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dev | 001-105210 | ENG | RUS | CHAMBER | 2,011 | CASE OF MAKHARBIYEVA AND OTHERS v. RUSSIA | 4 | Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2 | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicants are: 1) Ms Zura Makharbiyeva, born in 1951, 2) Mr Khamid Makharbiyev, born in 1943, 3) Ms Olga Grigoryeva, born in 1980, 4) Mr Movsar Makharbiyev, born in 1999, and 5) Ms Malika Makharbiyeva, born in 2001. The first and second applicants live in Grozny; the other applicants live in Gekhi in Urus-Martan district, Chechnya. The first and the second applicants are the parents of Adam Makharbiyev, who was born in 1973; the third applicant is his wife, and the fourth and the fifth applicants are his children. 6. At the material time the Urus-Martan district and the town of Grozny were under the full control of the Russian federal forces. Military checkpoints manned by Russian servicemen were located on all roads leading to and from the area, which was under a strict curfew. A checkpoint manned by policemen from the Special Task Unit of the Yaroslavl region (“the OMON”) was located on the road between the town of Urus-Martan and the village of Gekhi. The applicants and Adam Makharbiyev lived in Gekhi, in Urus-Martan district. In March 2001 Adam Makharbiyev was trying to get a job at the Zavodskoy district department of the interior (the Zavodskoy ROVD) in Grozny. 7. In the afternoon of 24 March 2001, on his way from Grozny to Gekhi, Adam Makharbiyev stopped at his cousins’ house in Chernorechye village on the outskirts of Grozny. On the same evening he drove back to Gekhi with his cousins, Mr I.M. and Mr L.M., in the latter’s black VAZ-2106 car. At the time Mr L.M. was a police officer at the Oktyabrskiy ROVD in Grozny. On their way Adam Makharbiyev, Mr I.M. and Mr L.M. passed through a number of checkpoints; Mr L.M. showed his police identity card and the car was allowed to pass through. The road to Gekhi went through the checkpoint manned by the OMON from the Yaroslavl region; the servicemen had previously seen Mr L.M. crossing the roadblock on a regular basis and knew that he was a police officer. 8. At about 5 p.m. the car with the three men was stopped for yet another identity check at the checkpoint manned by the OMON from Yaroslavl. The servicemen looked at the police identity card provided by Mr L.M. and asked for the passports of Adam Makharbiyev and Mr I.M. After the two men had produced their documents the servicemen surrounded them, blocked the passage through the checkpoint, handcuffed all three men and dragged Adam Makharbiyev inside the checkpoint building, while Mr I.M. and Mr L.M. remained outside. The servicemen also took away Mr L.M.’s service gun. Immediately after this the servicemen called someone on a portable radio and requested that representatives of the military commander’s office come to the checkpoint. 9. The detention of Adam Makharbiyev and his cousins was witnessed by two residents of Gekhi who happened to cross the checkpoint at the same time as the detained men. One of them went to the applicants’ house straight away and informed them about the incident. The first and second applicants immediately got into their car and drove to the checkpoint. 10. About fifteen minutes after the servicemen had called for representatives of the military commander’s office to attend, an armoured URAL lorry, two black VAZ-2109 cars with military registration numbers of the ‘11’ region and a white VAZ-2121 (‘Нива’) car arrived at the checkpoint. Adam Makharbiyev was forced into one of the VAZ-2109 cars; Mr I.M. and Mr L.M. were placed in the URAL lorry; black sacks were put over their heads. Mr L.M.’s black VAZ-2106 car was driven away by one of the abductors, who was in military uniform. 11. When the vehicles with the detained men were leaving the checkpoint, the first and second applicants pulled up at the scene. They followed the convoy of military cars, which went to the centre of UrusMartan. The applicants’ car was stopped at a checkpoint located on the bridge, in the vicinity of the town administration and the military commander’s office. The first applicant got out of the car and ran after the convoy, which drove into the yard of the Urus-Martan district military commander’s office (“the district military commander’s office”). The soldiers on duty stopped the first applicant from entering the building. Several minutes later the second applicant also arrived at the military commander’s office. The applicants asked the soldiers to let them speak with the district military commander. The servicemen refused and demanded that the applicants leave the premises, as curfew was just starting. 12. After the arrival at the district military commander’s office, Mr I.M. and Mr L.M. were taken to the third floor, where they were questioned for about two or three hours about involvement in the activities of illegal armed groups. Throughout the questioning they had sacks on their heads and were subjected to beatings. 13. After the questioning Mr L.M. was taken outside and placed in an UAZ minivan (‘Таблетка’). He recognised the model of the car by its engine sound and layout. His brother, Mr I.M., was also put into the vehicle which took them to the building of the Urus-Martan temporary district department of the interior (“the Urus-Martan VOVD”) located only a few hundred metres from the military commander’s office. 14. In the VOVD Mr L.M. was taken to an investigator’s office and the sack was removed from his head. Mr L.M. asked about his brother, Mr I.M., and his cousin, Adam Makharbiyev. The investigator told him that he and his brother had been brought over from the military commander’s office and that he did not know the whereabouts of Adam Makharbiyev. After that Mr L.M. and Mr I.M. were taken to a cell in which there were two other detainees. 15. On the following morning, 25 March 2001, the head of the Oktyabrskiy ROVD arrived in Urus-Martan and spoke with the head of the VOVD. As a result, Mr L.M. was released on the same day; during his release the VOVD officers mistakenly gave him Adam Makharbiyev’s official registration card. Mr I.M. was released a day later, on 26 March 2001. About eight days later Mr L.M. picked up his VAZ-2106 car, which had been taken away by the abductors, from the district military commander’s office. 16. On 27 March 2001 the first applicant managed to meet the district military commander, General G., and asked him whether his servicemen had taken away her son. He responded: “Yes, there is a detainee named Makharbiyev. We will question him and then release him.” A few days later the first applicant again spoke to the General and asked about her son. The latter told her that Adam Makharbiyev had absconded, taking a pistol from the district military commander’s office. 17. On an unspecified date in 2002 the first applicant lodged a claim with the Urus-Martan Town Court, requesting that Adam Makharbiyev be declared a missing person. On 22 March 2002 the court granted her claim and declared Adam Makharbiyev a missing person from 24 March 2001. 18. In support of their application the applicants submitted the following documents: a statement by the first applicant dated 22 April 2008; a statement by the second applicant dated 21 April 2008; a statement by Mr L.M. dated 16 April 2008, and copies of letters received from the authorities. 19. The Government neither challenged the version of events presented by the applicants nor provided their own version of the events. 20. On 25 March 2001 the applicants complained to the VOVD about the abduction of Adam Makharbiyev. They did not retain a copy of this complaint. 21. On 28 March 2001 the first applicant again complained to the VOVD about her son’s abduction. She stated that her son and his two cousins had been abducted by Russian military servicemen at the checkpoint located on the road between Urus-Martan and Gekhi, and that some time later Adam Makharbiyev’s cousins had been released, but he had remained in detention. She stressed that she could provide the authorities with a detailed description of the abductors’ vehicles and the names of witnesses to the abduction, and stated that at some point after the abduction her son had been taken to the Urus-Martan district department of the Federal Security Service (“the FSB”). 22. On 30 March 2001 the second applicant wrote to the Urus-Martan district prosecutor’s office (the district prosecutor’s office) about his son’s abduction, and on 4 April 2001 to the district military commander, General G. He stated that at about 5 p.m. on 24 March 2001 his son had been abducted by Russian military servicemen at the checkpoint located on the road between Urus-Martan and Gekhi. The applicant further provided a detailed description of the vehicles involved in the abduction and stated that there were witnesses to the events who could provide statements to the authorities. He stated that he had learnt that at some point after the abduction his son had been detained in the Urus-Martan FSB, and stated that his attempts to establish the whereabouts of his son by lodging complaints with the VOVD, the ROVD, the FSB and the local administration had been futile. 23. On 14 April 2001 the district prosecutor’s office instituted an investigation into the abduction of Adam Makharbiyev under Article 126 of the Criminal Code (kidnapping). The case file was given the number 25042. The applicants were informed of this on 12 July 2001. 24. On 8 June 2001 the second applicant again complained to the district prosecutor about his son’s abduction at the checkpoint. He stated, amongst other things, that his two relatives, who had been abducted with his son, had later been released from the VOVD and that one of them had been given Adam Makharbiyev’s registration card by mistake. The applicant further stated that he had applied to various authorities with numerous requests for an investigation to be initiated into his son’s abduction by the OMON officers who had been manning the checkpoint on 24 March 2001 and for them to be questioned about his son’s whereabouts. Finally, the applicant complained of a lack of information from the district prosecutor’s office and asked to be provided with an update. 25. On 18 June 2001 the second applicant wrote to the Chechnya prosecutor and the Russian Prosecutor General. He stated that his son and two of his cousins had been detained by Russian federal servicemen at a military checkpoint; that his cousins had been released later on from the VOVD and that one of them had mistakenly been given his son’s documents during the release. He further stated that his numerous complaints to various authorities had not produced any results and that the investigation of his son’s abduction had been ineffective. In particular, he pointed out that the investigators had failed to question the OMON officers who had been manning the checkpoint and taken away his son and that in spite of numerous witness statements the investigators had failed to establish the circumstances of his subsequent detention in the military prosecutor’s office and the VOVD. According to the applicant, with this information and evidence at hand the investigators could have solved the crime and established his son’s whereabouts shortly after the abduction and that such procrastination in the investigation demonstrated their lack of desire to identify and prosecute the perpetrators. The applicant requested that the authorities establish his son’s whereabouts, inform him of any charges pending against his son and identify the culprits. 26. On three occasions between July and August 2001 the district prosecutor’s office informed the applicants about the opening of criminal case no. 25042. 27. On 11 September 2001 the second applicant requested that the investigators grant him victim status in the criminal case. No response was made to this request. 28. On 20 September 2001 the second applicant again complained to the district prosecutor and challenged the investigator in the criminal case. The applicant stated that the investigator had failed to summon and question both the OMON officers who had been manning the checkpoint and the witnesses to the abduction; that the investigator had failed to include in the investigation file the witness statements given by him and the first applicant to the authorities; that during a conversation with the first applicant the investigator had told her: “it is not my fault that your son got killed”. The applicant requested that due to this statement demonstrating the investigator’s awareness of Adam Makharbiyev’s possible fate, the investigator should be held responsible for covering up his son’s murder. 29. On 16 February 2002 the district prosecutor’s office informed the applicants that they had suspended the investigation in the criminal case for failure to identify the perpetrators. 30. On 18 May 2002 the second applicant again complained to the district military commander about his son’s abduction by military servicemen and requested assistance in the search for his whereabouts. 31. On 21 May 2002 the first applicant complained to a number of local authorities, including the head of the ROVD and the district military commander, about her son’s abduction by military servicemen and requested assistance in the search for him. She pointed out that immediately after the abduction her son had been taken to the district military commander’s office and that the military commander had promised to release him after a check and that a day later the officer had told her that her son had absconded with a gun. 32. On 14 June 2002 the first applicant again complained about the abduction to the Prosecutor General. She stated that her son had been abducted by servicemen at the military checkpoint when he had been driving with his two cousins in a black VAZ-2106 car from Grozny to Gekhi; that after the abduction her son and his relatives had been taken to the district military commander’s office and that she and the second applicant had witnessed the abduction. She further provided a description of the abductors’ vehicles and pointed out that Mr L.M. and Mr I.M. had been released a few days after the abduction, and that about a week later Mr L.M. had returned his car, which had been taken away by the abductors; that during the release from detention Mr L.M. had mistakenly been given Adam Makharbiyev’s registration card; that the district military commander had promised to her that her son would be released, and that on the fourth day after the abduction the officer had told her that Adam had absconded from the military commander’s office with a gun. The applicant further complained that the investigation had had all the necessary information to identify the perpetrators, but that in spite of that they had failed to take even basic steps. In her opinion, the investigators were trying to cover up her son’s abduction by military servicemen. Finally, she requested that the Prosecutor General assist her in her search for Adam Makharbiyev. 33. On 1 July 2002 the first applicant complained to a number of State authorities, including the head of the Chechnya FSB, the Russian Defence Minister and the district prosecutor. She provided a detailed description of her son’s abduction by federal servicemen and his subsequent detention in the military commander’s office and the VOVD, and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son’s abduction. In addition, she stated that on 5 June 2002 her son had been seen in a bus next to Chervlyenaya station in the Shelkovskoy district of Chechnya. According to a woman who had spoken with Adam Makharbiyev, he had told her that FSB officers were taking him in the bus to the Chernokozovo detention centre in Chechnya. According to the witness, Adam looked famished and was very pale. The applicant requested that the authorities establish her son’s whereabouts and release him from detention. 34. On five occasions between July 2001 and August 2002 the Chechnya prosecutor’s office forwarded the applicants’ complaints to the district prosecutor’s office. 35. On two occasions between August 2001 and August 2002 the Prosecutor General’s office informed the applicants that they had forwarded their complaints to the Chechnya prosecutor’s office. 36. On 30 July 2002 the first applicant again complained about her son’s abduction by federal servicemen to the district prosecutor’s office and requested to be granted victim status in the criminal case. On 9 August 2002 she was granted victim status in the case. 37. On 24 September 2002 the military prosecutor’s office of the North Caucasus Military Circuit informed the first applicant that they had forwarded her complaint about the abduction to the military prosecutor’s office of military unit no. 20102 in Khankala, Chechnya. 38. On 30 September 2002 the first applicant requested an update from the investigators on the investigation in the criminal case. 39. On 16 November 2002 the Chechnya prosecutor’s office informed the first applicant that according to their information received from the Chernokozovo detention centre Adam Makharbiyev had never been detained on their premises. 40. On 5 March 2003 the first applicant again complained to the district military commander. She stated that her son and his two cousins had been abducted by servicemen from a military checkpoint on the way from Grozny to Gekhi; that after the abduction the men had been taken to the district military commander’s office, and that she and the second applicant had witnessed the events. She further provided a description of the abductors’ vehicles and pointed out that Mr L.M. and Mr I.M. had been released a few days after the abduction and that about a week later Mr L.M. had returned his car which had been taken away by the abductors; that when being released from detention Mr L.M. had mistakenly been given Adam Makharbiyev’s registration card; that the district military commander had promised her that her son would be released, and that on the fourth day after the abduction the officer had told her that Adam had absconded with a gun from the military commander’s office. The applicant further complained that the investigation into the abduction had been ineffective, and requested assistance in her search for her son. 41. On 16 July 2003 the first applicant complained to the Military Prosecutor of the United Group Alignment (the UGA). She provided a detailed description of her son’s abduction by federal servicemen, his subsequent detention in the military commander’s office and the VOVD and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son’s abduction. She stated that on 5 June 2002 her son had been seen in a bus next to Chervlyenaya station in the Shelkovskoy district of Chechnya. According to the woman who had spoken with Adam Makharbiyev, he had told her that the FSB officers were taking him in the bus to the Chernokozovo detention centre in Chechnya. The applicant requested that the authorities establish her son’s whereabouts and release him from detention. 42. Between July 2003 and February 2006 the applicants were not provided with any information concerning the investigation of the abduction. 43. On 21 February 2006 the first applicant wrote to the district prosecutor and complained that the investigation of her son’s abduction was ineffective. She requested an update on its progress and asked for the proceedings to the resumed. No reply was given by the authorities. 44. On 31 March 2001 the district prosecutor, on a complaint by the second applicant, requested that the head of the Urus-Martan FSB and the district military commander inform him whether they had detained Adam Makharbiyev and if so, where he had been taken afterwards. 45. On 14 April 2001 the investigators opened criminal case no. 25042 in connection with “... the detention of Adam Makharbiyev at the checkpoint located between Gekhi and Urus-Martan on 24 March 2001 and his subsequent removal in the direction of Urus-Martan ...” 46. On 17 April 2001 the ROVD officially registered the second applicant’s complaint about the abduction. 47. On an unspecified date in April 2001 the investigators questioned the first applicant, who provided a detailed description of her son’s abduction by servicemen at the military checkpoint and his subsequent removal to the military commander’s office. 48. On an unspecified date in April 2001 the investigators questioned the second applicant, whose statement about the circumstances of the abduction was similar to that made by the first applicant. In addition, he stated that a few days after the abduction he and his brother (the father of Mr L.M. and Mr I.M.) had spoken with the head of the administration, Mr Sh.Ya., who had told them that on 24 March 2001 their sons had been taken away from the checkpoint by servicemen of the Yaroslavl OMON and that later on Mr L.M. and Mr I.M. had been transferred to the VOVD, whereas Adam Makhashev had allegedly absconded from the military commander’s office. 49. On 7 June 2001 the investigators questioned the third applicant, who stated that in the evening of 24 March 2001 she had learnt about her husband’s abduction at the checkpoint, from a man who had arrived at her house. 50. On an unspecified date in 2001 the investigation in the criminal case was suspended for failure to identify the perpetrators. 51. On 24 June 2002 the investigators resumed the investigation in the criminal case. The text of the decision included the following: “... on 24 March 2001 during the crossing of the checkpoint located on the road between Gekhi and Urus-Martan Mr Adam Makharbiyev, Mr L.M. and Mr I.M. were detained for an identity check; after that the men were taken to the UrusMartan military commander’s office and from there they were transferred to the Urus-Martan VOVD, from where Mr L.M. and Mr I.M. were subsequently released, but the whereabouts of Adam Makhashev have not been known since ...” 52. On 27 June 2002 the investigators again questioned the second applicant, who stated that his son and his two cousins, Mr L.M. and Mr I.M., had been detained at the checkpoint by the OMON servicemen and that subsequently the detainees had been taken to the military commander’s office and that later on during the release Mr L.M. had noticed that he had mistakenly been given Adam Makharbiyev’s registration card. The applicant provided the investigators with a detailed description of the vehicles used to transport the detained men from the checkpoint to the military commander’s office, and pointed out that on the day after the abduction the military commander had confirmed to him that the servicemen had detained his relatives at the checkpoint. 53. On the same date the investigators questioned the second applicant’s brother, Mr R.M., who stated that his sons had been detained at the checkpoint together with Adam Makharbiyev. 54. On the same date the investigators questioned the applicants’ neighbour Mr A.B., who stated that he had heard that Adam Makharbiyev had been taken away from the checkpoint, and provided a positive character reference for him. 55. On 24 July 2002 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. 56. On 9 August 2002 the investigators granted the first applicant victim status in the criminal case but did not question her. 57. On 30 May 2003 the investigators again questioned the second applicant’s brother, Mr R.M., who confirmed his previous statement. 58. On 2 June 2003 the investigators questioned the first applicant, who stated that in June 2001 she had learnt that Mr Akh.I. had been detained with her son Adam Makharbiyev in the Chernokozovo detention centre. She had spoken with him and found out that her son had been detained in cell no. 24 and that the guards had given him the nickname “Stariy” (Old). Mr Akh.I. had identified Adam in the picture shown to him by the applicant. Several months later the applicant had learnt that Mr Akh.I. had been killed. The applicant also provided the investigators with a detailed description of the circumstances under which a woman named Zara had met her son Adam in the bus on his way to the Chernokozovo detention centre. 59. On 3 June 2003 the investigators questioned the head of the administration, Mr Sh.Ya., who stated that he did not remember the circumstances of his conversation with the second applicant (see paragraph 48 above). 60. On 13 June 2003 the investigators questioned the applicants’ relative Mr L.M., who stated that on 24 March 2001 he, his brother Mr I.M. and his cousin Adam Makharbiyev had been detained by servicemen at the checkpoint for an identity check. He and his brother Mr I.M. had been put into an armoured URAL vehicle; he had seen Adam Makharbiyev blindfolded and handcuffed. Adam had remained at the checkpoint and Mr L.M. and Mr I.M. had been driven to Urus-Martan. On the way there the brothers had also been blindfolded. About an hour later the brothers had arrived at the ROVD, where they had been questioned separately about their cousin Adam Makharbiyev. After that they had been put into cells and on the following day questioned about Adam again. A few days later Mr I.M. had been released, and a day later the witness had been released as well. According to the witness, he had collected his car, which had been taken away from him at the checkpoint, from the district military commander’s office. 61. On 16 June 2003 the investigators questioned the applicants’ relative Mr I.M., whose statement about the abduction was similar to the one given by his brother Mr L.M. 62. On 28 June 2003 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. 63. The investigation failed to establish the whereabouts of Adam Makharbiyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The law-enforcement authorities of Chechnya had never arrested or detained Adam Makharbiyev on criminal or administrative charges, and therefore did not carry out a criminal investigation in his respect. 64. According to the Government, at the Court’s request they furnished the Court with copies of the entire contents of the investigation file in criminal case no. 25042 amounting to 46 pages. 65. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
dev | 001-5470 | ENG | NOR | ADMISSIBILITY | 2,000 | THUNES v. NORWAY | 4 | Inadmissible | null | The applicant is a Norwegian citizen, born in 1953 and resident at Fyllingsdalen. Before the Court he is represented by Mr Nils E. Tangedal, a lawyer practising in Bergen. The respondent Government are represented by Mr Frode Elgesem, Attorney, Office of the Attorney General (Civil Matters), as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 December 1992 the applicant and W were arrested on suspicion of having handled 5.5 tonnes of salmon stolen by J. (on 7 December). On 10 December 1992 the police searched the premises of the company owned by the applicant and W. and detained them on remand. They both confessed to the offence on 21 and 22 December 1992 respectively. The applicant also confessed to having been in possession of narcotic tablets. Both suspects were then released. When the applicant was later convicted, it was established that he had supplied the narcotics to J. The latter had requested the drugs to calm him down before committing the theft which the applicant had instigated and planned. The applicant did not appeal against this part of the City Court’s judgment. On 24 August 1993 J. was convicted of the theft committed on 7 December 1992. In the meantime, on 8 January and 17 February 1993, the police interrogated the applicant as a suspect with respect to certain offences related, inter alia, to the book-keeping of his and W.’s company. The applicant confessed to these offences on 8 January 1993. W. had made a confession earlier on 17 December 1992. In May and June 1993 the police heard five further persons and obtained additional material from the Hordaland Tax Authority (fylkesskattekontoret). On 15 July 1993 the police interrogated the applicant as a suspect in relation to an illegal sale of alcoholic beverages carried out by H. On being further interrogated on 20 October 1993, the applicant also confessed to this offence. W. was apparently suspected of a different transaction concerning alcoholic beverages and it appears that he also confessed. H. was convicted of the illegal sale of alcoholic beverages committed at the end of 1994 or at the beginning of 1995. On 3 May 1995 the Bergen Police Department sent the case-files of the applicant and W. to the Hordaland Prosecution Authority with an apology for the fact that no action had been taken for about a year due to a backlog of pending investigations and the priority given to other cases. The Public Prosecutor replied on 19 May 1995 that the delay in question was unacceptable. On 29 May 1995 the applicant and W. were formally charged and summoned to appear before the Bergen Court of Examination and Summary Jurisdiction (forhørsrett). After a hearing on 16 August 1995, the latter concluded that it did not have jurisdiction to determine the charges since the applicant’s confession had not been without reservation. Under the particular procedure applying to summary proceedings before this court, an unreserved confession was a prerequisite for its jurisdiction. On 5 September 1995 the applicant and W. were summoned to appear before the Bergen City Court (byrett) which heard the case from 12 to14 December 1995. The applicant pleaded guilty to the charges except for those related to the evasion of value added tax (VAT) and book keeping. By judgment of 21 December 1995, the City Court acquitted the defendants of the charge concerning negligent book-keeping but convicted them of having handled stolen goods, of having been in possession of narcotic tablets, of having made use of and sold the alcoholic beverages illegally sold to them, and of having attempted to avoid paying VAT on their company's transactions. The City Court rejected the defendants’ argument that Article 6 § 1 of the Convention had been violated on account of the length of the proceedings. It observed that the period to be taken into consideration, which started with the defendants’ arrest in December 1992 and ended with the judgment in the instant case, amounted to 3 years. Under any circumstances, the delay was too short to run counter to this provision. It was therefore not necessary to consider further the period of inactivity in question. However, in sentencing, the court held that considerable weight (“vesentlig vekt”) must be attached to the fact that the case had become old and that the accused could not be blamed for this. The time element must - the court reasoned - have caused prejudice to the defendants and the imposition of a sentence so long after the commission of the crime would be particularly burdensome, given their work and/or social situation. The City Court sentenced the applicant to 7 months’ imprisonment, of which 3 months were suspended with 2 years’ probation. (W. was sentenced to 5 months’ imprisonment, of which 3 months were suspended with 2 years’ probation.) Both the prosecution and the defence appealed to the Gulating High Court (lagmannsrett). The applicant appealed against the conviction on the VAT offence, invoking an error of law, and against the sentence, pleading that he was not guilty as described in the indictment. On 25 September 1996, after a hearing, the High Court upheld the earlier conviction, having found aggravated circumstances relating to the VAT conviction. The High Court rejected the defence’s allegation of a violation of Article 6 of the Convention, subscribing to the City Court’s reasoning and conclusions, and referring to the Supreme Court’s case-law, notably the 1996 decision mentioned three paragraphs below. The High Court, whilst recalling the aggravated nature of the VAT conviction, decided nevertheless, in view of the time element, not to increase the sentences imposed by the City Court. The applicant sought leave to appeal to the Supreme Court (Høyesterett). On 9 January 1997 the Appeals Selection Committee of the Supreme Court (kjæremålsutvalg) refused the applicant leave to appeal against the sentence imposed. As regards the alleged violation of Article 6 of the Convention, the Committee noted that the High Court had taken the length of the proceedings into account in sentencing. In a decision of 8 February 1996 concerning, inter alia, the issue of sentencing in another case, the Supreme Court rejected a claim by a convicted appellant that the requirement of an effective remedy under Article 13 of the Convention had not been met where the duration of the proceedings had been taken into account in sentencing. It did not accept his view that Article 13 required the court to decide whether the Convention had been violated. In the view of the Supreme Court, it would be sufficient if it appeared from the reasoning that the convicted person’s submissions regarding the length of proceedings had been considered and had been taken into account in sentencing. The Norwegian rules on sentencing were so flexible that it would always be possible to have due regard to delays in the proceedings. Even for the most serious offence, it was possible to impose a suspended sentence or conditionally to postpone the issue of sentencing. In sentencing it was also possible to have regard to delays which were not serious enough to violate Article 6 § 1 of the Convention. The distinction between relatively modest and very serious delays could not be defined precisely. For sentencing it was not important where exactly the limit was drawn. Normally, the matter would be considered as a whole on the basis of a variety of factors. Opinions would differ as to where to draw the limit. It was therefore of little interest, and even superfluous, to attempt to draw such limits when it did not affect the outcome. | 0 |
dev | 001-57600 | ENG | GBR | CHAMBER | 1,987 | CASE OF W. v. THE UNITED KINGDOM | 2 | Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved | C. Russo;N. Valticos | 8. The applicant, who is a British citizen born in 1951 and lives in England, was married in June 1973. He and his wife have three children; the present case concerns only the youngest of them, S, who was born on 31 October 1978. The couple has a history of serious marital and financial difficulties. 9. On 1 March 1979, when the applicant’s wife was suffering from post-natal depression and alcoholism, S was placed by his parents into the voluntary care (see paragraphs 35-37 below) of the local authority ("the Authority"). He stayed with foster parents on a temporary basis, returned home on 8 March at the applicant’s request and was again placed voluntarily in care on 21 March. After one day at home on 13 April, he was again voluntarily returned to care and remained with foster parents until 18 May. He then spent a period with his parents before once more, on 5 June, returning to and remaining in voluntary care, subject to parental visits and some weekends at home. 10. Following a suggestion made by her to the Authority’s social workers, the applicant’s wife took S home on 14 August 1979 but subsequently changed her mind and returned him to the foster parents. On 16 August, the Authority, which had already given previous consideration to such a course, passed resolutions assuming the parental rights of the applicant and his wife over S (see paragraph 38 below). It had apparently not informed them that such resolutions were proposed, but on 7 September it reached an agreement with them that S would be returned to them in February 1980 if they overcame their domestic difficulties. In any event, the applicant did not exercise his right to object to the resolution affecting him (see paragraph 39 below). 11. On 22 November 1979, the day after the applicant’s wife had been admitted to hospital for treatment following a deterioration in her alcoholism, the Authority reviewed the family circumstances. It was concluded that the prospects of S’s rehabilitation were poor but that the aforementioned agreement should be retained, the social workers responsible considering that there could be no postponement of the date for S’s return to his natural parents beyond February 1980. In case it proved impossible to effect the return at that time, it was also agreed that the possibility of finding long-term foster parents should be examined as a contingency plan. 12. S spent four days over Christmas 1979 with his natural family. The applicant continued to look after his two older children but in January 1980 they were placed temporarily into voluntary care as he was threatened with loss of his job if he did not resume work; the placement was intended to end on his wife’s discharge from hospital. A social worker saw the applicant’s wife in hospital on 22 January and reported that she seemed worried at the prospect of the children’s return home. The social worker warned her that, as regards S, the alternative would be his placement in long-term care. On 31 January, the social worker saw the applicant in connection with his matrimonial difficulties and the future of the two older children, but the prospect of S not being returned to his natural parents was not discussed. 13. On 14 February 1980, the Authority passed resolutions to assume parental rights over the two older children. According to the applicant, he raised no objection since it was agreed between the parents and the Authority’s care officers that these children would be returned to their parents over a period. They were in fact returned on 1 August 1980 and have remained at home ever since. The applicant and his wife contend that they understood the agreement to envisage the return of S as well. 14. According to the report of the Local Ombudsman (see paragraph 22 below), the social workers responsible for S and the remainder of the applicant’s family reached the conclusion in January or February 1980, from their nearly continuous review of the circumstances, that the arrangement for returning S to his natural parents would not work in view of the prognosis for the applicant’s wife’s alcoholism and the apparent breakdown of the marriage. On an unrecorded date, an unspecified person or persons in the Authority’s Social Services Department decided that S should not return home but should be placed with foster parents on a long-term basis with a view to adoption and that the natural parents’ access to him should be restricted. There is no recorded minute of any decision to this effect having been taken by the Authority in a formal manner at that time and the possibility of such placement was apparently not mentioned to the applicant when the social workers saw him on 31 January nor to his wife on 14 February, when they visited her to inform her of the resolutions concerning the two older children. Although it appears from the Local Ombudsman’s report that the parents had on previous occasions been made aware of the possibility that S might be placed in long-term care, he was clearly not satisfied that the likely course of events with regard to S had been made sufficiently plain to them and that they had been properly consulted before the decision was taken not to return the child to them. In any event, on 20 and 26 March respectively, the applicant and his wife were informed of the decision orally by the social workers responsible. According to the Local Ombudsman’s report, the social worker dealing with the case was not sure that even then either parent clearly understood what was being said about S’s future, their concern at the time being "totally focused" on the two older children. 15. On 31 March 1980, the Authority’s Adoption and Foster Care Committee, without further reference to the applicant or his wife, considered and approved the proposal to place S with long-term foster parents and to restrict his natural parents’ access to him. The Committee was told by the social workers responsible that the applicant and his wife, who were neither present at nor knew of the meeting, disagreed with the proposal. The minute of the Committee’s discussion records: "It was suggested that if there was to be no parental contact the mother particularly would ‘search to the ends of the earth for [S]’. However, parental contact to be controlled and not at [the foster parents’] home." The Authority informed the Local Ombudsman in the course of his enquiries that, in its view, this minute reflected the intention that the applicant and his wife should not know where S was placed. In any event, it clearly records a decision that access should be restricted, both as to location and frequency, but not terminated. 16. On 22 April 1980, the senior social worker responsible for the case visited the applicant and his wife to inform them that S was being moved to new foster parents; the record of his visit states that he told them that he was not prepared to disclose where the foster parents lived. In addition, it appears that since the Area Director of Social Services considered that access would jeopardise the chances of S developing a satisfactory relationship with the new foster parents, he had decided that the applicant and his wife should not be allowed to visit S. It is not revealed how, if at all, this decision to terminate access derived from the discussions of the Adoption and Foster Care Committee as recorded in the minute quoted above. According to the Government, the applicant was made aware of this decision in May. 17. On 9 May 1980, S was moved to a new foster family for long-term fostering, with a view to adoption. 18. Some time after May 1980 and apparently as a result of the shock of being sentenced to prison for theft, the applicant’s wife made a remarkable recovery from her alcoholism. The couple also resolved their matrimonial difficulties. They continued to seek access to S and protested to the Social Services Department at the refusal thereof; a meeting for them to see the child at the social services building was eventually arranged in July 1980. Having consulted solicitors in September with a view to challenging the Authority’s actions, the applicant and his wife were granted legal aid to apply to a juvenile court to discharge the Authority’s parental rights resolutions concerning S (see paragraph 40 below) and proceedings were issued on 4 November. At the request of the Authority, the hearing, originally fixed for 11 December, was postponed to 8 January 1981. On 16 January, the juvenile court held that both of the resolutions should "henceforth be terminated", thereby permitting S to be returned to the applicant and his wife. 19. On the same day, the Authority appealed to the Divisional Court against the juvenile court’s decision (see paragraph 41 below) and also issued proceedings in the local District Registry of the High Court to have S made a ward of court (see paragraphs 42-44 below). There followed a period of uncertainty as to which of these proceedings the Authority would pursue. On 5 February 1981 (the last possible day to prevent the wardship from lapsing; see paragraph 44 below), the Authority took out a notice for an appointment, to be held on 3 March, for hearing the summons initiating the wardship. On that day, when the Authority applied to the High Court for directions, the applicant’s solicitor challenged the propriety of the wardship proceedings as a duplication of the jurisdiction and this question was referred as a preliminary issue to be heard before a High Court judge. On 25 March, the judge permitted the Authority, which undertook to withdraw its appeal before the Divisional Court, to continue with the wardship proceedings; he directed that the case be heard as soon as possible and ordered that it be set down in the first week of June, no earlier date being available having regard to the expected length of the hearing. 20. The case was heard on 15-18 and 22 June 1981. After evaluating the evidence submitted in relation to S’s well-being and the applicant’s circumstances (including a report of 9 June from an independent welfare officer), the High Court held that the wardship should continue and directed that the child should remain with the foster parents with whom he had been placed in May 1980 (see paragraph 17 above): there was no longer any practical alternative to this, too long a period having elapsed since S’s last contact with his natural parents (on 25 July 1980) for any change to be justified. The High Court also held that the applicant and his wife should not have access to the child, noting that restoring rights of access would only encourage them in their attempts to have S returned to them, a course which would not be in his best interests. However, in the course of his judgment, the judge stated: "I can only say that it is extremely unfortunate that these [wardship] proceedings were not heard within a matter of a week or so after the [juvenile court’s] decision. I see no reason why they could not have been ... However, the hearing did not take place and the parents and the Court are now faced with the fact that a further four months have gone by in which S has become even closer to his foster parents." "... I am not happy about the use of section 2 [of the Children Act 1948] powers to change the status of the child and to cut the parents out of his life, and I am unhappy about a decision arrived at by the local authority without the parents being heard or having the opportunity to make their own representations to the decision-making body ..." The judge also commented on the "massive help" received by the parents from the social services. 21. An appeal by the applicant to the Court of Appeal was dismissed on 6 October 1981. The Court of Appeal expressed its sympathy for the natural parents, describing the case as "tragic", but stressed that its duty was to arrive at a decision which was in the best interests of the child and that "the question from beginning to 1end is whether the child’s best interests would be served by remaining with his foster parents or by being transferred to his natural parents". Although the Court recognised that "both the mother and the father deserve all the credit for pulling themselves out of an appalling situation" and that they had "succeeded remarkably" in coping with their older children, it found that S presented "a different problem" in the light of the fact that he had spent almost the whole of his life in the care of other people. 22. The applicant referred the matter to the Local Ombudsman, who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions. In his report of 28 February 1983, the Local Ombudsman upheld the applicant’s allegation of maladministration in the way in which the Authority had taken its decisions concerning S, stating in particular that he criticised "the failure to put the parents properly in the picture before firm decisions were taken". 23. On 23 March 1982, the foster parents with whom S had been placed in May 1980 were granted leave to apply to adopt the child (see paragraph 53 below). An adoption order relating to him was made on 5 October 1984, the High Court having decided to dispense with the applicant’s consent (see paragraph 52 below). 24. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority. Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative. The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets. By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for voluntary care and the wardship jurisdiction of the High Court which were directly relevant. 25. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders. 26. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger. A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it. If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 42-44 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 27-29 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 32 below); if an application of the last kind is refused, the child’s immediate release "may be ordered". 27. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court. 28. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented. A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation. 29. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 26 above). 30. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents. 31. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption. 32. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 26 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 31 above). 33. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act). In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child. 34. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords. The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court. 35. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently. 36. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare. 37. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]). Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 38 below) or apply to make the child a ward of court (see paragraphs 42-44 below). 38. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975). Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account. 39. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]). 40. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]). The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980). 41. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords. 42. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court. 43. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority. Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child. 44. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings. A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords. The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive. Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory. 45. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]). Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers. 46. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority. In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 48 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection. 47. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court. Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time. 48. The statutory remedies described in paragraphs 33-34 and 39-41 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child. A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows: (a) the authority acted illegally, ultra vires or in bad faith; (b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223); (c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986). The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)). 49. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 48 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court. The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests. 50. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point. Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration. This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion. 51. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access. 52. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3). 53. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports. | 1 |
dev | 001-88871 | ENG | POL | ADMISSIBILITY | 2,008 | PREUSSISCHE TREUHAND GMBH AND CO. KG A. A. v. POLAND | 3 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 1. The applicant, Preußische Treuhand GmbH & Co. KG a.A. (“the applicant company”), is a German legal person – a limited partnership – with its registered office in Düsseldorf. It pursued the application on behalf of, and in connection with facts concerning, twenty-three natural persons (“the individual applicants”), its shareholders, all German nationals who authorised the applicant company to act for them in the proceedings before the Court. Their names and personal details are listed in an annex attached to the present decision. The applicant company was represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems. 4. The Nazi authorities prepared plans for the evacuation of German civilians from eastern Europe, including from what are now the western and northern parts of Poland situated east of the Oder-Neisse line, towards the end of the Second World War. The implementation of the plans started on various dates. Most of the evacuation began in January 1945 and continued throughout March or even April 1945. The evacuation of East Prussia was effected in three stages. The first took place in July 1944, the second in October 1944. The population was evacuated to Pomerania and Saxony. The third stage started on 20 January 1945, during the Soviet offensive, and was carried out throughout that month. The capital city, Königsberg, surrendered to the Soviets on 9 April 1945. The Red Army took control of this territory in May 1945. It was later annexed to the Soviet Union and at present belongs to the Russian Federation. The evacuation of Pomerania started in January 1945 but was delayed and further suspended (at the end of February 1945) on account of the fact that massive groups of people evacuated from East Prussia had filled the territory. The evacuation of Silesia began on 19 January 1945. The population was evacuated to Saxony and Bohemia. The evacuation of East Brandenburg (Neumark) and Greater Poland (Wielkopolska) started on 20 January 1945. 5. The Polish State, by virtue of several laws enacted in 1945 and 1946, formally expropriated the property left behind by Germans following their evacuation or expulsion or still occupied by them in the former German territories east of the Oder-Neisse line. The expropriation laws concerned agricultural and forest land, industry and enterprises and other “post-German” property (see paragraph 39 below). They included laws not addressed exclusively to Germans, for instance decrees on the takeover by the State of certain forests and the 1946 nationalisation law, whereby most private owners either had their property expropriated entirely (with or without compensation) or could retain only a certain proportion of it. However, Germans were treated differently since size limitations did not apply to their property, which was expropriated without compensation. The second group of laws specifically concerned the takeover of German property, with a separate set of regulations regarding the “Regained Territories” and the confiscation of property belonging to persons – Germans or others – who were disloyal to the Polish State or nation during the war. They included the Law of 6 May 1945 on Abandoned and Derelict Property (ustawa o majątkach opuszczonych i porzuconych – “the 1945 Act”), the Decree of 8 March 1946 on abandoned or post-German property (dekret o majątkach opuszczonych i poniemieckich – “the March 1946 Decree”), the Decree of 6 September 1946 on the agrarian system and settlement in the Regained Territories and the former Free City of Gdańsk (dekret o ustroju rolnym i osadnictwie na obszarze Ziem Odzyskanych i byłego Wolnego Miasta Gdańska – “the September 1946 Decree”) and the Decree of 15 November 1946 on the seizure of property of States at war with the Polish State in the years 1939-45 and of property of legal persons and citizens of those States and on the receivership of such property (dekret o zajęciu majątków państw pozostających z Państwem Polskim w stanie wojny w latach 1939-45 i majątków osób prawnych i obywateli tych państw oraz o zarządzie przymusowym nad tymi majątkami). 6. The facts of the case, as submitted by the individual applicants, may be summarised as follows. 9. In January 1945, having learned of the Allies' decision to divide Germany into occupation zones, the applicant's family left their farm in Dammfelde (at present Dąbrówka Mała), owned by the applicant's father, H.L., before the advancing Red Army arrived. They reached the British occupation zone. The applicant submits that he has still not been allowed to return to his home and has been refused restitution of his property. 10. M.B., the applicant's mother, was driven from her family farm in Rohnstock (at present Roztoka) and died, while fleeing, on 12 or 16 April 1945. The applicant, as his mother's heir, has still not been allowed to return to the family's home and has been refused restitution of his property. 11. At the end of January 1945 the applicant and her brothers and sisters, together with an aunt and her family, left their place of residence, Wisenthal-Röhrsdorf (at present Osowa Sień), in the district of Fraustadt (at present the Wschów District) in Lower Silesia to escape the advancing Red Army. They and the other Germans had an hour to join a convoy of horse-drawn vehicles in the neighbouring village of Röhrsdorf. The applicant's grandfather, E.G., after the applicant and her family had been forced to leave, was shot or beaten to death by Soviet troops on his own farm, and the farm buildings were burned. The house, however, survived. After spending a long time on the road and enduring severe hardship, the applicant and her family reached Saxony. They have still not been allowed to return to their home and have been refused restitution. 12. In late January or early February 1945, the applicant and his family were forced to leave their farm in Ziegellscheune (at present Wszewniki). Each person was allowed to take only one suitcase. From the railway station at Militsch (at present Milicz), they were taken west in cattle wagons, experiencing the bombing of Dresden on the way. The applicant and his family eventually reached Altenroda (Thuringia). In June 1957 he left the former German Democratic Republic and moved to the Federal Republic of Germany. He has still not been allowed to return to his property and has been refused restitution. 13. On 4 March 1945, the applicant's parents and their children were forced to leave their house in Massow (at present Maszewo) since the Red Army was some 20 kilometres away and their evacuation was ordered. Nonetheless, they later returned to Massow, where, according to him, looting, rape and so on were daily occurrences. In September and October 1945 the first Poles arrived, taking over homes and farms. At the end of October 1945 the family's farm was confiscated by the Polish militia. The applicant's father was later arrested by Poles, and taken without reason to the police station at Stettin (at present Szczecin), where he suffered ill-treatment for six weeks. He was then brought before a judge and released. The applicant himself, whose arrest had also been planned, was forced to work for nothing on the farm without any help. Early in 1946, the Poles began to deport the Germans from Stolzenhagen (at present Stolczyn). Since the family's residence permits were due to expire on 31 May 1946, they first went to Odermünde and then to Pölitz, finally reaching the British occupation zone in July 1946. They have still not been allowed to return to their property and have been refused restitution. The family also left behind property in Stettin-Stolzenberg (at present Szczecin-Stołczyn). 14. In January 1945, the applicant's grandparents were expelled from Zoppot (at present Sopot). They went overland westwards. The applicant has still not been allowed to return to his family home and restitution has been refused. 15. In 1946 the applicant's mother and her family were expelled from their farm in Ober Ohlisch (at present Olszówka Górna) by the Polish militia. They were not allowed to take anything with them. The applicant and her mother went first to Polish neighbours, who gave them a room. The applicant's mother had previously been denounced and falsely accused of stealing a horse's harness from a Pole. For three weeks, she was required to report daily to the militia, where she spent the day cleaning toilets and other rooms in the barracks, and looking on while other Germans were questioned and beaten. The applicant and her mother then went back to their home, which had been given to another Pole in the meantime. They were given the room in which the grandmother was still living, but were not allowed to use the toilet or water, and stones were thrown through their window. They also had to pay rent. Having found other quarters, they finally left in 1956. They remained in Poland until 24 June 1989, and then travelled on a visitor's visa to the Federal Republic of Germany, where they decided to stay and where they still live. The applicant submits that they have repeatedly applied to the Polish authorities for restitution of their property, but have been refused on the ground that, as Germans, they have not been rehabilitated. The applicant has not submitted any documents or other evidence showing that she submitted her claims to any Polish administrative, judicial or other authority. 16. In May 1946, the applicant's father and his family were visited by Polish militiamen in their house in Bad Charlottenbrunn (at present Jedlina Zdrój) and told that they were to be deported at once. They were given about an hour to pack essentials, and each was allowed to take only 20 kilograms of luggage. They marched five kilometres to the station and were loaded onto open goods wagons. As the journey went on, many people were robbed of their last belongings. There were repeated body-searches, and Germans were ordered by loudspeaker to hand over valuables, such as savings books, and threatened with severe punishment if they failed to comply. The applicant's father and his family eventually succeeded in reaching the Western occupation zone. The applicant has still not been allowed to return to his family home and has been refused restitution. 17. On 20 January 1945, following an order for Germans to leave Stołężyn and report in Schwarzacker, the applicant and other members of his family fled their home. They stopped in Czarnikau (at present Czarnków), where all the roads were blocked, and they could proceed no further. Red Army soldiers suddenly turned up and were on the point of shooting the applicant – even old people and children had been killed simply because they were German – but a Pole stepped in to protect him. All their belongings were taken, but the family escaped alive. On 23 January 1945 the Soviets ordered the family to return to their home, which they reached on 25 January 1945. The house had been looted. In February 1945, Polish militiamen expelled them again, and they were taken to an internment camp at Elsenau (at present Damasławek), where the last of their belongings were taken, and where they were seriously maltreated. Eventually, they were forced to leave their homeland. They have still not been allowed to return to their home and have been refused restitution. 18. The applicant's grandmother P.N. wished to stay on the family farm in Ridbach (at present Rzeck), but the applicant, his mother and his sister had left by ship in 1945 before the Red Army arrived. The grandmother was shot on the farm shortly afterwards by Red Army soldiers. Since the end of the war the applicant and other members of his family have not been allowed to return to their home and have been refused restitution. 19. In August 1946 the applicant's father and his family were driven at gunpoint from their house and market garden in Bad Charlottenbrunn (at present Jedlina-Zdrój) in Lower Silesia. Polish militiamen told them that they had to be in the street and ready to leave within an hour. They marched with others under police escort to the railway station, some five kilometres away, and various pieces of their luggage were stolen on the way. They were taken in goods wagons to the district town, Waldenburg (at present Wałbrzych), where they were again searched and lost more of their belongings. They were taken towards the Oder-Neisse crossing and from there to the Soviet occupation zone. The applicant has still not been allowed to return to his home and restitution has been refused. 20. The applicant submits that his parents' names had been entered in the Beuthen (at present Bytom in Poland) property register as half-share owners of two houses. They lived in, and did not flee, their home in Königsberg (at present Kaliningrad, in Russia) when the war ended. The applicant has never been able to find out what happened to his mother when the Red Army entered Königsberg. She was probably sentenced to forced labour and died in 1947. The applicant has still not been allowed to return to his property and restitution has been refused. 21. In February 1945 the applicant's grandparents still lived on their farm in Ober-Görrisseiffen (at present Płóczki Górne), in an area already occupied by Soviet troops. One evening, anti-aircraft batteries opened up in the area and the grandparents were ordered to start moving east. They packed essentials and secretly headed west, in the hope of joining other members of the family, following the German army as it retreated. When the war ended on 8 May 1945, they returned to Löwenberg (at present Lwówek Śląski), where their house was the only one not yet looted. At the end of June 1945, given the time to pack only the barest of essentials, they were taken away. Those who wanted to stay were arrested or immediately shot. After stopping in various places on the way, they eventually reached the West, getting as far as the Rhineland. The applicant has still not been allowed to return to her lost homeland and has been refused restitution. 22. On 3 March 1945 the applicant and his parents fled their property in Pomerania with other landowners to escape the approaching Red Army. They reached Testorf in Holstein on 23 March 1945. The applicant has still not been allowed to return to his home and has been refused restitution. 