was brought to a medical institution against his or her will, whether such a measure was lawful. 27. Pursuant to Article 191c (1), such a decision was to be served, inter alia, on the person concerned unless the doctor indicated that that person was not able to understand its contents. 28. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 29. Pursuant to Article 13 (1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. 30. Article 13 (2) provides that in cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts should take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred. 31. Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings. 32. Section 18 (1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 33. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation. 34. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner. 35. Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov) was adopted on 28 October 2003. It will become operative on 1 July 2004 and will replace, as from that date, the State Liability Act of 1969. 36. The explanatory report to Act No. 514/2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights. 37. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature. 38. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 39. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for nonpecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969. 40. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7. 41. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated. 42. In judgment no. 7C 818/96-81 of 11 May 2000 the Žiar nad Hronom District Court granted compensation of 500,000 Slovakian korunas to a person whose son had been killed. The court noted that the defendant had been convicted of a murder by a criminal court and that his action grossly interfered with the personal rights of the plaintiff. 43. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income. In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969. The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows: “The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]... It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature. ... compensation for damage of a non-pecuniary nature has the character of a satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.”
| 1 |
train
|
001-103228
|
ENG
|
RUS
|
COMMITTEE
| 2,011 |
CASE OF MESHCHERYAKOV v. RUSSIA
| 4 |
No violation of Art. 6-1
|
Anatoly Kovler;Khanlar Hajiyev
|
4. The applicant was born in 1955 and lives in Tula. 5. On 1 November 2000 the applicant brought civil proceedings claiming damages from the regional police department. 6. The hearings scheduled at the Tsentralniy District Court of Tula (“the District Court”) for 17 January and 15 March 2001 did not take place as the judge was involved in different proceedings. The applicant also chose to amend his claims which required their communication to the respondent. 7. The hearing of 21 June 2001 was adjourned at the respondent’s request to collect certain evidence. 8. By judgment of 28 June 2001, the District Court awarded the applicant 249,292 Russian roubles (RUR) against the police department. The respondent appealed. 9. On 13 November 2001 the Tula Regional Court (“the Regional Court”) decided to postpone examination of the appeal pending the outcome of an inquiry initiated by the Supreme Court of Russia with the Constitutional Court of Russia concerning compliance of certain legal provisions with the Constitution. 10. Following the adoption of a judgment by the Constitutional Court on 19 June 2002, on 13 August 2002 the Regional Court resumed the appeal proceedings. 11. The appeal hearing of 19 September 2002 did not take place due to the illness of the respondent’s representative. 12. On 17 October 2002 the Regional Court examined the appeal, set the judgment aside and ordered re-examination of the case. 13. At the hearings of 27 February and 15 April 2003 the applicant amended his claims. Both hearings were adjourned to enable the respondent to study the amendments. 14. The hearings of 26 May and 28 August 2003 did not take place due to the respondent’s representative’s involvement in different proceedings and the judge’s illness, respectively. 15. By judgment of 22 September 2003 the District Court awarded the applicant RUR 473,913.33 in respect of unpaid disability allowance for the period from June 1998 to October 2003. The police department was also ordered to pay RUR 14,961.91 per month starting from October 2003 and to adjust that sum on a monthly basis in accordance with the statutory level of minimum wages and the cost of living in the Tula Region. 16. Neither of the parties challenged the judgment, which became final on 3 October 2003. The enforcement proceedings were opened. 17. On 5 December 2003 the police department asked the District Court to fix a new time-limit for lodging an appeal against the judgment of 22 September 2003. 18. On 15 December 2003 the District Court rejected their request. The police department appealed, and the applicant requested that the appeal hearing be postponed due to his illness. Two months later the Regional Court quashed the impugned decision and remitted the matter to the first instance. 19. On 9 March 2004 the District Court granted the request for a new time-limit. The applicant appealed and asked to postpone the appeal hearing due to his counsel’s unavailability. On 27 April 2004 the Regional Court upheld the decision. 