23. Until the end of the War, the applicant's mother lived on her farm in Schönhorst (at present Gniazdowo) in the region of the former Free City of Danzig. On 24 January 1945 she was ordered to leave. She fled with carts, heading west, eventually reaching Sittensen, in the Bremervörde district, in March 1945. The applicant has still not been allowed to return to her family home and restitution has been refused. 24. The applicant and her family were forced to leave their home in Treuburg (at present Olecko) to escape the advancing Red Army in January 1945. They fled, eventually reaching Berlin. They headed further west, and were overtaken by Soviet troops in Mecklenburg. They have still not been allowed to return to their home and have been refused restitution. 25. On 9 July 1947, the applicant's father and his family were forced to leave their 27.14 hectare farm in Lokau (at present Tłokowo). The applicant has still not been allowed to return to her home area, and has been refused restitution. 26. The applicant submits that his family were among those Germans who had not been deported by the Soviets but were expelled by the Poles from areas east of the Oder on 27 June 1945. They were allowed to take only bare essentials with them. The applicant's uncle (later declared dead on 31 December 1945) was not in Stolzenfelde (at present Stołeczna) at the time, and his wife had died there on 20 February 1945. They did not experience the expulsion – unlike the applicant and his surviving relatives, who have so far been refused rehabilitation and restitution. 27. The applicant's great-aunt and her family survived the heavy air raid on Swinemünde (at present Świnoujście), which took place on 12 March 1945, and were also left unharmed when the Red Army arrived on 5 May 1945. On 6 October 1945 Poland took over Swinemünde and Polish civilians started to attack and rob Germans. In April 1946 the Polish militia ordered the applicant and his mother to leave, taking only the barest personal essentials with them. The applicant's great-aunt and grandmother were at first unwilling to leave, but the threat of violence left them no choice and they eventually reached Stralsund in summer 1947. The applicant and his mother had already fled to Stralsund in April 1946. All members of his family have consistently been refused rehabilitation and restitution. 28. On 22 October 1944 the applicant and her parents fled their home village Moschenen (at present Możne) in the Treuburg District (at present the Olecko District). They reached the Sensburg (at present Mrągowo) District in East Prussia, but could get no further, since all the roads were blocked by refugees. They decided to return to the lodgings they had found in the Sensburg district, where they saw German civilians murdered when the Red Army arrived. One of the victims was the applicant's father, who was shot in early February 1945. In June 1945, the applicant and her mother set off for their home village of Moschenen, to see if their farm was still there, but the Poles who were already in possession of it immediately reported their arrival to the Soviet authorities in Treuburg. Threatened with shooting and unable to reclaim their farm, their only choice was again to flee. The family have been refused rehabilitation and restitution. 29. On 29 January 1945 the applicant and his parents fled their home in Heilsberg (at present Lidzbark Warmiński), escaping the advancing Red Army, first to Heiligenbeil (at present Mamanowo) and then, at the beginning of February 1945, to Danzig. When the Red Army entered on 27 or 28 March 1945 all refugees were ordered back to their homes. At the end of May 1945, the family set out on foot, with a handcart, for their home in Heilsberg. The parents' houses were still occupied by Soviet troops and the refugees were housed by relatives. At the end of July 1945 they were expelled from Poland, and taken by goods train via Bischoffsstein (at present Bisztynek) to Berlin, losing various belongings to thieves on the way. They eventually arrived at Beckum in Westphalia on 1 February 1946. The applicant, like his deceased relatives, has been refused rehabilitation and restitution. 30. Preußische Treuhand was founded in 2000 as a self-help organisation of “displaced persons from private German properties in the expulsion territories”. It seeks to secure and execute the restitution of the confiscated properties of Germans expelled from territories which after the Second World War became parts of various eastern European States, including Poland. Preußische Treuhand proclaims that it represents and promotes the ownership rights of single individuals and asserts them legally and commercially. 31. The Yalta Conference, which was held by the Allied leaders, Churchill, Roosevelt and Stalin, from 4 to 11 February 1945, was devoted to the final strategy of the Second World War and the proposed future occupation of Germany. It was agreed that the new border between Poland and the Soviet Union would be drawn along the Curzon line, which meant that part of Poland's eastern border was to be fixed along the Bug River, whose central course formed part of that line, and that the Polish eastern provinces (at present, parts of Belarus, Lithuania and Ukraine) were to be annexed to the Soviet Union (see also paragraph 3 above). Poland was to be granted territorial compensation in the west. Stalin proposed the Oder-Neisse line as a new Polish-German border but the matter was eventually left for decision at the further conference, which was held in Potsdam. 32. The Potsdam Agreement, an agreement on policy for the occupation and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945, adopted by the Three Heads of Government of the United States (USA), the United Kingdom (UK) and the Union of Soviet Socialist Republics (USSR) (“the Three Powers”), set out, among other things, the principles governing war reparations from Germany (Chapter III: “Reparations from Germany”), the delimitation of the border with Poland (Chapter VIII B: “Western frontier of Poland”) and the repatriation of German nationals to Germany (Chapter XII: “Orderly transfer of German population”). The provisions of the chapter “Reparations from Germany” read, in so far as relevant, as follows: “1. Reparation claims of the USSR shall be met by removals from the zone of Germany occupied by the USSR and from appropriate external German assets. 2. The USSR undertakes to settle the reparation claims of Poland from its own share of reparations.” The sub-chapter “Western frontier of Poland” reads, in so far as relevant, as follows: “The three heads of Government agree that, pending the final determination of Poland's western frontier, the former German territories east of a line running from the Baltic Sea immediately west of Swinemünde, and thence along the Oder River to the confluence of the Western Neisse River and along the Western Neisse to the Czechoslovak frontier, including that portion of East Prussia not placed under the administration of the Union of Soviet Socialist Republics in accordance with the understanding reached at this conference and including the area of the former Free City of Danzig, shall be under the administration of the Polish State and for such purposes should not be considered as part of the Soviet zone of occupation in Germany.” The chapter “Orderly transfer of German populations” reads, in so far as relevant, as follows: “The Three Governments, having considered the question in all its aspects, recognise that the transfer to Germany of German populations, or elements thereof, remaining in Poland, Czechoslovakia and Hungary, will have to be undertaken. They agree that any transfers that take place should be effected in an orderly and humane manner. Since the influx of a large number of Germans into Germany would increase the burden already resting on the occupying authorities, they consider that the Control Council in Germany should in the first instance examine the problem, with special regard to the question of the equitable distribution of these Germans among the several zones of occupation. They are accordingly instructing their respective representatives on the Control Council to report to their Governments as soon as possible the extent to which such persons have already entered Germany from Poland, Czechoslovakia and Hungary, to submit an estimate of the time and rate at which further transfers could be carried out having regard to the present situation in Germany. The Czechoslovak Government, the Polish Provisional Government and the Control Council in Hungary are at the same time being informed of the above and are being requested meanwhile to suspend further expulsions pending an examination by the Governments concerned of the report from their representatives on the Control Council.” 33. The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the Soviet Union from its share (see paragraph 32 above), was resolved by a bilateral treaty between the USSR and Poland, namely the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the government of the USSR on compensation for financial losses sustained during the German occupation (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką). Under the terms of the agreement, the USSR relinquished to Poland all its claims to German assets located on Polish territory, including the portion of German territory east of the Oder-Neisse line that was to be assigned to Poland. It was assumed that this treaty constituted an instrument for the implementation of the Potsdam Agreement and a basis for Poland's takeover of German property located in Poland within the borders as fixed by that Agreement. 34. The so-called “Treaty of Zgorzelec”, that is, the Agreement concerning the demarcation of the established and the existing Polish-German State frontier, was signed by the heads of government of the Polish People's Republic and the German Democratic Republic (“the former GDR”) in Zgorzelec (in German, Görlitz) on 6 July 1950. It recognised and acknowledged the Oder-Neisse line as referred to in the Potsdam Agreement as the border between Poland and the former GDR. The treaty, although considered valid and binding by the Contracting States, was not accepted by the authorities of the former Federal Republic of Germany (“the former FRG”). 35. The Treaty between the German Democratic Republic and the Polish People's Republic on the Delimitation of the Sea Area in the Oder Bay, concluded on 22 May 1989, was a subsequent instrument aimed at the implementation of the provisions of the Treaty of Zgorzelec concerning the Polish-German state border. It concerned the delimitation of the territorial sea, the continental shelf and the fishery zones of both States. 36. The Agreement between the Polish People's Republic and the Federal Republic of Germany concerning the basis for normalisation of their mutual relations, also called the Treaty of Warsaw (in German, Warschauer Vertrag), was an agreement concluded by the former FRG and Poland on 7 December 1970. It was ratified by the FRG's Parliament (Bundestag) on 17 May 1972. Under the terms of that Treaty, the parties committed themselves to non-violence, affirming that any disputes between them were to be resolved by peaceful means, that they would refrain from the use, or the threat, of force and that they would take steps aimed at full normalisation and further development of their mutual relations. Article 1 of the Treaty read: “(1) The Federal Republic of Germany and Polish People's Republic state in mutual agreement that the existing boundary line, the course of which is laid down in Chapter IX of the decisions of the Potsdam Conference of 2 August 1945 as running from the Baltic Sea immediately west of Swinemünde, and thence along the Oder River to the confluence of the Western Neisse River and along the Western Neisse to the Czechoslovak frontier, shall constitute the western State frontier of the Polish People's Republic. (2) They reaffirm the inviolability of their existing frontiers now and in the future and undertake to respect each other's territorial integrity without restriction. (3) They declare that they have no territorial claims whatsoever against each other and that they will not assert such claims in the future.” 37. After German reunification by virtue of the Unification Treaty (Einigungsvertrag) of 31 August 1990, the frontier between Poland and Germany, as established under the Potsdam Agreement and endorsed by further treaties with former separate German States, was confirmed by the Treaty of 14 November 1990 in the following way: “The Contracting Parties reaffirm the frontier between them, whose course is defined in the Agreement between the Polish Republic and the German Democratic Republic concerning the demarcation of the established and existing Polish-German State frontier of 6 July 1950 and agreements concluded with a view to implementing and supplementing the Agreement (Instrument confirming the demarcation of the State frontier between Poland and Germany of 27 January 1951; Agreement between the Polish People's Republic and the German Democratic Republic regarding the delimitation of the sea areas in the Oder Bay of 22 May 1989, as well as the Agreement between the Polish People's Republic and the Federal Republic of Germany concerning the basis for normalisation of their mutual relations of 7 December 1970).” “The Contracting Parties declare that the frontier between them is inviolable now and in future and mutually pledge to respect unconditionally their sovereignty and territorial integrity.” “The Contracting Parties declare that they have no territorial claims against each other and they shall not put forward such claims in future.” 38. Under section 1 of the 1945 Act, any movable or immovable property which in connection with the war that began on 1 September 1939 was not in the possession of its owners or their legal heirs or representatives was considered abandoned property. Section 2 stated that any movable or immovable property which had been owned or possessed by the German State and on the date of the entry into force of the 1945 Act had not yet been taken over by the Polish authorities, as well as property of German citizens or persons who had defected, was considered “derelict property” for the purposes of that Act. Under section 5 of the 1945 Act, all abandoned or derelict property was placed under State administration. In contrast to German – “derelict” – property, abandoned property could be repossessed by the owners or their close relatives on application. 39. The March 1946 Decree replaced the 1945 Act. It entered into force on 19 April 1946 and was repealed on 1 August 1985. As regards the two types of property referred to therein, “abandoned” covered mostly property owned by Jews in Poland, possession of which they had lost in consequence of the war and the Holocaust, whereas “post-German” covered property owned by the German Reich and German natural and legal persons. “Abandoned property” was defined by section 1 of the March 1946 Decree. This provision read, in so far as relevant, as follows: “1(1). Any property (movable or immovable) of persons who in connection with the war that began on 1 September 1939 lost and did not subsequently recover possession of it shall be considered abandoned property within the meaning of this Decree.” Under sections 15 et seq., owners of abandoned property could apply for, and obtain, its restoration. The deadline for making such applications was set at 31 December 1948. The State acquired ownership of such property by prescription within five years (as regards movables) and ten years (as regards immovable property), which started running “at the end of the calendar year in which the war ended”. Pursuant to section 2, “post-German” property was to be taken over by the State and neither compensation nor restoration procedures applied. Section 2 read, in so far as relevant, as follows: “2(1). By virtue of the law, any of the following kinds of property shall, in its entirety, be taken over by the State Treasury: (a) belonging to the German Reich and the former Free City of Gdańsk; (b) belonging to citizens of the German Reich and the former Free City of Gdańsk; (c) belonging to German and Gdańsk legal persons, except public-law legal persons; (d) belonging to companies controlled by German or Gdańsk citizens or by the German or Gdańsk administration; (e) belonging to persons who have defected. 2(2) The preceding provision shall not apply to the necessary personal items belonging to the persons referred to in subsections (a) and (b).” 40. The September 1946 Decree entered into force on 14 October 1946 and, although amended on several occasions, has not yet been repealed. Pursuant to section 1, all agricultural and forest land (the latter if its surface exceeded 25 hectares), except for land already owned by natural persons, was designated for securing a pool of property for Polish citizens who moved there within the framework of the “settlement action” carried out by the authorities. The action concerned mostly persons resettled from the former eastern provinces of Poland beyond the Bug River, taken over by the Soviet Union (see paragraph 3 above). 41. This was the final decree on the expropriation of property of German persons. Its purpose was to secure the definite takeover of property which might not have been covered by the previous expropriation laws. | 0 |
dev | 001-76661 | ENG | HUN | ADMISSIBILITY | 2,006 | DANYADI v. HUNGARY | 4 | Inadmissible | null | The applicant, Mr Tamás Dányádi, is a Hungarian national who was born in 1975 and lives in Székesfehérvár, Hungary. He is represented before the Court by Mr E. Petruska, a lawyer practising in Budapest. The Hungarian Government (“the Government”) are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. After having searched his home – with no result – on 14 October 1993 and heard two witnesses on 15 October 1993, the Budapest Police Department interrogated the applicant on 18 October 1993. He was suspected of bodily assault, allegedly having stabbed Mr K. on 20 September 1993. On 31 October 1993 the applicant retained Mr Petruska as defence counsel. The latter’s request of 2 November for access to the investigation documents which had been created prior to his appointment was rejected by the police and, finally, by the public prosecutor’s office on 10 December 1993. The lawyer eventually had access to the entirety of the case file on termination of the investigation. On 30 December 1993 the Budapest XX/XXI District Public Prosecutor’s Office indicted the applicant for severe bodily assault, noting that the victim had had a 2.5 cm wide, 6 cm deep knife wound. The Budapest XX/XXI/XXIII District Court held a hearing on 12 April 1995. At that hearing the victim described the weapon used as a knife with a blade approximately 3-4 cm in width. In another case, on 21 November 1995 the Public Prosecutor’s Office indicted the applicant for the offence of causing unlawful damage. This case was joined to the first proceedings on 18 July 1997. Meanwhile, in the principal proceedings a forensic opinion was obtained on 17 June 1996. Hearings took place on 8 November 1996, 8 April and 25 June 1997. In yet another case, on 12 August 1997 the Public Prosecutor’s Office indicted the applicant for the offence of riotous behaviour. This case was joined to the existing proceedings on 8 October 1997. On that date, a hearing took place in the joined proceedings. Further hearings were held on 11 December 1997 and 13 March 1998. On 12 June 1998 another forensic opinion was obtained. Additional hearings took place on 17 July and 15 September 1998. At the hearing of 29 October 1998, the prosecution and the defence made their final submissions. Defence counsel argued inter alia that the weapon as described by the victim could not possibly have caused the injury suffered. On that date the court found the applicant guilty as charged and imposed a cumulative sentence of one year and four months’ imprisonment, suspended for two years. The court observed that the forensic opinion corroborated the victim’s account of the incident and the weapon used, although the latter was nowhere to be found. Regarding the severe bodily assault committed by the applicant, which was punishable with imprisonment of up to five years, the court took into account as a mitigating factor the substantial lapse of time since the offence had been committed. On appeal, on 17 March 2000 the Budapest Regional Court disjoined the case concerning the assault and, quashing the first-instance judgment in this respect, remitted the case. It acquitted the applicant of the charge of causing unlawful damage and reduced his sentence for riotous behaviour to a fine. For reasons of competence, on 10 May 2000 another bench of the Regional Court was appointed to retry the applicant for assault. In the resumed proceedings, hearings took place on 27 March and 7 June 2001. On that date, the defence had its only opportunity ever to question the prosecution’s main witness in the case. Further hearings were held on 5 July and 20 September 2001. On that date the Regional Court convicted the applicant of aggravated bodily assault and sentenced him to one year’s imprisonment, suspended for two years. The court relied on the testimonies of the victim and several witnesses, the opinion of a forensic expert and the inspection of the crime scene. The court observed the substantial lapse of time since the offence had been committed and took it into account as a mitigating factor. On appeal, on 25 June 2002 the Supreme Court held a hearing. According to the minutes of the hearing, the applicant’s lawyer argued inter alia that: “the applicant’s [procedural] rights had been seriously prejudiced [in the proceedings before the Regional Court]”. In his submissions to the Court, the applicant explains that this statement of his lawyer, as presented orally to the Supreme Court, concerned the alleged deficiency of the Regional Court’s reasoning. In its 4-page decision served on 9 September 2002, the Supreme Court upheld the first-instance judgment. Completing the findings of fact on certain points, it held that the reasoning of the Regional Court’s judgment was, as such, sufficient and the establishment of the facts correct. It explained that, contrary to the defence’s arguments, no breach of the prohibition of reformatio in peius had taken place. Finally, it observed that the sentence imposed by the first-instance court was lawful. Section 44 § 4 of the (Old) Code of Criminal Procedure, as in force in the material period, provides that the defendant shall have access to the case file on termination of the investigation. | 0 |
dev | 001-71303 | ENG | RUS | CHAMBER | 2,005 | CASE OF SHOFMAN v. RUSSIA | 2 | Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 8. The applicant was born in 1957 and lives in Gross-Rohrheim (Germany). 9. On 10 August 1989 the applicant registered his marriage with Ms G. in Novosibirsk. After the marriage they moved to St. Petersburg. 10. On 12 May 1995, during her stay at her parents’ home in Novosibirsk, Ms G. gave birth to a son to whom she gave her surname, despite objections from the applicant. Shortly thereafter the birth was registered; the applicant was named as the child’s father in the register. 11. In late September 1995 Ms G. and her son returned to St. Petersburg. The applicant believed that he was the boy’s father and treated him as his own. 12. On 28 March 1996 the applicant moved to Germany. Until September 1997 he waited for Ms G. and the son to join him there. However, in a letter of September 1997, Ms G. informed him that she had no plans to continue their marriage and would be applying for maintenance for the child. At about that time the applicant’s relatives in Novosibirsk advised him that he was not the boy’s father. 13. On 16 December 1997 the applicant petitioned for divorce and brought an action contesting paternity. On 12 April 1999 the divorce was granted. 14. On 16 November 2000 the Zheleznodorozhniy District Court of Novosibirsk delivered judgment in the paternity action. It noted that genetic (DNA) tests of 28 June 1999 and 5 June 2000 demonstrated that the applicant could not be the boy’s father. Although Ms G. maintained that the applicant was the father, in the absence of any doubts as to the accuracy of the tests, the court established that the applicant was not the father of her son. The District Court ruled, however, that the case was governed by the RSFSR Marriage and Family Code of 30 July 1969 because the child had been born before 1 March 1996, that is to say before the new Family Code of the Russian Federation came into effect. The RSFSR Marriage and Family Code set a one-year limitation period for an action contesting paternity, the starting point of which was calculated from the date the putative father was informed that he had been registered as the father. As the applicant had not contested paternity when the child was born and had only applied to the courts in December 1997, after the expiry of the time-limit, his action was held to be time-barred. The fact that a new Family Code had been introduced which did not lay down a limitation period for paternity actions was irrelevant because it was only applicable to family-law disputes arising after 1 March 1996. 15. On 15 March 2001, on an appeal by the applicant, the Novosibirsk Regional Court upheld the judgment of 16 November 2000. 16. On 20 April and 26 October 2001 the Novosibirsk Regional Court and the Supreme Court of the Russian Federation, respectively, refused requests by the applicant for supervisory review. 17. On 12 September 2002 the Justice of the Peace of the Third Court Circuit of the Zheleznodorozhniy District of Novosibirsk granted Ms G.’s claim for maintenance and made a charging order over the applicant’s interest in a flat. 18. On 15 September 2003 the Zheleznodorozhniy District Court of Novosibirsk upheld the maintenance order. 19. The RSFSR Marriage and Family Code of 30 July 1969 (Кодекс РСФСР о браке и семье) provided that a person entered in the birth register as the father of a child could contest the entry within one year of the date he became or should have become aware that the entry had been made (Article 49). 20. The Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force from 1 March 1996) provides that a person entered in the birth register as the father of a child may contest the entry by means of judicial proceedings (Article 52 § 1). It does not set any time-limit for bringing an action. 21. Resolution no. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 “On application by courts of the Family Code of the Russian Federation to the cases concerning paternity and maintenance” established that, in respect of children born before 1 March 1996, the RSFSR Marriage and Family Code was applicable and, accordingly, the time-limit for contesting paternity was one year from the date the person became or should have become aware of his registration as the child’s parent. | 1 |
dev | 001-112206 | ENG | MLT | CHAMBER | 2,012 | CASE OF M.D. AND OTHERS v. MALTA | 2 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award | David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The first applicant, M.D., is the mother of two minor children, the second and third applicants, R.D. and A.D. 7. Following reports to the Aġenzija Appoġġ (which forms part of the Foundation for Social Welfare Services and has as its aim the enhancement of the lives of people in need, through the provision and availability of professional care and support), an investigation by specialised social workers was undertaken in respect of the family. Meetings took place between the parents, social workers, professionals (doctors, police and lawyers) and the directors of the relevant agency. Finally, on the recommendation of the Director of Social Welfare, on 14 July 2005 the Social Policy Minister issued a care order under Article 4 (1) of the Children and Young Persons (Care Orders) Act (“the Act”) placing the two minors, R.D. and A.D., in an institution run by nuns. By a decision of 17 August 2005, after having heard the first applicant’s objections, the Juvenile Court confirmed the care order. It further solicited the social services to complete the fostering assessment of the maternal grandparents to enable the children to reside with them if it was found to be in their best interest. 8. At the same time, criminal proceedings were brought against the first applicant and her partner, X., who is the alleged father of the minor children. 9. By a judgment of 16 March 2006 the Court of Magistrates as a court of criminal judicature found X. guilty of cruelty towards the two children and failure to protect them, causing them slight injuries, and of excessive correction of the two minors (under twelve years of age). X. was sentenced to two years’ imprisonment. His appeal having been withdrawn, the judgment became final. 10. By the same judgment, M.D. was found guilty of cruelty towards the two children and failure to protect them, and excessive correction of the two minors (under twelve years of age). She was sentenced to one year’s imprisonment, suspended for two years. M.D. appealed. 11. By a judgment of 4 August 2006 the Court of Criminal Appeal upheld the first-instance judgment. Having assessed the evidence the court found that M.D. had been present when X. repeatedly beat the children, aged three and five, and, possibly because of his threats, had not had the courage to report him or ask the relevant authorities for assistance, with the result that the children were severely bruised. They also suffered from bald patches and lice-infested hair, symptoms of serious neglect on the part of the mother. She had also repeatedly behaved roughly towards her children. She was therefore guilty of the first charge by acts of commission and omission (in so far as she had not taken the requisite steps to protect her children). The court also confirmed her guilt regarding the charge of excessive correction of the two minors. Considering it appropriate, in the event that the children were ever returned to her, the court confirmed the sentence handed down by the first-instance court. 12. Under Maltese law the provisions of Article 197 (4) of the Criminal Code were applicable to a conviction for an offence under Article 247 A (see “Relevant domestic law” below). 13. At the start of the criminal proceedings the relationship between M.D. and X. ended. While the care order was in place, M.D. was given supervised contact with her children for one hour a week and eventually three hours a week. Later, in 2009, the children spent weekends and public holidays with her. 14. Attempts to persuade the Minister to revoke the care order failed. 15. On 19 April 2007 the first applicant, in her own name and on behalf of her children, instituted constitutional redress proceedings. She relied on Articles 6 § 1, 8 and 13 of the Convention, particularly on the basis that there existed no remedy under the Act providing for re-examination by an independent and impartial tribunal of an issued care order, since such a revision depended solely on the discretion of the Minister who had issued the order. The circumstances having changed, she requested the court to revoke the order and grant any other necessary remedy. 16. On 12 July 2007, the Civil Court (First Hall) rejected a plea of non-exhaustion of ordinary remedies by the State (namely, in reference to that provided in Subsidiary Legislation 285.01) since no proof had been submitted in corroboration at that early stage of the proceedings. It therefore decided to examine the case. 17. By a judgment of 2 April 2009 the Civil Court (First Hall) held that M.D. could only act in her own name, and did not have a right to act on behalf of her minor children. Indeed, according to Articles 8 and 9 of the Act, when a care order was issued the relevant parent was deprived of the right to represent his or her children or to sue on their behalf, and care and custody of the children concerned were entrusted to the Minister. It noted that in the proceedings nobody had requested the court to provide the children with a representative ad litem (Article 783 of the Code of Organisation and Civil Procedure (COCP)). 18. In respect of M.D., the court found a violation of Articles 6 and 13 of the Convention in that the law did not provide access to court to challenge the care order, but no violation of Article 8. It observed that the care order issued was a permanent one (valid until the minors reached 18 years of age). The Act provided for an objection to the care order to be lodged within twenty-one days of the order being issued, and that such an objection would be dealt with by the Juvenile Court. However, the applicant complained that it was not possible for an individual to request a revision of the order subsequently. The court considered that termination of custody fell under the concept of civil rights, particularly because a care order did not imply the end of natural ties between children and their parents. Consequently, a parent’s right of access to court and to the possibility to regain custody of his or her children was a living right. The court considered that the remedy relied on by the State, namely judicial review proceedings, would not be appropriate in the circumstances. Judicial review was concerned with assessing the decision-making process, but not the merits of a decision itself, as the court would not act as a court of appeal from the body involved. In the event that an administrative decision was quashed the court could only remit the case to the authority for reconsideration, at most requesting the authority to bear in mind the reasons for the quashing. Moreover, the Children and Young Persons Advisory Board (Article 11 of the Act) was simply an advisory board subject to the authority and discretion of the Minister. Therefore, it could not be considered an impartial and independent tribunal. It followed, from an analysis of Maltese law, that there was no remedy granting access to court for the applicant or anyone in her position seeking re-examination of the merits of a care order. This constituted a violation of Article 6 § 1, which absorbed Article 13. 19. Under Article 8 it held that the care order had been in accordance with the law and pursued a legitimate aim. While bearing in mind that M.D. had made improvements and was changing her life, it considered that the grounds on which the care order was based had not disappeared and in view of the frequent reviews of the situation by the social services it could not be said that her rights under Article 8 had been breached. 20. The court rejected the claim for the revocation of the care order but, in accordance with Article 242 of Chapter 12 of the Laws of Malta, it ordered that a copy of the judgment be sent to the Speaker of the House of Representatives for consideration by parliament in respect of a possible amendment to the law, as the only remedy that could provide redress to the applicant was a legislative change providing for access to court in such a situation. 21. Both parties appealed. 22. By a judgment of 14 May 2010 the Constitutional Court observed that on the day when the care order was issued M.D. had lost care and custody of her children in favour of the Minister, and therefore it confirmed that in the absence of an appointment by the court, M.D. could not represent her children in the proceedings. Moreover, following her conviction, M.D. had lost all authority and rights over her children in view of the automatic application of Article 197 (4) of the Criminal Code and therefore, in the absence of any request to the court for representation of the minors, she could not act on their behalf according to Maltese law (see “Relevant domestic law” below), notwithstanding any different procedure which might be applicable before the European Court of Human Rights. In this light, in relation to the merits of the complaints under Articles 6 and 13, the court considered that in the present case, M.D. having lost all her parental rights as a result of her conviction, could not exercise any right in respect of which she was deprived of access to court. It followed therefore that no violation of Article 6 could ensue. The situation would have been different had the applicant been affected only by the care order (which solely took away the rights relating to care and custody) and not the subsequent conviction. Neither could it be said that any rights under Article 8 came into play, since the applicant had regular contact with her children. However, the first-instance judgment in relation to whether the Act contravened the applicant’s Article 8 rights had become final, as no appeal had been lodged in this connection. 23. The relevant articles of the Children and Young Persons (Care Orders) Act, Chapter 285 of the Laws of Malta, read as follows: Article 4 “(1) If, on representations made to him in writing by the Director of the Department responsible for social welfare and after giving the parents and the guardian, if any, of the child or young person an opportunity to express their views, and after hearing any other person he may deem likely to assist him, the Minister is satisfied that that child or young person is in need of care, protection or control, it shall be the duty of the Minister by an order in writing under his hand to take such child or young person into his care. (2) A copy of any order made by the Minister under subarticle (1) shall forthwith be sent by registered letter to the person exercising paternal authority over the child or young person, or to his guardian, if any, who shall be asked to state to the Director of the Department responsible for social welfare within twenty-one days from the date of receipt of the said letter, whether he objects to the said order. (3) If the person to whom the registered letter is sent under subarticle (2) shall, within the time therein prescribed, signify, even verbally, his objection to the order, the Director of the Department responsible for social welfare shall, not later than seven days from the date on which he shall have become aware of the objection, refer the case to the Juvenile Court in such manner as shall be prescribed by regulations made under article 13. (4) Where a case is referred to the Juvenile Court under subarticle (3), the said court shall, in such manner and within such time as shall be prescribed by regulations made under article 13, review the whole case and decide whether the child or young person is in need of care, protection or control and shall accordingly confirm or revoke the order made under subarticle (1). (5) An order made under subarticle (1) shall, unless it has ceased to have effect earlier, cease to have effect on the date on which the child or young person in respect of whom the order is made attains the age of eighteen years.” Article 8 “ The Minister shall, with respect to any child or young person committed to his care by an order made under article 3 or taken into his care by an order made under article 4(1), under article 5 or under article 6(1), have the same powers and duties with regard to his care and custody as the parents or guardian of such child or young person would, but for the order, have, and the Minister may, subject to any regulations made in pursuance of article 13, restrict the liberty of such child or young person to such extent as the Minister may consider appropriate (...)” Article 9 “Where a child or young person is in the care of the Minister in pursuance of this Act, it shall be the duty of the Minister to exercise his powers with respect to the care and custody of such child or young person so as to further his best interests and to afford him an opportunity for the proper development of his character and abilities (...)” 24. The relevant articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows: Article 247A “(1) Whosoever, having the responsibility of any child under twelve years of age, by means of persistent acts of commission or omission ill-treats the child or causes or allows the ill-treatment by similar means of the child shall, unless the fact constitutes a more serious offence under any other provision of this Code, be liable on conviction to imprisonment for a term not exceeding two years. (...) (3) The provisions of article 197(4) shall also apply in the case of an offence under this article, when the offence is committed by any ascendant or tutor.” Article 197(4) “(4) A conviction under this article shall entail the forfeiture of every authority and right granted to the offender over the person or property of the husband or wife or of the descendant to whose prejudice the offence shall have been committed, and, in the case of the tutor, his removal from the tutorship and his perpetual disability from holding the office of tutor.” Article 30 “(1) Without prejudice to the provisions of any other law imposing or authorising the suspension or cancellation of, or disqualification from holding or obtaining, any warrant, licence, permit or other authority held from the Government or any other public authority, where any person is convicted, whether as a principal or an accomplice, of a criminal offence which has been committed - (a) in or in connection with the exercise of any profession, art, trade, calling or other occupation for which a warrant, licence, permit or authority has been or may be issued to him by the Government or any other public authority; or (b) in the use or by means of any instrument, vehicle, substance or other thing whatsoever for the carrying, keeping or using of which a licence, permit or authority has been or may be issued to him, the court may, in addition to sentencing the person convicted as aforesaid to any punishment provided by law for the offence, order such person to be disqualified from holding or obtaining, for such time as the court deems fit, such warrant, licence, permit or authority. Provided that, where an application under this subarticle is refused, a further application thereunder shall not be entertained if made within three months after the date of the refusal. ” Article 28 A “(5) A suspended sentence which has not taken effect shall for all intents and purposes of law be deemed, except as provided in subarticle (1), to be a sentence awarding punishment and nothing in this article shall be deemed to effect - (a) the applicability of any other punishment which may be awarded, or any suspension, cancellation, disqualification, forfeiture, loss or removal which may be ordered, together with the punishment of imprisonment so suspended;” 25. Article 783 of the Code of Organisation and Civil Procedure, in so far as relevant, reads as follows: “(1) In the cases referred to in this sub-title, the curator ad litem may be appointed by the same court before which the action has been brought, or is about to be brought, upon the application of any person interested. (2) The application for the appointment of a curator to represent a minor who desires to sue, may be made by any person.” | 1 |
dev | 001-101505 | ENG | UKR | CHAMBER | 2,010 | CASE OF KOVALCHUK v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 6. The applicant was born in 1974 and lived in Zhytomyr. 7. At about 11 p.m. on 6 September 2002 two police officers, responding to a call from the applicant's girlfriend's sister, brought the applicant to the Zhytomyr Detoxification Centre for treatment of severe alcohol intoxication. A medical employee who examined him recorded that the applicant had several abrasions on his buttocks. 8. At 7.58 a.m. on 7 September 2002 the applicant was released. 9. Later that day he was arrested and detained by the police on a charge of disobeying a police officer. Two records of his arrest were drawn up by two different police officers, both indicating the time of the arrest as 6 p.m. At an unspecified time on the same date a doctor certified that the applicant had no bodily injuries. 10. On the same date an ambulance was called to the police station in connection with the deterioration of the applicant's health and apparent loss of consciousness. The ambulance records note that the call was registered at 4.05 p.m. Upon arriving at the police station, the ambulance team found the applicant conscious but in a very agitated state and trembling. In addition, he had haematomas on his buttocks. He was diagnosed as suffering from alcohol withdrawal, given medication and left in the police station. 11. On 9 September 2002 the Korolyovsky District Court of Zhytomyr convicted the applicant of disobeying a police officer and ordered his detention for ten days. At an unspecified time during his detention the applicant was questioned as a witness concerning the murder of a Mr K., whose body had been found on 7 September 2002 in the vicinity of the applicant's house. On 9 September 2002 he confessed to the murder. 12. On 10 September 2002 the applicant, who had still not been officially charged, participated as a witness in a reconstruction of the crime scene. In the course of the reconstruction he showed in detail how he had killed Mr K. 13. On the same date an ambulance was called again and the applicant was transferred to the detoxification centre, where he was diagnosed as suffering from “psychotic and behavioural disorders, [a] state of delirious withdrawal from alcohol, [and] hallucinations”. In addition, he was found to have sustained haemorrhages on his shoulders, legs and buttocks. On 13 September 2002 the applicant was returned to the police station. 14. By 20 September 2002 the applicant had obtained a lawyer in connection with possible murder charges against him, had retracted his confession – alleging that it had been given under duress – and had denied any involvement in the killing of Mr K. 15. At 6 p.m. on 20 September 2002 the applicant was released following the expiration of the term of his detention. 16. At 8.10 p.m. on the same day the applicant was arrested again on a charge of having committed a breach of the peace (in particular, for urinating in public and swearing) and, pursuant to a court order issued on 23 September 2002, was again remanded in custody for eight days starting from the date of his arrest. 17. On 28 September 2002 he was released. 18. On 1 October 2002 the applicant underwent a medical assessment in the course of which he was found to be suffering from two surface wounds (on the left shoulder and the left buttock) which qualified as minor bodily injuries. 19. On 2 October 2002, following complaints by his girlfriend about his aggressive behaviour, the applicant was arrested for the third time on a charge of disobeying a police officer and remanded in custody for ten days by a court order issued on 3 October 2002. On 12 October 2002 the applicant was released. 20. On 15 October 2002 the applicant was admitted to hospital on account of his complaints of general weakness, vertigo, pain in the legs and chest, unpleasant sensations inside his anus, constipation and coughing. Based on his complaints, he was diagnosed as suffering from a combination of haemorrhoids, ulcers, several other digestive disorders, pyelonephritis, asthenia and the after-effects of bodily contusions. The applicant remained in hospital until 23 October 2002. 21. In December 2002 the criminal proceedings against the applicant were discontinued for want of evidence of his involvement in the murder of Mr K. 22. In November 2003 the applicant underwent a fresh medical assessment in respect of his injuries sustained in September 2002. Following an assessment of the medical documents and the applicant's state of health at the material time, the panel of experts conducting the assessment concluded that it was not improbable that on or around 8 September 2002 he had sustained minor bodily injuries (bruises and abrasions on his buttocks, shoulders and legs). However, noting the lack of detail in the relevant records, the experts were unable to assess the means by which the injuries had been inflicted. They further found no objective evidence of any mechanical intrusion into the applicant's anus, no causal connection between the above injuries and other health disorders (including the applicant's haemorrhoids, digestive and kidney problems, which had been found to have probably developed prior to his detention) and noted that the diagnosis of 15 October 2002 concerning the after-effects of bodily contusions had been subjective and unsupported by any evidence. 23. In January 2004 the applicant was examined by specialists from the State Institute for Rehabilitation of the Disabled, who refused to grant him invalid status. However, the panel of specialists diagnosed him as suffering from a number of chronic physical conditions (including haemorrhoids, ulcers, hepatitis and myocardiopathy) as well as from the “after-effects of a head injury sustained in 2002 in the form of arachnoiditis” (inflammation of a membrane surrounding and protecting the nerves of the central nervous system). 24. The applicant was subsequently awarded invalidity status on account of the above illnesses. 25. On 27 October 2007 the applicant died of acute heart and pulmonary failure aggravated by bronchopneumonia. 26. On 24 September and 9 October 2002 Mrs Kovalchuk complained to the Zhytomyr Regional Prosecutor's Office that between 7 and 9 September 2002 her son had been ill-treated by police officers in order to extract a confession of Mr K.'s murder from him. In particular, they had beaten him, hung him from a pipe while handcuffed and inserted a truncheon into his anus. 27. On 15 October 2002 the acting chief of the Zhytomyr Department of Interior rejected her complaints as unsubstantiated. He noted, in particular, that the applicant had given a vague and inconsistent account of the purported ill-treatment and was unable to identify the police officers involved or the location in which he had supposedly been ill-treated. 28. On 25 November 2002 the chief of the Zhytomyr Department of the Interior, having conducted a further investigation following Mrs Kovalchuk's subsequent complaints, discovered that the applicant's and the police officers' respective accounts of events could not be reconciled. In particular, according to the applicant, four unidentified police officers had severely beaten him and stuck objects into his anus, demanding that he confess to the killing. The investigator in Mr K.'s case admitted having questioned the applicant about the killing, but denied that any pressure had been applied to him. The Department transferred the investigation materials to the prosecutor's office for further enquiries. 29. On several occasions (25 December 2002, 31 March 2003 and 2 September 2003) the Korolyovsky District Prosecutor's Office refused to institute criminal proceedings in respect of the applicant's complaints of illtreatment, having found no evidence of any wrongdoing by the police. 30. These decisions were subsequently annulled by the supervising prosecutorial authorities (on 14 March, 14 May and 3 September 2003), finding that: the enquiries had been insufficient; various important witnesses had not been questioned; inconsistencies between various testimonies had not been reconciled; medical evidence had not been duly collected and examined; and no plausible explanation for the applicant's injuries had been proposed. 31. On 11 September 2003 the Korolyovsky District Prosecutor's Office again refused to institute criminal proceedings. The applicant was not informed about this decision. 32. On 14 October 2004, following enquiries made by Mrs Kovalchuk, she obtained a full copy of the decision of 11 September 2003 and subsequently appealed against it on the applicant's behalf to the Bogunsky District Court of Zhytomyr. 33. On 9 November 2005 the Bogunsky District Court allowed the applicant's claims and set aside the decision of 11 September 2003. It found, in particular, that the investigation had failed to analyse the conclusions of the medical assessment completed in November 2003 and to question several important witnesses (specifically, the applicant's fellow inmates). 34. On 27 December 2005 the Korolyovsky District Prosecutor's Office took a fresh decision not to institute criminal proceedings. 35. On 16 November 2006 the Bogunsky District Court set aside the above decision, having found that its previous instructions had not been properly followed. 36. On 23 June 2008, having questioned several additional witnesses, the Korolyovsky District Prosecutor's Office decided that the applicant's injuries had been caused by a fall related to an epileptic seizure resulting from the excessive consumption of alcohol. 37. On 12 August 2008 the Bogunsky District Court set aside this decision, having found that several important witnesses (specifically, the applicant's fellow inmates) had still not been questioned. 38. On 18 September and 30 November 2008 the prosecutor's office took fresh decisions not to institute criminal proceedings into the applicant's alleged ill-treatment which were set aside by the supervising prosecutors on 30 September and 8 December 2008 respectively, each decision making reference to there having been insufficient investigation of the matter. 39. On 26 January 2009 a fresh decision not to institute criminal proceedings was taken, relying, in particular, on the impossibility of collecting further evidence because of the death or relocation of numerous witnesses, the inability of the remaining witnesses to recall details and the destruction of relevant documentary records. 40. On 30 March 2009 the Bogunsky District Court set aside this decision following an appeal by Mrs Kovalchuk. The court noted, in particular, that the case file contained two reports concerning the applicant's arrest on 7 September 2002 which had been made by two different police officers and instructed the investigator to clarify the situation. 41. On 1 October 2009 the Bogunsky District Court annulled a further decision of the prosecutor's office not to institute criminal proceedings, dated 28 May 2009, having found that the situation relating to the arrest reports had not been clarified and that no determination of why the applicant had been questioned about Mr K.'s murder during his detention and the circumstances in which he had suffered bodily injuries had taken place. 42. On 26 November 2009 a fresh decision was taken not to institute criminal proceedings. The investigating authorities noted, inter alia, that the applicant's accounts of the relevant events had been inconsistent and that on several occasions he had changed his story. In particular, he had initially alleged that he had been beaten by a rubber truncheon but subsequently insisted that the officers had punched and kicked him. In addition, on 17 March 2003 he had asserted that he had no claims against the police at all and did not share his mother's view about the necessity of an investigation. 43. On 12 March 2010 the Bogunsky District Court upheld the above decision. 44. Mrs Kovalchuk appealed, noting, in particular, that in addition to its failure to establish those responsible for her son's injuries, the investigation had failed to reconcile a number of factual inconsistencies. For instance, according to the relevant records, an ambulance was first called to the police station to assist the applicant at 4.05 p.m. on 7 September 2002, whereas according to both the reports concerning the applicant's arrest and the court decision of 9 September 2002, the applicant had not been arrested until 6 p.m. Furthermore, according to statements by Mrs T.I., the applicant's acquaintance, she had already seen the applicant in the police station at noon on 7 September 2002 and had also witnessed an ambulance arriving to help him twice on that day. 45. On 31 March 2010 the Zhytomyr Regional Court of Appeal quashed the Bogunsky District Court's ruling, set aside the decision of 26 November 2009 and remitted the complaint of ill-treatment for further investigation. The court noted that previous instructions of judicial authorities had not been followed and ordered that the investigation determine, in particular: (i) where, in what circumstances, and by whom bodily injuries had been inflicted on the applicant “having regard to the fact that on 7 September 2002 he had been examined by a doctor who had not recorded any injuries”; (ii) why there were two different reports on the applicant's arrest; (iii) why the applicant had been questioned as a witness about Mr K.'s murder while detained in custody for an unrelated administrative offence; and (iv) why he had confessed to a killing of which he had been innocent. The Court of Appeal also ordered that the statements of Mrs T.I. concerning the circumstances in which she had seen the applicant on 7 September 2002 be re-examined. 46. According to the case file, the investigation of the applicant's complaint of ill-treatment is currently pending. 47. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007). | 1 |
dev | 001-67889 | ENG | ARM | ADMISSIBILITY | 2,004 | "ENERGIA" PRODUCERS` COOPERATIVE v. ARMENIA | 4 | Inadmissible | Mark Villiger | The applicant, “Energia” Producers' Cooperative, is a private construction company that was founded in 1986 and has its registered office in Vedi, Armenia. The applicant company was represented before the Court by its manager, Mr Hamlet Hovsepyan. company, may be summarised as follows. On an unspecified date, the applicant company instituted proceedings against another private company, claiming that the latter had failed to comply with its contractual obligations and seeking damages. On 1 April 2002 the Commercial Court (ՀՀ տնտեսական դատարան) rejected the applicant company's claims as unsubstantiated. This judgment was subject to appeal within fifteen days. No appeal was lodged so the judgment entered into force. On 26 April 2002 the Convention entered into force in respect of Armenia. On 2 February 2004 an advocate holding a special licence lodged an appeal in cassation (վճռաբեկ բողոք) with the Court of Cassation (ՀՀ վճռաբեկ դատարան) on behalf of the applicant company, seeking to reopen the proceedings on the ground of newly discovered circumstances. As a newly discovered circumstance, the advocate submitted an independent expert opinion prepared on 17 September 2003. On 27 February 2004 the Court of Cassation dismissed the appeal, finding that the piece of evidence adduced could not be regarded as a newly discovered circumstance having vital importance for the case. Article 221.4 of the Code of Civil Procedure of 1999 (ՀՀ քաղաքացիական դատավարության օրենսգիրք) provides that a judgment of the Commercial Court enters into force within 15 days from the date of its pronouncement. According to Articles 222, 223 and 224, judgments of the Commercial Court, which have entered into force, may be reviewed through proceedings in cassation on the basis of an appeal lodged by the Prosecutor General of Armenia and his Deputies, or by advocates holding a special license and registered with the Court of Cassation. These appeals are examined by the Court of Cassation. Article 225 provides that an appeal in cassation can be brought on points of law and procedure, or on the ground of newly discovered circumstances. There is no time-limit for lodging an appeal on the ground of newly discovered circumstances. According to Article 228, the proceedings shall be reopened on the ground of newly discovered circumstances having vital importance for the case which the parties were not or could not be aware of or which the parties were aware of but were unable to present them in court for valid reasons. According to Articles 235 and 236, the Court of Cassation reviews the judgments within the grounds presented in the appeal. The Court can either dismiss the appeal, or otherwise quash the whole or part of the judgment and remit the case for a new examination. | 0 |
dev | 001-22356 | ENG | RUS | ADMISSIBILITY | 2,002 | LITOVCHENKO v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Larisa Konstantinovna Litovchenko, is a Russian national, who was born in 1963 and lives in Khabarovsk. She is represented before the Court by Mr A.Y. Leontyev and Mr J.M. Burns, lawyers practising in St. Petersburg. In 1994 the applicant, a former gynaecologist/obstetrician joined the Jehova’s Witnesses. In the summer of 1996 the applicant entered State Maternity Hospital No. 2 in Khabarovsk to give birth to her third child. On her admission to the maternity ward at 8:00 a.m. on 4 July 1996, she explained to the duty doctor, Dr Bella Chebonenko, that she was a Jehova’s Witness and conscientiously objected to blood transfusions on religious grounds. She asked the medical staff to use effective alternatives that were available. Dr Chebonenko accepted the applicant as a patient. The applicant also gave Dr Chebonenko an advance directive, which had been signed and dated before witnesses, expressly refusing a blood transfusion (even if doctors believed it necessary to preserve her life or health), agreeing to accept alternative methods of treatment (non-blood volume expanders) and releasing the medical personnel from all liability for any unfavourable consequences resulting from her decision. At 4:00 p.m. on 4 July 1996 the applicant gave birth to a baby girl. Although the delivery was uncomplicated, bleeding gradually ensued in the postnatal stage. An entry in the hospital records at 6:00 p.m. stated: “The woman categorically refuses transfusions of blood and blood components (for religious reasons).” Between 4 and 6 July 1996, instead of adhering to the applicant’s request for available alternatives to be used, the doctor rendered the applicant unconscious with anaesthetic and began to give her a blood transfusion. According to the hospital records, anaesthetic was administered “with the aim of rendering her unconscious, as she refuses a blood transfusion for religious reasons.” After the applicant regained consciousness and discovered that she was receiving a blood transfusion, she tried to close the regulator valve and stop the transfusion. The doctor took a syringe and administered a stronger anaesthetic. The hospital records stated: “During the transfusion the woman periodically turned off the transfusion system, refusing the transfusion.” Over the next three days the applicant received more than thirteen litres of blood, in addition to blood substitutes. The foreign blood came from twenty different donors, including fresh whole blood that had not been tested for HIV virus, Hepatitis B, Hepatitis C, and other blood-borne diseases. An entry in the hospital records for 7 July 1996 stated: “2:00 a.m. [The woman] is conscious, she orients herself properly, but has an inappropriate attitude towards the transfusion of blood components (which are prohibited by her faith).” On 5 July 1996, the day after the doctors began the blood transfusion, they obtained consent from the applicant’s husband. The hospital records stated: “The woman belongs to the Jehovist sect and categorically refuses blood transfusions. All blood transfusions were conducted under anaesthetic with the husband’s consent.” On 8 July 1996 the applicant was transferred to the intensive care unit of the Territorial Clinical Hospital No. 1 in Khabarovsk (a hospital that accepts severe cases) for treatment for her condition, which continued to be serious, her symptoms including persistent fever and blood poisoning. The applicant told her new doctors that she wanted them to use alternatives to blood, and they agreed. Ultrasound tests to the applicant’s abdomen revealed an unknown fluid that was the source of the problem, and doctors began non-invasive treatment. The applicant’s serious condition, however, continued for over three weeks. Suspecting an abscess, the doctors finally decided to operate on 30 July 1996. The operation revealed that the cause of the poisoning was 400 ml of thin blood in the applicant’s abdomen following the blood transfusions at Maternity Hospital No. 2. In September 1996 the regional insert Dalinform to the national Argumenty i Fakty newspaper printed a story containing detailed information on the applicant’s treatment in Maternity Hospital No. 2, including her name (given as “Larisa L.”), age, religion, profession, number of years’ work experience, and the name of the hospital and the city. The applicant, who was easily identifiable from the publication, had not given her prior consent to the article or published any information herself. The newspaper story said that the information had come from hospital doctors, but they denied this. On 4 July 1997 the applicant filed a civil action in the Industrial District Court of Khabarovsk requesting a judicial declaration that the fact that she had been forced to have blood transfusions at the State hospital had violated her rights as a patient to withhold her consent and to medical privacy, as well as her constitutional rights to respect for her private life and freedom of conscience. On 10 December 1997 the Industrial District Court of Khabarovsk found that the applicant had made a prior written request signed before two witnesses for alternatives to blood to be used. The court dismissed her claim, stating that no mechanism existed in Russian law to enable the right to refuse medical treatment to be exercised and that the choice of treatment was the doctors’. It also dismissed the claims against the doctors for breach of medical privacy, holding that that issue had to be resolved by a separate libel action against the newspaper. On 27 January 1998 the Civil Chamber of the Khabarovsk Regional Court allowed the applicant’s appeal and ordered a retrial. On 12 November 1998, after three postponements due to the doctors’ repeated failure to appear in court, the Industrial District Court of Khabarovsk began a new hearing. On 24 August 1999, after further adjournments, the court appointed a team of independent medical experts to compile a report. The team included four pre-eminent Russian doctors, specialising in obstetrics, intensive care, anaesthetics and medical ethics. The experts, whose practical experience ranged from twenty-eight to forty-six years, reviewed the entire court file, including all the hospital records and the testimony of all the doctors concerned. On 20 March 2000 the experts concluded that the blood transfusions had been unnecessary and should have been avoided by adopting standard medical practice that would have been available to the treating doctors in 1996 in the Maternity Hospital No. 2. The applicant had had toxaemia, and bleeding had been anticipated. It had developed into disseminated intravascular coagulation. The necessary preventive measures had not been carried out. Other measures had been taken late or had been incorrect and had only served to exacerbate the applicant’s condition. The experts’ report highlighted critical errors in the applicant’s treatment. On 4 July 2000 the Industrial District Court dismissed the applicant’s claims in spite of the Khabarovsk Regional Court’s ruling on appeal that Section 33 of the Basic Law of the Russian Federation on Health Protection “provides for a citizen’s right to refuse medical treatment, and not medical assistance.” Instead, the Industrial District Court held that under Russian law, it was for the doctor, not the patient, to decide the treatment. The court also found that the doctors’ intervention when the applicant had attempted to stop the transfusion by closing the valve was lawful, as applicable laws did not permit euthanasia. The court disregarded the conclusions of the team of experts because its findings were largely based on modern medical theory and practice in the period of 1997-99 while the incident involving the applicant had taken place in 1996. On 21 September 2000 the Civil Chamber of the Khabarovsk Regional Court denied the applicant’s appeal for reasons similar to those of the trial court. The Russian Constitution provides: “Everyone has the right to freedom and personal inviolability.” “Everyone has the right to respect for his private life and family life, his home and correspondence.” The Basic Law of the Russian Federation on Health Protection, No. 5487-I, of 22 July 1993 recognises patient’s rights to “integrity” or personal autonomy and self-determination: “Patients have the following rights when requesting or receiving medical assistance:... (7) fully to make an informed decision on whether to consent to medical treatment in accordance with Section 32 of this Law; (8) to refuse medical treatment in accordance with Section 33 of this Law...” “The citizen’s informed voluntary consent is a prerequisite for medical treatment...” “A citizen or his legal representative has the right to refuse medical treatment or to demand that it cease, as except in those instances set out on Section 34 of this Law.” “Medical aid (medical examinations, hospitalisation, observation and isolation) shall be permitted without the consent of the patient or his legal representatives if he suffers from a contagious disease or a serious psychiatric disorder or has acted in a dangerous manner on the grounds and under the procedure order prescribed by the legislation of the Russian Federation. A decision on whether to conduct a medical examination on a person or to admit him for observation without his or his legal representative’s consent shall be taken by a doctor (or a council of doctors), while a decision on whether to hospitalise a person without his or his legal representative’s consent shall be taken by a court of law. The provision of medical assistance without the consent of the patient or his legal representatives, associated with anti-epidemic measures, shall be regulated by healthcare legislation. Persons suffering from serious psychiatric disorders may be examined and admitted to hospital without their consent under the procedure prescribed by the Law of the Russian Federation on Psychiatric Help and the Guarantees of the Rights of People at the Time it is given. Compulsory medical measures may be imposed on persons who have acted in a dangerous manner on the grounds and under the procedure established by the legislation of the Russian Federation. Such persons shall remain in a medical institution until there cease to be any grounds for their hospitalisation without their consent or until a court order.” | 0 |
dev | 001-21938 | ENG | HUN | ADMISSIBILITY | 2,001 | LAKATOS v. HUNGARY | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Zoltán Lakatos, is a Hungarian national, born in 1958 and living in Budapest. At present he serves a prison sentence in Budapest Prison. Before the Court he is represented by Mr I. Horváth, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 October 1995 the Budapest Public Prosecutor’s Office preferred a bill of indictment against the applicant. He was charged with having inflicted lethal injuries on his common-law wife. In these and the ensuing proceedings the applicant was assisted by a defence counsel. On 21 May 1997 the Budapest Regional Court convicted the applicant of lethal bodily assault and sentenced him to six and a half years’ imprisonment. The Regional Court relied on evidence given by numerous witnesses as well as the opinions of forensic pathologists and psychiatrists. The applicant appealed for a mitigation, whereas the public prosecutor appealed for an aggravation of the sentence. In its submissions to the appeal court, on 13 October 1997 the Attorney General’s Office maintained the public prosecution’s appeal and proposed that the sentence imposed on the applicant on account of the offence of lethal bodily assault be aggravated. On 10 March 1998 the Supreme Court, acting as second instance, held a hearing and, on the same occasion, dismissed the applicant’s appeal. Simultaneously, it recharacterised the applicant’s offence and convicted him of bodily assault and, separately, of murder, both offences committed with special cruelty. A cumulative sentence of thirteen years’ imprisonment was imposed on the applicant. In the reasoning, the Supreme Court completed the first-instance court’s findings of fact with data from the victim’s autopsy record and the forensic pathologist’s opinion. Relying on these elements, the Supreme Court found that the atrocities committed by the applicant had in fact constituted two separate offences which warranted the recharacterisation as well as the aggravation of the sentence. The applicant lodged a petition for review by the Supreme Court. He claimed that the second-instance court’s completion of the findings of fact in the case had been erroneous and that his first-instance conviction and sentence be restored. He argued that the recharacterisation of the offence had been unlawful, given that the public prosecution had not proposed such a departure from the first-instance judgment and he had had no opportunity to prepare his defence against the recharacterised charges. On 8 March 1999 the Supreme Court’s review bench held an oral hearing. Having studied the lower instances’ case-files and submissions by the applicant and the prosecution it upheld the second-instance judgment. As regards the applicant’s procedural arguments, the review bench pointed out that, while courts were bound by the facts as contained in the bill of indictment, this did not hold true for the legal characterisation thereof from which the courts were free to depart. As to the merits of the case, the Supreme Court noted that, in respect of one of the incriminated events, the applicant had inflicted numerous such injuries on the victim as to imply that he had had the eventual intention to murder her. It held therefore that his additional conviction of the offence of murder was lawful. Article 9 § 2 provides that proceedings before the criminal court may be initiated only upon lawful indictment. The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment. Article 132 § 1 provides that where there is a strong suspicion, based on the available information, that a person has committed an offence, the authority must inform him of the substance of the suspicion against him and of the relevant laws. Article 146 § 2 provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted. Article 203 § 1 requires that documents, the contents of which are regarded by the court as evidence, be read out at the hearing. According to Article 239 § 1, the second-instance court must, when passing its decision, rely on the findings of fact reached by the first-instance court, unless the first-instance judgment lacks factual support. Article 241 provides that a defendant acquitted at first instance may be convicted, or a convicted defendant’s sentence increased, only if an appeal has been lodged to his detriment. An appeal is to be regarded as being to the defendant’s detriment if aimed at having him convicted, or convicted of a more serious offence, or at increasing his sentence. According to Article 258 § 1 (a), where the proper establishment of the facts of the case can be achieved on the basis of the case-file, the second-instance court completes or rectifies the establishment of the facts and thereafter examines the first-instance judgment on this new factual basis. According to Article 260, where the first-instance court has applied the law erroneously but its judgment need not be quashed, the second-instance court amends the judgment and passes a decision in accordance with the law. Article 284 § 1 provides that a final decision is subject to review if: (a) the defendant’s acquittal or conviction, or the discontinuation of the proceedings, has taken place in breach of the provisions of substantive criminal law; or (b) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law. According to paragraph 2, in the latter case no review may take place, if the actual punishment has been imposed within the limits provided for by the provisions corresponding to the classification which is correct in law. According to Article 284/A § 1 (I), a petition for review in favour of the defendant may be filed, inter alios, by the defendant, the public prosecutor or the defence counsel. Paragraph 2 provides a further ground for review where certain serious breaches of procedural criminal law have affected the passing of the decision in question. Under Article 288 § 1, if a petition for review is not rejected on formal grounds, it must be sent to the Attorney General’s Office for comments. Article 288/A § 1 grants the petitioner the right to submit comments in reply. According to Article 289/A § 1, the Supreme Court examines, as a general rule, the petition for review at a session. The attendance of the defence counsel and the public prosecutor is required; the defendant must be notified of the session and, if detained, must be committed thereto. Article 290 provides that, at the session, one of the judges sitting in the case must orally present the petition, the decision challenged and relevant details of the case-file. After this introduction, the public prosecutor, the defence counsel and the defendant, inter alios, address the court. As a result of the review, the Supreme Court may, under Article 291 § 1, quash the decision reviewed and instruct the lower-instance court to resume its proceedings. Under Article 291 § 3, where the second-instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of Article 284 § 1, the Supreme Court may itself deliver a rectified decision, if, as a result, the defendant may be acquitted, the proceedings discontinued or a less severe punishment imposed. Paragraph 7 provides that if the Supreme Court dismisses the petition, it must uphold the decision challenged. | 0 |
dev | 001-108584 | ENG | RUS | CHAMBER | 2,012 | CASE OF VLADIMIR MELNIKOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The applicant was born in 1957 and lives in Vladikavkaz, Republic of North Ossetia-Alania. 7. By a judgment of 30 April 2002 the Military Court of the Vladikavkaz Garrison granted the applicant’s complaint against the commander of the North-Caucasus Military Institute of the Interior Armed Forces and, among other things, recovered in his favour a number of unpaid allowances due to the applicant for his service in the conditions of an armed conflict. The Court did not mention any specific amounts, instead suggesting that the debtor calculate them on a certain basis. 8. The above judgment was not appealed and became final. It was enforced in the larger part on 11 July 2008, with only the food allowance remaining unpaid. 9. On 8 December 2008 the applicant was paid the outstanding food allowance, and the judgment of 30 April 2002 was thus enforced in full. | 1 |
dev | 001-80327 | ENG | TUR | CHAMBER | 2,007 | CASE OF KEMAL KAHRAMAN AND ALİ KAHRAMAN v. TURKEY | 3 | Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | null | 4. The applicants were born in 1967 and 1972 respectively. They are serving sentences in Eskişehir Prison, Turkey. 5. On 17 November 1999 the applicants, who were detained in Niğde Prison for being members of the IBDA-C (Great East Islamic Raiders-Front), allegedly incited an insurrection against the prison administration. The prison officers together with soldiers intervened in the uprising in order to bring it to an end. During the incident the applicants and the security forces both sustained injuries which were recorded in medical reports. The security forces drew up an incident report after the operation. 6. On 18 November 1999 the public prosecutor, prison director and prison officers drew up a damage-assessment report concerning the incident. 7. On 22 November 1999 the public prosecutor asked the applicants for their statements. The applicants declared that they wished to make their statements in the presence of their lawyers. 8. On 18 and 23 November 1999, the public prosecutor took statements from ten complainants who were prison officers and one complainant who was a soldier. 9. On 7 December 1999 the applicants gave their statements to the public prosecutor with their lawyer present. The prosecutor asked the applicants whether they had any arguments against the damage-assessment report. The same day, an on-site investigation was conducted inside the prison. 10. On 28 December 1999 the public prosecutor filed an indictment with the Niğde Criminal Court, accusing the applicants of insulting an officer and of insurrection against the prison administration. 11. On 3 January 2000 the Niğde Criminal Court held the first hearing and demanded the presence of the complainants and the four accused, including the applicants, at the following hearing. 12. At the second hearing on 21 March 2000, the Niğde Criminal Court ascertained the applicants' identities and asked them to submit their defence. The applicants maintained that they wished to make their statements in the presence of their lawyers. Accordingly, the court sent a letter to the public prosecutor's office requesting that lawyers from the Niğde Bar Association be assigned to the applicants. At the same hearing, the court took statements from the prison officers who were involved in the incident. 13. On 29 May 2000, two lawyers who were members of the Niğde Bar were assigned to represent the applicants. However, they did not attend any of the ensuing hearings. 14. On 30 May 2000 the court noted that the applicants had been sent to Bandırma Prison for administrative reasons. The court issued a rogatory letter to the Bandırma Criminal Court, requesting that the latter obtain the applicants' statements. 15. On 2 November 2000 the Bandırma Criminal Court, acting under powers delegated to it by the Niğde Criminal Court, pursuant to Article 226 § 4 of the Code of Criminal Procedure, took statements from the applicants. According to the minutes of the Bandırma Criminal Court, the applicants were reminded of their rights in accordance with Article 135 of the Code of Criminal Procedure, which also included the right to a lawyer. The applicants stated that they were aware of their rights and would defend themselves. 16. The Niğde Criminal Court held six further hearings in the absence of the applicants. 17. On 24 October 2000 the Niğde Criminal Court noted that the applicants' statements had been sent to it by the Bandırma Criminal Court. 18. On 22 November 2001 the Niğde Criminal Court, in absentia, acquitted the applicants of insulting the prison officer, but convicted them of insurrection against the prison administration. The court relied on the applicants' statements, the statements of the complainants, the on-site investigation report, the witness statements and the experts' opinions. The applicants were each sentenced to four years' imprisonment. 19. On 14 March 2002 the applicants appealed against the judgment to the Court of Cassation. In their appeal petitions, they stated that they were only brought before the Niğde Criminal Court once, at the beginning of the proceedings, when the court had only ascertained their identities. They further maintained that the public prosecutor's indictment had not been previously served on them, thus preventing them from submitting their defence, and that they had requested legal representation, which had not been forthcoming. They finally submitted that they were not asked to submit their final statements and the judgment was pronounced in their absence. 20. On 25 June 2002 the Court of Cassation upheld the judgment of the Niğde Criminal Court. 21. On 1 June 2005 the new Criminal Code came into force. Consequently, the Nigde Assize Court has scheduled a hearing for 20 March 2007 with a view to adjusting the applicants' sentences, pursuant to the provisions of the new Criminal Code. | 1 |
dev | 001-90274 | ENG | SRB | CHAMBER | 2,008 | CASE OF STANKOVIC v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicant was born in 1949 and lives in Mionica. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 7 November 2001 the applicant, a bus conductor, was dismissed by his employer, “Lasta Strela”, a transportation company based in Valjevo. 8. On 24 December 2001 he filed a claim with the Municipal Court in Valjevo (“the Municipal Court”), seeking reinstatement and payment of salary arrears. 9. Following a remittal of 14 April 2003, the next hearing in the case was scheduled by the Municipal Court for 27 September 2004. 10. Of the nine separate hearings scheduled between 27 September 2004 and 26 January 2006, it would appear that four were adjourned whilst five were held. As regards the former, two hearings were adjourned because the respondent and/or several witnesses had not been duly summoned and the other two because witnesses, of whom two were proposed by the applicant, had, though duly summoned, failed to appear in court (for which omission they were ultimately fined). 11. On 27 January 2006 the Municipal Court ruled against the applicant. 12. On 25 April 2006 the applicant was served with this judgment. 13. On 3 May 2006 the applicant filed an appeal with the District Court in Valjevo (“the District Court”). 14. On 18 December 2006 the District Court returned the case file to the Municipal Court, requesting it to submit certain missing documents. 15. On 29 March 2007 the District Court upheld the judgment rendered at first instance. 16. On 3 April 2008 the Supreme Court rejected the applicant’s appeal on points of law (revizija). 17. Article 122 § 3 provided that all employment-related disputes were to be resolved by the courts within a period of 6 months from the date of institution of the proceedings. 18. This Act entered into force on 23 March 2005 and thereby repealed the Labour Act 2001. 19. The text of Article 195 § 3 of the Labour Act 2005 corresponds to Article 122 § 3 of the Labour Act 2001. | 1 |
dev | 001-106587 | ENG | GEO | CHAMBER | 2,011 | CASE OF GOGINASHVILI v. GEORGIA | 3 | Remainder inadmissible;No violation of Art. 3 (substantive aspect) | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1960 and lives in Tbilisi. 6. On 21 May 2006 the applicant, a former police officer, was arrested on the Georgian-Turkish border on suspicion of smuggling drugs into Georgia. According to the record of the applicant’s body search carried out on the spot, 650 Subutex pills were found in a pocket of his jacket. He signed the record, noting in his own handwriting that he did not object to being searched in the absence of a lawyer. The applicant exercised his right to remain silent at that time, as well as during an examination he underwent as a suspect the following day. 7. On 23 May 2006 the applicant was charged with trafficking substances analogous to, or precursors of, narcotic drugs (Articles 260 and 262 of the Criminal Code). Questioned on the same day in the presence of his advocate, the applicant agreed to testify. He confessed to the crime, naming his accomplices, including a high-level official of the anti-drug department of the Georgian Ministry of the Interior, who had allegedly been covering up their illicit dealings. Subsequently, the investigation authority arrested the named persons, some of whom confessed to the drug trafficking. Other relevant evidence, including transcripts of taped telephone conversations between some of the suspects, was also added to the criminal file. 8. On 11 January 2007 the applicant and his accomplices were convicted of the above-mentioned drug offence. During the trial, the applicant retracted his previous self-incriminating statements and claimed innocence, asserting that the police had planted the Subutex in his pocket and that he had never conspired to engage in any illicit drug dealing. The court took note of that retraction and nevertheless observed that the applicant’s new version of events contradicted other findings in the case. Those findings were based, inter alia, on full or partial confessions explicitly made by some of his accomplices during the trial, in the presence of their advocates. In addition, the court analysed the transcripts of the taped telephone conversations, arriving at the conclusion that, despite their coded language, they confirmed the existence of a conspiracy between the applicant and other defendants. The conviction was also confirmed by the statements of certain other witnesses, as well as by the results of searches of the defendants’ homes. 9. On 9 February 2007 the applicant appealed against the conviction, calling into question the factual findings of the lower court. He also complained that the court had confirmed his conviction only on the basis of the transcripts of the taped conversations, without listening to the actual recordings. 10. On 12 July 2007 the Tbilisi Court of Appeal, after hearing the applicant and other defendants, some of whom maintained their confessions in exchange for a plea bargain with the prosecution, and having reviewed other case materials, upheld the applicant’s conviction. As regards his complaint about the transcripts of the taped conversations, the appellate court dismissed it, stating that the applicant should have raised it at the first-instance hearing. 11. The applicant’s appeal on point of law of 10 September 2007, in which he reiterated the arguments that he had made before the appellate court, was dismissed as inadmissible by the Supreme Court of Georgia on 26 February 2008. The applicant was thus sentenced to twenty-one years in prison, which started to run from the day of his arrest on 21 May 2006. He was placed in Rustavi no. 6 prison (“Rustavi Prison”). 12. According to the applicant’s medical file, he is suffering from glomerulonephritis, nephrosclerosis, chronic renal failure, viral hepatitis C (HCV), chronic bronchitis and arterial hypertension. His renal disorders developed gradually, as a result of a traffic accident in 1998, which caused septicaemia (blood poisoning). Before the applicant was detained he had already been diagnosed with those renal disorders at advanced stages and, according to his medical file, underwent several courses of symptomatic urological treatment. 13. The prison authority took charge of the applicant’s health problems for the first time on 6 July 2006. Notably, in order to have his state of health assessed, he was taken on that day to the Central Clinic of Tbilisi State Medical University for blood biochemical and urine analysis. 14. On the basis of the results of those tests, the prison authority then transferred the applicant, on 8 July 2006, from Rustavi Prison to the Medical Establishment of the Ministry of Justice (“the prison hospital”), where he received comprehensive medical treatment over the following four months, until 4 November 2006. This included various laboratory tests and examinations (blood and urine tests, electrocardiography, chest X-ray), repeated consultations with medical specialists, including a nephrologist who had been summoned by the prison authority from a civil hospital (this medical specialist examined the applicant on 18 July and 7 and 18 September 2006), and the prescription of appropriate drugs (antibiotics and antihypertensive and anti-anaemic agents) for nephrological/urological problems, HCV and arterial tension. 15. In addition, the prison authority, on the advice of a medical panel which had examined the applicant on 24 July 2006, repeatedly approached the medical authorities of various civilian hospitals between August and September 2006, seeking special tests, such as for creatinine and urea levels in the applicant’s blood and an ultrasound scan of his abdominal cavity. 16. On 4 November 2006 the applicant’s doctor at the prison hospital opined that when his current course of treatment was complete the applicant could be discharged back to Rustavi Prison, where he was to continue receiving medication. 17. Subsequently, the applicant had a medical check-up between 13 February and 15 March 2007 and another between 18 April and 18 May 2007, at the National Forensic Bureau (“the NFB”). Reports on both examinations confirmed that the applicant’s condition was stable and that he required long-term out-patient treatment under the supervision of a nephrologist, cardiologist and hepatologist. 18. On 11 August 2007 the applicant was again admitted to the prison hospital, where he remained until 18 August 2007. The in-patient treatment included blood and urine tests, chest X-ray, abdominal ultrasound scan and consultations with a cardiologist. When he was discharged the doctor in charge of the applicant recommended that the patient continue treatment with the relevant drugs on an out-patient basis under the supervision of medical specialists. 19. On 29 January 2008 the applicant was placed on an emergency basis in the intensive care unit of the prison hospital, with a diagnosis of possible food poisoning; he was also suffering from anuria (non-passage of urine), his condition being described as serious from the nephrological/urological point of view (“the relapse of 29 January 2008”). The applicant’s medical file confirms that comprehensive medical treatment was administered to him there, as a result of which his condition improved (the symptoms of anuria disappeared), and on 5 February 2008 he was transferred from intensive care to the ordinary therapeutic department of the prison hospital. 20. As disclosed by his medical file, the applicant underwent again, during his second stay in the prison hospital, the relevant medical tests and was examined by various medical specialists, including a nephrologist summoned by the prison authority from a civilian urology hospital (this examination took place on 4 February 2008). The nephrologist prescribed the applicant treatment with twenty different types of antibiotic, hypolipidemic and antihypertensive drugs; the prison hospital immediately provided the applicant with this medication in the necessary dosages. 21. On 3 April 2008, after several medical specialists, including a nephrologist from a civilian hospital whose assistance had been requested again by the prison authority, had confirmed that the applicant’s condition had stabilised, he was discharged back to Rustavi Prison, where he continued to receive the prescribed medication on an out-patient basis. 22. At the applicant’s request, experts from the National Forensic Bureau (“the NFB”) conducted additional medical examinations between 15 February and 7 April 2008. Their conclusions (“the medical conclusions of 15 February to 7 April 2008”) disclosed that the applicant’s kidney conditions, which could be qualified as progressive serious disorders, had slightly progressed in comparison to the previous medical examinations; the recommendation was that the applicant should continue treatment under the permanent supervision of a nephrologist. 23. On 8 June 2008 the Rustavi prison authorities informed the applicant’s advocate that its medical staff did not include a nephrologist. However, the prison undertook that in the event of deterioration of the applicant’s condition he would immediately be transferred to an appropriate medical establishment. 24. On 22 October 2008 the Court, allowing the applicant’s request, instructed the Government under Rule 39 of the Rules of Court to place the applicant in a medical establishment capable of providing adequate treatment for his various health problems; the Government were further invited to provide the Court with information regarding the capability of the prison hospital in that regard. 25. On 19 November 2008 the Government, as well as giving an account of the treatment administered to the applicant prior to the relapse of 29 January 2008, also informed the Court that, after the indication of the medical interim measure under Rule 39 of the Rules of Court, the applicant was transferred to the prison hospital on 30 October 2008. As disclosed by the relevant excerpts from his medical file, he received a comprehensive medical examination there, which included numerous laboratory tests (blood, urine, ultrasound-based diagnostic tests of stomach, kidney and heart, chest X-ray and others), repeated consultations with various specialists (including a nephrologist from a civilian hospital who examined the applicant on 20 November 2008) who prescribed him ten types of medication for his renal, cardiac and hepatic conditions. 26. On 23 June 2009 the Government updated the Court on the treatment provided to the applicant in the prison hospital. The medical file confirmed once again that the applicant had been regularly examined by various specialists, including different nephrologists from civilian hospitals, who had examined the applicant on 12 January, 16 March and 5 June 2009; a cardiologist and infection specialist, who prescribed specific treatment for him; the implementation of that treatment was then supervised on a daily basis by a general practitioner at the prison hospital (“the GP”). According to the GP’s medical log, which closely monitored the fluctuations in applicant’s state of health from the date of his admission to the prison hospital on 30 October until early July 2009, his condition remained stable overall, except for recurrent headache and general weakness. The applicant was treated with thirty-six types of prescribed anti-hypertension, cardiological, hepatoprotective, antiinflammatory, urological, nephrological, antioxidant, beta-adrenoreceptor and sedative medication, as well as with various vitamins. In addition, as disclosed by the medical file, on 8 June 2009 the applicant gave his consent in writing to start receiving anti-HCV treatment with the powerful anti-viral agents Ribovirin and Interferon. 27. In the light of the above-mentioned information, the Government submitted that they had taken all necessary measures for the protection of the applicant’s health in prison, and asked the Court to lift the interim measure previously indicated on 22 October 2008. 28. By letters dated 4 August 2009 and 16 April 2010, the applicant objected before the Court to the consultations provided by a nephrologist, stating that they were too infrequent. Notably, referring to the relevant records in his medical file, he complained that between November 2008 and February 2010, he had been examined by that specialist on only seven occasions, with the intervals varying from two to three months. Acknowledging that the prison hospital had started administering antiHCV and other types of drugs, the applicant nevertheless claimed that no adequate treatment had been provided for his kidney problems. Furthermore, certain anti-HCV drugs, such as Interferon, had, he stated, had a deleterious effect on his kidneys. Relying on these arguments, the applicant claimed that only a civilian hospital, where he could benefit, according to the medical conclusions of 15 February to 7 April 2008, from the permanent supervision of a nephrologist, could provide adequate treatment for him. 29. In support of the above allegations the applicant submitted more recent excerpts from his medical file, giving an account of the treatment provided for him in the prison hospital from December 2009 to March 2010. Those documents disclosed that his overall condition had remained stable during that period. According to the GP’s opinion dated 23 February 2010, given the chronic nature of the applicant’s kidney problems and that his condition was not acute, nor was he experiencing deterioration, there was no need for specific treatment such as haemodialysis at a specialist nephrology hospital. As to his HCV, despite the provided anti-viral medication, there continued to be a virological response to the blood tests conducted (SVR). 30. On 30 August 2010 the Court, in the light of the additional information provided by the parties, decided to lift the interim measure previously indicated on 22 October 2008. 31. Despite the fact that the interim measure was lifted, of which both parties were duly informed by the Court on 1 September 2010, the relevant authorities did not remove the applicant from the prison hospital. Thus, at the time of the submission of the Government’s comments of 6 May 2011 (see paragraph 4 above), the applicant was still undergoing, and had been since 30 October 2008, treatment in that hospital. 32. Pursuant to Article 607 § 1 (a) of the CCP, a court could suspend a prison sentence in view of a convict’s grave state of health, if his or her illness impeded the proper execution of the sentence, pending the convict’s full or partial recovery. 33. Article 608 of the CCP provided for a possibility of early release by a court on account of a convict’s grave or incurable illness, which should be established by a qualified medical opinion. 34. Article 207 of the General Administrative Code stated that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code. Article 413 of the Civil Code entitled an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health. 35. Pursuant to Articles 24 and 33(1) of the Code of Administrative Procedure, an individual was entitled to request through a court that a State agency be ordered to undertake a certain action or, to the contrary, to refrain from taking an action, whether by adopting a written administrative act or without it, if such a request was aimed at the protection of the individual’s rights or legitimate interests. 36. On 1 October 2010 the Prison Code entered into force, abolishing the previous Imprisonment Act of 22 July 1999 (for the relevant provisions of that Act, see Aliev v. Georgia, no. 522/04, § 33, 13 January 2009) and introducing, inter alia, a new and detailed procedure for filing by detainees, both accused and convicted persons, of complaints to and against the prison authority. 37. Article 24 of this Code, which provided for the right to health care in prison, read as follows: Article 24 - Right to Health Care “1. A [detained] accused/convict shall have the right to use all the necessary medical facilities. All types of medical treatment which are permitted in the given establishment should be made accessible to [a detainee]. If so requested, [a detainee] should be entitled to obtain at his or her own expense more expensive or similar medication or other type of medical treatment than those procured by the relevant establishment. In the event of a reasoned request, and with the permission of the Head of the [Prison] Department, [a detainee] may invite a civilian doctor at his or her own expense. 2. Immediately upon entering an establishment, a [detainee] must undergo a medical examination. The relevant record shall be drawn up and added to the [detainee’s] personal medical file.” 38. By virtue of Article 96, a detainee, acting either in person or through his lawyer or a representative in law, may submit a written complaint against any action or omission by a staff member of the relevant establishment, a legal decision or any other matter which appears to constitute a breach of a right guaranteed to him or her by the Prison Code. Article 97 specified that, upon being placed in the establishment, a detainee must immediately be informed by the authorities of his or her right to submit such a complaint. 39. Pursuant to Articles 98 and 99, a complaint should initially be addressed to the hierarchical superior of the prison officer or agency who has allegedly breached the detainee’s right in question or to the Special Preventative Group (this group forms, according to Article 32 of the Prison Code, part of the Georgian Public Defender’s Office and was established in order to monitor allegations of ill-treatment in prison). In order to guarantee that a complaint is drafted in a proper manner, the detainee may solicit the services of a lawyer, including a public lawyer financed by the State. A detainee who does not have a sufficient understanding of the Georgian language shall be assigned an interpreter free of charge. 40. Article 102 states that a detainee’s complaint must be delivered to the addressee within forty-eight hours. 41. Article 103 further states that if an ordinary complaint is addressed to the governor of an establishment, he or she shall examine and respond to it within five days, which period may be extended, in exceptional circumstances, up to one month. If a complaint is addressed to the Head of the Prison Department, that authority has ten days to examine it, which period may also be extended, as an exception, up to one month. In any event, the detainee must be duly warned of any extension of the ordinary time-limit. 42. Pursuant to Article 105, a complaint raising allegations of torture, inhuman or degrading treatment is considered to be an extraordinary complaint which should be examined by the relevant authority “immediately”. In addition to examining it, the governor of the establishment in question, as well as the Special Preventative Group, must be informed of that complaint within twenty-four hours after it has been submitted. 43. Article 106 requires that the relevant authority’s response to a detainee’s complaint, whether positive or negative, must be duly reasoned; every specific issue raised by the detainee must be fully addressed. If the detainee is not satisfied with that response, he or she may, under Article 107, contest it before a court, initiating the relevant administrativelegal proceedings. 44. The excerpts from the above-mentioned Report, describing the capacity of the new prison hospital, read as follows: “99. The Medical establishment for prisoners in Tbilisi (Gldani), located within the perimeter of the Gldani penitentiary complex, represents a great improvement on the Central Prison Hospital visited by the CPT in 2001 and 2004. The delegation gained a globally positive impression of this new facility, inaugurated at the end of 2008 but in fact functioning fully only for a few months. With an official capacity of 258 beds, the establishment was accommodating 231 sick prisoners at the time of the visit. All the patients were men. There were five wards: surgery, psychiatry, infectious diseases, internal medicine and intensive care/reanimation. Further, there was an admissions unit, an X-ray unit, a dental office, a laboratory, rooms for endoscopy and physiotherapy, and a pharmacy. 100. The diagnostic equipment was modern and functional, and the establishment offered an adequate range of hospital treatments for prisoners. It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment (an average of 5 transfers per week). 101. Clinical staff were sufficient in numbers (a total of 129 doctors and nurses) and appropriately trained. Further, a number of outside medical consultants (neuropsychiatrist, neurosurgeon, etc.) held periodic surgeries. ... 103. As regards material conditions in the patients’ rooms, there was adequate access to natural light, artificial lighting and ventilation, and the rooms were in a good state of repair and cleanliness. That said, the rooms were rather cramped (e.g. six prisoners in a room measuring some 20 m², including a sanitary annexe).” | 0 |
dev | 001-103349 | ENG | GBR | ADMISSIBILITY | 2,011 | DONALDSON v. THE UNITED KINGDOM | 3 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 1. The applicant, Mr Christopher Donaldson, is an Irish national who was born in 1983 and lives in Lisburn. He was represented before the Court by Mr F. Shiels of Madden & Finucane, a lawyer practising in Belfast. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. The applicant is currently serving a twelve year sentence in HMP Maghaberry. At all material times he was held in Roe House, which was a segregated wing for republican prisoners. Facilities such as the exercise yard and the gymnasium were used separately and the only place where segregated prisoners such as the applicant could come into contact with other prisoners was in the visiting hall. 4. The Northern Ireland Prison Service Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells. In HMP Maghaberry, an exception was made with respect to the wearing of shamrock on St Patrick’s Day and the wearing of poppies on Remembrance Day as these emblems were deemed to be “nonpolitical and non-sectarian” if worn at the appropriate time. 5. On Easter Sunday, 23 March 2008, the applicant affixed an Easter lily to his outer clothing in commemoration of the Irish republican combatants who died during or were executed after the 1916 Easter Rising. A prison officer asked him to remove the Easter lily and when he refused he was charged with disobeying a lawful order under the Prison and Young Offenders Centre Rules (Northern Ireland) 1995. The applicant was subsequently found guilty of disobeying a lawful order and was given three days of cellular confinement by way of punishment. 6. The applicant applied for leave to bring judicial review proceedings challenging, inter alia, the policy of the Northern Ireland Prison Service in respect of the wearing of Easter lilies. In particular, he submitted that the policy represented a disproportionate interference with his right under Article 10 of the Convention freely to express his political beliefs and cultural identity. Moreover, while he accepted that the aim of the policy was the prevention of disorder and crime, he argued that the policy was disproportionate because, as a prisoner held in a segregated wing, there was no risk that he would have contact with anyone who would be offended by the Easter lily. He further argued that the policy was discriminatory as it unjustly differentiated between two analogous comparators, namely prisoners wishing to wear a poppy and prisoners wishing to wear an Easter lily. 7. On 4 April 2008 the High Court refused his application for leave to apply for judicial review. Relying on earlier case-law, the High Court judge held that any interference with the applicant’s Article 10 rights was proportionate and there had been no discrimination. 8. The applicant appealed to the Court of Appeal. Following the hearing, the court reserved judgment. In its judgment of 3 April 2009, the Court of Appeal indicated that as all the material relied upon was before it, it would apply the procedure under Order 53 Rule 3 and Rule 5(8) of the Rules of the Supreme Court (Northern Ireland) 1980, which permitted it to treat the application as an appeal rather than as a renewed application for leave. Consequently, it granted the applicant leave to apply for judicial review and dismissed the appeal on its merits. It found that: “Conflict emblems in a divided society where the emblems represent one view or the opposite view are by their nature divisive and have the potential to inflame those who do not agree with them. This must be so particularly where the divisions have led to years of violence, even though a period of relative calm has ensued. Many of those caught up in the conflict from both sides inhabit or have inhabited the prisons. Therefore it is necessary and reasonable that the prison service have a policy about the wearing of such emblems which forms part of its policy to prevent disorder within the prison system and which is uniformly applicable. Does the existence of a separated regime within the prison demand that a different policy be applicable in that regime? I do not think that it does. While the likelihood of contact between those with opposing views may be reduced in a separated unit, it cannot be excluded. Whether in a separated regime or not, there will always be contact with members of staff. The Equality Commission considered such conflict emblems had no place in a working environment and a prison should be no different. As part of its policy to prevent disorder the prison service are entitled to have rules relating to emblems which are applicable throughout the prison. As Girvan LJ stated in Re McCafferty’s Application this policy is soundly based. The wearing of an emblem as a mode of expression is a small element of what Article 10 ECHR is designed to protect. The basic tenets of Article 10 are the rights to hold opinions and to impart and receive information and ideas. None of these matters are restricted by the prison policy. Prisoners are permitted to wear Easter Lilies in their cells. The only restriction is that they may not be worn in communal areas. That restriction in the context of Article 10 is a very minimal interference. It is entirely proportionate to the objective of preventing or maintaining good order in a prison. Mr Hutton emphasised that in Re McCafferty’s Application Girvan J expressed the view that the arguments were finely balanced. He submitted that in those circumstances a change of emphasis in one argument should or could tilt the balance. I do not think the arguments are finely balanced. The case for an objective policy on emblems as part of the necessary aim to prevent disorder within a prison and which is applicable throughout the prison, including separated regimes, is substantial if not more so. In my view the policy which is minimally restrictive, complies with Article 10 of the Convention.” 9. On 10 April 2009 the applicant was advised by Counsel that he was unlikely to be granted leave to appeal to the Supreme Court. The applicant has not submitted a copy of Counsel’s advice to the Court as it was confidential and privilege was not waived in respect of it on the applicant’s behalf, save as to indicate that Counsel referred, inter alia, to the number of prisoners affected by the desire to wear the disputed emblem and advised that the case was not one where the test for leave to appeal was likely to be satisfied. 10. Paragraph 4.12 of the Northern Ireland Prison Service Standing Orders dated 3 July 1997 stated that: “Prisoners may not wear emblems, nor should they be displayed by prisoners in their cells.” 11. On 15 March 2000 the Governor of HMP Maghaberry issued a notice to prisoners concerning the wearing of shamrock on St Patrick’s Day and poppies for Remembrance Day. The notice stated that: “These emblems are non-political and non-sectarian and will, in future, be permitted to be worn at the appropriate time by any prisoners who wish to wear them.” 12. This notice echoes the guidance issued to employers by the Northern Ireland Equality Commission, which provided as follows: “Personal Emblems There are some individual emblems and symbols that, through their history and associations, and whether intended or not, have come to have a significance that has the potential to make those of a different identity feel uncomfortable or unwelcome. In this category are likely to fall a variety of symbols and emblems with the potential to cause disharmony, and especially those that have been directly linked to community conflict in Northern Ireland and/or to local politics. These include: • Badges and insignia, e.g. Easter Lilies, Orange symbols ... ... ... There are many ways in which we convey our religious or political identity to others. In this category would fall emblems that may be associated primarily with one religion or community but are not directly linked to community conflict. Such marks of identity are unlikely to be regarded as creating an intimidating or hostile working environment. There are many examples of such emblems, including: • Marks of remembrance, celebration or commemoration (e.g. poppies, shamrock)” 13. The legality of the ban on wearing the Easter lily in Northern Ireland’s prisons has been challenged before the domestic courts on a number of occasions. In the case of In Re John Byers [2004] NIQB 23 the applicant had been charged with a disciplinary offence after he refused to remove an Easter lily. As the applicant was being held in an integrated prison, the High Court found that the ban on the wearing of Easter lilies in communal areas did not violate his rights under Article 10 of the Convention as the interference with his freedom of expression was prescribed by law and was necessary to prevent potential conflict within the prison. 14. The case of In Re McCafferty [2008] NIQB 96 was brought by an applicant who was being held in Roe House, the segregated wing of HMP Maghaberry. He brought judicial review proceedings after he was asked to remove an Easter lily on Easter Sunday and the thrust of his case was that there was a fundamental difference between the position of prisoners in the integrated part of a prison and those housed in the segregated regime. The Prison Service argued that the measures were justified by the imperative of minimising the distinction between integrated and segregated prisoners and preventing the development of paramilitary control. Moreover, they argued that there was a need to protect the rights of persons (other than prisoners) who could come into contact with a prisoner wearing an emblem and to ensure a neutral working environment for prison officers. The High Court concluded that the policy operated by the Prison Service was soundly based as it was entitled to ensure an objectively based system throughout the prison. | 0 |
dev | 001-76343 | ENG | RUS | CHAMBER | 2,006 | CASE OF DUBINSKAYA v. RUSSIA | 3 | Violation of Art. 6-1 (access to court);Not necessary to examine issue of length;Damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 4. The applicant was born in 1941 and lives in Tel-Aviv. 5. On 27 August 1993 the applicant was severely injured in a traffic accident in Moscow. 6. On 12 May 1995 the applicant lodged a civil action before the Chertanovskiy District Court of Moscow against the car driver and the car owner, the Moscow branch of Tveruniversalbank, seeking compensation for damage. She claimed 6,700 US dollars (USD) as compensation for the loss of salary, for medical and travel expenses incurred as a result of the traffic accident and USD 15,000 as compensation for non-pecuniary damage. A copy of the statement of claim produced to the Court bears a stamp of the District Court’s registry showing the registration date as 12 May 1995. 7. On 5 October 1995 the Chertanovskiy District Court, by an interim decision, ordered a medical examination of the applicant by a panel of experts. It put questions about the current state of the applicant’s health, her previous ailments and their possible causes and an eventual need for medical assistance and care. 8. The interim decision of 5 October 1995 was submitted to the Moscow bureau for forensic medical examinations (Бюро судебно-медицинской экспертизы при Комитете здравоохранения города Москвы, hereinafter the “Bureau”). 9. On 13 October 1995 the Bureau asked the District Court for the applicant’s medical documents. 10. According to the Government, upon receipt of the Bureau’s request, the District Court asked the applicant’s lawyer Mr D. Shteynberg, a member of the Moscow Regional Bar Association, to produce additional medical information. No response followed. On an unspecified date the District Court repeated its request. After Mr Shteynberg had failed to respond for the second time, the District Court issued an interim decision on discontinuation of the proceedings. The court returned the applicant’s statement of claims with attached documents to Mr Shteynberg. 11. The applicant indicated that neither she nor her lawyer had received the District Court’s request for additional information and that they had not been notified of the District Court’s interim decision on discontinuation of the proceedings. 12. In 2002 the applicant complained to the president of the Chertanovskiy District Court about an excessive length of the proceedings. 13. On 18 July 2002 the Chertanovskiy District Court informed the applicant that, according to the registration log for the year of 1995, the applicant’s claim against the bank had never been registered by the District Court. 14. In August 2002 Mr Shteynberg inquired of the Bureau whether the expert examination ordered by the decision of 5 October 1995 had been carried out. 15. By letter of 19 August 2002, the Bureau responded to Mr Shteynberg that, having received no response from the District Court for additional medical information, it had not carried out any examination. 16. On 7 October 2002 the President of the Chertanovskiy District Court reported to the applicant that, according to the registration logs of the Chertanovskiy District Court for the years of 1995 to 2002, the District Court did not have a civil case to which the applicant and the Moscow branch of Tveruniversalbank were the parties. 17. The RSFSR Code on Civil Procedure of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed (Article 99) 18. Summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram (Article 106). 19. A court could adjourn examination of a case when an expert examination had been ordered (Article 215). 20. Article 221 set out an exhaustive list of grounds for issuing an interim decision on discontinuation of the proceedings (определение об оставлении заявления без рассмотрения), that is if parties failed to make use of a preliminary non-judicial avenue of solving a dispute; if an action was lodged by an incapacitated person or by a person lacking the authority to act; if the parties, without valid reasons, failed to attend two hearings; and if the same dispute between the same parties was pending before a court. 21. A copy of an interim decision on discontinuation of the proceedings was to be sent to the absent party no later than three days upon its delivery (Article 213). 22. Files in civil cases concerning claims for compensation for health damage were to be kept by first-instance courts for seventy-five years (Item 7 (A) (115) of the List of documents of the USSR Ministry of Justice, justice departments and authorities, and courts with indication of their period of keeping, approved by the USSR Ministry of Justice on 31 January 1980). 23. Original decisions on discontinuation of civil proceedings must be kept permanently (Paragraph 5.4 of the Instruction on the procedure for keeping, selecting and archiving of court documents, approved by Order no. 13 of the USSR Minister of Justice on 17 September 1980). | 1 |
dev | 001-102634 | ENG | HUN | CHAMBER | 2,011 | CASE OF SOMOGYI v. HUNGARY | 3 | Remainder inadmissible;Violation of Art. 5-1-a;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1951 and lives in Tököl. 6. In 1999 the applicant was sentenced to eight years' imprisonment for armed robbery by the Rimini Court in Italy. (The European Court of Human Rights subsequently held that the unfairness of the underlying proceedings gave rise to a violation of Article 6 § 1 of the Convention by the Italian authorities and awarded the applicant just satisfaction: Somogyi v. Italy, no. 67972/01, ECHR 2004IV). The end date of this sentence was 28 December 2007. 7. On 19 May 2003 the applicant was transferred to Hungary. On 20 October 2003 the Budapest Regional Court in Hungary held that he was to serve the remainder of his sentence under a strict regime in a Hungarian prison (fegyház) and that he could be released on parole after serving four-fifths of the term, i.e. on 23 May 2006. 8. The applicant appealed. On 16 February 2006 the Attorney General's Office intervened in the case, filing a motion for remedy in support of the applicant. The Office argued that the service of the applicant's sentence under a strict regime constituted an undue aggravation of his penal situation, in breach of Article 11 of the Transfer Convention, which entailed that he could be released on probation only belatedly. 9. On 14 March 2006 the Supreme Court quashed the Regional Court's decisions concerning the regime of the applicant's transferred sentence and his conditional release, holding that they were unlawful. It held that the best approximation of the Italian sentence in Hungarian law was to have imposed a medium regime (börtön) on the applicant for the remainder of his prison term, release on parole then being possible after having served three-quarters of the sentence. 10. On 17 March 2006 the applicant was released. 11. Subsequently, the applicant brought an official liability action against the Regional Court. He claimed compensation for the fact that, because of that court's wrong reconciliation of the Italian and Hungarian penitentiary rules, he had been released on parole only on 17 March 2006, whereas under the medium regime he could have already been released in November 2005. He also sought damages for having erroneously spent two years and five months in a strict-regime prison. 12. After divergent decisions, on 15 May 2008 the Supreme Court finally dismissed the action. Concerning the belated release, it held that, although the Regional Court's interpretation of the law had been overruled, there was no indication that it had carried out the complex task of reconciling the inconsistent Italian and Hungarian rules with gross negligence giving rise to tort liability. As to the period wrongly spent in a strict-regime prison, it noted that the applicant had not substantiated that he had sustained any actual damage. 13. From 1994 onwards, criminal proceedings were conducted against the applicant in Hungary for the abuse of firearms. On 6 February 2004 the Buda Central District Court sentenced him to four months' suspended imprisonment. The court observed that unlicensed firearms had been found in the applicant's car and, in so doing, it relied on the testimony of several witnesses. It took into account the extreme protraction of the case since 1994 as a crucial mitigating circumstance entailing a suspended sentence. 14. On 12 May 2005 the Budapest Regional Court upheld this judgment. On 15 November 2005 the Supreme Court dismissed the applicant's petition for review. 15. The Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112) provides as follows: “The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.” “In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: ... d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.” | 1 |
dev | 001-115740 | ENG | LVA | ADMISSIBILITY | 2,012 | AMIRS v. LATVIA | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Sergo Amirs, is a Latvian national, who was born in 1948 and lives in Piņķi. He was represented before the Court by Mr A. Ogurcovs, a lawyer practising in Rīga. 2. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and subsequently by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. According to the applicant, on 20 October 1994 four armed persons, alleging that they were police officers, tried to enter his apartment at Kurzemes prospekts 126 in Rīga. The applicant refused to open the door, as the persons were not in uniform and were behaving aggressively. After a while they left. They returned within two hours and presented a document summoning the applicant to the police station. The applicant dialled the telephone number indicated on the document and was informed that M.B. – the head of one of the sections of the Organised Crime Combating Office (Organizētās noziedzības apkarošanas birojs) – would like to meet him. 5. The applicant claimed that when he arrived at the police station on an unspecified later date (possibly 22 October 1994), M.B. brandished his gun and demanded a promissory note, apparently in the applicant’s possession, entitling him to 50,000 United States dollars (USD). The applicant refused to hand it over, after which M.B. demanded him to pay USD 20,000 instead. The applicant refused to pay. 6. The applicant alleged that following the incident he received threats and anonymous phone calls. 7. On 2 October 1995 the applicant secretly left his apartment at Kurzemes prospekts 126 and moved to another apartment. 8. On 10 January 1997 an explosion took place in the stairwell of the Kurzemes prospekts 126 apartment building. V.B., who, according to the Government, was a member of a notorious criminal gang, was injured in the explosion. The Government submitted that the explosion had been one of many assassination attempts directed against V.B., who was eventually assassinated in 2000. 9. On 14 December 1997 the applicant left Latvia and went to Australia. The Government submitted that after the expiry of his tourist visa, the applicant applied for asylum there. His asylum request was eventually rejected, and on 2 June 2001 he was deported back to Latvia. The applicant argued that he had travelled to Australia on a “business visa”, which was permanent, and that after spending three months in Australia he had applied for a “refugee visa”, which would have allowed him to legally seek employment in Australia. The applicant told the Supreme Court during the appeal proceedings in the criminal case against M.B. (see paragraph 21 below) that he had left Australia voluntarily and legally. 10. In the meantime, on 9 April 2001 another explosion took place in a lift at Kurzemes prospekts 126. Information given by the State Police to the Security Police on 1 February 2007 suggested that on that date criminal proceedings concerning both the first and second explosions were pending. The applicant had not been granted any procedural status in those proceedings and had not submitted any statements or claims relating thereto. The State Police pointed out that, at the time of both explosions, the applicant had no longer been residing at the address in question. 11. After the applicant’s return to Latvia he changed his name. 12. On 1 October 2001 M.B. was remanded in custody on suspicion of having committed various crimes, none of which was related to the applicant or the alleged incidents of October of 1994. 13. On 11 October 2001 a certain M.A. informed the Security Police that M.B. had committed aggravated extortion. M.A. put himself and the applicant forward as victims of M.B. 14. On 16 October 2001 the applicant was questioned by the Security Police. According to the Government, during the interview he gave information about the alleged incident of 1994 but did not make any allegations about any current or past threats to his life. 15. On 22 October 2001 M.B. was released on bail and, on the following day, the applicant applied to the Office of the Prosecutor General with a request that M.B. be rearrested or else that the applicant be granted special procedural protection. 16. On 3 November 2001 the Office of the Prosecutor General refused to grant special procedural protection to the applicant, since such protection was only afforded to persons who were parties to criminal cases, which the applicant was not. 17. On an unspecified date M.B. was also charged in connection with the alleged events of October 1994 and the applicant was officially recognised as having the procedural status of victim. A trial before the Zemgale Regional Court took place between 7 June 2004 and 10 May 2005. During the trial the applicant gave evidence about the events of 20 October 1994 and the days that followed. He informed the court that he had complained both in writing and orally to various institutions in this regard. He stated that his life had been under threat and on 14 December 1997 he had been forced to flee to Australia to avoid M.B. taking revenge on him. 18. The Zemgale Regional Court delivered its verdict on 10 May 2005. It found M.B. not guilty. When assessing the applicant’s statements, the court noted, amongst other things, that a forensic psychological and psychiatric report had revealed that the applicant was an “egocentric with paranoid tendencies”. However, the applicant had not been found to be suffering from a mental disorder. After having assessed the facts of the case and the available evidence, the court came to the conclusion that they were contradictory and did not support the applicant’s allegations. The court took into account, inter alia, the fact that the applicant had not travelled to Australia until three years after the alleged incidents of October 1994. 19. It appears that the applicant was sent a Russian translation of the verdict on 30 January 2006. The applicant argued that therefore he could not have complied with the requisite time-limit for lodging an appeal. On 23 February and 1 March 2006 the applicant submitted two identical petitions to the Supreme Court, complaining that the first-instance court had not mentioned in its verdict that he had submitted a civil claim against M.B. 20. A prosecutor and the other alleged victim, M.A., had in the meantime submitted their appeals, and appeal proceedings had been initiated in the Supreme Court. The Supreme Court scheduled the hearings to take place between 20 and 24 February 2006 and decided to issue a summons to the applicant. 21. On 4 July 2006, several months after the completion of the first round of appellate court hearings (in which the applicant had given evidence and which had lasted for four days from 20 to 23 February 2006), the applicant sought leave to appeal, which he had apparently not been able to do within the requisite time-limit because he had not been in Rīga. On 14 August 2006 the Zemgale Regional Court examined that request and denied his request for leave to appeal. That decision was subsequently upheld by the Supreme Court. 22. On 10 October 2006 the applicant applied to the Supreme Court to be granted special procedural protection because he had allegedly “been attacked” on 8 May 2006. 23. The application was communicated to the respondent Government on 23 October 2006. 24. After receiving the applicant’s request for special procedural protection, the Supreme Court requested the Prosecutor General to verify the applicant’s allegations and, after receiving a reply, on 30 October 2006 granted special procedural protection to the applicant. 25. On 19 December 2006 the Supreme Court delivered its verdict, convicting M.B. of charges in connection with M.A.’s allegations but upholding the first-instance court’s decision to acquit M.B. with regard to the applicant’s allegations. In its verdict the Supreme Court indicated that the applicant’s suspicions linking M.B. to the explosions, the armed men near his apartment building and the violent deaths of various individuals were not established by the materials in the case file. The Supreme Court agreed with the lower court’s conclusion that the applicant’s leaving Latvia three years after the alleged events could not have been linked to the events in connection with which M.B. had been charged. 26. The Government submitted that on 9 January 2007 the applicant had requested the Supreme Court to lift his special procedural protection. That request was granted the following day. The applicant contended that he had waived his special protection after being prompted to do so by the police officers who had been assigned to guard him. 27. On 18 December 2007 the Senate of the Supreme Court gave its final verdict in the criminal case against M.B., in which it dismissed the appeals on points of law lodged by the prosecutor, M.B. and his counsel, the applicant, and M.A.’s counsel. | 0 |