20. By an interim decision of 18 May 2004, the District Court stayed enforcement of the judgment of 22 September 2003. After lodging an appeal, the applicant again asked to postpone the appeal hearing due to his counsel’s unavailability. 21. On 6 July 2004 the Regional Court set aside the judgment of 22 September 2003 and the decision to stay the enforcement proceedings. A new hearing was required. 22. On 1 October 2004 the applicant amended his claims. 23. The hearing of 7 October 2004 did not take place due to the judge’s illness. 24. In the meantime the applicant lodged an application for supervisory review of the appeal decision of 6 July 2004. On 11 November 2004 the supervisory instance called up his case and dismissed his application on 5 March 2005. 25. At the hearings of 26 April and 23 May 2005 the applicant again modified his claims. The respondent requested that the latter hearing be adjourned to verify some evidence. The next hearing of 20 June 2005 had also to be adjourned due to another amendment of his claims by the applicant. 26. The respondent’s representative did not appear at the hearings scheduled for 6 and 7 July 2005 due to his involvement in different proceedings. 27. On 11 July 2005 the applicant again changed his claims, following which the hearing was adjourned to collect certain evidence. 28. On 8 September 2005 the applicant amended his claims. 29. The hearings of 13 September and 12 October 2005 did not take place as the judge was first ill and then involved in different proceedings. 30. On 24 October and 16 November 2005 the court granted the parties’ motions for obtaining of certain evidence and sent relevant inquiries. 31. At the next hearing that took place on 8 February 2006 the applicant again modified his claims. 32. On 3 March 2006 the District Court awarded the applicant a lump sum of RUR 381,251.97 and ordered the police department to pay him RUR 14,358.03 per month starting from 1 March 2006. The judgment was upheld on appeal by the Regional Court on 29 June 2006 and enforced on 4 May 2007.
| 0 |
train
|
001-95996
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,009 |
TOMASIC v. CROATIA
| 4 |
Inadmissible
|
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
The applicants, Mr Vjekoslav Tomašić and Mrs Jelka Tomašić, are Croatian nationals who were born in 1942 and 1941 respectively and live in Zagreb. They were represented before the Court by Mr D. Rotar, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 January 1997 the Act on Compensation for, and Restitution of, Property Taken under the Yugoslav communist regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine – “the Denationalisation Act”) entered into force. It enabled the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or a spouse), to obtain under certain conditions either restitution of or compensation for property appropriated during the communist regime. They were required to submit their requests within six months from the Act’s entry into force. Requests submitted after that date were to be declared inadmissible. Pursuant to section 22 of the Denationalisation Act, nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats. On the other hand, pursuant to section 32 of the Denationalisation Act, confiscated flats were to be awarded to their former owners. Under section 13 of the Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine), the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such request had been dismissed in a final decision. The applicants were holders of the specially protected tenancy of a flat in Zagreb, measuring 125 square metres. The flat is located in the same building, which on 28 November 1945 was confiscated from its owner T.G. by the communist authorities. On 25 March 1997 the applicants made a request to the City of Zagreb to purchase their flat, under the Specially Protected Tenancies (Sale to Occupier) Act. On 9 March 1998 the applicants asked the Office for Property Affairs of the City of Zagreb (Grad Zagreb, Gradski ured za imovinskopravne poslove) whether a request for restitution of the building in which their flat was located had been submitted. In their letter of 28 May 1998 the Office replied that no such request had been submitted. On 10 September 1998 the City of Zagreb, as the provider of the flat, concluded a contract of sale with the applicants whereby it sold them the flat in respect of which they had a specially protected tenancy for 87,255 Croatian kunas (HRK). Shortly afterwards the applicants were recorded as the owners of the flat in the land register. Meanwhile, on 13 June 1997 K. and F.G. and M.D., the heirs of the former owner T.G., (“the heirs of T.G.” or “T.G.’s heirs”) instituted administrative proceedings before the Office for Property Affairs of the City of Zagreb by submitting a request for restitution of T.G.’s confiscated property, including the above-mentioned building. On 11 June 1999 the Office delivered a partial decision awarding ownership of all business premises in the building at issue to the heirs of T.G. On 19 January 2001 the Office delivered another partial decision awarding ownership of all flats in the building, except the applicants’ flat and one other, to T.G.’s heirs. On 3 January 2007 the Office delivered the last partial decision whereby it awarded ownership of the two remaining flats, including the applicants’ flat, to the heirs of T.G. and declared that the applicants had acquired the status of protected lessees (zaštićeni najmoprimci) under section 33 of the Denationalisation Act. The applicants