dev | 001-84289 | ENG | POL | CHAMBER | 2,008 | CASE OF KOLODZINSKI v. POLAND | 4 | Violation of Art. 8 | Giovanni Bonello;Kristaq Traja;Lech Garlicki;Nicolas Bratza | 4. The applicant was born in 1949 and lives in Gdańsk, Poland. 5. On 16 July 2004 the applicant was arrested on suspicion of robbery. On 17 July 2004 the Gdańsk District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody until 16 October 2004. It found that there were reasonable grounds – in particular, evidence from witnesses – for suspecting him of the offence charged. The court further noted that the applicant was liable to a statutory maximum sentence of at least 12 years’ imprisonment. It also found that there was a risk that the applicant might tamper with evidence. 6. On 11 October 2004 the Gdańsk District Court prolonged the applicant’s detention until 16 January 2005. It considered that the reasons for keeping him in detention were still valid and the need to secure the proper conduct of the investigation justified holding him in custody. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant. It also found that there was a risk that the applicant might tamper with evidence, given the nature of the charges against him and the fact that he had acted with other co-accused. 7. The applicant’s detention was subsequently prolonged by the District Court on unspecified dates. The courts’ decisions were based on Article 258 § 1 of the Code of Criminal Procedure, which lists grounds for pre-trial detention, such as, the risk that an accused will abscond or go into hiding or a justified fear that an accused will attempt to induce witnesses or co-defendants to give false testimony or to obstruct the proper course of proceedings by any other unlawful means. 8. On 27 October 2005 the Gdańsk District Court convicted the applicant of two counts of robbery and sentenced him to 3 years and 6 months’ imprisonment. The applicant appealed. 9. On 26 September 2006 the Gdańsk Regional Court (Sąd Okręgowy) upheld the impugned judgment. 10. The applicant did not lodge a cassation appeal. 11. The applicant’s letter to the Court dated 24 November 2004 bears a stamp marked “censored” (cenzurowano), “the prosecutor” (prokurator) followed by an illegible signature. It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape. According to the postmark the letter was posted on 8 December 2004. 12. The application form submitted by the applicant and dated 13 January 2005 bears a stamp marked “censored” (cenzurowano), “the judge” (sędzia) followed by an illegible signature. The envelope bears a stamp confirming that the applicant’s letter was received for dispatch by the prison administration on 18 January 2005. However, according to the postmark the letter was not posted until 31 January 2005. It also appears that the envelope was cut open and subsequently resealed with adhesive tape. 13. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006. | 1 |
dev | 001-58098 | ENG | FRA | CHAMBER | 1,997 | CASE OF MEHEMI v. FRANCE | 2 | Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;John Freeland | 7. Mr Ali Mehemi, who was born in Lyons in 1962, is an Algerian national and is currently living in Algeria. Until 28 February 1995, when he was deported, he lived in France, where his parents – who have lived there for about forty years – still reside, as do his two brothers (one of whom is French and the other the father of two French children) and his two sisters (one of whom is French and the other the wife of a French national). 8. The applicant went to school in France until the age of 17. He apparently worked in the construction industry for three years and thereafter as a self-employed taxi-driver. 9. He is the father of three children of French nationality, born in 1982, 1983 and 1984. On 14 May 1986, in Villeurbanne, he married their mother, an Italian national who has been lawfully resident in France since 1978. 10. On 5 November 1989 officers of the Regional Criminal Investigation Department, assisted by customs officers, seized 142 kilograms of hashish imported from Morocco in a van adapted for the purpose. Nine people, including the applicant, at whose parents’ home seven kilograms of hashish were found, were committed for trial at the Lyons Criminal Court accused of drug offences and illegal importation of prohibited goods. On 22 January 1991 the Criminal Court sentenced Mr Mehemi to six years’ imprisonment, with ineligibility for parole during the first three years, and two customs fines, for possession and illegal importation of dangerous drugs. 11. In a judgment of 4 July 1991 the Lyons Court of Appeal upheld the judgment of 22 January 1991 and ordered Mr Mehemi’s permanent exclusion from French territory on the ground that “public-policy considerations preclude the presence within French territory of an alien engaged as a principal in the offence of drug trafficking ”. 12. On 19 March 1993 Mr Mehemi filed with the Lyons Court of Appeal an application to have the permanent exclusion order rescinded. He relied in particular on Article 8 of the Convention. On 1 June 1993 the Court of Appeal refused the above application on the following grounds: “The defendant has not adduced any new evidence not examined by the Court of Appeal when it decided to uphold Ali Mehemi’s permanent exclusion from French territory. It should be observed that the Court of Appeal expressly mentioned in the reasons for its decision that French public-policy considerations precluded the presence within French territory of an alien engaged as a principal in the offence of drug trafficking. It is untrue that the defendant has maintained no link with his nationality of origin, since he voluntarily opted for that nationality on reaching his majority, despite the fact that the circumstances of his birth would have allowed him, in the absence of any criminal conviction, to acquire French nationality as of right if he had not expressly declined it. His various trips to North Africa over the years preceding his arrest show that he has not severed all physical links with his nationality of origin. Lastly, the order permanently excluding him from French territory is justified by the offence of importing drugs in the manner described in his conviction, now final, and by no means constitutes a disproportionate response to the seriousness of that offence, given that he had remained on French territory in order to facilitate the importation and subsequent distribution among desperate young people – with all the consequences which this type of offence involves – of very substantial quantities of hashish, the first drug turned to by addicts on their downhill slide, more than 140 kilograms of it in this case, purely for financial gain. It cannot seriously be maintained that there has been any violation of the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ...” 13. On 7 June 1993 the applicant appealed on points of law. In his statement of the grounds of appeal, dated 2 July 1993, his lawyer argued as follows: “… … Contrary to what is said in the impugned judgment, Mr Ali Mehemi, an Algerian national, was never entitled to claim French nationality as of right ... Contrary to what is asserted there, he did not at any time decline French nationality … Pursuant to the legislation governing the consequences of Algerian independence as regards nationality (Ordinance no. 62-825 of 21 July 1962, Decree no. 62-1475 of 27 November 1962 and Law no. 66-945 of 20 December 1966), Mr Ali Mehemi, who was born before 1 January 1963, was subject to the same rules as his parents, who, not having made the declaration of recognition of French nationality provided for in Article 1 of the Law of 20 December 1966, became, as a result, Algerian. ... Contrary to what the Court of Appeal judges said, there was indeed disproportionality in the instant case between the isolated offence Mr Ali Mehemi was found guilty of and his interests as defined and protected in Article 8 of the Convention ... Mr Ali Mehemi was born in France, is married to a national of a European Community member State and is the father of three French children ... His whole family lives in France and …, contrary to what is stated in the judgment, he has not maintained links with his country of origin, his nationality – which he did not choose – not reflecting his actual position. ... ... Mr Ali Mehemi’s three French children were born in France and have always lived there ... They cannot be uprooted and sent to a country they do not know with the sole aim of being allowed to remain with their father ... In any event, their mother could not follow them if they were, ... nor can Mr Mehemi go to Italy, on account of his exclusion from French territory. ...” 14. In a judgment of 23 February 1994 the Court of Cassation dismissed the appeal in the following terms: “... The Court finds in this case that the measure concerned, which was imposed on the defendant following adversarial proceedings, was by no means a disproportionate response to the seriousness of the crime, and the grounds of appeal therefore contain no new evidence of a kind to warrant rescinding the measure. In the light of the above findings and considerations, the Court of Appeal justified its decision and did not infringe the principles or legislation relied on in the grounds of appeal. It follows that the appeal cannot be allowed. ...” 15. While Mr Mehemi was in prison, on a date which has not been determined, his wife wrote to the French President in the following terms: “... I would not ask you to plead in my favour for a reduction of my husband’s sentence, as I know full well that that is impossible, but I beseech you to help me have his expulsion from French territory quashed. He was sentenced to six years’ imprisonment – so be it. That must be the way of it because he committed a crime and I know perfectly well that he must pay for it ... But I cannot bring myself to accept his expulsion, and for good reason. Please understand me, Mr President, or at least try to: since my husband went to prison my children have not been themselves; they are suffering terribly and are constantly having to be examined by psychologists. But it is not just my children and I who are suffering: there is also the whole of my husband’s family, particularly his mother, who is 67 years of age and a diabetic. She sees her grandchildren all the time and whenever they ask her where “Dad” is and when he will be coming back she cannot help bursting into tears. This situation is having a terrible effect on her physical and mental health. Things cannot go on like this. I do not want my family and the future of my children to be destroyed, because what future can I give them without their father at their side? ...” 16. The permanent exclusion order was enforced on 28 February 1995. 17. Article L. 630-1 of the Public Health Code formerly provided: “... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory. Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence. ... Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.” Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions: “However, exclusion from French territory shall not be imposed on: ... 2. a convicted alien who is the father or mother of a French child resident in France, provided that he or she is vested with or shares parental authority over that child or provides for its needs; ... Nor shall exclusion from French territory be imposed on a convicted alien who can prove either: 1. that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years; or 2. that he has been lawfully resident in France for more than ten years. The provisions of the eight preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [toxic plants classified as drugs] or for conspiracy to commit those offences. ... Exclusion from French territory shall of itself entail the convicted person’s deportation, where necessary after the end of his prison sentence.” Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992. 18. Article 55-1 of the Criminal Code provides: “… Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or vary its duration. …” | 1 |
dev | 001-79215 | ENG | AUT | CHAMBER | 2,007 | CASE OF ESKI v. AUSTRIA | 3 | No violation of Art. 8 | Christos Rozakis | 6. The applicant was born in 1963 and lives in Vienna. Between 1987 and 1995 he lived together with J.W. On 9 April 1993 J.W. gave birth to a daughter, M., of whom the applicant is the father. 7. In March 1995 the couple split up and J.W. went to live with her daughter in Linz. The applicant stayed in Linz during the summer and autumn of 1995 and then returned to Vienna. 8. On 25 December 1996 the applicant, while visiting his daughter, threatened and injured J.W., who subsequently refused him access to M. 9. On 3 July 1997 the applicant applied to the Linz-Land District Court (Bezirksgericht) seeking visiting rights in respect of his daughter. On 19 August 1997 the district court heard evidence from the applicant and J.W. On 24 October 1997 a visit took place. On 26 February 1998 the applicant and J.W. concluded a visiting agreement, under the terms of which visits were to take place on the premises of a youth centre in the presence of J.W. 10. On 26 June 1998, at J.W.'s request and with the approval of the Youth Welfare Office (Jugendwohlfahrtsträger) attached to the Linz–Land District Administrative Authority (Bezirkshauptmannschaft), the Linz-Land District Court withdrew the applicant's visiting rights. It noted that, at the first arranged visit on 9 March 1998, the applicant had insulted J.W. and told M. that her mother was an evil witch and a whore. M. had subsequently suffered from anxiety, sleep disturbances, gastro-intestinal problems and pneumonia. The court further noted that even before the visiting agreement had been concluded, the arrangements for and exercise of the applicant's visiting rights had been complicated by the applicant's constant aggression towards J.W. The court found that the repeated threats against her mother were seriously jeopardising M.'s mental development. Accordingly, the applicant's visiting rights were not in the best interest of the child; on the contrary, they were harmful to her mental and physical well-being. 11. On 14 January 1999 the Linz Regional Court (Landesgericht) upheld this decision. 12. In June 1999 J.W. started cohabiting with her new partner, A.F. They married in September 1999. 13. Another contact visit between the applicant and his daughter took place during Christmas 2000. 14. On 26 June and 4 July 2001 the applicant again lodged applications for visiting rights with the Linz-Land District Court. He further stated that he objected to the possible adoption of M. by A.F. 15. On 16 July 2001 the Linz-Land District Court rejected the applications. It noted that the applicant's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed. The decision became final. 16. On 27 July 2001 A.F. instituted proceedings with the Linz-Land District Court seeking to adopt M. He requested that the court overrule the applicant's refusal to give the required consent. 17. The district court summoned the applicant to a hearing scheduled for 2 October 2001. In written submissions of 13 September 2001 the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption. A hearing was therefore not necessary. He added that the letter should be regarded as his submissions in the case. In further submissions to the Linz Court of Appeal, the applicant filed a motion accusing judge V., the competent judge of the Linz-Land District Court, of bias, and reiterated his request for visiting rights. 18. The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty (Ordnungsstrafe). On 23 September 2001 the applicant informed the court that he was unable to attend the hearing scheduled for 2 October 2001, as he was attending lectures at Vienna University. He further referred to his motion accusing judge V. of bias, and submitted that his case would not be given objective consideration. He could, however, agree to another date under different circumstances. 19. On 12 October 2001 the President (Vorsteher) of the Linz-Land District Court dismissed the applicant's motion accusing judge V. of bias. On 7 January 2002 the Linz Regional Court upheld this decision. It noted that the applicant had referred to a statement made by judge V. during a hearing in August 1997 in the proceedings concerning the withdrawal of his access rights in respect of M. However, the applicant had not complained at the time of any alleged bias on the part of the judge. The motion had therefore been submitted out of time. On 14 May 2002 the President of the Linz-Land District Court rejected a further motion by the applicant accusing judge V. of bias, for the same reasons. 20. Meanwhile, on 12 March 2002, the applicant gave evidence to the Josefstadt District Court in Vienna under letters rogatory. At the hearing he argued that he had developed a close relationship with his daughter in her first two years. He had not lost interest in his daughter and still wished to obtain visiting rights. However, J.W. had sought to prevent any contact. In further written submissions to the court he argued that he did not know A.F., who had no family ties with his daughter. His daughter's alleged psychological problems had been caused by her mother, who herself had similar problems. 21. On 17 September 2002 the Linz-Land District Court heard evidence from A.F., M. and J.W. On 16 October 2002 the court, with the approval of the Youth Welfare Office attached to the Linz-Land District Administrative Authority, overruled the applicant's refusal to give consent and granted A.F. permission to adopt M. It noted that A.F. had developed a close relationship with M., who had said she was in favour of the adoption as she regarded A.F. as her father. The adoption would secure M.'s position within the family and also act as a material safeguard, as A.F. was able to support her financially. With regard to the applicant, the court found that his allegedly close relationship with M. did not correspond to reality. The last contact visit, during Christmas 2000, had been disappointing for the child, as the applicant had taken no initiatives, had not complied with the child's wishes for a special Christmas present and, during dinner, had not spoken with the child for three quarters of an hour. In the past the applicant had repeatedly tried to interfere in the relationship between M. and her mother, causing M. to develop physical and psychological problems. He had not made any effort to prove his feelings for M. in practice. Furthermore, he had not made maintenance payments for the past five years. The court therefore considered that the applicant's objection to the adoption was unjustified. 22. The applicant appealed against this decision. He complained that the lack of a public oral hearing in the presence of his daughter, A.F. and J.W. was contrary to Article 6 of the Convention. He had not been able to put questions to A.F. and J.W. or challenge the criticism made of him in several reports by the social-welfare authorities. In particular, no evidence had been heard from him concerning the accusation that he had told M. that her mother was an evil witch and a whore. He further complained that the court had not instructed him to request an opinion from an expert in child psychology. He was of Turkish origin, and adoption in these circumstances was tantamount to a denial of half of the child's genetic background. Furthermore, without an expert opinion there was nothing to substantiate the courts' findings that he had caused M.'s physical and psychological problems. The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him. Instead, it had based its findings on their written submissions. Finally, the applicant contended that there were not sufficient reasons for M.'s adoption. A.F. could instead request joint custody with the child's mother and undertake to make maintenance payments on a contractual basis. The applicant's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with M. He had been paying maintenance for M. for the past two years. 23. On 25 February 2003 the Linz Regional Court dismissed the applicant's appeal. It found that, even in the absence of an oral hearing in the presence of all the parties, which in the proceedings at issue was not obligatory, the applicant had been given a proper hearing for the purposes of Article 6 of the Convention. In that regard it noted in particular that the Linz-Land District Court had made several attempts to hear evidence from the applicant; this had eventually been possible only by issuing letters rogatory to another court. The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings, that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement. Moreover, the applicant had had sufficient opportunity to comment in written submissions, namely in the appeal proceedings, on the accusations made against him. The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned. In this regard it noted that the regional court had already confirmed the applicant's aggressive behaviour and its consequences in its decision of 14 January 1999, and had rejected the applicant's arguments to the contrary. Nor had the applicant, in his present appeal, been able satisfactorily to show that his conduct had not been the reason for the child's problems. The district court had given sufficient and extensive reasons why the adoption should be authorised, namely by referring to the applicant's conduct. Finally, the regional court noted that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption. Accordingly, it did not go into the applicant's arguments regarding the maintenance payments. It refused the applicant leave to lodge an ordinary appeal with the Supreme Court (Oberster Gerichtshof). This decision was served on the applicant's counsel on 18 April 2003. 24. Article 179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court. 25. Pursuant to Article 181 § 1, the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption. 26. Article 181 § 3 provides that, at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal. 27. Article 5 of the European Convention on Adoption of 1967, which is binding on several of the Council of Europe's Member States, including Austria, provides as follows: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; (b) the consent of the spouse of the adopter. 2. The competent authority shall not: a) dispense with the consent of any person mentioned in paragraph 1 of this article, or b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law. 3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.” 28. In its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe's Committee of Experts on Family Law states as follows: Principle 15: “1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn: the consent of the mother the consent of the father. States may also require the consent of the child considered by the internal law as having sufficient understanding. 2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.” | 0 |
dev | 001-77659 | ENG | POL | CHAMBER | 2,006 | CASE OF KUSYK v. POLAND | 3 | No violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1964 and lives in Zawada, Poland. 5. The applicant was arrested by the police on 24 June 1999. On the following day the Lubartów District Court (Sąd Rejonowy) ordered his detention on remand for a period of three months on suspicion of armed robbery. It took into account the nature of the offence and the strong likelihood that the applicant would be given a heavy sentence. In addition, it had regard to the fact that the applicant had been previously convicted of a violent crime. 6. On 14 September 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 23 December 1999, having regard to the strong suspicion that he had committed the offence in question. It also found that the applicant’s detention was justified, given the gravity of the charge and the severity of the likely sentence. The court further held that the investigation could not be concluded within the period of three months because the applicant had to undergo a psychiatric examination. 7. The applicant underwent a psychiatric examination between 24 September and 1 October 1999. On 18 October 1999 a psychologist and two psychiatrists submitted their report. According to their findings, the applicant was able to understand his acts at the time of the commission of the alleged offence and could participate in the trial. 8. On 29 October 1999 the applicant was additionally charged with theft. 9. On 6 December 1999 the Lubartów District Prosecutor (Prokurator Rejonowy) terminated the investigation. On 8 December 1999 the prosecution filed a bill of indictment with the Regional Court. The applicant and his brother were charged with armed robbery and inflicting minor bodily harm. The applicant was additionally charged with theft. The bill of indictment specified that the applicant was subject to the rules on recidivism as in 1989 he had been convicted of assault with intent to rob and inflicting grievous bodily harm and had been sentenced to four years’ imprisonment. In addition, in 1994 the applicant had been convicted of manslaughter and sentenced to eight years’ imprisonment. 10. On 21 December 1999 the Regional Court ordered that the applicant be kept in custody until 30 June 2000. It observed that the evidence obtained in the proceedings indicated that there was a strong likelihood that the offences in question had been committed by the applicant. It further considered that continuation of his detention was necessary in order to secure the proper conduct of the proceedings, given the nature of the offence and the severity of the likely sentence in respect of the charge of armed robbery. 11. The applicant’s detention was subsequently prolonged by the Regional Court on 16 June 2000 (until 1 September 2000) and on 30 August 2000 (until 31 December 2000). The court relied on the same grounds as invoked in its earlier decision. 12. The Regional Court held 7 hearings (6 April, 17 May, 16 June, 20 July, 14 September, 16 October and 16 November 2000). On 23 November 2000 it gave judgment. The applicant was convicted as charged and sentenced to 5 years’ imprisonment. The applicant and the prosecution appealed against the Regional Court’s judgment. 13. On 28 December 2000 the Regional Court ordered that the applicant be kept in custody until 28 March 2001. On 14 March 2001 the Lublin Court of Appeal (Sąd Apelacyjny) prolonged his detention until 29 June 2001. 14. On 5 April 2001 the Lublin Court of Appeal quashed the first-instance judgment and ordered a retrial. 15. It appears that in the course of the retrial the Regional Court ordered that the applicant be examined by a psychiatrist and psychologist. According to their report, at the relevant time the applicant was not suffering from diminished responsibility for his acts, although he was a mentally handicapped person with an unsound personality. 16. The Lublin Regional Court several times prolonged the applicant’s detention. The relevant decisions were given on 12 June 2001 (prolonging his detention until 31 December 2001), on 11 December 2001 (ordering his continued detention until 30 April 2002), on 20 March 2002 (extending his detention until 20 June 2002), on 18 June 2002 (prolonging that period until 18 September 2002) and on 17 September 2002 (ordering his continued detention until 17 December 2002). In all those decisions, the Regional Court relied on the reasonable suspicion that the offences in question had been committed by the applicant, having regard to the evidence obtained in the proceedings. It further found that his continued detention was necessary in order to secure the proper conduct of the proceedings, given the nature of the charges and the severity of the sentence to which the applicant was liable. In the latter respect, the court found that the offence of armed robbery with which the applicant had been charged constituted a serious social danger and that the applicant was a recidivist offender. 17. The applicant’s numerous requests for release and appeals against prolongation of his detention were to no avail. The courts, having regard to the relevant medical and court officers’ reports, did not find any reason which would justify the applicant’s release on the grounds specified in Article 259 § 1 of the Code of Criminal Procedure. 18. The Regional Court held 7 hearings (8 October and 28 November 2001, and 24 January, 27 February, 20 March, 29 May and 2 October 2002). It gave judgment on 8 October 2002. The applicant was convicted of armed robbery and theft and sentenced to 7 years’ imprisonment. He appealed against that judgment. 19. On 27 May 2003 the Lublin Court of Appeal gave judgment. It acquitted the applicant of theft and upheld the remainder of the Regional Court’s judgment. The applicant lodged a cassation appeal against the Court of Appeal’s judgment. On 21 July 2004 the Supreme Court (Sąd Najwyższy) dismissed his cassation appeal as being manifestly ill-founded. 20. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 21. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 22. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 23. The Code sets out the conditions governing the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 24. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. When imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. an application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months. 3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 25. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides: “ A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.” Article 64 §§ 1 and 2 of the Criminal Code of 1997 included in Chapter VII of the Criminal Code of 1997 provide for special rules relating to the sentencing of habitual offenders. The finding that a person is subject to the rules on recidivism within the meaning of Article 64 of the Criminal Code, inevitably results in the sentence of imprisonment to which the accused was liable being increased. | 0 |
dev | 001-83527 | ENG | BEL | CHAMBER | 2,007 | CASE OF TILLACK v. BELGIUM | 3 | Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings (total) | András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky | 5. The applicant was born in 1961 and lives in Berlin. 6. He is a journalist on the German weekly magazine Stern. From 1 August 1999 until 31 July 2004 he was assigned to Brussels to report on the policies of the European Union and the activities of the European institutions. 7. On 27 February and 7 March 2002 Stern published two articles by the applicant based on confidential documents from the European Anti-Fraud Office (OLAF). The first article reported on allegations by a European civil servant concerning irregularities in the European institutions. The second concerned the internal investigations OLAF had carried out into those allegations. 8. A rumour began to circulate within OLAF that the applicant had paid 8,000 euros (EUR) or German marks (DEM) to a European civil servant in exchange for this information. 9. On 12 March 2002 OLAF, suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the European institutions, opened an internal investigation to identify the person who had disclosed the information to the applicant. 10. The minutes of an OLAF Supervisory Committee meeting held on 9 and 10 April 2002 stated in particular: “The members of the Supervisory Committee noted that the journalist’s articles were not at all aggressive in tone but hinted at the real situation, as was often the case with individuals. They were surprised that OLAF’s press release referred to a payment for such information. Consequently, they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard.” 11. In a letter of 24 March 2003 written in the course of his inquiry into a complaint (no. 1840/2002/GG) filed by the applicant against OLAF, the European Ombudsman indicated that the suspicions that the applicant had bribed an OLAF official had originated from “information from reliable sources, including members of the European Parliament”. 12. On 30 September 2003 OLAF issued a press release entitled “OLAF clarification regarding an apparent leak of information”. The press release was worded as follows: “On 27 March 2002, the European Anti-Fraud Office (OLAF) issued a press release announcing that it had opened an internal investigation under Regulation 1073/1999 into an apparent leak of confidential information included in a report prepared within OLAF. It stated that according to information received by the Office, a journalist had received a number of documents relating to the so-called ‘... affair’, and that it was not excluded that payment might have been made to somebody within OLAF (or possibly another EU institution) for these documents. OLAF’s enquiries have not yet been completed but to date, OLAF has not obtained proof that such a payment was made.” 13. On 30 November 2003 the European Ombudsman issued his decision. He had already submitted a draft recommendation to OLAF on 18 June 2003. The decision, which essentially reproduced the conclusions set out in the draft, stated in particular: “... 1.7 ... by publishing this press release, OLAF has not adequately implemented the Ombudsman’s draft recommendation. Instead of withdrawing the allegations of bribery, OLAF simply states that ‘to date’ it has not found sufficient evidence to support these allegations. The wording of this press release thus implies that OLAF considers it possible that evidence supporting these allegations could still emerge. In these circumstances, the action taken by OLAF is manifestly inadequate to remedy the instance of maladministration that the Ombudsman has identified. A critical remark will therefore be made in this respect. ... 4. Conclusion 4.1 On the basis of the Ombudsman’s inquiries into this complaint, it is necessary to make the following critical remark: By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration.” 14. On 11 February 2004 OLAF lodged a complaint with the Belgian judicial authorities, submitting a report on the internal investigation it had carried out. It also referred the matter to the German judicial authorities. 15. Consequently, on 23 February 2004, an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant. 16. On 19 March 2004, at the request of the investigating judge, the applicant’s home and workplace were searched by the Belgian judicial authorities. Almost all of the applicant’s working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). It appears that the search warrant was not handed to the applicant but was read out to him. No inventory of the items seized was drawn up. On that occasion, the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by OLAF, which suspected him of having bribed a European civil servant in order to obtain confidential information. According to the applicant, the authorities subsequently lost a whole crate of papers, which was not found until more than seven months later, in November 2004. 17. On 29 March and 15 April 2004 the applicant applied to the Principal Public Prosecutor at the Brussels Court of Appeal for leave to consult the investigation file. His application was refused in a letter dated 17 June 2004. 18. The applicant applied again on 28 June 2004, to no avail. 19. In the meantime, on 24 March 2004, he had applied to the investigating judge to have the measures relating to the seizure discontinued. 20. By an order of 8 April 2004 the investigating judge rejected his application. 21. The applicant appealed, alleging, inter alia, a breach of Article 10 of the Convention. 22. The Indictment Division upheld the order on 22 September 2004, holding as follows: “The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom, and, if so, whether that right has an absolute value or is subject to restrictions, has not yet been established in law. The actual wording of Article 10 of the European Convention on Human Rights does not recognise the protection of journalistic sources, a right which has developed through the case-law of the European Court of Human Rights, albeit without having been enshrined as an absolute value according to legal authorities (see, to this effect, the judgment of the European Court of Human Rights in the case of Ernst and Others v. Belgium, 15 July 2003, no. 33400/96, Human Rights Information Bulletin no. 60, July-October 2003, pp. 4-5). Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information, although the exercise of this right does not give rise to immunity from prosecution or from civil liability (see in this connection the Bill granting journalists the right not to disclose their sources of information, passed by the Belgian House of Representatives on 6 May 2004, and the opinion of the National Council of Justice on the legislative proposals to grant journalists the right to protect their sources of information, approved by the General Assembly on 4 February 2004). The investigative measure complained of is, admittedly, an interference in the rights guaranteed by Article 10 of the ECHR. It was, however, lawfully ordered by the competent investigating judge in connection with the matter referred to him. It pursues legitimate aims since, in the context of the information in the case file brought to the attention of the court, whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information, its purpose is to ‘verify whether the protection of confidentiality applies to a lawful or unlawful source; the latter must be overridden by a superior value, namely the prevention of crime’ (written application by the Principal Public Prosecutor of 18 June 2004, p. 14). As is rightly noted by the investigating judge, it is not acceptable that the right to protect sources can be used to cover up offences, since this would deprive that right of its purpose, notably the provision of accurate and reliable information to the public, and would be likely to jeopardise public safety by creating de facto impunity (see to this effect the judgment of the European Court of Human Rights of 15 July 2003, JLMB, 2003, p. 1524). ... In the instant case, as the investigating judge noted in the order appealed against, in particular on page 3, paragraph 2.3.1, the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained, being justified by the ongoing duty to investigate, the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge. The arguments advanced by the applicant in his submissions to this court, which cannot substitute its own findings for those of the court below, do not give rise to any doubt in this respect. It follows that the appeal is unfounded.” 23. The applicant appealed on points of law. Relying in particular on Articles 6, 8 and 10 of the Convention, he submitted that freedom of expression included the freedom to seek out and collect information, essential aspects of journalistic activity. According to the applicant, that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources. The applicant also complained that since he had not had access to the investigation file, he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search. 24. By a judgment of 1 December 2004 the Court of Cassation dismissed the appeal. It held that Article 10 of the Convention authorised restrictions on freedom of expression, that the search and seizure were provided for by the Code of Criminal Procedure and that the Indictment Division had given sufficient and adequate reasons for its decision. The Court of Cassation further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out. It was sufficient for the investigating judge to have evidence suggesting that that these premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant. Consequently, the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under Article 416 § 2 of the Code of Criminal Procedure, and was therefore inadmissible. 25. In the meantime, on 1 and 4 June 2004, the applicant had lodged two applications with the Court of First Instance of the European Communities. The first sought the annulment of the complaint filed by OLAF and compensation for the harm allegedly caused to the applicant’s career and reputation. The second sought a temporary injunction prohibiting OLAF from inspecting any document seized during the searches at issue. By an order of 15 October 2004 the President of the court dismissed the applications. The President ruled that OLAF’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment. He stressed in particular that OLAF’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings, given that the competent authorities remained free to decide on the action to be taken in relation to the report. As regards the applicant’s application for interim measures, he ruled that there was no causal link between the alleged harm and OLAF’s action and that it had not been established that OLAF had acted in breach of the principles of good administration and proportionality. 26. The applicant appealed. By an order of 19 April 2005 the President of the Court of Justice of the European Communities upheld the order. 27. In the context of those proceedings, the applicant received a copy of OLAF’s complaint but not of the other documents in the criminal file. At that time, he had not been charged in Belgium. On 17 November 2006 the Hamburg public prosecutor informed the applicant’s counsel that the investigation in Germany had been closed without any charges being brought. 28. On 12 May 2005 the European Ombudsman drafted a special report for the European Parliament following the draft recommendation he had addressed to OLAF in connection with a fresh complaint filed by the applicant (2485/2004/GG). In the complaint the applicant alleged that during the inquiry into complaint no. 1840/2002/GG, OLAF had provided incorrect information that was prone to mislead the Ombudsman; he requested the latter to conduct a new inquiry. 29. In his above-mentioned report, the Ombudsman stated that the alleged remarks by the members of the European Parliament (see paragraph 11 above) had probably never been made. They were rumours circulated by another journalist, Mr G., which the Director General of OLAF had not bothered to check with the members of the European Parliament concerned. 30. In his recommendation, the Ombudsman concluded that OLAF should acknowledge that it had made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter’s inquiry into complaint no. 1840/2002/GG. 31. Article 458 of the Belgian Criminal Code provides: “Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by reason of their status or profession, are guardians of secrets entrusted to them and who disclose them, except where they are called to give evidence in legal proceedings (or to a parliamentary commission of inquiry) or where the law requires them to do so, shall be liable to imprisonment for between eight days and six months and a fine ranging from one hundred to five hundred francs.” 32. The relevant provisions of the Code of Criminal Procedure read as follows: “The investigating judge may, if required to do so or of his own motion, visit the home of the accused to search papers, effects and, in general, any items that may be deemed useful in establishing the truth.” “Similarly, the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden.” 33. Article 8 of Regulation EC No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF provides as follows in respect of confidentiality and data protection: “1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions. 2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities. Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity. ...” 34. Article 16 of the same Regulation provides that it is binding in its entirety and directly applicable in all Member States. 35. Paragraph 4 of Article 280 of the EEC Treaty states as follows; “The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice.” | 1 |
dev | 001-72936 | ENG | ITA | GRANDCHAMBER | 2,006 | CASE OF MOSTACCIUOLO GIUSEPPE v. ITALY (No. 2) | 2 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Luzius Wildhaber;Nicolas Bratza | 12. The applicant was born in 1938 and lives in Benevento. 13. On 5 May 1987 Mr F. asked the Benevento District Court to order the applicant to pay him 73,934,495 Italian lire (38,183.98 euros (EUR)) for professional services. On 11 May 1987 the President of the Benevento District Court granted the application. The order was served on the applicant on 20 May 1987. 14. On 8 June 1987 the applicant challenged the order in the Benevento District Court. Preparation of the case for trial began on 24 September 1987. Of the twenty-nine hearings listed between 26 November 1987 and 16 October 1998 seven were adjourned by the court of its own motion, ten were devoted to organising expert evidence and supplementary findings and two were adjourned at the parties’ request. 15. On 16 April 1999 the case was referred to the bench of judges dealing with the oldest cases (sezioni stralcio). Of the four hearings listed between 22 September 1999 and 8 February 2002 one was adjourned by the court of its own motion and one because the parties had not appeared. On 2 May 2003 the case was struck out of the list of cases because the parties had not appeared. 16. On 10 January 2002 the applicant 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 applicant asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed EUR 14,460.94 in pecuniary and non-pecuniary damages. He sought the reimbursement of his legal costs, including those incurred before the European Court of Human Rights, but did not quantify or give particulars of them. 17. In a decision of 21 June 2002, the text of which was deposited with the registry on 2 October 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows: “ ... The proceedings have lasted approximately 15 years without being disposed of. Their length is clearly well over the reasonable time required by Article 6 § 1 of the European Convention. On the basis of the time periods considered reasonable in a series of judgments of the Strasbourg Court, this type of proceedings should have ended within three years at the most since they were normal proceedings on the merits to be prepared and dealt with in accordance with the ordinary procedure. Accordingly, in respect of the surplus period of approximately 12 years the delay has to be regarded as unjustified. That delay certainly cannot be attributed to culpable conduct on the part of the applicant, who did not make any unsubstantiated requests for an adjournment or applications for investigative measures on false pretexts since he merely put up with the numerous adjournments ordered by the court of its own motion and the slowness in preparing the case without being able to intervene to expedite the proceedings, as was in his interests, and have set aside an order to pay a substantial sum which he considered unfair. Nor is the delay attributable to the complexity of the case since, on the contrary, it was an ordinary dispute which could easily have been disposed of in less time by examining a number of documents and the expert report that was drawn up, as the technical investigation did not require a lot of work. Nor have the courts been negligent, since the overlong parts of the proceedings have to be attributed to the excessive caseload and the structural flaws for which the Benevento judicial departments are notorious. Accordingly, responsibility for the delay can only be attributed to the Italian State, which, despite its obligation after signing and ratifying the European Convention of Human Rights to equip itself with a judicial system capable of dealing with its citizens’ legal claims, has failed to expedite proceedings because of persistent structural flaws and the growing increase in the caseload, despite a number of changes to the rules and a reinforcement of the court structures. The applicant shall therefore be awarded just satisfaction. No award shall be made for pecuniary damage because the applicant has failed to substantiate his claim. He is, however, entitled to non-pecuniary damages since it cannot be excluded that he has suffered as a result of the consequent long and frustrating wait for a judgment which has still not been delivered after years of preparation of the case and which should solve a matter of major economic importance for him. Having regard to the length of the delay, the interests at stake and the uncertain outcome of the dispute, we consider it equitable to make an award of 2,000 euros...” The Court of Appeal dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof, awarded him EUR 2,000 on an equitable basis in compensation for non-pecuniary damage, EUR 700 for costs and expenses incurred in the proceedings before the European Court of Human Rights and EUR 900 for the costs and expenses incurred in the Pinto proceedings. 18. In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application. 19. The applicant has not indicated that he appealed to the Court of Cassation. 20. The Court of Appeal’s decision was served on the authorities on 23 January 2003 and became final on 24 March 2003. The applicant served the authorities with notice to comply on 15 October 2003. On 29 October 2003 the applicant lodged an application for a garnishee order with the Rome judge responsible for enforcement proceedings and a hearing was held on 28 March 2004. After obtaining a garnishee order on 27 May 2004, the sums were paid on an unspecified date after the order had been served. 21. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure CHAPTER II Just satisfaction Section 2 Entitlement to just satisfaction “1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. 2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. 3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account; (b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” Section 3 Procedure “1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. 2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. 3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. 4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber. 5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. 6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. 7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” Section 4 Time-limits and procedures for lodging applications “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” Section 5 Communications “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” Section 6 Transitional provisions “1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. 2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.” Section 7 Financial provisions “1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. 2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.” 22. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on Italian courts regarding the application of Law no. 89/2001”. In its judgment no. 1340 it affirmed, inter alia, the principle that “the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.” 23. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004 “... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ... As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised. As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned. It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6.1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision. The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time). The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court. The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.). Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001). This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law. The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation. The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court. It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”. ... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”. ... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage. In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001. It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it. 7. – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”. 24. The Court of Cassation held as follows: “...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...” 25. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts. 26. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955. 27. In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts: (i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ... (ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law. The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ... (iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ... 28. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed. 29. The Court of Cassation made the following observations: “ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339). - the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ... - a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle of Article 6 § 1 of that Convention...” 30. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ deputies made the following indications regarding an assessment of the Pinto remedy: “...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ... 109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ... 112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...” 31. In this interim resolution the Ministers’ deputies indicated as follows: “The Committee of Ministers Noting ... “...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims; Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations; Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ... Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ... URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction. ...” 32. The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice. 33. In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.” | 1 |
dev | 001-83796 | ENG | DEU | ADMISSIBILITY | 2,007 | OMWENYEKE v. GERMANY | 2 | Inadmissible | Peer Lorenzen | The applicant, Mr Sunday E. Omwenyeke, is a Nigerian national who was born in 1965 and lives in Bremen. He was represented before the Court by Ms N. Mole, a lawyer working for the AIRE (Advice on Individual Rights in Europe) Centre in London. On 22 June 1998 the applicant entered Germany and requested asylum. On 12 October 1998 the Federal Office for Refugees rejected his asylum request and declared that there was no prohibition on deporting him because he did not face political persecution in Nigeria. The applicant brought an action in the Hannover Administrative Court seeking to have this decision quashed. On 29 October 1998 the applicant, who had been issued with a provisional residence permit (Aufenthaltsgestattung, see 'Relevant domestic law' below), was directed to reside and remain within the city of Wolfsburg pending the decision on his asylum request. Between 12 November 1998 and 11 January 2000 the Wolfsburg Aliens Office granted the applicant leave to quit the city of Wolfsburg on six occasions in order to attend conferences for refugees and on one occasion to meet a lawyer. In April 2000 the applicant left the city of Wolfsburg in order to help in preparations for and to attend another congress for refugees, despite the fact that the Aliens Office had refused him permission to leave the city. The applicant left Wolfsburg on three further occasions without having requested authorisation to do so. On 6 February 2001 the Wolfsburg District Court discontinued the criminal proceedings instituted against the applicant for repeated disregard of a territorial restriction of residence, since it considered the applicant's offence to be of a minor nature. On 3 May 2001 the applicant was again stopped by the police outside the Wolfsburg city limits; again, he had not requested and obtained the necessary authorisation. On 16 July 2001 the applicant was granted a residence permit (Aufenthaltserlaubnis) following his marriage to a German national and was thus no longer subject to restrictions on his movements. On 9 October 2003 the Bremen District Court convicted the applicant of repeated disregard of a territorial restriction of residence in view of his residence outside Wolfsburg in 2000 and on 3 May 2001, and ordered him to pay a fine of 112.50 euros (EUR). The Bremen District Court conceded that the application of section 56 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) led to hardships for asylum seekers in many cases. Nevertheless, contrary to the applicant's view, that provision was compatible with the Basic Law. This had been confirmed by the Federal Constitutional Court, in particular, in its decision dated 10 April 1997. The legislator had restricted the right to free development of one's personality, guaranteed by Article 2 § 1 of the Basic Law in a proportionate manner. The impugned provision was intended to accelerate the treatment of asylum requests by securing the asylum seekers' availability, and to distribute between the Länder and cities the tasks and costs incurred by taking in asylum seekers. There was no milder, equally effective means to secure the achievement of the aims pursued by the provision. In particular, the option of restricting merely longer absences from the assigned district and authorising shorter absences without prior permission could not be controlled in practice and would entail considerable administrative expense. Given that section 57 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) allowed for exceptions from the restriction of residence, that restriction was not disproportionate. Likewise, it was not disproportionate to enforce the restriction by means of criminal law (section 85 no. 2 of the Asylum Procedure Act). The District Court further found that the territorial restriction of residence pursuant to section 56 § 1 of the Asylum Procedure Act did not contravene any provisions of public international law. Both Article 26 of the Geneva Convention relating to the Status of Refugees and Article 12 § 1 of the International Covenant on Civil and Political Rights (ICCPR; see 'Relevant domestic and public international law' below) granted freedom of movement only to refugees who were lawfully on the territory of the Contracting State. This was only the case where an asylum seeker was recognised by a final decision as a person being persecuted for political reasons. The applicant had resided lawfully in Germany only since 16 July 2001, when he was granted a residence permit following his marriage to a German national. On 13 February 2004 the Bremen Regional Court dismissed the applicant's appeal. It found that the appeal, which had been lodged in accordance with the formal requirements and time-limit laid down in the Code of Criminal Procedure, was manifestly ill-founded and therefore inadmissible. Endorsing the reasons given by the District Court, the Regional Court confirmed that the applicable provisions of the Asylum Procedure Act complied with the provisions of the Basic Law and of public international law. On 27 May 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 554/04). The Federal Constitutional Court found that the complaint had no prospects of success. In so far as the applicant considered sections 56 and 85 no. 2 of the Asylum Procedure Act to be unconstitutional, he had not sufficiently substantiated his complaint. He had failed to address the reasons given in the Federal Constitutional Court's decision of 10 April 1997 in which it had found that the impugned provisions complied with the Basic Law. In so far as the applicant contested the application of the impugned provisions to his case, his submissions were inconsistent. He now claimed to have travelled for the benefit of a refugee organisation on 3 May 2001, a fact which he had failed to mention in the proceedings before the criminal courts. The decision was served on the applicant's counsel on 11 June 2004. The Asylum Procedure Act (Asylverfahrensgesetz) lays down the rules which are applicable to foreigners who seek asylum on account of political persecution or who seek protection from deportation to a country where their life or freedom would be at risk. Under section 55 § 1 of the Asylum Procedure Act, a foreigner who requests asylum is permitted to reside on the Federal Territory while the relevant asylum proceedings are pending (provisional residence permit – Aufenthaltsgestattung). He or she is not entitled to reside in a particular Land or place. Section 56 § 1 of the Asylum Procedure Act provides that the provisional residence permit is territorially restricted to the district of the Aliens Office in which the institution responsible for reception of the foreigner is located. Under section 58 § 1 of the Asylum Procedure Act, the Aliens Office may grant a foreigner who is not or is no longer obliged to live in a reception centre authorisation to leave temporarily the district for which his or her provisional residence permit is valid or, generally, to reside in a neighbouring district. Leave must be granted if there is a pressing public interest or compelling grounds to do so, or if a refusal to grant leave would entail an undue hardship. Section 58 § 2 stipulates that leave is to be granted to facilitate appointments with representatives, with the United Nations High Commissioner for Refugees and with organisations providing care for refugees. Under section 58 § 3, a foreigner does not require permission to keep appointments with authorities and courts where his or her appearance in person is necessary. Section 85 no. 2 of the Asylum Procedure Act provides that anyone who repeatedly contravenes a restriction of residence imposed under section 56 § 1 shall be sentenced to a term of imprisonment not exceeding one year, or to a fine. The relevant provision of the United Nations Geneva Convention relating to the Status of Refugees, adopted on 28 July 1951, reads: Article 26. Freedom of movement “Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.” Article 12 § 1 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, provides: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” | 0 |