appealed. It appears that the proceedings are currently pending before the Ministry of Justice (Ministarstvo pravosuđa), as the second-instance administrative authority. On 20 July 2001 the heirs of T.G. brought a civil action against the applicants and the City of Zagreb in the Zagreb Municipal Court (Općinski sud u Zagrebu). They asked the court to declare the above contract of sale null and void as being contrary to peremptory rules. They argued that under the Denationalisation Act, confiscated flats were not to be sold to their tenants but awarded to their former owners. Only if the former owner’s request for restitution had been dismissed or declared inadmissible were the tenants allowed to purchase such flats. They plaintiffs explained that on 13 June 1997 they had submitted a request for restitution of the entire building in which the flat in question was located with the Office for Property Affairs of the City of Zagreb, and that this request had not been dismissed or declared inadmissible by the time the impugned contract of sale had been concluded. On the contrary, on 11 June 1999 and 19 January 2001 that Office had adopted decisions awarding them ownership of the building with all the flats and business premises in it. Therefore, the City of Zagreb had not been allowed to sell the flat while the request for its restitution was pending. The applicants replied that it was the same Office for Property Affairs which in its letter of 28 May 1998 had informed them that no request for restitution had been lodged in respect of their flat. They had therefore acted in good faith when they had concluded the contract of sale and should not suffer the consequences of the mistake made by the authorities. On 4 February 2004 the court declared the impugned contract of sale null and void ab initio, endorsing the arguments adduced by the plaintiffs. In doing so it noted the applicants’ main argument that they had been misinformed by the authorities, but did not expressly address that argument. It confined itself to stating that the contract was in breach of peremptory rules and therefore null and void from its inception. The applicants appealed. On 18 October 2005 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicants and upheld the first-instance judgment endorsing the reasons given therein. It added that the Office for Property Affairs had obviously made a clerical error when on 28 May 1998 it had informed the applicants that no request for restitution had been submitted as regards the building in which their flat was located. However, since it had been established beyond doubt that the plaintiffs had indeed submitted such a request, the City of Zagreb had breached peremptory rules when later on it sold the flat to the applicants. The applicants then lodged a constitutional complaint, alleging violations of their constitutional rights to property and equality before the law. On 24 January 2007 the Constitutional Court dismissed the applicants’ constitutional complaint and served its decision on their representative on 13 February 2007. It agreed with the findings of the lower courts and added that the letter of the Office for Property Affairs of 28 May 1998 could not be considered a certificate or an extract from the official records, that is, a public document in respect of which it could have been presumed that the information it contained was correct. It explained that this was so because the offices for property affairs had not been keeping records on requests submitted under the Denationalisation Act. The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and a spouse), to seek under certain conditions either restitution of or compensation for appropriated property. The relevant provisions of the Denationalisation Act read as follows: I. BASIC PROVISIONS “... (2) Restitution of property appropriated from former owners within the meaning of this Act shall, in principle, take the form of payment of compensation in money or securities (stocks or shares, or bonds), or, exceptionally, restitution in kind. ... (4) Ownership of confiscated property shall be awarded to its former owner in accordance with this Act, and if this is impracticable ... the former owner shall have the right to compensation in the form of money or securities.” IV. SUBJECT OF RESTITUTION 3.1. (a) RESTITUTION OF APPROPRIATED FLATS “(1) Unless they were appropriated by means of confiscation, the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners. ... (3) The former owner shall have the right to compensation and the tenant [i.e. the holder of a specially protected tenancy] shall have the right to purchase the flat.” 3.1. (b) RESTITUTION OF CONFISCATED FLATS “Ownership of a flat appropriated [by means of confiscation] shall be awarded to its former owner.” “Where the flat is awarded to its former owner, the tenants [i.e. the holders of a specially protected tenancy of the flat] shall acquire the status of [protected] lessees under the provisions of [the Lease of Flats Act].” “In the case of further disposal in rem of the flat, the lessee shall have the right of pre-emption.” VI. EXCEPTIONS FROM RESTITUTION IN KIND OF NATIONALISED, CONFISCATED OR OTHERWISE APPROPRIATED PROPERTY “Unless otherwise provided by this Act, ownership and possession of property of which third persons have acquired ownership on the basis of a valid legal title, or of property which has been handed over into their possession on the basis of a valid legal title for acquiring ownership, shall