dev | 001-95703 | ENG | SVK | ADMISSIBILITY | 2,009 | KONCEK AND OTHERS v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants are three Slovakian nationals. Mr Dušan Konček (the first applicant) was born in 1944 and lives in Košice. The second applicant, Mr Milan Konček, is the first applicant’s brother who was born in 1951 and lives in Košice. The third applicant, Mrs Jolana Končeková, was their mother. She was born in 1921, lived in Rybník pri Ratkovej and died on 26 February 2006. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 June 2001 the applicants filed an action with the Rimavská Sobota District Court claiming a sum of money. On 1 October 2001 the applicants specified their action. On 6 February 2002 the District Court delivered a payment order. On 25 February 2002 the defendant company filed an objection to the order. The order ceased to have effect. The District Court scheduled hearings for 17 April and 6 May 2002. On 5 and 29 April 2002 the applicants requested that the hearings be cancelled and that their representative be heard, for reasons of procedural economy, by a court in Košice. On 25 June 2003 the applicants’ representative was heard by a different court in accordance with the applicants’ above proposal. On 7 July 2003 the case file was returned to the Rimavská Sobota District Court. On 12 November 2003 the District Court dismissed the action. On 30 December 2003 the Banská Bystrica Regional Court quashed the first-instance judgment. The applicants challenged the length of the proceedings before the Rimavská Sobota District Court by way of a constitutional complaint. On 20 May 2004 the Constitutional Court found that the applicants’ right under Article 6 § 1 of the Convention to a hearing within a reasonable time had not been violated. It held that there had been a single period of inactivity between 7 July and 12 November 2003 which did not justify the conclusion that the length of the proceedings was excessive. It noted that the applicants by their unspecific action had contributed to the overall length of the proceedings. On 19 July 2004 the District Court rejected the action. The decision was quashed by the court of appeal on 29 September 2004. On 29 September 2005 the case was assigned to another judge. On 26 February and 28 October 2008 the District Court dismissed the action and the judgments were quashed by the court of appeal on 19 August 2008 and 25 February 2009, respectively. The proceedings are pending. | 0 |
dev | 001-69025 | ENG | EST | ADMISSIBILITY | 2,005 | PODER AND OTHERS v. ESTONIA | 1 | Inadmissible | Nicolas Bratza | The applicants, Mr Oskar Põder, Ms Ene Mölder and Ms Maie Raag, are Estonian nationals who were born in 1910, 1943 and 1947 respectively. On 12 August 2002 Mr Põder died and his daughter, Ms Tiiu Kasvand, pursued the application on his behalf. Ms Kasvand and Ms Raag live in Tallinn. Ms Mölder lives in Tartu. The applicants were represented before the Court by Mr H. Vallikivi, a lawyer practising in Tallinn. The respondent Government were represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 October 1991 Mr Põder lodged an application with the Valga County Government (Valga Maavalitsus) for restitution of his family's property, which had been nationalised in 1947 and allocated by the authorities to a third person free of charge since 1970. The property consisted of farmland, a house and farm buildings. By a decision of the Valga County Commission for the Return and Compensation of Unlawfully Expropriated Property (Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise Valga maakonna komisjon) of 5 May 1994, all three applicants were recognised as the persons entitled to the nationalised property under the property reform legislation. On 9 April 1996 the Õru District Administration (Õru Vallavalitus), relying on section 12(8)(2) of the Property Reform (Principles) Act (Omandireformi aluste seadus), decided not to return the property to the applicants on the ground that it had lost its former distinct character (that is, the form or size of the property, as assessed according to the criteria established by law, had changed significantly). On 28 February 1997 the District Administration decided to award the applicants compensation in respect of the property. The applicants appealed against both of these decisions to the Valga County Court (Valga Maakohus). By a judgment of 23 February 1998, the County Court declared the decision of the Õru District Administration of 9 April 1996 unlawful, finding that the condition of the property had been incorrectly assessed. The judgment was upheld by the Tartu Court of Appeal (Tartu Ringkonnakohus) on 22 June 1998. The courts left unexamined the applicants' complaint concerning the decision on compensation of 28 February 1997 as the complaint did not meet the formal requirements. On 25 August 1998 the Õru District Administration gave a new decision refusing to return the property to the applicants. That decision was also declared unlawful, mainly for lack of reasoning, by the Valga County Court and the Tartu Court of Appeal on 11 June 1999 and 24 September 1999 respectively. The courts also declared unlawful the compensation decision of 28 February 1997, as it had been made on the basis of the unlawful decision of 9 April 1996 to refuse restitution. By a decision of 25 January 2000, the Õru District Administration refused to return the nationalised property to the applicants on the ground that the property was in the possession of a third person who had acquired it in good faith. In particular, that person had not persecuted the applicants or expropriated their property. The District A dministration based its decision on an amended version of section 12(3)(3) of the Property Reform (Principles) Act, which had come into force on 2 March 1997. The applicants lodged a complaint against the decision submitting, inter alia, that, under section 12(3)(3) of the Property Reform (Principles) Act in the version in force until 2 March 1997, a person who had obtained expropriated property free of charge could not be regarded as the bona fide owner of the property. They had lodged an application for restitution at the time when that Act was in force and therefore had a legitimate expectation that their application would be decided according to that Act. By a judgment of 24 April 2000, the Võru County Court (Võru Maakohus) dismissed the applicants' complaint. The judgment was upheld by the Tartu Court of Appeal on 6 September 2000. The Supreme Court (Riigikohus), which initially refused the applicants leave to lodge an appeal with it, subsequently granted them leave and, on 11 June 2001, rendered a judgment upholding the Court of Appeal's judgment. In its judgment the Supreme Court reiterated that one of the purposes of the property reform was to undo the injustices caused by violations of property rights in the past. At the same time, the restitution of property or the payment of compensation to former owners should not prejudice the lawful interests of other persons or cause new injustices. The deprivation of property of new owners who had received it free of charge would create such an injustice. Expropriated property had often been preserved thanks to the efforts of new owners. The provisions of section 12(3)(3) of the Property Reform (Principles) Act, as they had existed until 2 March 1997, were unjust and offered no protection to new owners of unlawfully expropriated property. The applicants could not reasonably expect that the law would not change. Their expectation that their restitution claim would be decided in accordance with the former law did not outweigh the right of the current owner to the protection of his property and his legitimate expectation that he would not be deprived of his lawfully obtained possessions. The applicants were, however, entitled to claim compensation for property which could not be returned to them. In the meantime, on 28 November 2000 the Õru District Administration decided to award compensation to the applicants in respect of the nationalised property in the form of “privatisation vouchers” to the nominal value of 63,150 Estonian kroons (EEK) for Mr Põder and to the nominal value of EEK 31,575 each for Ms Raag and Ms Mölder. The Government informed the Court that the applicants had received the compensation. There is no indication that the applicants appealed against the size of the award. B. Relevant domestic law The Property Reform (Principles) Act came into force in 1991. It subsequently underwent various substantial amendments. Section 12(3)(3) of the Act in its original wording provided that unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith”. Section 12(3)(3) of the Act as in force from 21 June 1993 to 2 March 1997 provided that unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith; a person who [had] obtained the property free of charge by a decision of a State authority or who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”. On 2 March 1997 a further relevant amendment to the Act came into force. Under the new text of section 12(3)(3), unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith; above all, a person who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”. Section 13(1) of the Property Reform (Principles) Act stipulated that if unlawfully expropriated property could not be returned on the basis of section 12 of the Act, the State would pay compensation in respect of the property according to the procedure provided for by law. In accordance with the Regulation on the procedure for the restoration of unlawfully expropriated property enacted by the government on 5 February 1993, as amended, the restitution of property rights was carried out in three stages: (1) the establishment of the unlawfulness of the expropriation and the determination of the persons entitled to restitution of their property rights; (2) the decision as to whether the property was to be returned; (3) the transfer of the property to the eligible persons. The Regulation on the procedure for determining compensation in respect of unlawfully expropriated property enacted by the government on 13 July 1993, as amended, provided that the compensation procedure was initiated where the eligible person had requested compensation, the property in question had been destroyed, or the law did not provide for the return of the property concerned. C. The Estonian reservation in respect of Article 1 of Protocol No. 1 The instrument of ratification of the Convention deposited by the Estonian government on 16 April 1996 contains the following reservation: “In accordance with Article 64 of the Convention, the Republic of Estonia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised, confiscated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; the restructuring of collectivised agriculture and privatisation of state owned property. The reservation concerns the Property Reform (Principles) Act (published in Riigi Teataja [Official Gazette] 1991, 21, 257; RT I 1994, 38, 617; 40, 653; 51, 859; 94, 1609), the Land Reform Act (RT 1991, 34, 426; RT I 1995, 10, 113), the Agricultural Reform Act (RT 1992, 10, 143; 36, 474; RT I 1994, 52, 880), the Privatisation Act (RT I 1993, 45, 639; 1994, 50, 846; 79, 1329; 83, 1448; 1995, 22, 327; 54, 881; 57, 979), the Dwelling Rooms Privatisation Act (RT I 1993, 23, 411; 1995, 44, 671; 57, 979; 1996, 2, 28), the Act on Evaluation and Compensation of Unlawfully Expropriated Property (RT I 1993, 30, 509; 1994, 8, 106; 51, 859; 54, 905; 1995, 29, 357), the Act on Evaluation of Collectivised Property (RT I 1993, 7, 104) and their wording being in force at the moment the Ratification Act entered into force.” | 0 |
dev | 001-58284 | ENG | GBR | CHAMBER | 1,999 | CASE OF SCARTH v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Lucius Caflisch | 9. The facts of the case, as found by the Commission and not contested before the Court, are as follows: 10. On 26 September 1994, proceedings for recovery of a debt of 697 pounds sterling (GBP) were commenced by Bradley Grange Stud Limited against the applicant in the Scarborough County Court. 11. By reason of Order 19, rule 3 (1), of the County Court Rules 1981 the case was referred for hearing by way of arbitration under Order 19, rule 7, of the County Court Rules. 12. On 8 November 1994 a preliminary hearing took place. The plaintiff did not attend, and Mr Scarth requested that the claim be struck out. The District Judge (the arbitrator) refused to do so. 13. Mr Scarth made an application for the main hearing to be in public and for evidence to be given on oath. This application was heard on 3 January 1995 and refused. The reasons for the refusal were not recorded formally, but in a note of 21 July 1997 prepared in the context of the Convention proceedings, District Judge Elliott made the following comments: "At this stage I can only say that it is likely that I took the view that the [applicant's] reasons as set out in his application were not in my view good reasons for the private nature of arbitration proceedings to be dispensed with. Further the sum of the dispute and the nature of the dispute were basically no different from the usual "run of the mill" arbitration disputes heard in any county court. Lastly, at the time the arbitration hearing had been fixed, prior to the filing of the application [for the case to be heard in open court]. I cannot say with certainty the above are the reasons I gave. The earlier fixing of an arbitration hearing date would have carried little weight with me if I had considered the application had any particular merit. ..." 14. The arbitration hearing took place in private on 16 January 1995. On 31 January 1995 District Judge Elliott made his award in writing, finding in favour of the plaintiff. 15. Mr Scarth made an application for the arbitration award to be set aside on the ground that there had been "misconduct" or "errors of law" by the District Judge, pursuant to Order 19, rule 8 (1), of the County Court Rules 1981. 16. The hearing of the application to set aside took place before a Recorder in private. He refused the application on 9 May 1995 and made a costs order against Mr Scarth. These costs were subsequently assessed at GBP 1,032.76. 17. Mr Scarth then applied for leave to appeal to the Court of Appeal alleging a lack of public hearing, misconduct by the judge and an overall unfairness of the proceedings. Mr Scarth was heard in open court and leave was refused on 9 November 1995. Lord Justice Morritt noted that the "European Convention on Human Rights is not part of our law in the way the European Community law is, and the provisions of the county court rule to which I have referred entitled the District Judge to hold the hearing in private". He further found that the judge could not be said to have been guilty of any misconduct and rejected Mr Scarth’s allegations as to unfairness. In connection with a submission that the District Judge was wrong on one particular point of law, he continued: "That seems to me to be a matter largely of fact, because if these two cheques were handed over for value and either of them was countermanded and subsequently presented, then it would seem that there would be a cause of action on the cheque ...". 18. Order 19, rule 3 (1), of the County Court Rules ("the Rules"), as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed GBP 1,000 shall be referred for arbitration. 19. Order 19, rule 7 (1), (3) and (4), of the Rules provides as follows: "(1) Any proceedings referred to arbitration shall be dealt with in accordance with the following paragraphs of this rule unless the arbitrator otherwise orders. (3) The hearing shall be informal and the strict rules of evidence shall not apply; unless the arbitrator orders otherwise, the hearing shall be held in private and evidence shall not be taken on oath. (4) At the hearing the arbitrator may adopt any method of procedure which he may consider to be fair and which gives to each party an equal opportunity to have his case presented;..." 20. Order 19, rule 8 (1), of the Rules reads as follows: "Where proceedings are referred to arbitration, the award of the arbitrator shall be final and may only be set aside ... on the ground that there has been misconduct by the arbitrator or that the arbitrator made an error of law." 21. In monetary matters of less than GBP 5,000, and wherever the County Court judge makes his order in an appellate capacity, leave to appeal must be obtained before a County Court order may be appealed to the Court of Appeal (see RSC 1997, Order 59, rule 1/34, referring to the County Court Appeals Order 1991). 22. Under the Civil Procedure Rules, which came into force on 26 April 1999, hearings, including those in small claims cases, are to be held in public. There is a discretion for the court to hold a hearing in private where: (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or person suffering from mental incapacity; (e) it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing; (f) it involves non-contentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers a private hearing to be necessary in the interests of justice. | 1 |
dev | 001-83070 | ENG | GEO | CHAMBER | 2,007 | CASE OF PATSURIA v. GEORGIA | 3 | Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 5. The applicant was born in 1961 and is currently detained in Rustavi No. 1 Prison. 6. Under a contract of 18 January 2001, the Ministry of State Property Management (“the Ministry”) undertook to transfer to the applicant 90 % of the shares of the “Georgian State Insurance JSC” (“the company”), on condition that he, amongst other obligations, increased the company’s initial capital to 480,000 Georgian laris (EUR 218,000) within a month of signing the contract. 7. On 14 March and 7 May 2001, the Ministry requested an up-date of the progress made in the performance of the contractual obligations. The applicant replied by submitting documents, according to which the amount of USD 250,000 (EUR 207,000), initially placed with a Canadian bank, had been transferred to the company’s account opened with a Georgian bank. 8. Following the recommendation of the Georgian National Bank (a State agency), the Prosecutor General’s Office (“the PGO”) examined the applicant’s financial operations. In a decision of 26 January 2004, a senior prosecutor of the PGO, having established the authenticity of the bank records submitted by the applicant, refused, pursuant to Article 28 § 1 (a) of the Code of Criminal Procedure (“the CCP”), to institute criminal proceedings for an alleged falsification of those documents. (The applicant did not submit a copy of that decision to the Court.) 9. On 28 April 2004 the Prosecutor General personally opened a criminal case regarding the misappropriation of 90 % of the State’s shares by fraud and the falsification of bank documents, offences envisaged respectively by Articles 180 § 3 (b) and 362 of the Criminal Code (“the CC”). (The parties did not submit a copy of that decision.) 10. On 5 May 2004 the applicant was charged and taken into custody. 11. Initially, the applicant was placed in a “quarantine cell” at Tbilisi No. 1 Prison. According to him, the cell was filthy, dilapidated, infested with vermin, and without ventilation or natural light. Shortly afterwards, the applicant was transferred to an ordinary cell in the same prison where there were 24 beds for the 57 inmates held there. The detainees were obliged to take turns to sleep. The cell was unsanitary and the food putrid. 12. On 8 May 2004 the Krtsanisi-Mtatsminda District Court in Tbilisi dismissed the applicant’s request for release, remanding him in custody for three months. An oral hearing was held. In its reasoning the court stated: “the collected evidence...discloses a reasonable suspicion that the accused has committed the incriminated offences...The evidence has been gathered in conformity with procedural norms...Due regard should be had to the fact that the applicant is charged with serious crimes...The case materials substantiate the suspicion that he might interfere with the establishment of the truth...In view of the prospect of a severe punishment, [he] may abscond...” 13. In his appeal of 9 May 2004, the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence. In his view, the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding. The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing, whenever summoned for interviews, and by producing all the requested evidence which, in fact, had become the basis of the criminal case file against him. As another guarantee of his reliability, the applicant referred to his “good reputation”, associated with the fact of being a designated trustee of the Canadian Chamber of Commerce. 14. The PGO replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth. However, no concrete arguments or factual circumstances of the particular case were put forward in this regard. 15. On 13 May 2004 the Tbilisi Regional Court dismissed the applicant’s appeal against the remand measure at an oral hearing. Whilst analysing various pieces of evidence, the court had regard mostly to whether or not the charges were well-founded. Concerning the grounds for detention, the court reiterated that, pursuant to Articles 151 and 159 of the CCP, the gravity of the offence justified the imposition of the measure. The appellate hearing was attended by the applicant and his advocates. 16. On 6 August 2004 the PGO terminated the preliminary investigation and transferred the case, along with the bill of indictment, to the trial court. 17. On 6 December 2004 the Vake-Saburtalo District Court in Tbilisi committed the applicant for trial under Article 417 § 1 of the CCP and confirmed the remand in custody. This decision was rendered in a standard, template form with pre-printed reasoning. The judge simply added, in the blank spaces, a brief statement of facts, the name of the accused, the definition of the impugned offence and the measure of pre-trial restraint. As regards the confirmation of the latter, the printed standard phrase read as follows: “The measure of pre-trial restraint – detention – has been correctly chosen.” 18. On 11 February 2005 the Vake-Saburtalo District Court in Tbilisi started the examination of the case on the merits, and on the 17th convicted the applicant of attempted fraud. The court sentenced him to three years in prison. The charge of falsification of bank documents was dropped as timebarred. The verdict was based on a thorough assessment of the criminal case materials. 19. On 13 February 2006 the Tbilisi Regional Court dismissed the applicant’s appeal and upheld the verdict of 17 February 2005 with some merely textual amendments. 20. On 20 June 2006 the Supreme Court dismissed the applicant’s cassation appealcarefully examined by the preliminary and judicial investigations, that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law. 21. Amongst the complaints made by the applicant before the appellate and cassation courts, the applicant raised the same matters as those now put before the Court under Article 6 of the Convention (see paragraph 83 below). 22. After his conviction, the applicant was transferred to Rustavi No. 1 Prison, where the conditions were, according to him, similar to those in Tbilisi No. 1 Prison. 23. The applicant alleged that the following incident occurred during his detention: In the early morning of 30 January 2006, he was awoken by the noise of machine gun fire in Rustavi No. 1 Prison. As it appeared later, the police forces had conducted a special operation against criminal elements there. 24. The applicant complained about the conditions in Rustavi No. 1 Prison and the incident of 30 January 2006 to several national and international non-governmental organisations, but never to the prosecution or judicial authorities, according to the case file. Whilst claiming to have written a letter to the Head of Rustavi Prison, informing the latter of the poor conditions of his detention, the applicant did not produce any copy thereof, or indicate its date. 25. On an unspecified date, the administration of Rustavi No. 1 Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners, and he was placed in a punishment cell for three days. However, he has never complained about this to any competent national authority, considering that such a course of action would have been ineffective. 26. On 21 September 2006 the Ministry of Justice, the authority in charge of the penitentiary system, initiated criminal proceedings against the applicant for using a mobile telephone in Rustavi No. 1 Prison, in breach of the prison rules. 27. At an oral hearing on 22 September 2006 attended by the applicant, the Tbilisi City Court allowed the prosecutor’s motion and imposed upon the applicant detention on remand for two months. The court reasoned that, since the applicant was already detained following his conviction, it was impossible to apply any other measure of pre-trial restraint. 28. On 27 October 2006 the Tbilisi Regional Court, sitting in camera, dismissed the applicant’s appeal and upheld the order of 22 September 2006. 29. The applicant addressed several complaints to the PGO, requesting the termination of the allegedly unlawful proceedings. He also claimed that his procedural rights were breached during the investigation. 30. According to the case file, the second set of criminal proceedings against the applicant is still pending before a court of first instance. Article 18 § 6 “...the accused cannot be held on remand for more than nine months.” 32. Code of Criminal Procedure, as it stood at the material time Article 28 § 1 - “Grounds for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings” “Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated, if: a) The action, envisaged by the criminal law, does not exist... m) The inquiry, investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence...” Article 140 § 17 “Before the end of the investigation, the parties have the right to lodge an application with the court which has imposed a measure of pre-trial restraint ... requesting its annulment or modification... The parties may exercise this right only when newly discovered circumstances of a substantial character, which were not known to the judge at the time of the imposition of the pre-trial restraint measure, require that the reasonableness of that measure be reviewed.” Article 146 § 7 “Charges shall be preferred no later than 48 hours after the arrested person is brought before an inquiry agency. If, within the following 24 hours, the court does not decide on the imposition of detention on remand or another measure of restraint, the arrested person shall be released immediately.” Article 151 §§ 1, 2 and 3 - “The basis for and objectives of the imposition of a restraint measure” “A restraint measure shall be applied to ensure that the accused cannot avoid the preliminary investigation and trial, that his or her further criminal activity is prevented, that he or she cannot interfere with the establishment of the truth in the given criminal case, or that the court’s verdict is executed. The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article. The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond, interfere with the establishment of the truth in the criminal case, or if a serious or grave crime has been committed.” Apart from detention on remand, Article 152 § 1 envisages the possibility of using such measures of pre-trial restraint as police supervision, home arrest, bail or a personal undertaking not to leave the place of residence. Article 159 § 3 - “Detention” “Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [a punishment of ] more than two years in prison...” The Code distinguished between two periods of detention on remand: detention “pending investigation”, that is whilst the competent prosecution agency investigated the case, and detention “pending trial”, whilst the case was tried in court. The person detained “pending investigation” was referred to as an “accused”. After the case was sent to a court, that person would become a “defendant” (Article 44 §§ 24 and 25). Although there was no difference in practice between two periods of detention, the calculation of the time-limits was different. Pursuant to Article 162 §§ 2 and 3, the maximum permitted period of detention “pending investigation” was nine months. It started to run from the moment the person was taken into custody and ended the day when the prosecutor sent the case, along with the bill of indictment, to the trial court (Article 162 §§ 1 and 2). The maximum permitted term of detention “pending trial”, calculated from the day when the prosecutor forwarded the case to the competent court until the final cassation verdict, was 48 months if three instances of jurisdiction were involved, and 30 months if the case was examined by only two instances (Article 162 §§ 8 and 9). Article 12 § 1 classified crimes, according to the terms of imprisonment which they carried, as minor, serious or grave. Pursuant to Article 12 § 3, a premeditated offence carrying 10 years’ imprisonment as a maximum term, or an offence committed by negligence which carried 5 years’ imprisonment as a minimum term, were considered to be serious crimes. Article 180 § 3 (b) stated that fraud, i.e. the misappropriation of another person’s property by deception, committed with regard to objects of great value, was punishable by a prison sentence of between 5 to 10 years. Article 362 criminalised the fabrication and use of false identity cards, templates of various formal documents, seals, etc. This offence was punishable by a prison sentence of up to 3 years. The complainants challenged various provisions of Article 162 of the CCP, differentiating between the period of detention “pending investigation” and that “pending trial”, for their compatibility with Article 18 § 6 of the Constitution. They alleged that the unnecessary distinction between the two types of detention often resulted in situations where the overall term of detention exceeded the constitutional time-limit of nine months. The Constitutional Court dismissed the complaint, noting that Article 18 § 6 of the Constitution solely defined the maximum permitted term of detention “pending investigation” which, pursuant to Article 162 of the CCP, ended on the day when the prosecutor sent the case to the competent court for trial: “The Constitutional Court observes that Article 18 § 6 of the Constitution determines the term only for the detention of a suspect or accused person pending investigation, excluding the detention period of a defendant pending trial...” | 1 |
dev | 001-92253 | ENG | POL | ADMISSIBILITY | 2,009 | BARAN-BARANOWSKI v. POLAND | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicant, Mr Waldemar Baran-Baranowski, is a Polish national who was born in 1944 and is currently serving a prison sentence at the Prison in Katowice. He was represented before the Court by Mr J. Zaleski, a lawyer practising in Katowice. 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 May 2003 the applicant was arrested on suspicion of trafficking in drugs and counterfeit US dollars while leading an organised criminal group. Later, several other members of the same criminal group were detained and charged in connection with the investigation of the applicant’s activities. The investigation was conducted by the Organised Crime Department of the Katowice Regional Prosecutor’s Office. On 21 May 2003 the Katowice District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence, go into hiding or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence. An appeal by the applicant against the detention order was dismissed on 18 June 2003 by the Katowice Regional Court. Subsequent appeals against decisions extending his detention were all unsuccessful. In his appeals he argued that the charges against him were based on unreliable and contradictory evidence. He further pleaded not guilty. On 23 December 2003 the applicant began serving a twenty-five-year prison sentence, given by the Olsztyn Regional Court in a different set of criminal proceedings. In the course of the investigation, the applicant’s detention was extended on several occasions, inter alia on 5 August and 7 November 2003 and 13 February and 23 April 2004 by the Katowice Regional Court, 12 May and 22 September 2004, 13 May and 7 December 2005, 8 March, 27 September and 20 December 2006, and 4 April, 24 October and 28 December 2007 by the Katowice Court of Appeal. On 6 February 2008, on a decision by the Katowice Court of Appeal the applicant’s detention was further extended until 30 April 2008. In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention. They considered that the need to secure the proper conduct of the proceedings, in particular the need to verify evidence from thirty-three suspects and fifty witnesses and to have them all confronted justified holding him in custody. They further stressed the extensive body of evidence to be considered in the case and the need to obtain opinions from several experts, including those with expertise in toxicology and chemistry. On 17 April 2008 the Katowice Regional Court decided to lodge a request with the Katowice Court of Appeal to have the applicant’s detention further extended until 31 July 2008. On 14 December 2004 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The bill of indictment comprised numerous charges of trafficking in drugs and other illicit substances and counterfeit US dollars brought against several defendants, who were all acting in an organised criminal group. The maximum anticipated prison sentence against the applicant was more than eight years. On 16 July 2008 the Katowice Regional Court delivered a judgment. The applicant was found guilty as charged and sentenced to eight years’ imprisonment. He appealed. At present the appeal proceedings are pending. 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 |
dev | 001-99941 | ENG | BGR | ADMISSIBILITY | 2,010 | KEMEROV v. BULGARIA | 4 | Inadmissible | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Lyuben Stoyanov Kemerov, is a Bulgarian national who was born in 1945 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. On 31 March 1996 the applicant, who had consumed alcohol, listened to loud music in his flat, disturbing his neighbours. At about 3.30 a.m., a neighbour asked him to cease the disturbance. The applicant apparently lowered the sound only for a while. As the disturbance continued, between 4.15 a.m. and 6 a.m. the neighbour made several calls to the police seeking assistance. Police officers P. and M. were dispatched to the address. From their statements it appears that they made two visits, the second one being at about 6 a.m. At about 6 a.m., having heard loud music emanating from the applicant's apartment, the police officers rang the doorbell and shouted “Police! Open the door!”. In reply, the applicant required to see their identity documents and a warrant authorising their entry into his apartment. The police officers insisted to be let in. According to the applicant, they started hitting the door. Fearing that they might break in, the applicant eventually opened. According to the applicant, upon entering the police officers battered him violently. According to the police officers, the applicant threatened them with a knife which necessitated the use of physical force against him. The police officers eventually handcuffed the applicant and took him to the police station. His name was entered in the detained persons' register, with a note that he had “assaulted the patrol with a knife and resisted [orders]”. He was released an hour and a half later, at about 7.30 a.m. on 31 March 1996. Later on 31 March 1996 the applicant had X-ray photographs of his body taken which confirmed that he did not have fractures. Police officers P. and M. drew up reports on offences punishable in summary administrative proceedings (акт за административно нарушение), dated 31 March 1996 and duly registered in the police reports register. According to the reports, a knife had been seized from the applicant at about 6 a.m. that day and the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed violations of the relevant regulations. According to the applicant, he never received copies of the above mentioned reports. In his view, it was possible that some of the documents allegedly documenting an assault with a knife might have been created later and backdated. On 2 April 1996 the applicant was examined by a forensic medical doctor who found numerous contusions, haematomas and scars on the applicant's head, chest, abdomen area and on his limbs. There were at least ten bruises on the applicant's head, two on his back, more on his arms and legs. The medical certificate stated, inter alia, that all injuries had been inflicted by a blunt object. It was possible that they were inflicted in the manner and at the time indicated by the applicant. The applicant was eventually fined by the municipal authorities for causing a night disturbance. On 6 April 1996 the applicant submitted a complaint to the Regional Military Prosecutor's Office (окръжна военна прокуратура) stating that he had been ill-treated by police officers. He enclosed a medical certificate. A preliminary inquiry was opened. On 4 July 1996 a prosecutor instructed local police in Plovdiv to investigate the complaints. On 22 July 1996 police officers P. and M. submitted written statements to their superior. They maintained that the applicant had assaulted them with a kitchen knife. Sergeant P. stated that he had hit the applicant several times in his chest and then used a special technique to retrieve the knife as the applicant had been trying to stab him in his right hand. On 23 July 1996 the police reported to the prosecutor, summarising the police officers' version of the facts. He added that in the absence of witnesses, it was not possible to draw up reports on offences punishable in summary administrative proceedings under the Hooliganism Act. It appears that the prosecutor did not undertake any other steps in the following months. On 24 February 1997 the applicant complained of the delay to the higher prosecutor. On 17 April 1997 the applicant's lawyer requested the examination of three witnesses – the applicant's brother who had taken him from the police station upon his release and two of his neighbours. On 15 May 1997 the applicant and the witnesses were heard by a police officer and given the opportunity to submit written statements. One of the applicant's neighbours stated that in the early morning of 31 March 1996 he had heard someone shouting for help and had seen, at the opened door of the applicant's apartment, a man delivering blows to someone inside. He had then seen the applicant being escorted by two men into a police car. Another witness gave evidence from which it transpired that the applicant's front door had not been forced by the police, as initially maintained by him. On 11 June 1998 the applicant's lawyer complained of the delay in the inquiry. On 15 July 1998 the competent prosecutor at the Regional Military Prosecutor's Office terminated the inquiry and refused to institute criminal proceedings against the police officers. He summarised the facts as presented by the police officers involved and then stated the blows administered on the applicant during the incident were justified under the relevant provisions which allowed the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order. A copy of the decision was sent to the applicant. The accompanying letter advised the applicant that he had the right to appeal to the Appellate Military Prosecutor's Office (военно-апелативна прокуратура) in Sofia. The applicant did not appeal. In the meantime, on 1 July 1998 the applicant submitted an application to the former European Commission of Human Rights alleging, inter alia, violations of Articles 3, 8 and 13 of the Convention in relation to the events of 31 March 1996. By final decision of 2 September 2004 the Court, to which the competence to examine the application was transferred by virtue of Article 5 § 2 of Protocol No. 11 to the Convention, declared the application inadmissible for failure to exhaust domestic remedies, since the applicant had failed to appeal against the regional prosecutors' decision of 15 July 1998 (see Kemerov v. Bulgaria (dec.), no. 44041/98, 2 September 2004). On 27 September 2004 the applicant filed with the Appellate Military Prosecutor's Office an appeal against the decision of 15 July 1998 of the Regional Military Prosecutor's Office. On 15 November 2004 the Appellate Military Prosecutor's Office dismissed the appeal, upholding the decision of 15 July 1998. The applicant appealed to the Supreme Cassation Prosecutor's Office. On 25 February 2005 a prosecutor from that service dismissed the appeal as the prosecution of the police officers concerned was time-barred. He commented on the substance of the complaints, noting that the applicant's allegation that the police had forced his front door had been contradicted by witness evidence and also finding that the applicant's injuries corresponded to the police officers' version of the events. The prosecutor also found that in any event the prosecution of the police officers concerned was time-barred, which excluded any possibility of pursuing the matter. Under Article 80 § 1 read in conjunction with Articles 128-131 of the Penal Code, as in force at the relevant time, the prosecution of a police officer accused of ill-treatment which had not resulted in serious permanent or life-threatening injury was precluded after the expiry of three or five years, depending on whether the ill-treatment could be characterised as having affected the victim's health or had only caused pain. | 0 |
dev | 001-70171 | ENG | TUR | CHAMBER | 2,005 | CASE OF ÇORUH v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicant was born in 1937 and lives in Istanbul. 5. In 1996 the National Water Board (Devlet Su İşleri) expropriated a part of the applicant’s plot of land. A committee of experts assessed the value of the plot of land and the relevant amount was paid to her. 6. Following the applicant’s request for increased compensation, on 14 July 1997 the Bursa Civil Court of First-instance awarded her additional compensation plus interest at the statutory rate. 7. On 14 October 1997 the Court of Cassation held a hearing and quashed the judgment of the First-instance court. 8. On 27 April 1998 the Bursa Civil Court of First-instance awarded the applicant additional compensation of 3,591,690,496 Turkish liras (TRL) plus interest at the statutory rate, running from 29 August 1996, applicable at the date of the court’s decision. 9. On 7 July 1998 the Court of Cassation held a hearing and upheld the judgment of the Bursa Civil Court of First-instance. 10. On 6 October 1998 the Court of Cassation dismissed the applicant’s request for rectification. 11. On 29 December 1998 the National Water Board paid TRL 7,101,232,000 to the applicant. 12. The relevant domestic law and practice is described in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998VI, §§ 17-23). Moreover, under Article 82 of Law no. 2004 of 9 June 1932 concerning enforcement and bankruptcy (İcra ve İflas Kanunu), the property belonging to the State cannot be seized or confiscated. | 0 |
dev | 001-103084 | ENG | RUS | CHAMBER | 2,011 | CASE OF KARPACHEVA AND KARPACHEV v. RUSSIA | 4 | Violation of P4-2 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicants, mother and son, were born in 1958 and 1981 respectively. The first applicant lives in Ozersk, a closed town in Chelyabinsk Region where the Mayak nuclear fuel reprocessing plant is located and where the second applicant permanently resided before his conviction in 2002. They are joint owners of a flat in Ozersk. The second applicant is currently serving a prison sentence in a correctional colony in Chelyabinsk Region. 6. On 5 August 2002 the second applicant was found guilty at Ozersk Town Court of certain criminal offences and sentenced to four years' imprisonment. 7. On 15 July 2004 the Kasli Town Court, Chelyabinsk Region, relieved him from further serving his sentence. The second applicant returned to Ozersk. 8. The first applicant requested the local administration to authorise the second applicant's entry to, and permanent residence in, Ozersk. It appears the authorities permitted the second applicant's temporary stay in Ozersk from 25 November 2004 to 16 January 2005. 9. On an unspecified date the Ozersk Town Administration (Администрация Озерского городского округа, “the Town Administration”) and the Chelyabinsk Regional Division of the Federal Security Service (Управление федеральной службы безопасности по Челябинской области, “the Regional Security Service”) dismissed the request, referring to the second applicant's conviction. The second applicant challenged the refusal in court. 10. On 21 June 2005 the Ozersk Town Court, Chelyabinsk Region, granted the second applicant's claim. According to the court's findings, the dismissal by the competent authorities of the second applicant's request for the entry to, and permanent residence in, Ozersk did not have a basis in law. The Town Court ordered (1) the Town Administration to issue the second applicant with an entry and residence permit and (2) the Regional Security Service to approve it. 11. The parties did not appeal against the judgment of 21 June 2005 and on 2 July 2005 it came into force. The Town Court issued two writs of execution. 12. On 29 July 2005 the Head of the Town's Administration approved the second applicant's application to be permanently registered in Ozersk. Despite this, on 6 August 2005 the bailiff opened enforcement proceedings in respect of the Town Administration. 13. On 18 August 2005 the administration of the Mayak nuclear fuel reprocessing plant informed the first applicant as follows: “Pursuant to Decree of the Government of the Russian Federation no. 693 as of 11 July 1996 on special regulations in a closed administrative and territorial entity where enterprises affiliated with the Ministry of Nuclear Power are located, on 12 October 2004 the federal security service authorised the temporary residence of [the second applicant] in ... Ozersk. As regards your application for permanent residence [for the second applicant] in [Ozersk], on 3 August 2005 the [Mayak administration] forwarded the [relevant] documents ... to the [Regional Security Service]. The time-limit for their response shall not exceed sixty days. Should the federal security service approve permanent residence [for the second applicant], the [Mayak administration] will prepare the necessary documents for his registration at his place of residence and issuance of a permanent pass.” 14. On 26 August 2005 the bailiff opened enforcement proceedings in respect of the Regional Security Service. 15. According to the Government, on 30 August 2005 the bailiff closed the enforcement proceedings in respect of the Town Administration, noting that the latter had complied with the judgment of 21 June 2005. According to the applicants, the bailiff's decision was not communicated to them. 16. On 5 September 2005 the management of the Mayak nuclear fuel reprocessing plant informed the second applicant that the Regional Security Service had refused to approve him for permanent residence in Ozersk. 17. According to the Government, on 10 October 2005 the bailiff closed the enforcement proceedings in respect of the Regional Security Service, noting that the judgment of 21 June 2005 had been enforced in full. The Government did not, however, submit any documents in support of this allegation. According to the applicants, they were not informed of the alleged closing of the enforcement proceedings. 18. On 13 December 2005 the second applicant was arrested on suspicion of drug dealing. On 16 March 2006 the Ozersk Town Court found him guilty as charged and sentenced him to four years' imprisonment. The second applicant's conviction was upheld in substance by the Presidium of the Chelyabinsk Regional Court by way of supervisory review. 19. The Law of the Russian Federation On Closed Administrative and Territorial Entities of 14 July 1992 (Article 1), as amended, provides as follows: “A closed administrative and territorial entity is a municipality where industrial enterprises specialising in development, production, storage and disposal of mass destruction weapons, processing of radioactive and other materials, military and other facilities... are located. [Such entities] are subject to special regulations on secured operation and protection of state secrets, including special residence conditions.” 20. Decree of the Government of the Russian Federation no. 693 as of 11 July 1996 on special regulations in a closed administrative and territorial entity where enterprises affiliated with the Ministry of Nuclear Power are located stipulates that entry to, and permanent residence in, a closed administrative and territorial entity is subject to restrictions (§ 2). The head of the administration may, subject to the approval of the federal security service, authorise entry to the closed entity (§ 19). Title to real property located in a closed administrative and territorial entity may give rise to a right to enter and reside there, subject to authorisation of access to state secrets (§ 23). | 0 |
dev | 001-70853 | ENG | UKR | CHAMBER | 2,005 | CASE OF GONGADZE v. UKRAINE | 1 | Preliminary objection dismissed (Six-month period);Violations of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award | null | 7. The applicant was born in 1972 and lives in Arlington, United States of America. 8. Georgiy Gongadze, the applicant's husband, was a journalist. He disappeared on 16 September 2000 in circumstances that have not yet been fully established by the Ukrainian authorities despite the numerous demands and requests of the applicant. Recently, however, several police officers were charged with the kidnap and murder of Mr Gongadze. 9. Mr Gongadze was a political journalist and the editor-in-chief of Ukrayinska Pravda, an online newspaper. He was known for his criticism of those in power and for his active involvement in awareness-raising in Ukraine and abroad as regards the problems of freedom of speech in his country. He reported on such topics as the allegedly undemocratic initiatives of the Ukrainian authorities and corruption amongst high-level State officials. 10. For months before his disappearance Mr Gongadze had been telling his relatives and colleagues that he was receiving threats and was under surveillance. 11. On 14 July 2000 Mr Gongadze wrote an open letter to the Prosecutor General making the following complaints: (i) His relatives and friends in the city of Lviv, and his colleagues in Kyiv, had been interviewed by law enforcement officers about him. The pretext for holding these interviews had been an inquiry into a criminal incident in Odessa in which Mr Gongadze had allegedly been involved. (The applicant maintained that Mr Gongadze had known nothing about the incident or the people involved in it. He himself had never been interviewed about it.) (ii) For some time, unknown persons in a car with the number plate 07309 KB had been following Mr Gongadze from his home to his office and back. In his open letter, Mr Gongadze requested the Prosecutor General to take measures to protect him from what he described as “moral terror”, and to find and punish those involved. 12. In response, the Prosecutor General sent the letter to the regional prosecutor's office in Lviv, where Mr Gongadze was officially registered as a resident (propiska). The Lviv prosecutor replied that the places and streets (of Kyiv) mentioned in Mr Gongadze's letter were unknown in Lviv. 13. Later, the then Minister of the Interior told representatives of the non-governmental organisation “Reporters sans frontières” (as recounted in the latter's report of 22 January 2001) that the car registration plate had been stolen from a police vehicle in February 2000. 14. On 1 September 2000 the General Prosecutor's Office (“the GPO”) informed Mr Gongadze that there were no grounds for the adoption of any decision under Article 52-1 of the Code of Criminal Procedure (protective measures during criminal proceedings) regarding his letter. 15. Mr Gongadze disappeared on 16 September 2000. 16. On 17 September 2000 the applicant reported her husband's disappearance to the Moskovskiy District Police Department in Kyiv. 17. On 18 September 2000 (19 September, according to the Government) the Pechersky district prosecutor's office initiated an inquiry into a case of premeditated murder (the “Gongadze case”). The inquiry included a search of the places where Mr Gongadze had last been seen and interviews with people who had been there at the time. The applicant maintained that the investigating prosecutor in charge of the case, Mr H., had seemed to be conducting a serious investigation. However, he was replaced at the beginning of November by another prosecutor, Mr V. 18. On 2 November 2000 the decapitated body of an unknown person was discovered in the vicinity of the town of Tarashcha, in the Kyiv Region. 19. On 3 November 2000 the Kyiv regional prosecutor's office initiated an inquiry into the murder of an unidentified person (the “Tarashcha case”). 20. The first autopsy of the corpse was performed by a local expert and the findings were presented on 8 November 2000. According to these findings, the time of death of the unknown person roughly corresponded to the time of the disappearance of Mr Gongadze. 21. On 10 November 2000 relatives learned from a brief article in the newspapers about the discovery of an unidentified body in the vicinity of Kyiv. On 15 November 2000, on examining the body, they identified jewellery belonging to Mr Gongadze and the marks of an old injury to the body that corresponded to that of the missing journalist. The contents of the stomach corresponded to the food which Mr Gongadze had eaten on the day of his disappearance. The relatives took a fragment of skin from the body to be examined by independent experts. 22. From that date onwards, the prosecutor allegedly began actively to impede the investigation. On 15 November 2000 the body was removed from the morgue in Tarashcha. Three days later the Kyiv regional prosecutor's office admitted that the body had been transferred to Kyiv. All documents relating to the first forensic examination conducted in Tarashcha were confiscated. The local expert was prohibited from talking about the autopsy of the body and later became the subject of criminal proceedings. On 16 November 2000 the Deputy Minister of the Interior announced that, contrary to the preliminary findings, the body which had been discovered had been buried in the ground for about two years. 23. On 21 November 2000 the applicant requested the investigator at the Pechersky district prosecutor's office (i) to recognise her as a civil party to the proceedings in the Tarashcha case; (ii) to identify the body and the jewellery found with it; and (iii) to organise a forensic medical examination in order to establish whether the body found in Tarashcha was that of her husband. 24. On 23 November 2000 the investigator rejected this request. 25. That day the applicant also requested the prosecutor of the Kyiv Region not to cremate the body found in Tarashcha and to let her bury it if the body were to be identified as that of her husband. 26. On 29 November 2000 the Pechersky district prosecutor's office recognised the applicant as a civil party in the Gongadze case. 27. On 4 December 2000 the head of the investigation department of the Kyiv regional prosecutor's office informed the applicant that a criminal investigation into the murder of the unidentified person had been initiated and that a forensic medical examination had been organised. However, there were no grounds to recognise the applicant as a civil party in the Tarashcha case. They promised to keep the applicant informed as to her possible participation in the identification of the objects found with the body. Accordingly, the applicant was not allowed to participate in the identification of the body at that stage. 28. On 6 December 2000 the applicant asked the GPO to be allowed to participate in the identification of the body and requested that the two sets of proceedings be joined. 29. On 8 December 2000 the Prosecutor General announced that DNA analysis could not be done for the time being because Mrs Lesya Gongadze, the deceased's mother, was ill. This statement was denied by the latter herself. The Prosecutor General then declared that he had been misunderstood. 30. On 10 December 2000, more than a month after the body had been discovered, the applicant was allowed to participate in its identification. Being under stress, she was unable to make a positive identification of the body as being that of her husband. 31. On 11 December 2000 a blood sample was taken from the deceased's mother for DNA analysis. 32. On 14 December 2000 the applicant requested the Prosecutor General to involve foreign experts in the investigation of the case under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. 33. On 15 December 2000 the Prosecutor General announced that the body found in Tarashcha was not that of Mr Gongadze. 34. On 18 December 2000 the GPO refused the applicant's request to involve foreign experts in the DNA analysis and informed her that the Ukrainian institutions were empowered to conduct all necessary examinations. 35. Later, several DNA analyses were conducted in the case, including by foreign experts. The forensic medical examinations conducted by the Russian and United States specialists confirmed that it was highly probable that the body found in Tarashcha was that of Mr Gongadze. However, within the framework of an investigation conducted by an ad hoc parliamentary committee, an examination conducted by German specialists did not confirm this finding. 36. The applicant maintained that she had never been informed directly by the investigating authorities about the results of these examinations, but had learned about them from the media. 37. On 10 January 2001 the Prosecutor General informed Parliament of the provisional findings of the forensic medical examination conducted by the Russian experts, which showed that the body found in Tarashcha was that of Mr Gongadze (99.64% probability). Nevertheless, the identity of the body could not be confirmed as there were witnesses who claimed to have seen Mr Gongadze alive in Lviv after his disappearance, in November and December 2000. This information had been checked but was also not confirmed. 38. On 12 January 2001 the applicant and the deceased's mother requested the GPO to recognise them as civil parties in the Tarashcha case and to conduct another examination of the body. The same day the applicant was informed by the Prosecutor General that her status as a civil party, which had been granted by the Pechersky district prosecutor's office on 29 November 2000, was annulled. The applicant lodged a complaint with the Pechersky District Court of Kyiv. 39. On 13 January 2001 the GPO rejected the applicant's request to be recognised as a civil party, stating that it had not been established beyond all doubt that Mr Gongadze was dead or that the body found in Tarashcha was his. 40. On 15 January 2001 the Pechersky District Court recognised the right of the applicant and the deceased's mother to be civil parties and ordered the GPO to grant them this status. However, despite the order, the GPO again refused this status on 17 January 2001. Exceptionally, the GPO agreed to give them the Tarashcha body for burial, whilst emphasising that the GPO was not competent to issue a death certificate. 41. Also on 15 January 2001 the editor-in-chief of the Grani newspaper made public the names of four policemen who had allegedly participated in the surveillance of Mr Gongadze. 42. The applicant and the deceased's mother challenged the refusal to grant them aggrieved-party status in the Pechersky District Court. On 9 February 2001 that court found that the GPO's decision was illegal. The GPO appealed. 43. On 24 January 2001 the investigators severed a defamation case involving a Mr Melnychenko from the Gongadze case (see Melnychenko v. Ukraine, no. 17707/02, § 15, ECHR 2004-X). 44. Despite its appeal, on 26 January 2001 the GPO recognised the status of the applicant and the deceased's mother as civil parties in the light of further forensic evidence. (The applicant maintained that this was done under the influence of Resolution 1239 (2001) of the Parliamentary Assembly of the Council of Europe, adopted on 25 January 2001, which called on the authorities to conduct “an expeditious, full and transparent investigation into the disappearance or death of Mr Gongadze, and to make known the results of the investigation as quickly as possible; ... to respect the rights of the victim's relatives, including their right to be the aggrieved side in the case of Mr Gongadze's death”.) 45. On 27 February 2001 the GPO informed the applicant that additional evidence had confirmed that the body found in Tarashcha was that of Mr Gongadze. An investigation into the murder of Mr Gongadze was initiated, and the applicant and the deceased's mother were granted the status of aggrieved parties. 46. On 16 March 2001 the applicant requested the Prosecutor General to give her access to the case-file material concerning the forensic medical examination of the body. On 19 March 2001 the investigating officer refused, stating that it was part of the preliminary investigation and the applicant could only have such access when the preliminary investigation was over. The applicant's lawyer unsuccessfully challenged this refusal in the Pechersky District Court of Kyiv. 47. On 30 March 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv alleging negligence by the investigators. 48. On 26 April 2001 the investigator carried out an inspection of the Tarashcha body in the presence of the deceased's mother and her lawyer, and the applicant's lawyer. An additional forensic examination and a genetic identification test were carried out by United States specialists. The joint examination by the United States and Ukrainian experts confirmed that the Tarashcha body was that of Mr Gongadze. 49. On 8 May 2001 the applicant requested full access to the case file, which was refused on 17 May 2001 pending the pre-trial investigation. 50. On 15 May 2001 the Minister of the Interior announced that the two presumed murderers of Mr Gongadze, identified as drug users, had died and that the case was therefore solved. The Minister further stated that the murder had been spontaneous, with no political motive. On 17 May 2001 the GPO contradicted this announcement and recommended that the Minister refrain from disclosing any information about the criminal investigation. 51. On 18 May 2001 the applicant requested the GPO to confirm the Minister's statement and to inform her as to when she would be allowed access to the case file. The same day the GPO informed the applicant that important additional information had been obtained and needed further examination, and that it would therefore be premature to say that the preliminary investigation was over. 52. On 22 May 2001 the applicant requested the GPO to involve experts from the United States Federal Bureau of Investigation (FBI) in the investigation. Her request was refused on 25 May 2001. 53. By a letter of 30 May 2001, the GPO authorised the Kyiv Office for Forensic and Medical Examinations to deliver the remains of Mr Gongadze to his relatives for burial. A copy of this letter was handed to the representative of the deceased's mother and sent by mail to the applicant's representative. On 6 July 2001 the forensic office informed the deceased's mother that she could take the body away for burial. However, according to the Government, the body was still in the Kyiv Office for Forensic and Medical Examinations, although the burial decision remained exclusively with the deceased's mother and the applicant. 54. On 6 September 2001 the applicant's representative requested access to the results of all the forensic examinations in the case file. She also asked when the preliminary investigation would be finished. On 7 September 2001 the GPO replied that it was not yet possible to say. 55. In a further reply of 10 September 2001, the GPO stated that the representative of an aggrieved party had a right of access to the results of forensic examinations, but only after the pre-trial investigation had been completed. According to the Government, the GPO noted that the representative had had access to the results of the forensic examinations and genetic tests within the limits permitted by the confidentiality of the investigation. 56. On 10 October 2001 the Kyiv City Justice Department informed the applicant that her negligence claim against the investigators, lodged on 30 March 2001 with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with that court. 57. On 30 October 2001 the applicant requested the GPO to provide her with information about the forensic medical examination conducted by the FBI and the reasons for the contradictory findings of the forensic medical examinations conducted by the Russian and German experts. She requested that an additional forensic medical examination be held to answer these questions. 58. On the same date the applicant was informed by the GPO that the case file could not be disclosed before the end of the preliminary investigation and that the preliminary investigation would be finalised when the person guilty of the crime had been found. 59. On 31 October 2001 the GPO stated that the forensic medical examinations had established that the body found in Tarashcha was that of Mr Gongadze. It further informed the applicant that the results of the forensic medical examination conducted by the German experts could not be included in the case file, as the tissue samples for that examination had been taken by an unauthorised person in breach of established procedures. 60. On 13 November 2001 the Kyiv City Justice Department again informed the applicant that her negligence claim against the investigators, lodged with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with the Pechersky District Court. 61. On 3 December 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv about the GPO's refusal to allow her access to the case-file material concerning the forensic medical examination of the body. 62. On 11 February 2002 the Pechersky District Court held that the applicant's complaint against the GPO could not be considered prior to the transfer of the case to the court. It decided to attach the complaint to the case file for consideration at a later date. The court stated that the Code of Criminal Procedure did not provide for a separate appeal against the investigators on the ground of their refusal of access to the case-file material relating to the forensic medical examination. 63. On 20 February 2002 the State Civil Registration Office in Lviv refused to issue a death certificate for Mr Gongadze in the absence of any document confirming his death. 64. On 28 March 2002 the applicant requested Mr Robert Ménard, the Secretary-General of “Reporters sans frontières”, to be her representative in the case. 65. On 22 May 2002, while the power of attorney for this purpose was being prepared, Mr Ménard requested the GPO, on behalf of the deceased's mother who was also a civil party to the case, to interview the four police officers named in the press as having followed Mr Gongadze. He further requested access to the case-file material concerning the forensic medical examinations, and asked for another examination by foreign experts. His request was not answered. 66. Another request by Mr Ménard on 10 June 2002 was refused by the GPO on 18 June 2002 on the ground that he could not be recognised as the representative of the civil party. On 19 June 2002 Mr Ménard asked the GPO to annul that decision. 67. On 6 July 2002 a new Prosecutor General was elected, who confirmed on 3 September 2002 that there had been numerous irregularities in the previous investigation. 68. On 10 September 2002 the Prosecutor General announced an investigation into the alleged falsification of procedural documents by the prosecutor and investigator from the town of Tarashcha. 69. On 16 September 2002 “Reporters sans frontières” requested access to all the forensic results in the case file and their examination by an independent expert. They also requested information about the identity of the four persons who had followed Mr Gongadze before his disappearance. 70. In October 2002 a new forensic examination took place in Switzerland. On 11 March 2003 “Reporters sans frontières” announced that the last DNA test had unequivocally identified the body as that of Mr Gongadze. 71. In November 2002 the prosecutor from the Tarashcha district prosecutor's office was arrested and charged with negligence in the investigation of the case. On 6 March 2003 the prosecutor was sentenced to two and a half years' imprisonment but absolved from serving the sentence by the Shevchenkivsky Local Court of Kyiv under an amnesty law. 72. On 15 January 2003 the chairman of the parliamentary ad hoc committee on the Gongadze case announced that the persons responsible for the death of Mr Gongadze were members of the police. 73. On 17 February 2003 Parliament requested the GPO to investigate the possible role of Mr Kravchenko, who had been Minister of the Interior at the time of the disappearance of Mr Gongadze, in the death of the journalist. This request was supported by 120 members of parliament. 74. On 24 February 2003 the Prosecutor General, Mr Piskun, declared that they were checking the information about the involvement of senior officials of the Ministry of the Interior in the death of Mr Gongadze. 75. On 28 February 2003 the Prosecutor General openly criticised his predecessor, Mr Potebenko, for impeding the investigation into the murder of Mr Gongadze. 76. In May 2003 a former police officer, Mr G., was arrested and charged with setting up a criminal group with the participation of the police. He died in prison on 1 August 2003 in unclear circumstances. His lawyers maintained that he had been beaten and tortured. The body of Mr G. was cremated on 3 August without an autopsy. 77. On 5 August 2003 the letters of the late Mr G. appeared in the media. In these letters he accused the police and senior officials of kidnapping and killing Mr Gongadze. These letters, and the documents attached to them, were sent to the GPO. 78. On 9 September 2003 the GPO confirmed that the handwriting of the letters was that of the late Mr G. 79. On 22 October 2003 Lieutenant-General Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He was accused of ordering the destruction of important documents in the case. 80. On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President. 81. On 6 November 2003 the Kyiv City Court released Mr Pukach on his undertaking not to abscond. 82. On 15 August 2005 the applicant was allowed to have access to the criminal case file. 83. The applicant noted that, since 1991, eighteen journalists had been killed in Ukraine. 84. The applicant maintained that the political situation which had developed after the disappearance of her husband illustrated the attitude of the Ukrainian authorities towards freedom of the press. 85. Soon after the disappearance of Mr Gongadze, the President of Ukraine had promised to employ every means to find him. After a motion voted by Parliament, the President had assigned three law enforcement agencies – the GPO, the police and the security services – to work on the case. 86. On 18 September 2000 an anonymous person called the embassy of Georgia in Kyiv with the information that the responsibility for the disappearance of the journalist lay with Mr K., the notorious leader of a criminal group, and with the Minister of the Interior and an MP, Mr Volkov. The Ambassador of Georgia, who made the contents of the call public, was recalled to Georgia several weeks later. The Ukrainian authorities denied any link between the two events. 87. At the end of September 2000 Parliament created an ad hoc committee to investigate the disappearance of Mr Gongadze. The Prosecutor General refused to collaborate with the committee as its request to interview experts and officers was considered unconstitutional. 88. On 28 November 2000 the Chairman of the Socialist Party, Mr Moroz, publicly announced the existence of audio tapes, secretly made in the office of the President, implicating President Kuchma and other high-level State officials in the disappearance of Mr Gongadze. In one of the recorded conversations, allegedly between the President and the Minister of the Interior, the President had asked for Mr Gongadze to be threatened. The Minister had then proposed certain people whom he called “real eagles”, capable of anything, to do the job. 89. The applicant maintained that, due to doubts as to the quality of the tapes, it was not possible to establish their authenticity, although a United States laboratory (BEK TEK) confirmed that they were genuine. She referred to the report of 22 January 2001 by “Reporters sans frontières” that testified to the existence of special forces in the police, and groups of retired police officers recruited by the mafia who would commit acts of violence against political figures or journalists. 90. After the disappearance of Mr Gongadze, many news media experienced pressure and censorship over their coverage of the case. 91. On 15 September 2001 several thousand opposition supporters demonstrated in memory of Mr Gongadze. 92. The case of the disappearance of Mr Gongadze attracted the attention of many international organisations. It was analysed in the context of the lack of freedom of the media in Ukraine, which had been criticised for several years at international level. 93. On 25 January 2001 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1239 (2001) expressing its concern about “the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the competent Ukrainian authorities in respect of freedom of expression”. It further stated that the investigation into the disappearance of Mr Gongadze “should be considered as a test for freedom of expression and the functioning of parliamentary democracy in Ukraine”. 94. A plea for a speedy and transparent investigation into all cases of violence against and the death of journalists, particularly in the Gongadze case, was repeated in PACE Recommendation 1497 (2001) of 25 January 2001, Resolution 1244 (2001) and Recommendation 1513 (2001) of 26 April 2001 and Resolution 1262 (2001) of 27 September 2001. 95. Similar pleas were made by the European Union in a statement on 5 February 2001, and by the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe (OSCE) in its resolution of July 2001. The OSCE Assembly also awarded the 2001 OSCE Prize for Journalism and Democracy to Mr Gongadze posthumously. 96. The case of the disappearance of Mr Gongadze was reported in the documents of certain United Nations bodies: the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee. 97. “Reporters sans frontières” conducted its own investigation into the disappearance of Mr Gongadze, the results of which were published in the special report of 22 January 2001 mentioned above. It concluded that the investigating authorities had been mainly preoccupied with proving the innocence of high-level State officials. 98. On 2 July 2003 the report of Mr H.C. Krüger, Deputy Secretary General of the Council of Europe, was presented to PACE. The documents attached to the report confirmed that, prior to the appointment of a new Prosecutor General on 6 July 2002, the investigation had been ineffective, although later developments had raised hopes of more efficacy. According to the applicant, the further developments in the investigation demonstrated that the hopes expressed had been premature. 99. On 16 September 2003 the Euopean Union made a declaration in which concern was expressed at the lack of progress in the investigation. 100. The issue of the effectiveness of the investigation in the case was similarly raised by the United States Congress and by NATO. 101. On 13 September 2005 several international non-governmental organisations published a report about the progress of the investigation in the Gongadze case. They maintained that the GPO, supported by the President, had tried to limit the investigation and had not made enough efforts to find and prosecute the instigators of the kidnap and murder of Mr Gongadze. They further criticised the Ukrainian authorities for serious setbacks in the investigation, in particular: “– the disappearance of Lieutenant-General Pukach; the leaking of information that disrupted the work of Ukrainian and Israeli agencies who were preparing to detain him; the lack of any public scrutiny of that potentially criminal action; and the absence of any investigation into the process by which Lieutenant-General Pukach was previously released and the Pukach case closed in December 2003; – the death of former Minister of the Interior Mr Kravchenko, who could have provided important information about the link between the conversations recorded by Melnychenko and the murder; and the lack of any public scrutiny of the possible negligence of the GPO in its handling of the Kravchenko case and in protecting him as a witness; – the failure to interview numerous witnesses in the Ministry of the Interior with a knowledge of the system of surveillance operated there; and the failure to investigate thoroughly the links between the 'werewolves' and Honcharov cases with the Gongadze case; – the failure to resolve the problems surrounding the Melnychenko tapes, with a view to using them as primary evidence in court, caused mainly by the mistakes and sluggishness of the GPO; ...” 102. On 19 September 2000 the Pechersky district prosecutor's office of Kyiv instituted a criminal investigation, pursuant to Article 94 of the Criminal Code of Ukraine, into a case of premeditated murder. In order to determine the circumstances of the disappearance, an investigation group was formed. The group included officers of the Department of Criminal Investigations and the GPO. The following three lines of inquiry were pursued: (i) Did the disappearance involve family problems? (ii) Was Mr Gongadze the victim of a criminal offence unrelated to his profession? (iii) Was the disappearance connected to his critical publications in the Ukrayinska Pravda online newspaper? 103. From 19 September 2000 until 10 October 2000, a number of investigative measures were taken to identify witnesses, check Mr Gongadze's contacts, search localities, etc. 104. On 2 November 2000 the unidentified corpse of a man was found in a forest in the Tarashcha district. The law enforcement authorities were informed about this and immediately went to the site. On 3 November 2000 the investigation group examined the site and prepared the necessary procedural documents. The corpse was transferred to the morgue of the Tarashcha district for a forensic examination. The investigating officer of the Tarashcha district prosecutor's office instituted a criminal investigation into the premeditated murder of an unidentified person, pursuant to Article 94 of the Criminal Code. The forensic expert found jewellery on the corpse that day and near the corpse in the soil nearby the following day. 105. The Pechersky district prosecutor's office enquired whether the corpse could be that of Mr Gongadze. For this purpose the applicant was summoned before the prosecutor and requested to describe the jewellery which Mr Gongadze could have been wearing when he disappeared. 106. On 15 November 2000 a group of journalists – close friends of Mr Gongadze – went to Tarashcha, having learned about the unidentified body from a newspaper article. They met with the forensic expert, who informed them about the jewellery and showed them the corpse. Upon the journalists' request, he took an X-ray of one of the arms of the corpse. The X-ray showed pieces of metal in the arm that could have corresponded to an old wound of Mr Gongadze's. On this ground the journalists concluded that the corpse was that of Mr Gongadze. The same day the Tarashcha prosecutor ordered and effected the transfer of the corpse to the Kyiv city morgue for further forensic examination. 107. On 7 December 2000 the GPO joined the investigations in the Gongadze and Tarashcha cases, and a case of defamation against senior State officials (the Melnychenko case), in order to ensure their comprehensive and speedy examination. 108. On 13 December 2000 the applicant was questioned as an aggrieved party. She agreed to provide samples of her own blood and of that of her children for forensic examination. The applicant insisted on participating in the identification of the Tarashcha body, and said that she was certain that she could recognise her husband's jewellery. 109. On 14 December 2000 the applicant refused to give blood samples because of a family conflict. That day the applicant requested the GPO to conduct the forensic examinations in a western country. This request was rejected on 18 December 2000. 110. On 15 December 2000 the investigator reported to the Deputy Prosecutor General that the deceased's mother had refused to participate in the identification of the Tarashcha body, scheduled for 18 December 2000, as she did not feel well and wished to postpone her participation until the completion of the genetic identification tests. 111. On 18 December 2000 the applicant was summoned to the GPO to participate in the identification of the Tarashcha body and the jewellery. She stated that there was a high probability that the corpse was that of her husband. She recognised the jewellery with absolute certainty. The same day the applicant requested to see the documents relating to the examination of the scene of the events and the body. Her request was allowed and a note made to that effect. 112. On 20 December 2000 the GPO received a letter from the deceased's mother, stating that she was under stress and could not come to Kyiv for the identification. She also stated that she would only participate in the identification once an independent forensic examination of the corpse had been conducted. 113. On 12 January 2001 the applicant and the deceased's mother requested the GPO to conduct an additional forensic examination with the assistance of United States experts. They also requested that efforts be made to find the head of the Tarashcha body. The request for the forensic examination was allowed and, with the assistance of the FBI and the United States Department of Defence, an additional forensic examination and a genetic identification test were conducted on 22 February 2001. The head could not be found, however. 114. On 27 February 2001 the GPO sent a request for legal assistance to the competent German authorities asking for the official results of a genetic identification test done in that State following a request from Mr Holovaty, a Ukrainian MP. According to Mr Holovaty, the German experts had concluded that the Tarashcha body was not that of Mr Gongadze. However, according to the Government, this test had no legal value, as neither the test nor the procedure for taking tissue samples had complied with Ukrainian legislation. 115. On 6 September 2001 the applicant's representative applied to the GPO, stating that, according to the media, journalists had visited Tarashcha on 15 October 2000. The journalists had examined the body in the Tarashcha morgue and taken photographs of it. She asked the GPO to interview those journalists and to join the photographs to the criminal case file. On 7 September 2001 the applicant's representative was informed that the journalists had been identified and interviewed as witnesses in the course of the investigation. They had been requested to submit their photographs for inclusion in the case file. 116. On 30 October 2001 the applicant's representative requested the GPO to fix a time-limit for the completion of the pre-trial investigation into the murder of Mr Gongadze. The GPO replied that it could not do so until the murderer had been identified. 117. On the same day the applicant's representative requested an additional forensic examination in order to determine, inter alia: (i) whether the X-ray of the corpse's hand done in Tarashcha and given to the journalists corresponded to the X-rays taken when Mr Gongadze was alive, and to those taken by the FBI on 27 April 2001; (ii) whether the FBI analyses proved the presence of traces from bullets that corresponded to the wounds known to have been suffered earlier by the late journalist; and (iii) whether the hair identification and DNA analysis confirmed the corpse's identity. 118. On 31 October 2001 the GPO refused to authorise an additional examination, as the Tarashcha body was undoubtedly that of Mr Gongadze and during their examinations the Ukrainian and United States experts had already answered the applicant's questions. 119. On 11 June 2002 the applicant's representative requested access to the decision ordering a new forensic examination, allegedly to be carried out by German experts. She further requested to be allowed to put questions to these experts. She referred in her application to the alleged statements of investigators, disseminated by the media, about this new examination. 120. On 21 June 2002 the GPO rejected the application. The applicant's representative was informed that she could study the case file after the pre-trial investigation was completed and that no statement about a new examination by German experts had been made by the Deputy Prosecutor General to the media. 121. On 17 July 2002 the newly appointed Prosecutor General ordered the creation of a new investigation group in the Gongadze case. 122. On 26 and 30 July 2002 the new group conducted two additional examinations of the site where the body was found, together with forensic experts. They took soil samples, carried out a thorough search and took a number of objects for analysis. 123. On 9 August 2002 an additional examination of the Tarashcha body was conducted and samples for further forensic tests were taken. The additional forensic examinations were to establish more accurately the approximate time of Mr Gongadze's death. 124. On 3 September 2002 the deceased's mother was provided with the documents necessary for the burial of Mr Gongadze's remains. 125. On 24 September 2002 the GPO sent a letter to the Director of the FBI inviting them to assist Ukrainian specialists in investigating the case. 126. In September and October 2002 Mr Ménard, Secretary-General of “Reporters sans frontières”, visited Kyiv twice as the representative of the deceased's mother in the criminal case. He met the Prosecutor General and had access to the results of the forensic examinations in the case. Moreover, samples were taken for an additional forensic examination, which was carried out in Lausanne (Switzerland) from 20 to 25 January 2003. 127. On 14 January 2005 the GPO instituted proceedings against Lieutenant-General Pukach for abuse of power. His case was joined to that of Mr Gongadze. 128. On 24 January 2005 the Pechersky District Court of Kyiv ordered the arrest and detention of Mr Pukach. The Security Service and the Ministry of the Interior were ordered to find him, without success. 129. During the investigation it was established that Mr Gongadze had been the subject of illegal surveillance operations by certain officers of the Department of Criminal Investigations, previously headed by Mr Pukach, from July 2000 until the day he disappeared in September 2000. It was also established that, in 2003, all the material relating to this illegal surveillance had been destroyed. 130. On 28 February 2005 the GPO instituted proceedings against police officers K. and Pr., as well as Mr Pukach, charging them with the premeditated murder of Mr Gongadze. On the same day Mr K. and Mr Pr. were arrested. 131. On 3 March 2005 the Pechersky District Court remanded Mr K. and Mr Pr. in custody. 132. On 5 March 2005 Mr K. and Mr Pr. were officially charged with premeditated murder. They confessed their involvement. On the same day Mr K. was dismissed from his position as head of unit in the Intelligence Department of the Ministry of the Interior. 133. On 5 March 2005 it was also decided to charge Mr Pukach, but he could not be found. 134. On 17 March 2005 the investigation established that a fourth person, Mr P., had been involved in the disappearance and murder of Mr Gongadze. Mr P. was interrogated and admitted his role in the crime. On the same day Mr P. was dismissed from his position as a senior officer of the Intelligence Department of the Ministry of the Interior. 135. All three accused participated in an on-site reconstruction of the events of the crime. Other police officers who had followed Mr Gongadze before his disappearance were questioned. 136. Some objects belonging to the journalist were found and presented to his relatives for identification. 137. The investigation pursued further forensic examinations of the corpse and the audio tapes of Mr Melnychenko and a number of other matters. 138. On 11 December 2000 the GPO received a video tape with statements by Mr Melnychenko made in the presence of several Ukrainian MPs. These statements concerned the involvement of the President of Ukraine and many other high-ranking officials in giving illegal orders. Mr Melnychenko claimed to have made audio recordings of incriminating conversations, using a digital recorder placed under the sofa in the office of the President of Ukraine. 139. On 13 December 2000 Mr Moroz, a Ukrainian MP, lodged an application with the GPO, enclosing a copy of a complaint by Mr Melnychenko dated 16 November 2000 and video-recorded statements containing accusations about the involvement of senior State officials in the disappearance of Mr Gongadze. A forensic examination of the audio tapes was ordered but could not determine their authenticity. (The applicant contended that a United States laboratory had confirmed the authenticity of the tapes.) 140. On 15 December 2000 the GPO requested Interpol to establish the whereabouts of Mr Melnychenko. 141. On 16 September 2002 the GPO requested the assistance of the United States Department of Justice in interviewing Mr Melnychenko as a witness in the Gongadze case. 142. Mr Melnychenko refused to provide the GPO with his tapes and recording equipment, but agreed to provide written answers to the GPO's questions, which he had not done by the time the Government submitted their observations to the Court. The applicant stated that the reason for Mr Melnychenko's implied lack of cooperation was his well-founded fear of prosecution by the Ukrainian authorities. 143. After Viktor Yushchenko was elected President of Ukraine on 26 December 2004, he pledged to reopen the investigation into the Gongadze case. It was reported in the press on 2 March 2005 that the Prosecutor General had announced the arrest of three security officers in connection with the present case: a general and two colonels. On 4 March 2005 the death by purported suicide of Yuriy Kravchenko, the above-mentioned Minister of the Interior at the time, was announced. He had been due to be interviewed by the GPO that morning. 144. Recently, the GPO announced that the criminal investigation was complete and would be sent to the Court. The aggrieved parties were given access to the case file. They stated that the latest forensic examination in September 2005 by German experts had confirmed that the Tarashcha body was that of Mr Gongadze. 145. On 15 September 2005 Mr Turchinov, who had been dismissed from his post as head of the security service, informed journalists that the Service had been preparing for the arrest and extradition of Lieutenant-General Pukach from Israel, but the operation had failed due to a leak of information from the GPO. He stated that the interim results of the laboratory examination of the Melnychenko tapes had not established any sign of tampering, and had identified persons whose voices were recorded on the tapes. 146. On 20 September 2005 the parliament of Ukraine heard the report of the chairman of its ad hoc committee investigating the murder of Mr Gongadze. This report concluded that the kidnap and murder of Mr Gongadze had been organised by former President Kuchma and the late Minister of the Interior, Mr Kravchenko. The report found that the then head of the presidential administration and the current speaker of parliament, Mr V. Lytvyn, and the then head of the security service and a current member of parliament, Mr L. Derkach, had been involved in the crimes. The report noted finally that, having been informed about the crimes and the names of suspects, the GPO had failed to take any action or to react to the conclusions of the ad hoc committee. 147. The relevant provisions of the Constitution of Ukraine provide: “The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...” “Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...” “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” 148. The relevant provisions of the Code of Criminal Procedure provide: “Anyone who has suffered material damage as a result of a crime shall be entitled to lodge an application to join the criminal proceedings as a civil party claiming damages ..., which shall be considered by the court at the same time as the criminal case ...” “Anyone who has suffered ... damage as a result of a crime may be recognised as an aggrieved party. ... A citizen who has been recognised as an aggrieved party in respect of the crime shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to ... make requests; study all the materials of the case file when the pre-trial investigation is completed; ... [and] lodge complaints against the actions of the inquirer, investigator, prosecutor and court ... In cases where the crime has caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased's next of kin.” “A criminal action shall be instituted on the following grounds: (1) applications or communications from ... individuals; ... (5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court. An action may be instituted only when there is sufficient evidence that a crime has been committed.” 149. The relevant provisions of the Prosecution Service Act, in the 1995 version, provided: “The main functions of the Prosecution Service are: ... 2. supervision of compliance with the law by the bodies that combat crimes and other offences and investigate circumstances indicating that a crime has been committed; 3. investigation of circumstances indicating that a crime has been committed; ...” | 1 |
dev | 001-57472 | ENG | GBR | CHAMBER | 1,983 | CASE OF DUDGEON v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | null | 1. The Dudgeon case was referred to the Court by the European Commission of Human Rights ("the Commission") in July 1980. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 22 May 1976 by a United Kingdom citizen, Mr. Jeffrey Dudgeon. 2. On 30 January 1981, the Chamber constituted to hear the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By judgment of 22 October 1981, the plenary Court held, inter alia, that the applicant had been the victim of a breach of Article 8 (art. 8) of the Convention by reason of the existence in Northern Ireland of laws which had the effect of making certain homosexual acts committed in private between consenting adult males criminal offences (Series A no. 45, point 1 of the operative provisions and paragraphs 37-63 of the reasons, pp. 27 and 17-25). The only outstanding matter to be settled in the present case is the question of the application of Article 50 (art. 50). Accordingly, as regards the facts the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 13 to 33 of the above-mentioned judgment (ibid., pp. 7-16). 3. At the hearing held on 23 April 1981, counsel for the applicant had stated that, should the Court find a violation of the Convention, his client would be seeking just satisfaction under Article 50 (art. 50) to obtain financial compensation for damage suffered and for legal and other expenses incurred. The Government of the United Kingdom ("the Government"), for their part, had taken no stand on the matter. In its judgment of 22 October 1981, the Court reserved the whole of the question of the application of Article 50 (art. 50) and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the same day, the Chamber invited the Commission to submit, within the coming two months, written observations thereon, including notification of any friendly settlement at which the Government and the applicant might have arrived (ibid., p. 48). 4. Following two extensions by the President of the Chamber of the above-mentioned time-limit and in accordance with his orders and directions, the following documents were filed at the registry: - on 17 May 1982, the observations of the Delegates of the Commission, appended to which were, inter alia, details of the applicant's claim; - on 6 August 1982, a memorial from the Government; - on 15 September 1982, the reply of the Delegates to a question raised therein by the Government; - on 15 October 1982, through the Secretary to the Commission, the observations of the applicant on the above-mentioned memorial of the Government; - on 15 November 1982, the comments of the Government on the latter observations. On 8 November 1982 and 11 January 1983, the Secretariat of the Commission transmitted to the Registrar further observations by Mr. Dudgeon, which the latter had sent to the Commission on his own initiative. These various documents revealed that it had not been possible to arrive at a friendly settlement. The Delegates did not comment on the merits of the applicant's claim, which may be summarised as follows: - for damage suffered as a result of the police investigation carried out in 1976, financial compensation of £5,000; - for damage suffered by reason of the very existence of the legislation successfully complained of, financial compensation of £10,000 and a declaration by the Government that if Mr. Dudgeon were to apply for civil service employment he would not be discriminated against either on grounds of homosexuality or for having lodged his petition with the Commission; - reimbursement of costs itemised at £4,655. Further particulars of the claim are set out below in the section "As to the law". 5. Following the Court's judgment of 22 October 1981 and on the initiative of the Government, an Order in Council, entitled the Homosexual Offences (Northern Ireland) Order 1982, was made. Subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, the effect of this Order, which came into force on 9 December 1982, is to "decriminalise" in Northern Ireland homosexual acts committed in private between two consenting males aged 21 years and over. The Order brings the relevant law in Northern Ireland into line with that applying in the remainder of the United Kingdom (see the above-mentioned judgment of 22 October 1981, pp. 9-10, §§ 16-18). 6. Having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the Chamber decided on 1 October 1982 that there was no call to hold hearings. 7. Mr. J. Cremona, Mr. F. Matscher and Mr. B. Walsh, substitute judges, took the place of Mr. Thór Vilhjálmsson, Mr. G. Lagergren and Mr. L. Liesch, who were prevented from taking part in the further consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court). | 0 |
dev | 001-79265 | ENG | SVK | CHAMBER | 2,007 | CASE OF PAVLIK v. SLOVAKIA | 3 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed | Nicolas Bratza | 5. The applicant was born in 1963 and lives in Zvolen. He was a member of the Police Corps (Policajný zbor) of the Slovak Republic. 6. On 10 March 1999 the applicant was charged (obvinený) with carrying out business activities without authorisation (Article 118 § 1 and 2 (a) of the Criminal Code (CC)), extortion (Article 235 § 1 of CC) and rape (Article 241 § 1 of CC). The charges were based on the suspicion that the applicant who was disqualified from carrying out business activities by law on account of his status as a police officer had arranged for a third person, Ms P., to run a restaurant on his behalf. He was further suspected of having threatened P. with violence in order to make her give him an amount of money and of having forced at gunpoint a waitress, Ms. M., to have intercourse with him. The blackmail charge was later extended as the applicant was also suspected of having made violent threats against M. in order to force her to be his girlfriend. The applicant was detained, dismissed from the police and tried on the above charges. The details are set out below. 7. On 12 April 1999 the Minister of the Interior issued an order (personálny rozkaz) dismissing the applicant from service in the police. The evidence available showed that the applicant had committed the acts of which he was charged. Such conduct grossly violated the service oath and, accordingly, was incompatible with service in the police. The applicant’s administrative appeal (rozklad) was dismissed on 14 June 1999. 8. The applicant’s subsequent numerous requests that the Ministry of the Interior review his dismissal in a special procedure outside the framework of ordinary appellate proceedings (mimo odovlacieho konania) and that the proceedings be reopened failed. 9. On 29 May 2002 the applicant challenged his dismissal by way of an administrative-law action in the Supreme Court (Najvyšší súd). It was declared inadmissible on 1 August 2002 on the ground that it clearly had been filed outside the statutory two-month time-limit, counted from the final administrative decision in the case which was the decision of 14 June 1999. 10. On 3 September 2002 the applicant challenged the dismissal order of 12 April 1999 in the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. It was declared inadmissible on 24 September 2002 as being belated. Moreover, and in any event, the review of the dismissal order fell within the jurisdiction of the Supreme Court. The Constitutional Court’s review was merely subsidiary and did not apply to the dismissal order directly. As for the decision of the Supreme Court, it could not be reviewed either because the applicant’s constitutional complaint was not directed against it. 11. On 11 March 1999, at 2.40 p.m., the police detained the applicant on the above charges. He was assigned an ex officio lawyer. 12. On 12 March 1999 the applicant was brought before the judge of the Zvolen District Court (Okresný súd). The parties disagree as to the exact time when this took place. The Government rely on the minutes of the applicant’s questioning which bear his signature and indicate that he had appeared before the judge at 2 p.m. The applicant now claims that he was presented to the judge at 3.50 p.m., which is after the 24-hour statutory time-limit. The applicant pleaded not guilty. There is no indication that he complained about infringement of the above time-limit. The questioning was concluded at 4.47 p.m. with the District Court’s decision to remand the applicant in detention (see the subsequent paragraph). 13. On 12 March 1999 the District Court remanded the applicant under Article 67 § 1 (b) and (c) of the Code of Criminal Procedure (CCP) which allowed for detention of persons charged with criminal offences where there were reasonable grounds for believing that if released they would interfere with the course of justice or continue to engage in criminal activities. The court found it established that the applicant’s liberty had been restricted on the previous day at 2 p.m. There was a strong suspicion against him which was based on testimonies of P., M. and 7 witnesses. The applicant was suspected of having threatened and used violence against P. and M. over an extended period. Therefore it could be presumed that he would continue doing so with a view to hampering the proceedings. This presumption rendered his detention justified on the legal grounds referred to above. 14. The applicant’s appeal (sťažnosť) against the remand order was dismissed by the Banská Bystrica Regional Court (Krajský súd) on 13 April 1999. 15. In the period prior to 26 April 2000 the applicant filed numerous petitions for release. They were dismissed by the prosecution service, the District Court and the Regional Court on various grounds including that some of the petitions had been lodged earlier than 14 days from the final determination of the previous petition and, as they contained no new relevant information, they had to be dismissed under Article 72 § 2 of the CCP. In all cases the authorities found that the suspicion against the applicant and the grounds for his detention, as established at the time of his remand, still persisted. In decisions of 19 October 1999 and 28 February 2000 the District Court moreover observed that covert messages from the applicant to his wife, P. and her family members had been intercepted, which showed that he had actually attempted to interfere with the course of justice and that he was likely to act violently. The existence of such messages was established by the prison administration and the prosecution service, which confirmed it in their respective letters of 15 and 26 July 1999. 16. On 3 September 1999 the District Court authorised extension of the applicant’s detention under Article 71 § 1 of the CCP until 11 December 1999. 17. On 31 March 2000, the District Court found the applicant guilty and sentenced him (see below). At the same time it decided that for the time being the applicant should be released from detention. The release order was however not yet enforceable as it had been challenged by the prosecution. 18. On 24 May 2000 the Regional Court allowed the prosecutor’s appeal against the release order and ruled that the applicant should remain in detention. With reference to the intercepted letters the Regional Court found that the applicant had attempted to influence witnesses and concluded that, if released, it was likely that he would exert pressure on the victims with a view to having their statements modified. 19. On 28 July 2000 the District Court dismissed the applicant’s petition for release. The applicant appealed to the Regional Court but on 7 August 2000 withdrew the appeal. The Regional Court acknowledged the withdrawal on 23 August 2000. 20. On 16 August 2000 the applicant petitioned for release again. He contested the charges and argued that there was no risk that he would continue to offend as envisaged by Article 67 § 1 (c) of the CCP. 21. In a letter of 7 September 2000 the District Court informed the applicant that under Article 72 § 2 of the CCP his petition of 16 August 2000 could not be dealt with because it had been lodged prior to the final determination of his previous petition and contained no new relevant information. 22. On 28 November 2000 the applicant lodged a fresh petition for release and the District Court ordered his release on 7 December 2000. 23. On 17 January 2001 the Regional Court upheld the release order of 7 December 2000 on the prosecutor’s appeal. It referred to the evidence taken in the course of the proceedings, the length of the applicant’s detention and the fact that his criminal record was clear. It concluded that the reasons for his detention had fallen away. The applicant was released on the same day. 24. In the course of the proceedings the applicant unsuccessfully attempted to have criminal proceedings brought against the officials dealing with his case. He complained, inter alia, that no decision had been given to authorise the extension of his detention after 11 December 1999 (see paragraph 16 above). 25. On 12 March 1999 the District Court issued a search warrant for two flats and a cottage used by the applicant. The searches took place on 12 and 16 March 1999. 26. On 17 March 1999 the Zvolen District Prosecutor dismissed the applicant’s appeal against his charges. His appeal against the extended charge for extortion was dismissed later. 27. On 26 July 1999 the District Court assigned the applicant a new ex officio lawyer at the applicant’s request. 28. On 10 December 1999 the applicant was indicted to stand trial in the District Court on the above charges. 29. On 20 December 1999 the case was assigned to a different judge of the District Court, V.Š., because the previous judge knew the applicant and felt personally biased. 30. The District Court held hearings on 10, 13 and 31 March 2000 at which it heard the applicant, the victims and several witnesses. 31. Following the hearing of 31 March 2000, on the same day, the District Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. Both the applicant and the prosecution appealed. 32. On 21 June 2000 the Regional Court quashed the District Court’s judgment and remitted the case to the latter for the taking of further evidence and re-examination. The Regional Court held that it was necessary to rehear the case as in the course of the proceedings there had been a change in the District Court’s chamber dealing with it. 33. On 26 July 2000 the District Court assigned the applicant a new ex officio lawyer at the request of the previous lawyer who felt that the applicant had no confidence in him. 34. On 20 September 2000 the Regional Court exempted Judge V.Š. from dealing with the applicant’s case at her own request because she felt partial because of the applicant’s persistent use of invectives against her. 35. The case was assigned to a new judge, M.Š., who also requested his exclusion. He submitted that he knew the applicant and that he felt concerned by his invectives directed against the previous judge. 36. On 8 November 2000 the Regional Court ruled that M.Š. would not be excluded from dealing with the applicant’s case. 37. On 20 March 2001 M.Š. again requested his exclusion from the case as he felt biased after the applicant had filed an unsuccessful criminal complaint against him. 38. On 12 April 2001 the Regional Court found that M.Š. was not disqualified from dealing with the case as, being a professional judge, he had to be prepared to accept a certain level of criticism without losing his impartiality. 39. On 1 October 2001 the District Court ordered an expert examination of the applicant’s mental health. On 7 November 2001 the Regional Court quashed this order on the applicant’s appeal for reasons of formality. 40. Between 7 February and 29 November 2002 the District Court held 5 hearings and made three attempts at establishing the whereabouts of P. who was believed to be staying in Italy. 41. On 10 January 2003 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to four and a half years’ imprisonment and a fine. In reaching that conclusion the District Court took into account the testimonies of numerous witnesses, reports from several experts and complex documentary evidence. The applicant appealed. 42. On 4 June 2003 the Regional Court quashed the judgment of 10 January 2003 and found the applicant guilty of having run a business without authorisation and of extortion. It acquitted him of the remaining charges and sentenced him to 22-months’ imprisonment and a fine. 43. The Prosecutor General challenged the judgment of 4 June 2003 by means of a complaint in the interest of law (sťažnosť pre porušenie zákona) filed with the Supreme Court. 44. On 10 February 2004 the Supreme Court quashed the judgment of 4 June 2003 and ordered the Regional Court to re-examine the applicant’s appeal against the judgment of 10 January 2003. 45. The Regional Court called hearings for 16 June and 18 August 2004. They had to be adjourned as the applicant did not appear. The Regional Court requested that the applicant be brought by the police and eventually issued a warrant for his arrest. The applicant then appeared before the Regional Court of his own accord and the arrest warrant was quashed. 46. On 6 October 2004 the Regional Court held a hearing following which, on the same day, it upheld the District Court’s judgment of 10 January 2003 as regards the conviction and increased the penalty which had been imposed in the judgment of 4 June 2003 to two years’ imprisonment. 47. The Minister of Justice challenged the judgment of 6 October 2004 by means of a complaint in the interest of law. He contested mainly the imposed sentence considering that the Regional Court had failed to take due account of the seriousness of the offences and the context in which they had been committed. 48. On 1 June 2005 the Supreme Court quashed the judgment of 6 October 2004 finding that the sentence imposed was too lenient. The Regional Court was accordingly instructed to re-examine the applicant’s appeal against the judgment of 10 January 2003. 49. On 20 September 2005 the Regional Court held a hearing following which, on the same day, it increased the sentence imposed in the judgment of 10 January 2003 to 3 years’ imprisonment. No further appeal was available. The applicant then unsuccessfully sought to challenge his conviction in the Constitutional Court. 50. On 26 February 2003 the applicant lodged a complaint under Article 127 of the Constitution asserting violations of his constitutional rights in the criminal proceedings against him. He complained inter alia about the length of the proceedings, directing this part of his complaint exclusively against the District Court. 51. On 14 April 2004 the Constitutional Court declared the complaint about the length of the criminal proceedings before the District Court admissible and the remaining complaints inadmissible. 52. On 30 September 2004 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution). The Constitutional Court found that the subjectmatter of the proceedings was not particularly complex and that no undue delays could be attributed to the applicant. In contrast, the District Court had been inactive without any justification between 12 April and 1 October 2001. The Constitutional Court concluded that the finding of a violation of the applicant’s right was in itself sufficient just satisfaction for him. In view of all the circumstances including the fact that there had only been one relatively insignificant period of unjustified delay, the Constitutional Court considered that financial compensation for the applicant’s nonpecuniary damage would not be appropriate. It however awarded him reimbursement of his legal costs. 53. Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms. 54. Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties. 55. Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law. 56. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 57. Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law. 58. Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are reasonable grounds for believing that he or she would influence the witnesses or the co-accused or otherwise hamper the investigation (Article 67 § 1 (b)) or continue criminal activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)). 59. Article 71 § 1 provides inter alia that where detention in the pre-trial phase of proceedings exceeded six months and the release of the detainee would jeopardise the purpose of the proceedings, a single judge can extend the detention for a period of up to one year. A motion for such an extension shall be lodged by the public prosecution service. A further extension of detention in the pre-trial phase of the proceedings beyond the one-year limit can be authorised by a chamber of judges up to a maximum of two years. 60. Under Article 71 § 2 detention on remand in the pre-trial phase of the proceedings and in the proceedings before a court taken together cannot exceed two years. An extension by another year can be authorised by the Supreme Court. 61. Article 72 § 2 entitles the detainee to apply for release at any time. When the public prosecutor dismisses such an application in the pretrial phase of the proceedings, he or she shall submit it immediately to the court. The court shall rule on such an application without delay. If the application is dismissed, the accused may renew it fourteen days after the decision has become final unless he or she invokes different reasons. 62. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 63. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. 64. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 65. In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary. The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence). 66. Further details concerning protection of personal integrity under the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006). 67. Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides. 68. Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia). 69. The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two). 70. The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded. 71. Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)). 72. Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions. 73. A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question. The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). | 1 |
dev | 001-79047 | ENG | FRA | CHAMBER | 2,007 | CASE OF FARHI v. FRANCE | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | null | 4. The applicant, who was born in 1968, is currently in custody in Fresnes Prison. 5. In an order of 5 April 2002 an investigating judge at the Versailles tribunal de grande instance committed the applicant for trial in the Yvelines Assize Court on counts of rape classified as a repeat offence, unauthorised entry into the country following expulsion and illegal entry or residence by a foreign national in France. 6. On 23 April 2003 the Yvelines Assize Court found him guilty as charged and sentenced him to twelve years' imprisonment. On the same day the Assize Court ruled on the civil claims and awarded the victim, who had joined the proceedings as a civil party, the sum of 15,000 euros (EUR) in damages. The prosecution was represented by B. 7. Both the applicant and the prosecution appealed. 8. On 23 July 2003 the Criminal Division of the Court of Cassation assigned the appeal to the Hauts-de-Seine Assize Court. The prosecution was once again represented by B. 9. The hearing before the Court of Appeal took place on 1 and 2 June 2004. 10. On 2 June 2004 the hearing was adjourned for the first time between 1.15 p.m. and 2.15 p.m. When it resumed, the President of the Assize Court ordered the photograph album in the case file to be shown to the parties, the jury and the other judges, then announced the questions the court and the jury would have to answer. Counsel for the accused objected to the wording proposed. The President called the civil party, the advocate-general, the defence and the accused, and the court then withdrew to deliberate. The hearing resumed at 2.40 p.m. Counsel for the applicant then filed submissions requesting that the court take formal note that unlawful communication within the meaning of Article 304 of the Code of Criminal Procedure had taken place between certain members of the jury and the advocate-general during the adjournment when the court had withdrawn to deliberate, leaving the jury in the courtroom. The President heard evidence from the applicant's and the civil party's lawyers, the advocate-general and the accused. The court, composed in this instance of only the judges, withdrew to deliberate and then delivered the following judgment: “The Court, having deliberated without the jury's assistance, Having regard to the conclusions submitted by Mr G., counsel to Redouane Farhi; Having regard to Articles 315 and 316 of the Code of Criminal Procedure, Considering that, as the judges composing the court were not personally in a position to confirm what may have happened in their absence, the court cannot put it on the record; Further considering that the evidence adduced and discussed inter partes has revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure ...” 11. In a judgment of 2 June 2004 the Assize Court of Appeal sentenced the applicant to fifteen years' imprisonment and eight years' social and judicial guidance, with the obligation to undergo treatment and not to approach the victim, her mother or her brother. Ruling on the civil claims, it ordered the applicant to pay the victim EUR 15,000 in respect of damage suffered prior to 23 April 2003 and EUR 4,000 in respect of damage suffered thereafter. 12. In a subsequent appeal on points of law the applicant relied on Article 6 § 1 of the Convention, asserting that it imposed “an obligation on every national court to check whether, as constituted, it is 'an impartial tribunal' within the meaning of that provision where, as in the instant case, this is disputed on a ground that does not immediately appear to be devoid of merit”, and that “in refusing the defence's request for a formal note to be made in the record that certain jurors had communicated with the advocate-general during an adjournment, without ordering an investigation to establish the facts and, if appropriate, taking the action requested by the defence” the Assize Court had infringed the provisions of that Article. 13. On 16 February 2005 the Criminal Division of the Court of Cassation dismissed the appeal on points of law, holding, inter alia: “The record of the proceedings states that the accused's lawyer filed submissions requesting formal note to be taken that unlawful communication, within the meaning of Article 304 of the Code of Criminal Procedure, had taken place between certain jurors and the advocate-general while the court was adjourned. The Court refused that request on the grounds that it could not make a record of things alleged to have happened in its absence, and the evidence adduced and discussed inter partes had revealed no violation of the provisions of the above-mentioned Article 304. That being so, there was no ground for appeal. On the one hand the judges composing the court were not personally in a position to confirm what may have happened in their absence. On the other hand, considering that the evidence adduced and discussed inter partes had revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure, the court used its unfettered discretion without infringing the provisions of the law or the convention on which the accused relied. It follows that the ground of appeal cannot be accepted. ...” 14. The relevant provisions of the Code of Criminal Procedure provide: “The trial jury shall be formed of nine jurors when the Assize Court rules at first instance and twelve jurors when it rules on appeal. The court shall make a ruling ordering, before the drawing of the list of jurors and separately from it, the drawing by lot of one or more additional jurors who shall attend the hearing. Where one or more of the nine jurors are prevented from following the hearing up to the delivery of the Assize Court's judgment, they shall be replaced by the additional jurors. The replacement shall be made in the order in which the additional jurors were drawn by lot.” “The president shall give the following address to the jurors while they stand bare-headed: 'You shall swear and promise to examine with the most scrupulous attention the charges which will be brought against ...; to betray neither the interests of the accused nor those of society which accuses him, nor those of the victim; to refrain from communicating with anyone until after your finding; to heed neither hatred nor malice, nor fear nor affection; to remember that the accused is presumed innocent and that he has the benefit of the doubt; to decide according to the charges and defence arguments following your conscience and your innermost conviction, with the impartiality and resolution that befit a free man of integrity, and to preserve the secrecy of deliberations, even after the end of your service.' Each juror being called individually by the president shall answer, raising his hand: 'I swear it'.” 15. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to “take formal note” of it. This is the party's only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 1977, Dalloz-Sirey 1978, p. 28). 16. The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It has full discretion to decide whether or not to order an inquiry to establish the facts (Court of Cassation, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 8 February 1977, Bull. crim. no. 48). In a judgment of 14 January 1988, however, the Court of Cassation held that the content of the impugned judgment should enable it to assess whether the impugned communication was such as to influence the jurors' opinion (Court of Cassation, Criminal Division, 14 January 1988, Dalloz-Sirey 1988, p. 206). | 1 |
dev | 001-102218 | ENG | DEU | ADMISSIBILITY | 2,010 | DUDEK v. GERMANY | 3 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Henry Dudek, is a German national who was born in 1947 and lives in Lohne. He was represented by Noreck Hoyer Dudek, a firm of lawyers practising in Hannover. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a dentist and member of the Lower Saxony Association of Contractual Dentists (Kassenzahnärztliche Vereinigung Niedersachsen) (“the Association”), the self-governing body of the contractual dentists practising in the Land Lower Saxony. The Association is responsible for, inter alia, entering into contracts with public health insurers on behalf of its members, checking costs brought to account by its members, distributing reimbursements for contractual work paid by public health insurers, and allocating the effects of austerity measures in the public health sector among its members in conformity with decisions of its council. Contractual dentists are free to treat other patients, in particular those who are insured by private health insurers. The Association is not concerned with remuneration for such work. The applicant was involved in numerous sets of proceedings against the Association or Committees affiliated with it before the social courts concerning aspects of his remuneration as a contractual dentist. On 25 August 2009 the President of the Fifth Section communicated the complaints regarding the length of the proceedings to the Government, together with those concerning eleven other sets of domestic proceedings which had been decided or were then still pending before the same judicial formations. On 4 February 2003 the Association deducted an amount of 97.06 Euros (“EUR”) from expenses for material and laboratory services brought to account by the applicant in regard to the orthodontic treatment of one patient because the applicant had significantly exceeded the initial estimations by the public health insurer concerned in regard to those specific expenses. On 6 February and 12 June 2003 the applicant made unsuccessful administrative complaints. On 22 January 2004 he brought an action against the Association before the Hanover Social Court (“the Social Court”). On 12 January 2009 the applicant requested the Social Court to take additional evidence, namely that the initial calculations of public health insurers were not binding for the dentist concerned and that he had not exceeded the initial global estimations of expenses. On 14 January 2009 the Social Court held an oral hearing at the end of which it dismissed the action, refused leave to appeal and refused to hear additional evidence. On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Lower-Saxony Bremen Social Court of Appeal (“the Social Court of Appeal”). On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 383/09). On 4 February 2010 the Social Court of Appeal dismissed the complaint; on 1 April 2010 it dismissed the applicant’s appeal for the right to be heard against this decision. Also on 4 April 2010 it dismissed as inadmissible the applicant’s appeal against the Social Court’s refusal to hear additional evidence; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by the Social Court. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and 44,178.98 German marks (“DEM”) (= EUR 22,588.35) in regard to pecuniary damage. On 14 October 2002 EUR 71.05 were deducted from the expenses for personnel and drugs brought to account by the applicant. On 12 November 2002 the applicant made an unsuccessful administrative complaint. On 14 April 2003 he brought an action against the Complaints Committee at the Dentistry Economic Efficiency Office before the Social Court. On 23 July 2008 the Social Court dismissed the action on the grounds that the deduction had been lawful because the applicant’s expenses had been excessive in comparison to other dental practices. On 15 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal. On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 330/09). On 28 April 2010 the Social Court of Appeal dismissed the complaint. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 11 March 2003 EUR 208 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs. On 14 April 2003 the applicant made an unsuccessful administrative complaint. On 15 December 2003 he brought an action against the Complaints Committee at the Association before the Hanover Social Court. On 12 January 2009 he requested the Social Court to take additional evidence, namely that he was entitled to the expenses requested for the practice overhead; that the expenses brought to account by him were to be calculated using specific criteria; and that the practice overhead of unamortised dental practices such as his was higher than the one of amortised practises. On 14 January 2009 the Social Court held an oral hearing at the end of which it dismissed the action, refused leave to appeal and refused to hear additional evidence. On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal. On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 347/09). On 4 February 2010 the Social Court of Appeal dismissed the complaint; on 1 April 2010 it dismissed the applicant’s appeal for the right to be heard against this decision. Also on 4 April 2010 it dismissed as inadmissible the applicant’s appeal against the Social Court’s refusal to hear additional evidence; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by the Social Court. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 21 January 2003 EUR 213.16 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs. On 23 January 2003 the applicant made an unsuccessful administrative complaint. On 21 July 2003 he brought an action against the Complaints Committee of the Dentistry Economic Efficiency Office before the Hanover Social Court. On 22 July 2008 he requested that a scheduled oral hearing be adjourned until a decision on his legal aid request became final. On 23 July 2008 the Social Court held an oral hearing and dismissed the action. On 14 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal, which dismissed the complaint on 28 April 2010. On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 382/09). In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 5 May 2004 the Prosthodontics Conciliation Committee (“the Conciliation Committee”) at the Association ordered the applicant to reimburse EUR 312.17 for the defective implantation of a lower jaw prosthesis. On 8 June 2004 the applicant made an unsuccessful administrative complaint. On 4 April 2005 he brought an action against the Conciliation Committee before the Hanover Social Court, which granted the action on 25 February 2009. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary damage. | 0 |