not be returned to the former owner.” The Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine, Official Gazette nos. 69/1997, 105/1999 and 64/2000), which entered into force on 12 July 1997, reads as follows in so far as relevant: “The tenants (lessees) of confiscated flats in respect of which no requests for restitution were submitted within the time-limit prescribed by [the Denationalisation Act], or such requests were dismissed by a final decision, shall acquire the right to purchase their flats under the provisions of that Act.” The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments – “the 1978 Obligations Act”) provided as follows: “(1) A contract that is contrary to the Constitution, peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise. (2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.” “Where a contract is null and void, each contracting party is bound to return to the other everything it has received on the basis of such a contract. If that is not possible, or if the nature of the obligation performed renders restitution impracticable, an appropriate [amount of] monetary compensation shall be given, according to the prices at the moment a court decision is passed, unless the law provides otherwise.” “(1) A contract that is null and void shall not become valid if the cause of nullity subsequently disappears. (2) However, if a prohibition was of minor importance, and the contract has been performed, the issue of nullity may not be raised.” “A contracting party responsible for the conclusion of a contract that is null and void shall be liable in damages to the other contracting party for the damage sustained on account of the nullity of the contract, if the latter did not know or, according to the circumstances, should not have known of the existence of the cause of nullity.” “(1) The court shall examine the issue of nullity of its own motion [ex officio] and any interested party may raise it. (2) A state attorney shall also have the right to plead nullity.” “The right to plead nullity shall not lapse.” On 1 January 2006 the new Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”) entered into force. Its sections 322, 323 and 326 to 328 contain the same provisions as sections 103, 104 and 107 to 110 of the 1978 Obligations Act. The other relevant domestic law and practice are set out in Pavlinović and Tonić v. Croatia (dec.), nos. 17124/05 and 17126/05, 3 September 2009).
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train
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001-102791
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ENG
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POL
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ADMISSIBILITY
| 2,010 |
JUREK v. POLAND
| 4 |
Inadmissible
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Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
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The applicant, Mr Ryszard Jurek, is a Polish national who was born in 1958 and lives in Rupniów, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 June 2005 at 9.25 p.m. the applicant was arrested by the police in his hometown, Dobczyce. He was taken to Myślenice and from there, upon the order of a prosecutor, to a jail (izba zatrzymań) in Cracow. On 22 June 2005 at 5 p.m. the prosecutor lodged with the court his application to remand the applicant in custody for three months. The applicant was placed under the authority of a court (przekazany do dyspozycji sądu). On 23 June 2005 at about 2 p.m. the applicant was brought before a judge of the Myślenice District Court (Sąd Rejonowy) who decided to remand him in custody. Subsequently, the applicant’s pre-trial detention was extended by numerous court decisions. On 9 June 2006 the applicant filed with the Cracow Regional Court a claim for compensation for unlawful detention between 20 and 23 June 2005. On 1 December 2006 the Cracow Regional Court dismissed the applicant’s claim. The applicant did not appeal against that judgment. On 22 June 2005 the applicant was charged with the rape of a certain M.R., a minor daughter of his partner. On 19 October 2005 he was, in addition, charged with sexual abuse of M.R. and her minor sister S.R. and with psychological abuse of both M.R. and S.R. On 30 September 2005 the Myślenice District Court assigned a lawyer under the legal-aid scheme to represent the applicant in the criminal proceedings. On 31 October 2005 the applicant was indicted on charges of sexual abuse and rape of M.R., sexual abuse of S.R. and psychological abuse of both M.R. and S.R. On 15 December 2005 the Myślenice District Court convicted him as charged and sentenced him to four and a half years’ imprisonment. The applicant’s lawyer appealed, arguing that the court had erred in its assessment of the facts. On 8 June 2006 the Cracow Regional Court upheld the first-instance judgment in the relevant part. The applicant did not lodge a cassation appeal. However, he asked the Prosecutor General (Prokurator Generalny) to do so on his behalf. By a letter of 27 December 2006 the Prosecutor General informed the applicant that he had not found any grounds to lodge a cassation appeal in the applicant’s case. From 20 June 2005 until 19 December 2009 the applicant was in continuous detention. On the latter date he was released. From 23 June 2005 until 24 August 2006 the applicant was detained in Wadowice Prison. The applicant submitted that he had been held in dark and overcrowded cells without