dev | 001-89566 | ENG | RUS | CHAMBER | 2,008 | CASE OF AZARYEV v. RUSSIA | 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;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1957 and lives in Pskov, a town in the Pskov Region. 5. The applicant sued his employer, a regional department of the Federal Debt Recovery Centre, for salary arrears. 6. On 18 May 2004 the Pskov Town Court awarded him against the Government 342,578 Russian roubles (RUB) in respect of the arrears and RUB 20,000 in respect of non-pecuniary damages. This judgment became binding on 7 June 2004. In July and December 2004 the applicant sent enforcement papers to the Ministry of Finance, but in September 2005 the Ministry returned the papers, because they did not indicate the Ministry as the defendant and did not specify the financial source to be charged. The applicant asked the Town Court to clarify the judgment, but on 23 November 2005 the court refused this request, because the judgment was clear as it stood. The judgment has not been enforced to date. 7. In the meantime, on the Government’s request, on 12 November 2004 the Presidium of the Pskov Regional Court quashed the judgment in the part concerning the damages, and rejected this claim. The Presidium found that the courts below had misinterpreted material law. 8. On 17 April 2006 the Town Court gave two other judgments in the applicant’s favour. In the first judgment it adjusted the outstanding award of 18 May 2004 for the cost of living and awarded RUB 87,357. This judgment became binding on 28 April 2006. In the second judgment the court awarded the applicant RUB 206,672 in respect of salary arrears. This judgment became binding on 3 May 2006. In May 2006 the applicant sent enforcement papers to the Ministry of Finance, but later the same month the Ministry returned the papers, because they did not specify the financial source to be charged. The applicant sent the enforcement papers to the bailiff’s service, but in December 2006 the service returned the papers, because it was not authorised to enforce debts against the treasury. 9. 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 |
dev | 001-68715 | ENG | UKR | CHAMBER | 2,005 | CASE OF NEVMERZHITSKY v. UKRAINE | 1 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);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 5-3 - Length of pre-trial detention);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Zoryana Bortnovska | 8. The applicant, Mr Evgen Nevmerzhitsky, is a Ukrainian national, who was born in Kyiv in 1970 and currently resides there. He was formerly the manager of a branch of the Poltava Bank in Kyiv. The applicant was represented by Mr Portyanik, a lawyer practising in Kyiv. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. On 28 September 1995 police officers seized 184,761 US dollars (USD) that had been stored by the applicant on the premises of the Poltava Bank in readiness for their sale to a customer, Y.G.L. 11. On 18 October 1995 the Investigative Division of the main department of the Ministry of Internal Affairs of Ukraine in Kyiv (“the Investigative Division”) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant. 12. On 8 April 1997 the Investigative Department initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case. On the same date an investigator from the division decided that the applicant should be detained as a suspect pending a decision concerning the appropriate preventive measure. He was accordingly placed in custody that day. 13. On 14 April 1997 an investigator from the Investigative Division charged the applicant with, inter alia, engaging in unlawful currency transactions (Article 80 § 2 of the Ukrainian Criminal Code 1960 – hereafter the “UCC”), theft of substantial amounts of currency (Article 86-1 of the UCC) and tax evasion (Article 148-5 § 2 of the UCC). 14. On 8 December 1997 and 2 March 1998 the applicant was additionally charged with abuse of power by an official (Articles 165 § 2 and 166 § 3 of the UCC) and fraud and forgery committed by an official (Articles 172 § 2 and 194 §§ 1 and 3 of the UCC). 15. Between 15 January and 14 April 1998 the applicant lodged applications with the Investigative Department for a medical examination and challenged the appointment of the investigator. On 7 April 1998 the General Prosecution Service of Ukraine instructed the investigator to arrange for the applicant's medical examination. The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by the Ministry of Health due to various diseases that he suffered from, including the skin infections of scabies and eczema. 16. On 13 March 1998 the investigator charged the applicant with offences under Articles 80 § 2, 86-1, 148-5 § 2, 166 § 3, 170 § 1, 172 § 2 and 194 § 3 of the UCC. 17. On 8 September 1998 the investigation into the case was completed and the accused, including the applicant, were allowed to inspect the case-file. On 9 August 1999 the accused finished their inspection. 18. On 9 August 1999 the criminal case-file was sent to the Kyiv Prosecution Service for approval of the indictment. 19. On 13 August 1999 the prosecution service transmitted the case to the Kyiv City Court (the “City Court”). 20. On 27 August 1999 the Moskovsky District Court of Kyiv rejected as unsubstantiated the applicant's complaint against the investigator of the Investigative Department, in which he had claimed that the investigator had acted unlawfully and requested that criminal proceedings be instituted against him for abuse of power. 21. On 1 November 1999 the City Court remitted the case to the prosecution service for an additional investigation (додаткове розслідування). On 5 November 1999 it lodged a separate application (окреме подання) for an order setting aside the City Court's ruling. On 16 December 1999 the Supreme Court of Ukraine granted the application in part. Although it held that the case should be remitted for an additional investigation, it specified that certain matters did not have to be investigated further since the information previously obtained was sufficient. 22. On 5 January 2000 the prosecution service finished a supplementary investigation into the case and the applicant was allowed to inspect the file. 23. On 7 February 2000 the additional investigation was completed and the applicant was allowed to familiarise himself with the material in the case-file. 24. On 22 February 2000 the preliminary investigation was reopened in order to conduct additional investigative acts. 25. On 30 October 2000 the City Court ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and Article 80 of the UCC repealed. 26. On 19 February 2001 the City Court convicted the applicant of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months' imprisonment, and ordered the confiscation of all his personal property. It acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. On the basis of the Amnesty Law of 11 May 2000, and because the applicant had already been detained for two years, ten months and fifteen days, the City Court decided to exempt him from serving the sentence. None of the parties appealed to the Supreme Court. 27. On 8 April 1997 an investigator of the Investigative Division decided that the applicant should be temporarily detained as a suspect (затриманий в якості підозрюваного) in accordance with Article 115 of the Code of Criminal Procedure (“the CCP”). He was accordingly placed in custody that day. 28. On 11 April 1997 the Prosecutor of Kyiv sanctioned a warrant issued by the investigator authorising the applicant's arrest (санкцію на арешт) as a preventive measure pending trial (Article 155 of the CCP). 29. On 12 May 1997 the applicant applied to the Moskovsky District Court of Kyiv for orders to quash the warrant and release him. On 28 May 1997 the District Court rejected the applicant's claims as unsubstantiated. It also held that the applicant's detention was lawful. 30. From 8 April 1997 until 22 February 2000 the applicant was detained in the Temporary Investigative Isolation Unit of the Kyiv Region (SIZO No. 1 of the Kyiv Region). 31. The duration of the investigation and the applicant's detention were extended on successive occasions: to six months on 29 May 1997 by the Prosecutor of Kyiv, to nine months on 1 October 1997 by the Deputy Prosecutor General of Ukraine, to twelve months on 18 December 1997 by the Deputy Prosecutor General of Ukraine and to fifteen months on 28 March 1998 by the Acting Prosecutor General of Ukraine. 32. On 12 April 1998 the investigator informed the applicant that the preventive measure of detention could be replaced by release on bail. The Prosecutor of Kyiv informed the applicant by a letter of 20 July 1998 that bail had been fixed in the sum of 232,716 Ukrainian hryvnas (UAH). 33. On 22 July 1998 that amount was deposited in the account of the Main Department of the Ministry of Internal Affairs in Kyiv by Ukrinbank (the surety and the applicant's former employer). On 19 August 1998 the Department returned the sum and refused to release the applicant on bail. 34. On 30 June 1998 the Acting Prosecutor General of Ukraine extended the period of the investigation and the applicant's detention for another three months (until 30 September 1998), bringing the total period to eighteen months. 35. On 1 November 1999 the City Court refused to change the preventive measure, requiring the applicant to remain in custody. On 16 December 1999 the Supreme Court of Ukraine upheld that decision. 36. The applicant was detained during the prosecution's further investigation from 1 November 1999 onwards. 37. On 22 February 2000, owing to the expiry of the maximum statutory period of detention, the Kyiv Regional Prosecutor decided to release the applicant on his undertaking not to abscond. The applicant was released on 23 February 2000. 38. The applicant went on hunger strike on 13 April 1998, consuming only water. On 17 April 1998 the applicant's medical condition was examined and, following an acetone analysis of his urine on 20 April 1998, he was subjected to force-feeding as of 23 April 1998. The applicant suspended his hunger strike on 14 July 1998, only to resume it again in October 1998. 39. On 1 December 1999 the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and, because of his continuing hunger strike, was being force-fed. 40. The Government mentioned that between 27 May 1997 and 7 February 2000 the applicant was examined by doctors on sixty-one occasions. However, they made no reference to any medical examinations of the applicant in the period from 5 August 1998 to 10 January 2000 (see paragraph 50 below). 41. On 5 February 1998 the doctor of the detention centre diagnosed the applicant as having allergic dermatitis (алергійний дерматит). 42. On 8 April 1998 the doctor of the detention centre, after examining the applicant, diagnosed him as also suffering from streptococcal impetigo (стрептодермія) and chronic cholecystitis (хронічний холецистит). 43. On 8 May 1998 the forensic medical examination No. 58 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant suffered from microbic eczema, chronic cholecystitis and neurocirculatory dystonia. It recommended that the applicant undergo specialised medical treatment for eczema as an inpatient. 44. On 2 June 1998 the doctor of the Central Hospital of Kyiv, Dr Glukhenky, found that the applicant had contracted disseminated microbic eczema (розповсюджена мікробна екзема). He also recommended that the applicant undergo medical treatment as an inpatient. 45. On 13 July 1998 the Deputy Head of the Investigative Department requested that the applicant be admitted to the Kyiv Specialist Dermato-Venerological Hospital for further treatment of his skin diseases as from 14 July 1998. 46. On 14 July 1998 the applicant was taken to the hospital and, after his preliminary medical examination there, he was diagnosed as suffering from scabies (чесотка) and pyodermatitis (піодерматит). The hospital recommended that the applicant be returned to SIZO No. 1 for further medical treatment for scabies. 47. On 20 July 1998 the forensic medical examination No. 88 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant had suffered from disseminated microbic eczema from 8 May to 2 June 1998. It also found that the applicant suffered from scabies and that this disease could be treated in SIZO No. 1 if there were no appropriate conditions for his treatment as an inpatient. On the same date the investigator of the Investigative Division rejected as unsubstantiated the applicant's request for medical treatment as an inpatient. 48. The applicant underwent medical treatment for scabies on 31 July 1998 in the medical unit of the detention centre. 49. The applicant continued his hunger strike between 10 January and 7 February 2000. During this period he was examined by a doctor on eighteen occasions. 50. According to the applicant, his last hunger strike lasted from 5 October 1998 to 23 February 2000. In accordance with the timetable of medical examinations provided by the Government, no medical examinations of the applicant were performed between 5 August 1998 and 10 January 2000 (see paragraph 40 above). 51. Following his release on 23 February 2000, the applicant was admitted to Kyiv City Hospital from 24 February until 17 March 2000. He subsequently continued to receive medical treatment under the general supervision of a psychiatrist. 52. On 2 February 2000 the applicant's sister, on behalf of the applicant, lodged complaints with the Constitutional Court of Ukraine seeking to establish that it was unconstitutional to hold the applicant in custody after the maximum statutory term of detention had expired. She also petitioned the Constitutional Court for a ruling that Article 156 of the CCP, which allowed suspects to be detained while the case was being investigated, was unconstitutional. On 25 February 2000 the Registrar of the Constitutional Court rejected his complaints, as the court had no jurisdiction to consider them. 53. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.” “Human and citizens' rights and freedoms are protected by the court. Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers. ...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” “13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” 54. The relevant provisions of the CCP read as follows: “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he shall be charged within ten days of the imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal surety; (3) the surety of a public organisation or labour collective; (3-1) bail; (4) remand in custody; (5) supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person's age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.” The terms for remand in custody during the investigation of criminal offences shall not be more than two months. These terms can be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds to change the preventive measure. Further extension of this term to six months from the moment of arrest shall only be effected if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or prosecutors equal to them in rank. Further periods of remand in custody can be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the General Prosecutor. After that, no further extensions of detention on remand are allowed. The accused must then be immediately released. If it is impossible to terminate the investigation within these remand periods and there are no grounds to change the preventive measure, the General Prosecutor or his Deputy shall be entitled to remit the case to the court in that part which relates to accusations which could be proved. In relation to the incomplete investigation, the case shall be divided into separate proceedings and terminated in accordance with the general rules. The materials of the terminated part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, established by paragraph 2 of this Article. The time taken by the accused and his representative to familiarise themselves with the materials in the case shall not be taken into account in calculating the overall term of remand in custody. “Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended: (1) to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure; (2) to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court; (3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine; In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure. The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case, or in a case joined to it or severed from it, or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention. The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure. In the event that the case is withdrawn from the court by a prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the prosecutor. In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article. Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay. Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation (Article 156 in the wording of Law No. 1960-12 of 10 December 1991, as amended by Laws Nos. 2857-12 of 15 December 1992, and 3351-12 of 30 June 1993; in the wording of Law No. 2533-III of 21 June 2001 – which entered into force on 29 June 2001).” “After deciding that the evidence collected in the case is sufficient for an indictment, and after complying with the terms of Article 217 of this Code (familiarisation of the victim, civil plaintiff and civil respondent with the materials in the case file), the investigator is obliged to announce to the accused that the investigation in his case has ended and that he has a right to familiarise himself with all of the materials in the case file personally and/or with the assistance of an advocate, and that he can lodge a motion to initiate an additional preliminary investigation. The investigator is obliged to explain to the accused his right to lodge petition for his case at first instance to be heard by a single judge or by a court composed of three judges. If the accused has not shown any interest in familiarising himself with the materials of the case-file with the participation of the representative, he shall be personally provided with all of the materials in the case file (for familiarisation). In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the case-file materials. The announcement of the termination of the criminal investigation and the authorisation for the accused to familiarise himself with the case-file shall be mentioned in the verbatim record. The accused and his representative shall not be limited in the time which they require to familiarise themselves with the materials in the case file. However, if the accused and his representative intentionally delay this process, the investigator has the right, by it's a reasoned resolution, to fix a deadline for the accused to complete the familiarisation exercise. This resolution shall be approved by the prosecutor.” “The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court... The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.” (Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure (Amendments) Act of 21 June 2001.) 55. The relevant provisions of the Resolution of the Plenary Supreme Court of Ukraine read as follows: “... in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused, and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody; nor the decision of the court (judge) to detain the defendant.” (This resolution was annulled on the basis of the new Resolution of the Plenary Supreme Court of Ukraine of 25 April 2003 on the courts' practice of applying the preventive measure of detention and the prolongation of detention at the stages of the inquiry and pre-trial investigation.) 56. The relevant extracts from the reservation of Ukraine provide as follows: “...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor. Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001... The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.” 57. The relevant extracts from the Transitional Provisions of the Constitution of Ukraine provide as follows: “13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” 58. The relevant extracts from Article 106 of the CCP that regulate detention by a body of inquiry of a person suspected of committing an offence provide as follows: “A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds: 1. if the person is discovered whilst committing an offence or immediately after committing one; 2. if eye-witnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, on his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release. The body of inquiry shall inform the suspected person's family of his detention if his place of residence is known.” 59. The relevant extracts from Article 157 of the CCP, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows: “The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest, the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory. The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.” 60. 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, [due 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 penitentiary institutions. 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. ... The inspections of the Commissioner proved that on average people are held [in detention] for six months while courts delay processing their cases for unjustifiably long periods. Every year the statutory time for considering criminal cases is violated in relation to 10,000 people. Of the persons who are detained in custody to date 46% (or 21,000) are detained under the courts' responsibility; in some detention centres this category of detainees exceeds 90%, although 10 years ago they accounted for only 18-20%. ... Above everything else, this is caused by the unjustifiably widespread practice of pre-trial detention on formal grounds. Of the 112,600 arrested persons 15,000 (13%) were released from investigation wards in 1998, and of these every seventh arrested person was given a non-custodial sentence. Under the transitional provisions of the Constitution, there still exists the procedure of arresting and taking people into custody on the basis of the sanction issued by the public prosecutor. The introduction of judicial control over detention and prolongation of the period of custody has had no practical impact... Some legislation which is inconsistent with the provisions of the Constitution and international human-rights standards sets unjustifiably long terms of pre-trial detention. Owing to strictly ministerial interests, these terms were increased to a year and a half, from which is excluded the time taken by detainees and their lawyers to familiarise themselves with the case-file. The lack of an organised system of pre-trial investigation infringes the terms of detention of tens of thousands of persons. The legislation in force does not establish any restrictions whatsoever as to the maximum period of detention once the case is referred for consideration on the merits. For this reason defendants have to wait for months and sometimes years for a hearing or completion of the judicial examination.” 61. 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). 62. The relevant provisions of the Decree of 4 March 1992 read as follows: “...1.2. Upon discovery of the detainee's refusal to take food, the head of the institution or the person acting on his behalf must interview the detainee within twenty-four hours in order to document the reasons for the refusal. He shall also inform the authorities responsible for this person's detention and the prosecutor supervising the execution of the judicial decisions in criminal cases and, in the event of serious grounds for the refusal to eat, shall take appropriate measures to satisfy the lawful demands of the detainee. ...1.3. Within twenty-four hours of the refusal of the detainee to take food, the head of the institution or the person acting on his behalf shall order the placement of the detainee in a separate cell, where he/she shall generally be held in isolation from other detainees and be kept under constant supervision. ...1.4. The detainee shall be provided with breakfast, lunch and supper in accordance with the envisaged timetable and the established nutritional norms. In the event of a refusal to eat, it shall be removed after two hours; this shall be noted in the record of the food taken by the detainee. 1.5. Within the time-period established by the administration of the institution, and taking into account the particular circumstances, but not more than three days from the time of the refusal to take food, the person shall undergo a compulsory medical examination during which a doctor shall explain the negative consequences of the hunger strike for the detainee's health. On-going and emergency medical treatment shall be provided to the detainee unless there is a need to admit him/her as an in-patient... 1.7. Where the refusal to take food is not a result of a disease or illness, the representatives of the institution must continuously explain to the person the harmful effect that a lack of food inflicts on the body. 1.9. The force-feeding of a detainee on hunger strike shall be a measure of last resort aimed at preserving life and may only be used where the educational work and other measures of influence have had no effect on the detainee, and his/her further refusals to take food are endangering his/her life. The decision to force-feed shall be adopted by the head of the institution, or the person acting on his behalf, on the basis of a written report by the medical commission establishing a life-threatening decline in the state of health of a detainee on hunger strike... The prosecutor supervising the lawfulness of the execution of judgments in criminal cases shall be informed about the decision to force-feed the detainee. The detention centre's doctor shall determine the length of time necessary to force-feed the detainee, taking into account his/her general state of health. The doctor shall decide on the content of the food in accordance with the daily food ration composed of different products. The doctor shall make a note in the medical file of the detainee on hunger strike at the time of the force-feeding, mentioning the date, components and quantity of the food; the surname and rank of the person who administered the force-feeding shall also be noted... 2. The procedure for force-feeding a detainee refusing to take food 2.1. Force-feeding shall be administered in the presence of one of the administrators of the institution, the doctor, a member of the medical staff and the necessary number of junior inspectors. Before beginning the force-feeding, the doctor shall explain to the detainee the risks that threaten his/her health and the necessity of taking food. If the detainee refuses the force-feeding, he/she can be handcuffed, and the junior inspectors shall hold him in such a position as is necessary for this procedure. The force-feeding shall be conducted by a member of the medical staff under the doctor's supervision, taking into account all the measures necessary to avoid possible injuries and accidents. In the course of this procedure the mouth of the detainee shall be opened and held open by a mouth-widener (роторозширювач). A medical tube with a funnel on the free end, cooled down after having been boiled, but soft, has to be placed through the mouth opening and the pharynx into the alimentary canal (oesophagus). In the course of this procedure the doctor has to make sure that the tube does not get into the trachea. If the position of the tube is correct the member of the medical staff shall pour into the can a small quantity of cooled boiled water and then the food. 2.2. The medical staff must have with them the necessary medical supplies and medicines for providing emergency medical aid in the event of injuries that might occur in the course of force-feeding. 2.3. If the state of health of the detainee on hunger strike improves, the force-feeding shall be suspended and this shall be noted in the medical file of the detainee; a reasoned conclusion shall be drawn up by a doctor.” 63. The relevant extracts from the European Prison Rules read as follows: “... Discipline and punishment Instruments of restraint 39. The use of chains and irons shall be prohibited. Handcuffs, restraintjackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances: ...b. on medical grounds, by direction and under the supervision of the medical officer; c. by order of the director, if other methods of control fail, in order to protect a prisoner from selfinjury, ... 40. The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must be applied no longer than is strictly necessary.” 64. The relevant extracts from the Recommendation of the Committee of Ministers provide as follows: “... Referring to the specific declarations of the World Medical Association (WMA) concerning medical ethics, in particular the Declaration of Tokyo (1975), the Declaration of Malta on hunger strikers (1991) and the Statement on body searches of prisoners (1993); ... C. Patient's consent and confidentiality ... 14. ... The indication for any medication should be explained to the inmates, together with any possible side effects likely to be experienced by them. 15. Informed consent should be obtained in ... situations when medical duties and security requirements may not coincide, for example refusal of treatment or refusal of food. 16. Any derogation from the principle of freedom of consent should be based upon law and be guided by the same principles which are applicable to the population as a whole. ... 24. It should also imply [that a doctor must be] advising the prison management on matters concerned with nutrition or the environment within which the prisoners are required to live, as well as in respect of hygiene and sanitation. E. Refusal of treatment, hunger strike 60. In the case of a refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. ... 61. The clinical assessment of a hunger striker should be carried out only with the express permission of the patient, unless he or she suffers from serious mental disorders which require the transfer to a psychiatric service. 62. Hunger strikers should be given an objective explanation of the harmful effects of their action upon their physical well-being, so that they understand the dangers of prolonged hunger striking. 63. If, in the opinion of the doctor, the hunger striker's condition is becoming significantly worse, it is essential that the doctor report this fact to the appropriate authority and take action in accordance with national legislation (including professional standards).” 65. The relevant extracts from Chapter III of the CPT Standards of “Health care services in prisons” [CPT/Inf/E (2002) 1, Rev. 2004] and extracts from the 3rd General Report [CPT/Inf (93) 12] read as follows: “46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint. They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor. 47. Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole. A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs (eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause. In the event of a hunger strike, public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts.” 66. The relevant extracts from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 read as follows: “...110. At Zhytomyr Prison No. 8, the building reserved for women and minors (No. 2) offered the best material conditions of the establishment. All the cells were clean and well maintained, properly equipped, benefited from good natural and artificial lighting, and had toilets that were partitioned off. In many cells, the living space, although far from ideal, was greater than that found in the other detention areas. For example, a cell measuring 29.7 m² accommodated seven women. Among the minors, a 29 m² cell accommodated three boys; it was, however, designed for eight, which is excessive. Generally speaking, the delegation observed that the potential occupancy rates of the cells in the building allowed for a living space of only 2.5 to 2.8 m² per person. 111. The CPT welcomes the fact that, in the parts of building No. 1 reserved for remand prisoners, administrative prisoners and prisoners subject to the “Tyurma” regime, there was proper access to daylight and fresh air, except in certain cells where the windows were still fitted with obstructive devices (for example, wire mesh). Otherwise, material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin. Given the number of prisoners they accommodated at the time of the visit, the living space in certain cells could be considered tolerable or even acceptable. For example, among the remand prisoners, a 42 m² cell accommodated twelve prisoners, a 46 m² cell housed thirteen prisoners, a 19 m² cell was occupied by four people and a 13 m² cell by three. But here again, the living space was completely taken up by surplus beds. Finally, heating was, generally speaking, a problem, as the temperature was barely above 18o. 112. The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). Some women complained, however, that they were unable to obtain the special hygiene products they needed (sanitary towels/tampons). The delegation raised the issue with the prison governor, who gave assurances that the situation would be remedied. The CPT would like to obtain confirmation that the problem has now been resolved. 113. In SIZO No. 21 in Odessa, the situation of overcrowding, exacerbated by generally precarious material conditions, could legitimately be considered to amount to inhuman and degrading treatment. The prisoners were crammed into a tiny living space. For instance, there were up to six prisoners in cells measuring 7 to 8 m², up to fifteen in 18 m² and up to thirty-seven (with forty beds) in 78 m². According to information gathered by the delegation, some parts of the prison had apparently been even more overcrowded in mid-November 2002. For instance, up to thirty-two prisoners had been placed in cells measuring 18 m² in the admissions unit, where they had had to share ten beds. Most of the cells were very dilapidated, with damp-ridden walls and ceilings. The facilities were in a bad state of repair, the bedding was often dirty and inadequate (prisoners had to rely on relatives for sheets and blankets), and the toilets were not properly partitioned off, if at all. Moreover, in many cells, the toilets did not have a proper flush, which added to the ambient insalubrity. Worst of all, the cells were teeming with cockroaches. In certain cells, prisoners were obliged to put blankets over the windows to keep out the draught, as panes of glass were missing. In addition, in many cells, the heating left something to be desired, as the temperature was only 17o. In fact, the only positive feature was that the cells all had proper access to daylight and adequate artificial lighting. 114. The delegation received numerous complaints about the lack of basic hygiene and cleaning products, including toilet paper. In addition, prisoners had to wash their belongings and sheets and blankets in their cells with the means at their disposal, under highly dubious conditions of hygiene. Furthermore, in view of the small number of showers per prison section (for example, two showers for over 170 prisoners) and their very dilapidated state, prisoners had great difficulty in maintaining satisfactory personal hygiene. 115. In their letter of 15 April 2003, the Ukrainian authorities stated that, in order to reduce overcrowding, it was planned to build a new building with a capacity of 250 places and to transfer a number of prisoners to other remand establishments in the region. They also referred to other steps taken to remedy the hygiene problems observed (such as the provision of disinfectants and the washing of the bedding in the SIZO laundry) and indicated that prisoners were now provided with the necessary hygiene products. 116. Although the visit to Colony No. 14 focused on particular aspects ... the delegation noted that in the two sections (4 and 7) which it visited the dormitories were well-lit and ventilated, and equipped with beds with full bedding, bedside tables and storage space. The sanitary annexes were clean and relatively well maintained. The dormitories were crowded. In section 4, for instance, dormitories measuring about 61 m² were accommodating up to 35 people; however, this was somewhat offset by the fact that prisoners could move about freely during the daytime in their section and had access to an exercise yard. In this establishment, the delegation received numerous complaints about the lack of warm winter clothes (coats and hats). The matter was raised with the prison governor who assured the delegation that there were sufficient supplies to meet prisoners' needs. The CPT wishes to obtain confirmation that the prisoners in Colony No. 14 have clothes suitable for the weather conditions. In the light of the above, the CPT recommends that: in Prison No. 8: - the necessary repairs to building No. 1 be carried out so that the material conditions equal those in building No. 2, reserved for women and minors, in all respects; - the cells be adequately heated; in SIZO No. 21: - the material shortcomings observed be remedied, in order to ensure that: - every prisoner has his own bed with full and clean bedding; - the toilets in all the cells are properly partitioned off and have a working flush; - the windows in all the cells have glass panes in them; - the cells are adequately heated; - the showers are in a satisfactory state of repair and that, as soon as possible, the number of showers is increased; - the scheduled construction of the new building with a capacity of 250 places is completed; - the occupancy rates in the cells/dormitories of the three establishments be reduced, the objective being to provide 4 m² of living space per prisoner.” 67. The relevant extracts from the Report of the CPT on a visit to Turkey [CPT/Inf (2001) 31] read as follows: “1. Management of hunger strikers ... The delegation had earlier been informed that these directives indicated that the management of hunger strikers should be based on a doctor/patient relationship. In fact, they deliver the clear message that “The duty of health workers is to assist in the continuation of life. The right to life, the most basic of the rights and freedoms, may not be limited by any norm or criterion.” Turning to specifics, it is stipulated that “From the instant organ deterioration is noted, total parenteral nutrition is to be administered”. At the time of the December 2000/January 2001 visit, no prisoner had yet reached a stage where it was necessary to take a decision on possible artificial feeding against his/her wishes. However, cases of artificial feeding have subsequently occurred. Ministry of Health officials informed the CPT's delegation during the April 2001 visit that they were not aware of any cases of forced-feeding of prisoners who were conscious, but that prisoners had been artificially fed after losing consciousness. 33. As was acknowledged in the preliminary observations dated 29 January 2001, the issue of the artificial feeding of a hunger striker against his/her wishes is a delicate matter about which different views are held, both within Turkey and elsewhere. The CPT understands that the World Medical Association is currently reviewing its policy on this subject. To date, the CPT has refrained from adopting a stance on this matter. However, it does believe firmly that the management of hunger strikers should be based on a doctor/patient relationship. Consequently, the Committee has considerable reservations as regards attempts to impinge upon that relationship by imposing on doctors managing hunger strikers a particular method of treatment.” 68. The relevant extract from the 1975 Declaration reads as follows: “...5. Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent doctor. The consequences of the refusal of nourishment shall be explained by the doctor to the prisoner.” 69. The Declaration of the World Medical Association on Hunger Strikers reads as follows: “PREAMBLE 1. The doctor treating hunger strikers is faced with the following conflicting values: 1.1. There is a moral obligation on every human being to respect the sanctity of life. This is especially evident in the case of a doctor, who exercises his skills to save life and also acts in the best interests of his patients (Beneficence). 1.2. It is the duty of the doctor to respect the autonomy which the patient has over his person. A doctor requires informed consent from his patients before applying any of his skills to assist them, unless emergency circumstances have arisen in which case the doctor has to act in what is perceived to be the patient's best interests. 2. This conflict is apparent where a hunger striker who has issued clear instructions not to be resuscitated lapses into a coma and is about to die. Moral obligation urges the doctor to resuscitate the patient even though it is against the patient's wishes. On the other hand, duty urges the doctor to respect the autonomy of the patient. 2.1. Ruling in favour of intervention may undermine the autonomy which the patient has over himself. 2.2. Ruling in favour of non-intervention may result in a doctor having to face the tragedy of an avoidable death. 3. A doctor/patient relationship is said to be in existence whenever a doctor is duty bound, by virtue of his obligation to the patient, to apply his skills to any person, be it in the form of advice or treatment. This relationship can exist in spite of the fact that the patient might not consent to certain forms of treatment or intervention. Once the doctor agrees to attend to a hunger striker, that person becomes the doctor's patient. This has all the implications and responsibilities inherent in the doctor/patient relationship, including consent and confidentiality. 4. The ultimate decision on intervention or non-intervention should be left with the individual doctor without the intervention of third parties whose primary interest is not the patient's welfare. However, the doctor should clearly state to the patient whether or not he is able to accept the patient's decision to refuse treatment or, in case of coma, artificial feeding, thereby risking death. If the doctor cannot accept the patient's decision to refuse such aid, the patient would then be entitled to be attended by another physician. GUIDELINES FOR THE MANAGEMENT OF HUNGER STRIKERS Since the medical profession considers the principle of sanctity of life to be fundamental to its practice, the following practical guidelines are recommended for doctors who treat hunger strikers: 1. DEFINITION A hunger striker is a mentally competent person who has indicated that he has decided to embark on a hunger strike and has refused to take food and/or fluids for a significant interval. 2. ETHICAL BEHAVIOUR 2.1. A doctor should acquire a detailed medical history of the patient where possible. 2.2. A doctor should carry out a thorough examination of the patient at the onset of the hunger strike. 2.3. Doctors or other health care personnel may not apply undue pressure of any sort on the hunger striker to suspend the strike. Treatment or care of the hunger striker must not be conditional upon him suspending his hunger strike. 2.4. The hunger striker must be professionally informed by the doctor of the clinical consequences of a hunger strike, and of any specific danger to his own particular case. An informed decision can only be made on the basis of clear communication. An interpreter should be used if indicated. 2.5. Should a hunger striker wish to have a second medical opinion, this should be granted. Should a hunger striker prefer his treatment to be continued by the second doctor, this should be permitted. In the case of the hunger striker being a prisoner, this should be permitted by arrangement and consultation with the appointed prison doctor. 2.6. Treating infections or advising the patient to increase his oral intake of fluid (or accept intravenous saline solutions) is often acceptable to a hunger striker. A refusal to accept such intervention must not prejudice any other aspect of the patient's health care. Any treatment administered to the patient must be with his approval. 3. CLEAR INSTRUCTIONS The doctor should ascertain on a daily basis whether or not the patient wishes to continue with his hunger strike. The doctor should also ascertain on a daily basis what the patient's wishes are with regard to treatment should he become unable to make an informed decision. These findings must be recorded in the doctor's personal medical records and kept confidential. 4. ARTIFICIAL FEEDING When the hunger striker has become confused and is therefore unable to make an unimpaired decision or has lapsed into a coma, the doctor shall be free to make the decision for his patient as to further treatment which he considers to be in the best interest of that patient, always taking into account the decision he has arrived at during his preceding care of the patient during his hunger strike, and reaffirming article 4 of the preamble of this Declaration. 5. COERCION Hunger strikers should be protected from coercive participation. This may require removal from the presence of fellow strikers. 6. FAMILY The doctor has a responsibility to inform the family of the patient that the patient has embarked on a hunger strike, unless this is specifically prohibited by the patient.” | 1 |
dev | 001-90468 | ENG | RUS | CHAMBER | 2,009 | CASE OF OBUKHOVA v. RUSSIA | 3 | Violation of Art. 10;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1963 and lives in Yaroslavl. She is a journalist on the Zolotoye Koltso newspaper. 7. On 17 January 2003 the newspaper published an article by the applicant under the headline “A year later they impounded the car” («Через год арестовали автомобиль»). The article was prompted by the following letter written by a Ms P. and reproduced in italics in the opening passage of the article: “On 22 September 2001 my husband... had a traffic accident. Ms Galina Borisovna Baskova, a judge of the [Yaroslavl] regional court, crashed into his car... The traffic police officers did not find us responsible and we calmed down. But the following year we received by registered mail a statement of claim, requesting that Ms Baskova be compensated for damage in the amount of 75,000 roubles, and an order for a charge on our property and our car issued by a judge. We had not been informed of the hearing and we consider that our civil rights were violated as we were convicted in our absence. We feel that Ms Galina Borisovna Baskova is taking advantage of her office and connections in the judiciary”. 8. The article related the versions of the traffic accident by Judge Baskova (as described in her statement of claim), by traffic police officers, by Mr and Ms P. and by eyewitnesses. It concluded as follows: “So far the Zavolzhskiy District Court [of Yaroslavl] has held three hearings... The date of the next hearing is not fixed yet. Mr and Ms P. remember menacing words that Galina Borisovna [Baskova] uttered immediately after the traffic accident ‘You will buy me a new car anyway!’; they shudder but they will defend themselves to the very end.” 9. On 7 March 2003 Judge Baskova sued the newspaper, the applicant and Ms P. for defamation and refutation of untrue information contained in the statement “Baskova is taking advantage of her office and connections in the judiciary”. 10. On the same day Judge Baskova requested the court to order interim measures, and notably an interlocutory injunction on the newspaper to prevent publication of “any articles, letters or materials about the factual circumstances of the traffic accident of 22 September 2001, as well as about the court proceedings concerning that accident until they [had] finished”. 11. On the same day a judge of the Kirovskiy District Court of Yaroslavl issued a decision to indicate interim measures (определение об обеспечении иска). The decision endorsed the arguments put forward by Judge Baskova and read, in its entirety, as follows: “The plaintiff has referred to the following circumstances. The article ‘A year later they impounded the car’ (Zolotoye Koltso, no. 9, 17 January 2003) was published before a decision on the merits of her claim for damages against Mr P. had been issued, after the Zavolzhskiy District Court of Yaroslavl had suspended the proceedings on 9 December 2003 and commissioned a technical study at the defendant’s request. The article ends with the assertion that Mr and Ms P. ‘will defend themselves to the very end’. The plaintiff considers that further developments in the judicial proceedings – upon their resumption – may also be reported by the newspaper in such a manner as to confirm the damaging information and conclusion already disseminated by the author. [The plaintiff] considers that under these circumstances a failure to indicate interim measures can impede the enforcement of the judgment [in the defamation claim]: otherwise, alongside with publication of a rectification of the information damaging to her, the newspaper would be entitled to continue publications stating the opposite view, which would undermine the judicial protection of her impaired rights. Pursuant to Article 139 of the Civil [Procedure] Code of the Russian Federation, a court may, at a request of a party to the case, indicate interim measures if a failure to indicate them could impede the enforcement of a court judgment. Having regard to the above, I consider that Ms Baskova’s request is to be granted.” 12. The District Court issued – with immediate effect – an interlocutory injunction worded as follows: “To enjoin the editor’s office of the Zolotoye Koltso newspaper from publishing any articles, letters or other materials written by anyone, which relate the factual circumstances of the traffic accident on 22 September 2001 with the participation of Ms Galina Baskova, Mr P. and Mr K., or the circumstances of the judicial proceedings on Ms Galina Baskova’s claim for damages against Mr P. until such time as the present dispute has been resolved. To serve a copy of the injunction on the bailiffs’ service of the Kirov District of Yaroslavl, Ms P., the editor’s office of the Zolotoye Koltso newspaper, the newspaper’s reporter Ms Yelena Obukhova, and Mrs Galina Baskova.” 13. On 7 April 2003 the Yaroslavl Regional Court dismissed the appeal against the injunction, finding as follows: “The regional court considers that in the instant case a failure to indicate interim measures would impede not only the enforcement of the court judgment but also the examination of the [defamation] action. The arguments in the appeal to the effect that the [injunction] violated the defendant’s constitutional right to impart information cannot be taken into account as the prohibition only covers publication of materials concerning one specific traffic accident... Publication of materials about these facts before the judgment has been made would be contrary to the interests of the justice. The interim measures indicated by the court are proportionate”. 14. On 29 April 2003 the Kirovskiy District Court gave judgment in the defamation claim. It did not accept the argument by the newspaper’s lawyer that the contested statement was Ms P.’s subjective opinion which was evident from the introductory expression “we feel that”. The court considered it to be “the author’s allegation... about Ms Baskova’s using her office and connections... in the framework of lodging her claim and obtaining interim measures”. As the defendants could not prove the truthfulness of that statement, the court ordered publication of a rectification in the newspaper. On 26 June 2003 the Yaroslavl Regional Court upheld that judgment. 15. The Code of Civil Procedure provides as follows: “At the request of a party to the case, a judge or a court may indicate interim measures. Such measures may be indicated at any stage of the proceedings if a failure to indicate them could impede or make impossible the enforcement of the court judgment.” “1. Interim measures may include: ... (2) an injunction restraining the defendant from carrying out specific actions; ... When necessary, a judge or a court may indicate any other interim measures that correspond to the purposes described in Article 139 of the Code... ... 3. Interim measures must be proportionate to the plaintiff’s claims.” “3. ...If the claim has been granted, interim measures remain effective until the judgment has been enforced.” | 1 |
dev | 001-57851 | ENG | SWE | CHAMBER | 1,993 | CASE OF HOLM v. SWEDEN | 3 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson | 6. Mr Carl G. Holm is a Swedish national. He is an economist and resides at Täby in Sweden. At the material time, he was employed by the Swedish Federation of Industries (Sveriges Industriförbund). 7. In 1974 the applicant formed together with others a foundation named Contra. According to him its aim was to scrutinise governments of communist regimes in Eastern Europe and the Swedish Social Democratic Workers Party (Sveriges socialdemokratiska arbetareparti - the "SAP"). 8. In 1985 a publishing house, Tidens förlag AB, published a book entitled "Till höger om neutraliteten" (To the right of neutrality). It contained a survey of right-wing organisations and individuals, including a 52-page chapter on the applicant and his involvement in Contra. The author of the book, Mr Sven Ove Hansson, was then employed by the publisher and had previously served as an ideological adviser to the SAP. Tidens förlag AB was, from its foundation in 1912 until 1 January 1985, owned by the SAP directly. As of the latter date, 85% of its shares were held by a company owned by the SAP, namely AB Förenade Arebolagen. The remaining 15% were held by Folkparkernas Centralorganisation which, the applicant states, was controlled by the SAP. Tidens förlag AB is known for publishing books and articles portraying social democratic views. 9. On 15 April 1986 the applicant brought a private prosecution for aggravated libel (grovt förtal), and in the alternative for libel (förtal), against Mr Hansson in the District Court (tingsrätten) of Stockholm, under Chapter 7, section 4, paragraph 9, of the 1949 Freedom of the Press Act (tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) and Chapter 5, Articles 1 and 2, of the Penal Code (brottsbalken). In the same proceedings he sued both the author and the publisher for damages, claiming 200,000 Swedish kronor. He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups, calculated to cast doubt on his honour and to expose him to contempt; in view of the wide distribution of the book and the applicant’s central position in the Swedish Federation of Industries, the libel was aggravated. The impugned passages of the book included allegations which can be summarised as follows: (a) in 1973 the applicant had chaired the youth section of the World Anti-Communist League’s Conference in London, an organisation whose membership was said to consist largely of neo-nazis and former SS-members, for example the then chairman of the nazi-oriented Swedish National Union; (b) the applicant had, by reason of his right-wing extremism, been expelled in 1974 from the Democratic Alliance and the Conservative Youth Organisation; it was therefore regrettable that he still held important positions within the Swedish Federation of Industries and the Swedish Employers’ Federation; (c) he had been reported to the police for embezzlement of the Democratic Alliance’s funds; an audit had shown that he had transferred 1,340 Swedish kronor from the association’s account to his own account; (d) he had failed to dissociate himself immediately from a co-member of a splinter group of the Democratic Alliance, who had provided grenades to two Nordic National Party activists and who had urged the latter to place one of the grenades in an office of the Democratic Alliance and advised them on how to enter the office; the activists had been convicted of having placed the grenades and the applicant’s associate of having aided and abetted causing bodily harm; (e) Contra had been collaborating with the above-mentioned Swedish National Union in Lund and Malmö and the applicant had negotiated with the latter about the setting up of a local Contra group; (f) organisations like Contra were infiltrated to the highest echelons by neo-nazi groups, which selected the most militant members of such organisations and incited them to engage in illegal activities. 10. At a sitting held by the District Court on 10 November 1986, the defendants, but not the applicant, asked for the case to be considered with a jury. As a result of the defendants’ request, the question whether a criminal offence had been committed was to be examined, according to the provisions of the Freedom of the Press Act, by a jury, composed on the basis of a list of two groups of names (see paragraphs 15, 18 and 19 below). The list, which had been published by the Stockholm County Council (Stockholms läns landsting), indicated the jurors’ political affiliations. The first group comprised sixteen persons, seven of whom were members of the SAP, five of the Conservative Party, two of the Liberal Party, one of the Centre Party and one of the Communist Party. The second group included eight names, of whom four were members of the SAP, two of the Conservative Party and two of the Liberal Party. The applicant, referring to paragraph 9 of Article 13 in Chapter 4 of the Code of Judicial Procedure (rättegångsbalken), filed a complaint with the District Court under Chapter 12, section 8, of the Freedom of the Press Act, asking it to exclude as being disqualified those jurors who were members of the SAP (see paragraph 21 below). In support of his request, he pointed to the position as regards ownership of Tidens förlag AB (see paragraph 8 above) and argued that the publisher was the "mouthpiece" of the social democratic movement. However, the District Court rejected his request on 10 November 1986, finding that, regardless of whether the publisher could be seen as a "mouthpiece" as described by the applicant, the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned. In an appeal against this decision to the Svea Court of Appeal (Svea Hovrätt), the applicant submitted, in addition to the above arguments, that the contents of the book were of a political nature and that the case had political undertones. The Court of Appeal dismissed the appeal on 4 December 1986, without stating any reasons. It was not open to the applicant to appeal further against this decision (Chapter 12, section 8, of the Freedom of the Press Act). 11. In the meantime, at the above-mentioned sitting on 10 November 1986, the District Court proceeded with the constitution of the jury in accordance with Chapter 12 of the Freedom of the Press Act. Exercising their right under section 10, the applicant and the defence each rejected three jurors from the first group and one from the second group. Those eliminated by the applicant were all SAP members and those by the defendants were members of the Conservative Party. Lots were drawn in accordance with the procedure described in paragraph 19 below, and a jury of nine members was constituted. Of these, five were members of the SAP - one of the them was subsequently replaced by another SAP member -, two of the Conservative Party, one of the Liberal Party and one of the Communist Party. 12. As appears from information submitted by the applicant, which was not contested by the Government, the SAP jurors were active members of the Party, holding or having held various offices in it and on its behalf at local level (for further details, see paragraph 27 of the Commission’s report). 13. On 14 October 1987, the District Court, sitting with three judges and a jury of nine, examined the merits of the case. In its judgment of the same date the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book. Accordingly, the District Court dismissed the charges made by the applicant and his claims for damages. In view of the conclusions reached on the merits, it ordered him to pay 67,860 Swedish kronor in costs. It was not possible under Swedish law for the applicant to appeal against the jury’s verdict (see paragraph 16 below). 14. In Sweden freedom of expression as regards the printed word is regulated by the 1949 Freedom of the Press Act, which has constitutional status. The first such Act dates back to 1766. The jury system was introduced when a revised version of the Act entered into force in 1812. The merits of the system underwent a thorough examination in the course of the revision which led to the 1949 version of the Act. However, the predominant view was that the jury system constituted an important safeguard of press freedom in Sweden and that it should be maintained. For similar reasons, more recent proposals to abolish the jury system have also been resisted. 15. Chapter 12 of the Act contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print (section 1). These cases are heard by the District Court within whose jurisdiction the county administration has its seat (Chapter 12, section 1). It sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed or whether civil liability has been incurred, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (sections 2 and 14). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone. In a jury trial the District Court is presided over by a judge. If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred, the defendant must be acquitted or the case must be dismissed. If the reply is in the affirmative - and this requires a majority of at least six members - the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or, in civil proceedings, dismiss the case (sections 2 and 14). 16. A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury’s verdict (Chapter 12, section 2). 17. Chapter 1, section 4, provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented; where there is doubt, he should acquit rather than convict. 18. In each county the county council, alone or in some cases together with the municipal council, elects jurors for a term of four years (Chapter 12, section 4). They are divided into two groups, one of sixteen jurors and the other of eight, the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts (section 3). The names of jurors are entered on a list in which each of the two groups are listed separately (section 9). Only Swedish citizens residing in Sweden are eligible for election as jurors. A further condition is that they be known to be independent and fair-minded and to have sound judgment. Different social groups and currents of opinion as well as geographical areas should be represented among the jurors (section 5). In practice, jurors are normally elected from among people who have been politically active. 19. In proceedings involving a jury, the District Court presents the above-mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors (Chapter 12, section 10; see also paragraph 21 below). Thereafter, each party is given the opportunity to exclude three jurors in the first group and one from the second. Subsequently, the District Court, by drawing lots, selects the substitute members until there remain six jurors in the first group and three jurors in the second group; these nine jurors become full members of the jury (Chapter 12, section 10). 20. Chapter 11, section 2, of the Instrument of Government (regeringsformen), which forms part of the Swedish Constitution, provides that neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. Moreover, all public power must be exercised subject to the law; courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, sections 1 and 9). These fundamental principles apply also to a jury sitting in a trial under the Freedom of the Press Act. 21. The statutory rules on disqualification of judges extend to jurors (Chapter 12, section 10, of the Freedom of the Press Act). Chapter 4, Article 13, of the Code of Judicial Procedure enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Article, paragraph 9, which was the one relied on by the applicant in the domestic proceedings, a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case. 22. According to section 5 of the 1949 Act containing certain provisions on Proceedings relating to the Freedom of the Press (lagen 1949:164 med vissa bestämmelser om rättegången i tryckfrihetsmål) jurors must take the following oath before participating in a trial: "I, N.N., solemnly swear and declare on my faith and honour that, as a member of this jury, I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury’s deliberations and how the jurors have voted. This I will and shall faithfully observe as an honest and upright judge." 23. Clause 13 of the SAP’s articles of association provides that a member may be excluded if he is disloyal to the Party, disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests. SAP candidates for public office are required to contribute through their office to the implementation of the Party’s programme. Other political parties have similar rules. On the other hand, none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror. It appears from the legislation summarised in paragraphs 20 to 22 above and the preparatory works to the 1949 Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge (see Statens offentliga utredningar - "SOU" 1947:60, p. 194). | 1 |