any access to hot water. On one occasion he shared a six square-metre cell with three or four other detainees. The Government did not provide details as to the size and occupancy rate in the applicant’s cells during his initial detention. They submitted, however, that from 12 June until 24 August 2006 the applicant had been placed in cells in which the space per prisoner ranged from 2.26 to 3 m². It was also noted that the sanitary conditions in the applicant’s cells had occasionally been below the standard required by the sanitary inspectorate. Lastly, the Government submitted that the applicant had been afforded adequate medical care in Wadowice Prison. From 24 August 2006 until 30 November 2007 the applicant was detained in Nowy Sącz Prison. He submitted that he had been held in an overcrowded cell without any access to hot water. He shared a 27 m² cell with eleven inmates. The medical care provided to prisoners was inadequate. In this connection the applicant submitted that he suffered from ulcers and that his eye sight had deteriorated in prison because of the overall poor conditions and inadequate medical care and the fact that he was not taking the medicine which he had been prescribed when he was at liberty. The applicant also submitted that the prison management had confiscated his tape player for no reason. As a result he could not continue his audio English lessons. The Government submitted that in Nowy Sącz Prison the applicant had been placed in cells in which the space per prisoner for the most part ranged from 2.2 to 2.8 m². For a total of three weeks the statutory minimum standard of 3 m² had been respected in the applicant’s cells. Moreover, the Government submitted that during his stay in Nowy Sącz the applicant had been examined by doctors on over thirty occasions, which proved that the medical care provided in prison had been sufficient. On 30 November 2007 the applicant was committed to Tarnów Mościce Prison. In the applicant’s submission, the living and sanitary conditions in the prison were inadequate. The cells were overcrowded and dirty. From 29 February until 12 March 2008 the applicant was detained in cell no. 6 in wing I. The cell in question was designed for five prisoners but instead was shared by ten prisoners. There was not enough room at the table and many inmates had their meals standing up or sitting on a stool. In the applicant’s wing there were no toilets inside the cells. Instead, there were four toilet cubicles and four urinals accessible from the corridor. They were shared by over 160 prisoners. The applicant also submitted that the medical care in Tarnów Mościce Prison was insufficient. There was a practice of mixing healthy and ill prisoners and medical treatment offered in the event of sickness was inadequate. Many prisoners suffered from sepsis. The applicant submitted that his 35-year old cellmate had died on 11 March 2008 of that disease and that afterwards, the applicant and his fellow inmates had been administered preventive drugs. After numerous complaints to the prison management, in March 2008 the applicant was transferred to wing IV. From 27 May until 23 June 2008 the applicant was detained in Nowy Wiśnicz Prison. The applicant submitted that his cell in Nowy Wiśnicz Prison had been occupied by five prisoners, including the applicant, even though its designated maximum capacity was for three persons. From 23 June until 22 July 2008 the applicant was detained in Cracow Remand Centre. The applicant submitted that he had initially been committed to cell no. 315, which was a single cell. He shared it with another inmate. On 30 June 2005 he was placed in cell no. 343 which was designed for two people. The applicant shared it with four other prisoners. From 22 July 2008 until 19 December 2009 the applicant was detained in the therapeutic wing of Rzeszów Prison. The applicant submitted that in Rzeszów Prison he had been assigned to cell no. 239, which he shared with three other prisoners. The applicant lodged numerous complaints with State authorities about various aspects of his detention. They were to no avail. By a letter of 31 March 2006 the Director of the Cracow Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that his allegations that the staff of the Wadowice Prison had monitored the contents of the letters by his family, the Ombudsman and State authorities, had been found to be without merit. It was noted that the letters in question had admittedly been opened and monitored, but only by the authorities responsible for overseeing the applicant’s pre-trial detention. It was emphasised that such a procedure was in compliance with the domestic law and was necessary to ensure the proper conduct of the criminal proceedings pending against the applicant. By a letter of 26 July 2007 the Director of the Cracow Regional Inspectorate of the Prison Service informed the applicant that his complaint about the allegedly inadequate medical care in Nowy Sącz Prison had been considered ill-founded. The applicant also complained to the management of Tarnów Mościce Prison. He also wrote to the Minister of Health and Sanitary Inspectorate to complain of the overall poor sanitary conditions in prison. It appears that on an unspecified date a Sanitary Inspector fined Tarnów Mościce Prison and ordered the renovation of the toilets. The applicant did not bring a civil action in tort to seek compensation for the alleged infringement of his personal rights.
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