dev | 001-114137 | ENG | HRV | ADMISSIBILITY | 2,012 | TRUBIĆ v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Mr Mile Trubić, is a Croatian national, who was born in 1964 and lives in Dugo Selo. He is represented before the Court by Mr K. Vilajtović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 14 June 2007 the applicant, a policeman at the time, was returning to Croatia from an official assignment in Albania, where he had been with three other police officers T.P., Đ.J. and S.B. When crossing the border, travelling in a regular civilian coach, they were checked by customs officials who found 104 cartons of cigarettes and nine bottles of liquor allegedly belonging to the police officers. 4. On 14 and 15 June 2007 the police questioned the applicant, T.P., Đ.J. and S.B. about the above event. The police also questioned the coach drivers, Z.R. and A.S., and a customs officer, Ž.M. In addition, on 18 June 2007 the applicant, T.P., Đ.J. and S.B. provided further statements concerning the circumstances in which they had bought the cigarettes and liquor. 5. On 2 July 2007 the Zagreb First-Instance Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek prvostupanjskog disciplinskog sudovanja Zagreb) instituted disciplinary proceedings against the applicant on the ground that on 14 June 2007 he had attempted to smuggle ten cartons of cigarettes and five bottles of liquor from Albania to Croatia. 6. A hearing was held on 19 September 2007 before the Zagreb FirstInstance Disciplinary Court of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Prvostupanjski disciplinski sud Zagreb) in the presence of the applicant and his counsel. The applicant pleaded not guilty for smuggling goods although he admitted that he had brought certain cigarettes and alcohol from Albania but had not known the quantity or that it had been prohibited. 7. At the hearing the police reports on the witness statements of the coach drivers Z.R. and A.S. and officer Ž.M. were read out together with other evidence from the case file. Defence counsel asked for the written records of the oral statements from other police officers also to be admitted in evidence, which was allowed by the court. The applicant and his defence counsel made no objection as to the manner in which the evidence had been taken. However, defence counsel questioned the veracity of the statement given by customs officer Ž.M. 8. On the same day the Zagreb First-Instance Disciplinary Court of the Ministry of the Interior found that the applicant had attempted to smuggle the above-mentioned goods and sentenced him to a suspended sentence of dismissal from his duties. 9. Against the above decision, the Director of the Police (Ravnatelj policije) and the applicant lodged appeals on 4 October 2007 and 9 October 2007 respectively, with the Appeals Division of the Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek drugostupanjskog disciplinskog sudovanja Zagreb). In his appeal, the applicant argued that the Zagreb First-Instance Disciplinary Court had misinterpreted some of the evidence and that the sentence was disproportionate to the offence. 10. On 21 November 2007 the Appeals Division of the Disciplinary Board of the Ministry of the Interior upheld the findings on the applicant’s disciplinary liability but amended the sentence and ordered the applicant’s dismissal. 11. The applicant lodged an action with the Administrative Court (Upravni sud Republike Hrvatske) against the above decision on 4 January 2008, complaining about the outcome of the proceedings before the lower administrative bodies. He also argued that the witnesses should have been heard by the disciplinary court. 12. On 23 January 2008 the applicant was indicted in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of smuggling cigarettes and liquor on to the territory of Croatia. 13. On 11 September 2008 the Administrative Court dismissed the applicant’s action and upheld the decision of the Appeal Division of the Disciplinary Board of the Ministry of the Interior, on the ground that there had been no flaws in the procedure or findings of the administrative bodies. The relevant part of the decision reads: “After the assessment of the impugned decision [of the second-instance disciplinary body], this court considers that all the relevant facts have been correctly established, that the relevant law was applied correctly and that there have been no flaws in the procedure. It was undoubtedly established that on the relevant date, after he had finished his official assignment of deportation of foreign citizens to Albania and when entering the territory of the Republic of Croatia at the “Karasovići” border control check-point, the plaintiff had been controlled by the custom officers who had found that he had tried to smuggle ten cartons of cigarettes and five bottles of liquor with a foreign label to Croatia, without having these goods declared to the custom service, although he had known that the import of that amount of such goods had not been allowed, namely that it had been limited. All these relevant facts were established based on the statements of the custom officers, the coach drivers and the plaintiff himself and therefore the complaint concerning the establishment of the relevant facts should be dismissed. ... The substance of the plaintiff’s action did not raise any issue as regards the lawfulness of the impugned decision, and therefore the action was dismissed as illfounded pursuant to section 42 § 2 of the Administrative Disputes Act. ” 14. The applicant lodged a constitutional complaint with the Constitutional Court on 15 December 2008 (Ustavni sud Republike Hrvatske), reiterating the same arguments he had brought before the Administrative Court. 15. The Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded on 6 May 2010. The relevant part of the decision reads: “The Administrative Court fully endorsed the findings and application of the relevant law by the second-instance disciplinary body and, by the impugned judgment, it dismissed the applicant’s action against the second-instance decision. The Constitutional Court finds that the complaints raised in the constitutional complaint essentially represent repetition of the complaints raised before the Administrative Court, without any substantiation of the alleged violations of the Constitution. The applicant failed to show that the Administrative Court, in its procedure or decision, had violated the human rights and fundamental freedoms set out in the Constitution or that it had arbitrarily interpreted the relevant domestic law. Therefore, the Constitutional Court finds that this case does not raise any issue of the applicant’s human rights. Accordingly, there is no issue on which the Constitutional Court should decide.” This decision was served on the applicant’s counsel on 7 June 2010. 16. On 8 March 2012 the Zagreb Municipal Criminal Court acquitted the applicant of the criminal charges of smuggling cigarettes and liquor on to the territory of Croatia. 17. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001) provides: “(1) In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 18. The relevant provisions of the Police Act (Zakon o policiji, Official Gazette no. 129/2000) read as follows: Disciplinary action shall be taken against police officers responsible for breaches of work discipline.” “Other than those provided in the rules governing the conduct of civil servants, the following shall particularly be considered a serious breach of work discipline: 4. inappropriate conduct during or outside the hours of service...” | 0 |
dev | 001-100197 | ENG | LTU | CHAMBER | 2,010 | CASE OF GINEITIENE v. LITHUANIA | 3 | Remainder inadmissible;No violation of Art. 14+8;Pecuniary and non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1968 and lives in Vilnius. In 1990 the applicant married VG. 6. In 2000, the applicant became involved in the activities of the Ojas Meditation Centre, a Lithuanian branch of a new religious movement called Osho. 7. In 2001, she divorced her husband. The permanent place of residence of the applicant's two daughters, IG and AG, born in 1995 and 1996 respectively, was not determined and they stayed with the applicant and her former husband in Kaunas. 8. In July 2003, the applicant's former husband brought an action requesting that his home be fixed as the place of residence of his daughters. He alleged, inter alia, that the applicant's involvement in the Osho religious movement could have a negative influence on the children. 9. On 24 July 2003 the Kaunas District Child Rights Protection Agency, having visited the father's place of residence, concluded that the living conditions were suitable and, taking into consideration the wishes of AG and IG, suggested fixing their place of residence with the father. On 28 August 2003 the same Agency proposed to the District Court of Kaunas that it hear the views of the children. 10. By a ruling of 29 September 2003, the Kaunas District Court decided that, pending the proceedings, AG should reside with the applicant, and IG should stay with her father. 11. On 1 October 2003 the applicant and AG moved to Vilnius, settling in an apartment situated in the same building as the Ojas headquarters. The applicant was allowed to use that apartment free of charge. IG stayed with her father. 12. On 3 October 2003 the employees of the Vilnius City Child Rights Protection Agency (Vaiko teisių apsaugos tarnyba) visited the applicant's residence. They noted the applicant's explanation that she had two rooms for her use, one of them being reserved for AG. When the applicant was absent, a nanny would take care of her. The living conditions seemed suitable for a child. However, during the interview AG explained that she wanted to stay with her father, who took better care of her and did not leave her alone. She elaborated that her mother left her alone during the day and that she often felt scared. The Agency then suggested fixing AG's place of residence with her father. 13. On 9 December 2003 the employees of the Vilnius City Child Rights Protection Agency, having visited the applicant's place of residence in Vilnius, concluded that it was unsafe for AG to live there and that the applicant was not caring enough about AG's upbringing and education. They noted that the applicant's living space consisted of one room and that the kitchen was shared with other residents of the house. AG lived in that room with her mother, both of them sleeping in the same bed. The other room, which was supposed to be part of the applicant's living space, was apparently also used by other persons. At the time of the interview with AG, two teenage boys entered the room without asking for permission. According to AG, her mother did not take care of her; she did not have any friends and, during the day, was left alone. The girl had to cook for herself; she was not allowed to go to the adjoining yard and the building next to it, where her mother was meditating. The nanny would only come to take care of AG when the applicant left for a few days. AG expressed her wish to live in Kaunas with her father and sister IG. The Agency's workers also interviewed AG's kindergarten teachers. According to them, AG was often sad about not seeing her sister and father. AG would also be picked up from the kindergarten by some fifteen year old girl, but at the time of the interview she was going home on her own. The Agency's workers suggested to the applicant that she find another place to live where AG would feel safer. However, the applicant refused because she did not have to pay rent for the current flat, and it was close to her meditation centre. 14. On 26 March 2004 the employees of the Vilnius City Child Rights Protection Agency again interviewed AG, who repeated her wish to live with her father. The Agency also noted that AG had stressed that she had made the same statement before the court of first instance and to the psychologists. 15. From 25 June to 2 July 2004, AG was examined by a psychologist. Again, she expressed her wish to stay with her father and older sister. 16. On 13 April 2004 the Kaunas District Court granted the action in part, ruling that IG should live with the applicant's former husband, and AG should live with the applicant. The court noted that both parents were well educated and had sufficient salaries to provide for their daughters. In the course of the proceedings, both girls had been heard by the court as well as by a psychologist. They had both expressed their wish to stay with their father. However, the court agreed with one of the experts that AG (then 8 years old) was not mature enough to take a reasonable decision about her parental preferences. With respect to the applicant's affiliation to the meditation centre, the court noted: “The Ministry of Justice has refused to register [Ojas] as a religious community, suggesting that it should be registered as [a non governmental organisation]. There is no indication in the case file that the meditation centre has a negative influence on children or that it propagates certain intolerable views; nor is there any evidence that the [applicant's] children are involved in the activities of the centre. The court concludes that [the applicant's] active participation in the activities of the meditation centre does not have any negative impact on her children. In accordance with Article 26 § 2 of the Constitution, everyone is free to choose a religion or belief and ... to profess his religion, to perform religious practices, and to practise and teach his beliefs.” 17. On 16 July 2004 the Kaunas Regional Court amended the decision, ruling that both daughters should live with their father. The court considered that too little weight had been afforded by the lower court to the express wish of AG to live with her father. According to the appellate court, this had not complied with Article 12 of the United Nations Convention on the Rights of the Child or the relevant provisions of national law, which obliged the court to take into account a child's wishes irrespective of its age. The appellate court had regard to the expert's conclusion of 9 December 2003 that the environment in which the applicant lived was unsafe, whereas the applicant's husband was able to provide good living conditions for AG. The recommendation by the Kaunas District Child Rights Protection Agency to fix the place of residence of both daughters with the father was taken into account. The court also observed the girls' wish to stay together, and to be close to other family members (grandparents) and friends living in Kaunas. Certain instances of inadequate care were noted, namely, the applicant's failure on one occasion to arrange for AG's medical assistance or to ensure her attendance at school. Finally, the appellate court observed that the first-instance court had not assessed (nevertino) the material submitted to the Ministry of Justice characterising the Osho movement as controversial. Neither did the first-instance court give any credit to the fact that the movement had been unable to obtain registration as a religious community. 18. The applicant submitted a cassation appeal, alleging, inter alia, that the court's decision was discriminatory, and that it had failed to respect her family life. She requested that her youngest daughter, AG, live with her. 19. On 1 December 2004 the Supreme Court dismissed the applicant's cassation appeal. It emphasised that the rights of both parents in the education of their children were equal, regardless of their beliefs, convictions or views. The custody dispute was to be resolved taking into account the best interests of the children, in which context their wishes should be considered, regardless of their age. In assessing the significance of such wishes, the most important factor would be the children's ability to formulate, express and substantiate their views. 20. The Supreme Court established that AG had amply explained her preference to stay with her father during the entire proceedings, both in her submissions to the courts and during the interviews with the experts. She had stressed, in particular, that her mother had not taken adequate care of her, often leaving her alone and neglecting to cook meals. The girl had also expressed a preference for living in Kaunas, together with her sister and close to other relatives and friends. She had noted that her father spent more time with her and took better care of her. The Supreme Court emphasised that the experts had considered that the living conditions of the applicant were unsafe for children. 21. The Supreme Court further assessed the material conditions of accommodation offered by both parents. It was established that the applicant's husband was able to provide his daughters with a separate room in a private cottage in the countryside near Kaunas. 22. The Supreme Court also emphasised the importance for the two sisters to be brought up together, and underlined that close ties existed between them. 23. The applicant's allegations of discrimination were dismissed as unsubstantiated. In this respect, the Supreme Court noted: “The applicant's claim in her cassation appeal that the appellate court had breached the principle of non-discrimination, enshrined in Article 14 of the Convention as well as in [Lithuanian law], by wrongly assessing the evidence on the Ojas Meditation Centre and taking into account that the applicant belonged to it, is unfounded. When determining the place of residence of the two children, whose parents live separately, the Court of Appeal gave priority to the interests of the children, took into account their wishes, the ability and efforts of each parent to guarantee the basic rights of the children, and each parent's living conditions, that is to say, those conditions in which the children would have to live once their place of residence was decided. The decision of the appellate court did not contain any indication that the resolution of the dispute was influenced by the fact that the applicant was a member of [Osho/Ojas] ... The appellate court only noted that the first-instance court had not assessed all the evidence regarding the meditation centre. However, that does not presuppose that the appellate court considered the applicant's membership of the centre important in the resolution of the dispute. Had that been so, such a consideration would require an assessment of whether the prohibition of discrimination on grounds of religion was observed. In its judgments in the cases of Hoffmann v. Austria and Palau-Martinez v. France, the European Court of Human Rights ruled that the prohibition of discrimination on the basis of religion, enshrined in Articles 14 and 8 of the Convention, had not been respected in cases where the courts had attached decisive importance to the [applicant's] religious affiliation. However, when determining [the custody dispute], the appellate court did not attach significance to the fact that the applicant was a member of [Osho/Ojas].” 24. In an unrelated set of proceedings, the Ojas Meditation Centre requested a court order obliging the Ministry of Justice to register it as a religious community. The action was granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that Ojas propagated any controversial practices amongst its members. Ojas was registered as a religious community on 12 April 2005. 25. Article 23 of the Law on the Fundamentals of Protecting the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), in force at the material time, provided that disputes arising over a child's place of residence, in cases where the parents live separately, were to be resolved in court. It further stipulated that priority consideration had to be accorded to the interests and wishes of a child capable of expressing its own opinion as to which one of its parents it would wish to live with. 26. Article 3.174 of the Civil Code stipulates that, in the case of a dispute over a child's place of residence, the court is to take into consideration the wishes and interests of the child. The child's choice in the matter may be only disregarded if it is contrary to its best interests. Under Article 3.177 of the Code, when adjudicating disputes over children, the court must hear the child capable of expressing its views and ascertain its wishes. 27. On 21 June 2002 the Senate of the Judges of the Supreme Court adopted a ruling “On the application of laws in the case-law of the courts in determining the place of residence of minors when the parents are separated”. The ruling reads: “4. In deciding the dispute between separated parents over a child's place of residence, the court hearing the case must clarify and establish the following facts of legal importance: 1) the opportunities and efforts of each parent to ensure the implementation of the fundamental rights and duties of the child enshrined in legal provisions ...; 2) the conditions of the environment of each parent, namely, those conditions in which a child would live once its place of residence with one of the parents had been decided; 3) the wishes and views of the child. ... 6. (...) The court must also find out whether a child, over whose place of residence the dispute arose, has brothers or sisters .... The separation of brothers and sisters, especially in cases where the children have strong emotional attachments to each other and where they are fond of communicating and being together, would violate the interests of the children. ...” 28. Article 185 of the Code of Civil Procedure provides that a court shall make its own judgement on the probative value of evidence, based on the comprehensive and unbiased examination of that evidence in court. 29. On 3 July 1995 the Seimas of the Republic of Lithuania ratified the 1989 United Nations Convention on the Rights of the Child which then became an integral part of Lithuanian law. The convention provides, in so far as relevant in the present case, the following: “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 assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” | 0 |
dev | 001-61660 | ENG | FIN | CHAMBER | 2,004 | CASE OF PITKANEN v. FINLAND | 3 | No violation of Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicants are a married Finnish couple, born in 1957 and 1955 respectively and resident in Helsinki. In 1987 they bought a real property from the owner of a neighbouring property, L., who had undertaken to tear down a lean-to which the latter had constructed partly on the land purchased by the applicants before splitting it up into a separate property. The applicants and L. allegedly reached a further agreement to the effect that the latter consented to the applicants’ construction of a car shelter which would be connected to a new sauna building which L. agreed to construct on his own property so as to replace the sauna in his lean-to. 10. On 26 January 1988 the Helsinki Building Inspection (rakennus-valvontavirasto, byggnadsinspektionen) granted permission to demolish the lean-to. Following that demolition, the Helsinki Building Board (rakennuslautakunta, byggnadsnämnden), on 23 February 1988, granted the applicants permission to construct a dwelling-house and a car shelter on their property. L. did not appeal but refused to demolish the whole of his lean-to and to construct the new sauna building to be connected to the applicants’ dwelling. 11. In August 1988 L. was prohibited from using his existing sauna as its chimney top was found to be partly under the roof level of the applicants’ car shelter. The applicants’ offer to have the chimney top extended was refused by L. 12. On 2 October 1990 representatives of the Building Board inspected the applicants’ car shelter and found that it complied with the building permit. L. lodged an objection with the Building Board against this finding. 13. In November 1990 L. brought a civil action against the applicants, demanding, inter alia, that they be ordered to tear down the car shelter which they had allegedly built in violation of the fire regulations. The Helsinki City Court (raastuvanoikeus, rådstuvurätten) held its first hearing in January 1991 but adjourned the case at L.’s request in anticipation of the Building Board’s forthcoming decision. 14. On 29 January 1991 the Building Board dismissed L.’s objection against the outcome of the inspection on 2 October 1990 and confirmed that the applicants had constructed their buildings in accordance with the permit delivered in 1988. The Board found that L. had contributed to the fact that he had been prohibited from using his sauna, having refused to carry out his own construction works as agreed with the applicants. Had he fulfilled his part of their joint agreement in accordance with the building permission granted to that effect, the roof of his and the applicants’ respective buildings would have been at the same height. The Board considered that the dispute between the parties was to be resolved by the civil courts. 15. L. appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, arguing that while he had consented to the applicants’ constructing up to the boundary line, he had not agreed to any construction on their part preventing him from using his existing sauna and requiring him to take construction measures of his own. Although he had informed the applicants that his consent did not cover those aspects, they had not informed the Building Board accordingly. As a result the building permit and the approval of the applicants’ construction works had been based on false premises. 16. In February 1991 the applicants filed a counter claim against L., demanding that he be ordered to carry out his part of their alleged agreement. The two suits were joined at the applicants’ request. The City Court’s second hearing was held on 7 March 1991 but the case was again adjourned at L.’s request. 17. On 17 September 1991 the County Administrative Court upheld the Building Board’s decision of 29 January 1991. L. appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) and also requested the annulment of the Building Board’s decision of 1988, whereby it had granted the applicants a building permit. 18. The City Court’s third hearing was held on 19 September 1991. The case was again adjourned at L.’s request, as he had not yet received the County Administrative Court’s decision of 17 September 1991. 19. On 10 October 1991 the Land Court (maaoikeus, jorddomstolen) of Southern Finland dismissed L.’s appeal against a refusal to move a marker indicating his and the applicants’ joint boundary line. 20. The civil case was again heard on 16 January 1992 but was now adjourned at the request of both parties in anticipation of the Supreme Administrative Court’s decision in respect of L.’s annulment request. 21. The City Court’s fifth hearing was held on 24 September 1992 but the case was again adjourned at L.’s request. Following a sixth hearing on 28 January 1993 the City Court adjourned the case for the summoning of witnesses. 22. On 19 February 1993 the Supreme Administrative Court dismissed L.’s request for annulment of the Building Board’s decision of 23 February 1988. The court held that an error had indeed been committed during the Building Board’s examination of the applicants’ request for a building permit. The court noted however the nature of L.’s written undertakings towards the applicants which had led to the error, the manner in which their car shelter had been built as well as the fact that it would be easy to arrange for the smoke from L.’s sauna to be evacuated in a manner acceptable from the point of view of fire safety. The court therefore considered that the Building Board’s decision of 23 February 1988 did not violate L.’s rights, nor was it necessary in the general interest to annul that decision. The court furthermore dismissed L.’s appeal against the County Administrative Court’s decision of 17 September 1991. 23. In April 1993 L. extended his civil action against the applicants by bringing further claims partly based on different legislation. At the City Court’s seventh hearing on 11 May 1993 it took evidence from the applicants’ witnesses K. and P. The case was again adjourned at L.’s request. 24. At the eighth hearing on 31 August 1993 witnesses A. and V. were heard at L.’s request and witness H. was heard at the request of the applicants. A. furthermore handed in reports of his inspections in situ dated 2 August 1989 and 8 August 1990. According to the applicants, the City Court had by then already refused their request that the court conduct its own inspection. The case was adjourned at both parties’ request so as to enable them to lodge further submissions in writing. 25. At the City Court’s ninth hearing on 23 November 1993 one further witness was heard at the applicants’ request and another witness at L.’s request. The parties requested permission to make their final pleadings in writing and the case was adjourned for judgment at a later date. 26. Each of the nine hearings was presided over by a different judge. 27. Due to a national reorganisation of the courts of first instance the case was transferred to the Helsinki District Court (käräjäoikeus, tingsrätten; formerly the City Court). In its judgment of 3 March 1994 it found that the Supreme Administrative Court’s decision of 1993 had not given rise to res judicata. The District Court, moreover, accepted L.’s extended action for consideration. It considered that whereas P. was the only witness who could have testified regarding the true character of the alleged agreement between the applicants and L., P.’s testimony had not been so detailed and certain that it could be regarded as decisive evidence that L. had agreed to tear down the whole of his lean-to. The court therefore found it established that the applicants had understood all along that L. had not intended to tear down the whole of his lean-to. By constructing the car shelter in the manner established they had effectively prevented L. from using his sauna. The applicants were therefore ordered to demolish their shelter and to restore L.’s lean-to into its original state. It followed that the applicants’ counter suit had to be dismissed. 28. The applicants were ordered to pay L. FIM 2,850 (about EUR 480) in compensation for the damage which the construction of their shelter had caused to his lean-to. They were ordered to pay a further FIM 3,000 (some EUR 500) a year (as from 1990) in compensation for the impossibility for L. to use his sauna. They also had to reimburse L.’s costs in the amount of FIM 32,668,50 (about EUR 5,500). 29. As regards the extent of the damages suffered by L., the District Court based itself exclusively on A.’s testimony. After the District Court’s judgment the applicants filed a criminal complaint against him, suspecting that he had committed perjury. 30. The applicants appealed against the District Court’s judgment and later supplemented their appeal with a copy of the record of the pre-trial investigation into the suspected perjury which in their view showed that A.’s testimony had not been truthful. 31. On 9 February 1995 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the applicants’ appeal and upheld the District Court’s judgment, including its reasons. The Court of Appeal refused to take into account the pre-trial investigation record concerning A., as it had been submitted out of time and no special reasons militated in favour of accepting it as evidence. The applicants were ordered to pay L.’s costs in the amount of FIM 2,500 (about EUR 420). 32. On 7 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal. 33. In order to tear down their car shelter and restore L.’s lean-to the applicants were to obtain permission from the Building Inspection. In an opinion to the Supreme Court dated 22 February 1995 the Building Inspection nevertheless considered that the District Court’s demolition order was “not an equitable solution”, since the only change needed from the point of view of fire safety would be to extend L.’s chimney top to a point 80 centimetres above the applicants’ car shelter. The Building Inspection would therefore not permit the car shelter to be torn down and such demolition would be contrary to the general interest by spoiling the appearance of the neighbourhood and violate both local planning regulations and general regulations on fire safety. 34. On 20 August 1997 the Helsinki District Court convicted A. of perjury and sentenced him to nine months’ conditional imprisonment. It found it established that he had deliberately omitted various relevant information from his testimony in L.’s civil case against the applicants. In the light of this judgment the applicants requested the Supreme Court to reopen the proceedings. 35. L. died in November 1997, having sold his property. 36. On 8 March 2000 the Supreme Court granted the applicants’ request for a reopening of the proceedings in so far as they had been ordered to compensate L. for the damage which the construction of their car shelter had caused to his lean-to as well as to pay him the costs incurred in the proceedings before the lower courts. The Supreme Court referred to A.’s conviction of perjury. 37. Referring to its decision of 16 May 1997, the Supreme Court declined to examine anew the applicant’s request for a re-opening of the case in respect of the order requiring them to demolish the car shelter, to restore L.’s lean-to into its state prior to the construction of the shelter as well as to pay L. annual compensation for the fact that he had been prevented from using his sauna. 38. As of November 2002 the current owners of L.’s house had not requested, and the authorities had not enforced, the aforementioned three orders. 39. In re-opening part of the case the Supreme Court instructed the applicants to file, within three months, a new action against L. before the District Court. They initiated such proceedings against L.’s successors on 30 May 2000 and supplemented their statement of claim on 28 May 2001 in light of the defendants’ written observations. The court’s preparatory hearing was held on 5 June 2002. 40. On 13 August 2002 the parties reached a settlement whereby L.’s successors undertook to reimburse the applicants the amount of FIM 2,850 (i.e. the compensation which the applicants had paid to L.) as well as a further sum of EUR 5,045.64. L.’s insurance company undertook to reimburse EUR 3,363.76 of the costs paid by the applicants. The sums were to be divided between the applicants and their insurance company as later agreed. The applicants and L.’s successors declared that they had no further claims against one another whether in relation to the proceedings initiated in May 2000 or to any previous court proceedings or related events. 41. The settlement was approved by the District Court on 23 August 2002. 42. According to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time (Chapter 2, section 3), the chairman and three lay judges constituted the quorum in a district court. Each of the lay judges had a personal vote. 43. If a party considered that civil or criminal proceedings had been delayed unjustifiably, a procedural complaint (kantelu, klagan) could be lodged with the court of appeal within 30 days from the adjournment (Chapter 16, section 4, subsection 2 of the Code of Judicial Procedure). If it was important for the resolution of the case that an issue under examination in other proceedings be resolved first, or if there was another long-term impediment to the case being examined, the court could adjourn the case until such time that the impediment has ceased to exist (section 5). These provisions were repealed with effect from 1 October 1997. | 1 |
dev | 001-71202 | ENG | UKR | CHAMBER | 2,005 | CASE OF ANTONENKOV AND OTHERS v. UKRAINE | 3 | Violation of Art. 6-1 (length of proceedings);No violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 4. The applicants were born in 1967, 1959 and 1970, respectively. All three live in Kyiv. 5. On 26 June 1996 criminal proceedings against the applicants were instituted. 6. On 31 June 1996 A.D. was arrested on suspicion of fraud and theft. On 16 August 1996 V.S. and, on 19 August 1996 A.A., were arrested on similar charges. The prosecution’s case was that the applicants had fraudulently (using false documents) converted and subsequently sold an apartment belonging to Mr K. 7. During the investigation the prosecution authorities obtained several economic expert opinions regarding the suspect transaction. 8. On 3 March 1997 the Kyiv City Prosecutor approved the indictment and referred the case to the Kyiv City Court, requesting it to determine the territorial jurisdiction in the case. On 5 March 1997 the Kyiv City Court (hereafter “City Court”) remitted the case to the Shevchenkovsky District Court of Kyiv (hereafter “the District Court”). The applicants stood trial on charges of theft, fraud, and embezzlement of official documents (A.D.), fraud and forgery (V.S.) and fraud and theft (A.A.). 9. On 2 April 1997 the District Court committed the applicants for trial. 10. On 3 April 1997 the District Court released A.A. and V.S. on bail of UAH 3,000 each (approximately USD 1,500 at the material time) and an undertaking not to abscond. On 19 May 1997 A.D. was also released on bail of UAH 4,000 (approximately USD 2,000) and an undertaking not to abscond. On 27 May 1997 the applicants’ bail was raised to UAH 17,000 (approximately USD 8,500) each. 11. Between April 1997 and June 1998 the District Court listed 22 hearings (14 between September 1997 and June 1998). Ten hearings were adjourned mainly due to the failure of the victim, witnesses and the applicants’ lawyers to appear in court. In the course of the proceedings on 24 October 1997 the court issued a compulsory summons for the witness F. 12. On 22 June 1998 the District Court decided to remit the case for further inquiries on account of the insufficiency of the original investigation. The court stated inter alia, that the investigative authorities had failed to establish the whereabouts of one of the key witnesses, F., which made it impossible for the court to summon her to give evidence. The prosecution appealed against this decision. The decision was, apart from one point, quashed by the City Court in its ruling of 6 August 1998 because the flaws in the investigation indicated in this decision could be remedied during the trial. However, the City Court upheld the findings of the District Court that the charges of aggravated embezzlement filed against A.D. needed additional investigation. 13. The trial resumed on 2 November 1998. During the period November 1998 to April 2000 thirty hearings were scheduled, of which seven were held. Fifteen hearings were cancelled due to the victim’s failure to appear, five hearings were adjourned on account of the applicants’ absence and on two occasions the presiding judge was ill. In particular, the hearing scheduled for 12 May 2000 was adjourned until 17 May 1999 on account of V.S. being on a mission. On 15 March 2000 he lodged with the trial court a successful request for permission to go to the Russian Federation for medical treatment. 14. On 20 April 2000 the District Court remitted the case for further investigation, referring to the similar circumstances in its decision of 22 June 1998. The prosecution’s appeal out of time was rejected by the City Court on 28 September 2000. On 18 January 2001 the Kyiv City Prosecutor lodged a supervisory protest (an extraordinary appeal) against the decision 20 April 2000. On 29 January 2001 the Presidium of the City Court granted the protest and remitted the case to the first instance court for further consideration. 15. The District Court resumed the examination of the case on 4 April 2001. Between April 2001 and July 2002 the court listed 23 hearings of which 13 were adjourned due to the failure of the victim (on 9 occasions), the applicants (on 3 occasions) and the prosecutor (on one occasion) to appear. In the course of the proceedings on 24 April and 21 May 2001 the court ordered the compulsory summons of the victim. 16. On 17 July 2002 the District Court disjoined the proceedings concerning the charges of theft and embezzlement of documents (A.D. and A.A.) and remitted the case in this part for additional investigation. 17. On 19 July 2002 the District Court terminated proceedings concerning the charges of fraud (all three applicants), embezzlement of documents (A.D.) and forgery (V.S.) as time-barred, lifted the bail condition and ordered the return of the bail money. 18. According to both parties’ submissions, the criminal proceedings for (presumably) theft against A.D. and A.A. are still pending. 19. The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960 (general rules on the application of preventive measures) is set out in Merit v. Ukraine, no. 66561/01, 30 March 2004 (Relevant domestic law and practice). 20. Article 154-1 of the Code (application of bail) is set out in Koval v. Ukraine (no. 65550/01, 10 December 2002). 21. Article 281 (remittal of a case for additional investigation) is set out in the judgment of 6 September 2005 in the case of Salov v. Ukraine (see no. 65518/01, § 72). 22. Article 151 of the Code provides that an undertaking not to abscond consists in obtaining from the suspect or the accused an agreement not to leave the place of residence or temporary stay without the permission of an investigator (or a trial judge). In the event of a breach of the written undertaking given by him, a stricter measure of restraint may be applied to the suspect or accused. | 1 |
dev | 001-99449 | ENG | NLD | ADMISSIBILITY | 2,010 | EL MORABIT v. THE NETHERLANDS | 4 | Inadmissible | Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Mohamed El Morabit, is a Moroccan national who was born on 24 January 1981. His current place of residence is El Hoceima, Morocco, his place of birth. He was represented before the Court by Mr M. Wijngaarden, a lawyer practising in Amsterdam. 2. and as apparent from information available to the public, may be summarised as follows. 3. The applicant entered the Netherlands in 1998, at the age of seventeen, for the purpose of lawful family reunion. He was granted a residence permit (vergunning tot verblijf) for that purpose, which was extended several times at his request until the events complained of. 4. After his arrival in the Netherlands, the applicant went to school for a time; he later became unemployed. 5. In November 2004 the applicant was arrested on suspicion of belonging to an Islamist terrorist group known as the “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located). 6. On 20 January 2005 the then Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) notified the applicant of her intention to withdraw his residence permit on the ground that he posed a threat for national security. That finding was based on an individual intelligence report (individueel ambtsbericht) dated 24 December 2004 that the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) had submitted, and which was appended. 7. According to the intelligence report of 24 December 2004, the applicant was a member of a group led by a Syrian national who recruited radical Muslim youths. The group, of which the applicant was stated to be one of the more radical members, held regular meetings, during which the Syrian preached Islamic extremism and violent jihad (holy war). The applicant was understood to be in the possession of tape recordings calling for armed jihad and stating that it was forbidden to have dealings with “Christian dogs” (dat omgang met “christenhonden” is verboden). The applicant was stated to have radicalised a young woman of Moroccan origin to the point where she had taken to wearing a burka and refused to pray with her own family. The report identified other members of the group by name; of these, the best known was Mohamed B., who was later convicted of the murder of the film director Theo van Gogh. 8. An earlier intelligence report, dated 4 November 2004 and on which the later intelligence report was based in part, described the members of the group meeting to discuss and plan violent jihad, and watching and expressing approval of films showing the beheading of persons including hostages in Iraq. 9. On 11 February 2005 the applicant, through his counsel, submitted written comments denying his involvement in the planning of unlawful violence, arguing that the AIVD information was unreliable and unverifiable, and that the measure intended was a disproportionate interference in his family life. 10. On 1 March 2005 the Minister gave a decision withdrawing the applicant's residence permit, essentially on the same grounds as those stated in the original notification. The following day she gave an additional decision declaring the applicant an undesirable alien, entailing the imposition of an exclusion order (ongewenste vreemdeling). 11. On 7 March 2005 the applicant applied for an interim measure (voorlopige voorziening) aimed at preventing his deportation pending the outcome of the proceedings. He lodged an objection (bezwaarschrift) against each of the two decisions on 24 March 2005. 12. On 20 April 2005 the applicant supplemented his objection with a statement of grounds in which he argued that the AIVD information was unreliable and that he could not be expected to return to Morocco and accept permanent separation from his parents. In a separate letter of the same day he asked to see the information on which the AIVD intelligence report was based. 13. On 2 May 2005 the applicant asked for the decision on his objection to be deferred until he had had a chance to study the AIVD information. This request was repeated on 6 July and 22 July 2005. On 27 July 2005, however, the Minister for Immigration and Integration replied that there was no reason not to proceed. 14. On 19 September 2005 the Minister gave two separate decisions dismissing the objections. The conclusions reached by the AIVD were presumed correct; the immigration authorities were not duty bound to undertake any further investigation of their own. 15. The applicant appealed to the Regional Court (rechtbank) of The Hague against both decisions on 12 October 2005. 16. On 10 March 2006, in criminal proceedings distinct from the immigration proceedings, the Regional Court of Rotterdam convicted the applicant of membership of a criminal organisation and membership of an organisation aiming to commit terrorist crimes and sentenced him to two years' imprisonment. 17. On 12 June 2006 the Regional Court of The Hague, sitting in Amsterdam, gave an order for a provisional measure that would allow the applicant to await the outcome of the proceedings in the Netherlands. In separate decisions, it declared the appeals well-founded; it considered the AIVD intelligence reports to be insufficiently “objective and transparent” (objectief en inzichtelijk). The Minister's decisions were annulled and the Minister was ordered to decide afresh. 18. On 19 June 2006 the Security and Integrity Office (Bureau Veiligheid en Integriteit) of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) submitted a written statement to the Minister to the effect that, after examination of the documents underlying the reports, it appeared that the AIVD intelligence investigation had met applicable standards of due care as regards content and procedure followed and was transparent. 19. The Minister appealed to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) against the Regional Court's decisions on 10 July 2006. 20. In parallel, the Minister gave a new decision on the objection against the withdrawal of the applicant's residence permit on 20 July 2006. She accepted that the AIVD reports were adequate as to their objectivity, impartiality and thoroughness and that the AIVD had to protect their sources of information. In so far as the applicant had denied the accuracy of the AIVD reports, he had not given any relevant arguments. 21. The following day the Minister gave a new decision in much the same terms in which she dismissed the objection against the decision to impose an exclusion order on the applicant. 22. On 28 July 2006 the President of the Administrative Jurisdiction Division of the Council of State declared the Minister's appeal of 10 July 2006 well-founded. He annulled the Regional Court's decisions of 12 June 2006 and remitted the cases to the Regional Court. In the same decision he annulled the Minister's decisions of 20 and 21 July 2006, which had been adopted pursuant to the Regional Court's decision of 12 June 2006, and ordered the deferral of the applicant's deportation until 4 August 2006 so that the applicant had a realistic chance to seek a provisional measure from the Regional Court itself. 23. The applicant applied to the Regional Court of The Hague for a stay of deportation on 2 August 2006. In his statement of grounds, submitted the following day, he now relied on Article 3, arguing that the Moroccan authorities treated terrorist suspects harshly. On 24 August 2006 the Regional Court granted an interim measure allowing the applicant to await the outcome of his appeals in the Netherlands. 24. Having held a hearing on 4 October 2006, the Regional Court decided that it needed to study the information on which the conclusions of the AIVD intelligence reports were based. To that end, it reopened the case. 25. The Regional Court gave its decision on 12 January 2007. Having studied the AIVD information, it found that the AIVD's conclusions had an adequate basis in fact; there was no need to reopen the discussions on that score. A threat relevant to Article 3 of the Convention in the event of the applicant's return to Morocco had not been established. The applicant's appeal against the withdrawal of his residence permit was held to be inadmissible in view of the decision to impose an exclusion order on the applicant; the appeal against the latter decision was dismissed as unfounded. 26. The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which on 27 April 2007 dismissed it, referring to standing case-law. 27. The applicant was deported to Morocco on 19 January 2007. 28. The applicant appealed against his conviction (paragraph 16 above). On 24 January 2008 the Court of Appeal of The Hague quashed the conviction and acquitted the applicant. 29. The Public Prosecution Service lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad) against the acquittal. On 2 February 2010 the Supreme Court quashed the judgment of the Court of Appeal and remitted the case to the Court of Appeal of Amsterdam where it remains pending. 30. On 21 December 2006 the Council of the European Communities adopted a list of persons, groups and entities to be subjected to restrictive measures pursuant to Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (Council Decision 2006/1008/EC). This list was updated on 28 June 2007 (Council Decision 2007/445/EC). These lists mentioned the applicant as follows: “EL MORABIT, Mohamed, born 24.1.1981 in Al Hoceima (Morocco), passport (Morocco) No. K789742 (Member of the 'Hofstadgroep')” As provided for in Council Regulation (EC) No 2580/2001, this restricted the applicant's use of financial services and of any assets which he might possess, access to these being permissible only for limited purposes including the fulfilment of essential human needs and the payment of taxes. 31. The applicant brought actions in the Court of First Instance (now re-named the General Court; the first-instance body of the Court of Justice of the European Communities, as it was named at the time) for annulment of Council Decisions 2006/1008/EC and 2007/445/EC in so far as they included his name (Cases T-37/07 and T-323/07 respectively). The European Commission and the Netherlands Government sought, and were granted, permission to intervene. 32. On 2 September 2009 the Court of First Instance dismissed both actions and ordered the applicant to pay his own costs and those of the Council. 33. Section 67 of the Aliens Act 2000 (Vreemdelingenwet 2000) provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to national security. An alien on whom an exclusion order has been imposed cannot be lawfully resident in the Netherlands. 34. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (section 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien. | 0 |
dev | 001-90108 | ENG | BGR | ADMISSIBILITY | 2,008 | NENKOV v. BULGARIA | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Georgi Istilyanov Nenkov, is a Bulgarian national who was born in 1927 and lives in the village of Mala Tsarkva, near the town of Samokov. He was represented before the Court by Mr L. Klyavchev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Pasheva, of the Ministry of Justice. On the morning of 7 April 1999 the applicant went to a neighbouring village on business. While on his way back to his home village, he allegedly met a neighbour, Mr N.N., who was transporting stones in a horsecart. Apparently the applicant and Mr N.N. had for a number of years been involved in a property dispute relating to a plot of agricultural land owned by the applicant. After that the applicant had lunch in his house and at about 2 p.m. went to clean the abovementioned plot of land. He saw a pile of stones there and started throwing them out. Then Mr N.N. allegedly tried to enter the applicant’s plot with his cart. The applicant took a pole and tried to hit Mr N.N.’s horse. According to the applicant’s allegations, at that point Mr N.N. struck him in the face with a pitchfork and then knocked him on the back of the head with it. The assault left the applicant blinded and bleeding. After that he reportedly heard the noise of a horsecart driving away. There were no other persons present at the scene. Some time later Mr D. and Mr R.S. arrived at the scene of the incident. Mr R.S. took the applicant to a hospital. They did not witness the incident, but the applicant told them that Mr N.N. had assaulted him. As a result of the pitchfork blow to the face, the applicant lost the sight of both eyes. The same day the police opened a preliminary inquiry (see below, Relevant domestic law and practice) into the incident and impounded two pitchforks from Mr N.N.’s house. They did not apprise the competent prosecutor of the impounding. It seems that in the course of the inquiry Mr N.N. admitted to having hit the applicant. Later, a criminal investigation was opened and on an unspecified date in 2000 Mr N.N. was charged with inflicting grievous bodily harm on the applicant, contrary to Article 128 §§ 1 and 2 of the 1968 Criminal Code (see below, Relevant domestic law and practice). The investigation authorities interviewed the applicant, seven witnesses, and Mr N.N., who denied any wrongdoing. A medical expert report drawn up during the proceedings found that the applicant had completely lost the sight in his left eye, and could only distinguish light from dark with his right eye. The report also established that the injuries were consistent with a pitchfork blow as the one described by the applicant. The report concluded that the applicant had become permanently blind in both eyes, which amounted to grievous bodily harm, while the other injuries, to his face and the back of his head, were minor. On 2 November 2000 the applicant applied to join the proceedings as a private prosecutor and a civil claimant. On an unspecified date the investigator in charge of the case sent the file to the Samokov District Prosecutor’s Office with a proposal to indict Mr N.N. In a decision of 13 February 2001 a prosecutor of the Samokov District Prosecutor’s Office decided to drop the charges against Mr N.N. and discontinue the investigation in respect of him, continuing it against an “unknown perpetrator”. She reasoned that he had denied his guilt and that, apart from the applicant, there were no eyewitnesses who could positively establish the identity of the perpetrator of the offence; the statements of the witnesses could not fill this lacuna. It followed that the charges could not be proved beyond reasonable doubt, whereas a conviction or even an indictment could not rest on inferences. All possible investigative steps had been taken and no further incriminating evidence had been uncovered. It was true that the police had impounded a pitchfork on the day of the offence, but it could not be admitted in evidence, as the impounding had not been carried out in accordance with the relevant rules of procedure. According to the Supreme Court’s caselaw, all acts of procedure carried out prior to the institution of criminal proceedings, within the framework of a preliminary inquiry under Article 191 of the 1974 Code of Criminal Procedure (“the CCP” – see below, Relevant domestic law and practice), could exceptionally be considered valid only if they had been undertaken with the knowledge of the competent prosecutor. In the case at hand the competent prosecutor at the Samokov District Prosecutor’s Office had not been informed of the impounding either before or immediately after it had been carried out. Under Article 85 § 2 of the CCP (see below, Relevant domestic law and practice), this omission had compromised the evidence thus obtained. Finally, the prosecutor decided to stay the investigation, as the identity of the perpetrator was unknown. In line with Article 237 § 3 of the CCP, as in force at the relevant time (see below, Relevant domestic law and practice), the Samokov District Prosecutor’s Office sent a copy of the decision to the Sofia Regional Prosecutor’s Office. On 21 February 2001 that office confirmed it, citing the same reasons. It added that the impounding had not been carried out in the presence of certifying witnesses, that the scene of the crime had not been preserved, that after the incident of 7 April 1999 Mr N.N. had not been examined for traces of blood on him, and that he had an alibi, confirmed by three witnesses. No other investigative steps were possible. A copy of the prosecutor’s decision was sent to the Sofia Regional Court. In a decision of 2 March 2001 it also confirmed the discontinuation, agreeing with the prosecutors’ reasoning. The applicant was not notified of the court’s decision. After he found out about it, on 19 March 2001 he lodged an appeal with the Sofia Regional Prosecutor’s Office. On 5 April 2001 that office dismissed the appeal, informing the applicant that the discontinuation of the proceedings was not subject to appeal. The review procedure was automatic and had already taken place. On 20 April 2001 the applicant requested the Chief Prosecutor to reopen the investigation. In reply, on 6 June 2001 the Supreme Cassation Prosecutor’s Office informed the applicant that following the amendments of the CCP which had come into force on 1 May 2001 (see below, Relevant domestic law and practice) it was not possible to reopen criminal investigations whose discontinuation had been confirmed by a court. On 5 October 2001 the applicant resubmitted his request and as a result on 28 February 2002 the Chief Prosecutor requested the Supreme Court of Cassation to reopen the criminal investigation. He argued that the decisions to discontinue it were overly formalistic and not sufficiently reasoned, and that the competent authorities had not properly assessed the evidence. In his view, this constituted grounds for reopening under Article 362 § 1 (5) in conjunction with Article 352 § 1 (2) of the CCP (see below, Relevant domestic law and practice). In a judgment of 25 April 2002 (реш. № 254 от 25 април 2002 г., по н.д. 136/2002 г., ВКС, ІІ н.о.) the Supreme Court of Cassation rejected the Chief Prosecutor’s request as inadmissible. It noted that reopening had been possible prior to 1 May 2001. However, under the amendments to the CCP of that date prosecutors alone had competence to discontinue criminal proceedings. Their decisions were subject to appeal before the respective firstinstance courts, whose decisions were subject to appeal and then to appeal on points of law (see below, Relevant domestic law and practice). The counterpoise of these newly introduced possibilities to appeal had been the withdrawing of the possibility of setting aside the court’s decision by way of reopening. The Act for the amendment of the CCP contained no provisions allowing judicial decisions confirming discontinuations of criminal investigations under the old system to be reviewed in reopening proceedings. No investigative steps were taken between 2002 and 2007 in the investigation against an “unknown perpetrator”. Articles 128, 129 and 130 of the 1968 Criminal Code make it an offence to inflict bodily harm on another. Harm is classified as minor, intermediate or grievous by reference to medical criteria laid down in the second paragraphs of these Articles. Permanent blindness in one or both eyes constitutes grievous bodily harm (Article 128 § 2 of the Code). Inflicting grievous bodily harm is a publicly prosecutable offence in all cases (Article 161 of the Code). Criminal proceedings for publicly prosecutable offences could be opened only by the decision of a prosecutor or an investigator (Article 192 §§ 1 and 2 of the CCP, as in force at the relevant time). They had to open an investigation whenever they received information, supported by sufficient evidence, that an offence might have been committed (Articles 186 to 190 of the CCP). If the investigation authorities did not have enough evidence to institute criminal proceedings and no immediate investigative steps were required, they could carry out a preliminary inquiry (“предварителна проверка”) to determine whether the institution of criminal proceedings was warranted. The inquiry could be opened by the investigator or the police, who had to inform the competent prosecutor, or be ordered by the prosecutor (Article 191 § 1 of the CCP, as in force at the material time). The authorities carrying out the inquiry could search the crime scene and impound objects they found there if this was the only opportunity for preserving the evidence. The investigator had to inform the prosecutor about these actions forthwith (Article 191 § 2 of the CCP, as in force at the material time). Evidence which was not gathered in the manner prescribed by the CCP was inadmissible (Article 85 § 2 of the CCP). According to the Supreme Court’s caselaw, this requirement meant that the results of investigative actions undertaken before the institution of criminal proceedings could be taken into account only if they had taken place in the course of a preliminary inquiry. It followed that the competent prosecutors had to be apprised promptly, so as to be able to exercise their supervisory powers. This was an essential prerequisite for the results of these actions to be taken into account in the ensuing criminal proceedings. The failure to inform the prosecutor had the effect of compromising these actions and the evidence obtained through them (реш. № 302 от 27 юли 1995 г. по н.д. № 169/ 1995 г., ВС, I н.о.). Article 60 § 1 of the CCP provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings. Until June 2003 such a claim could be lodged even during the preliminary investigation (Article 60 § 1 of the CCP, as in force until June 2003). After that it could be made only after the case had proceeded to trial (Article 60 § 1 of the CCP, as in force after June 2003). The latter position was maintained under Article 84 § 1 of the 2005 Code of Criminal Procedure. Civil claimants are entitled to take part in the proceedings, acquaint themselves with the case file and make copies, adduce evidence, make requests and objections, and challenge the decisions which impinge on their rights and legitimate interests (Article 63 § 1 of the CCP and Article 87 § 1 of the 2005 Code). The 2005 Code of Criminal Procedure gave the victims of offences certain rights which do not depend on their joining the proceedings as private prosecutors or civil claimants. Under Article 75 § 1 of this Code, they are entitled to be apprised of their procedural rights, be kept abreast of the progress of the proceedings, if they have so requested, and challenge the decisions to discontinue the proceedings. By Article 237 § 1 (2) of the CCP, as in force until 30 April 2001, public prosecutors discontinued proceedings if they found that the charges had not been proven. Paragraphs 3 and 4 of that Article, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuation the prosecutor had to send the file and his decision to the immediately superior prosecutor’s office, which could confirm, modify or quash it. If it confirmed the decision it had to send the file to the appropriate court, which had to rule in private on the wellfoundedness or otherwise of the discontinuation (Article 237 §§ 5, 6 and 7 of the CCP, as in force at that time). Paragraph 9 of that Article provided that the court’s decision was not subject to appeal. No provision was made for the victim of the offence to be notified of the discontinuation. Article 237 of the CCP was completely changed with effect from 1 May 2001 and henceforth provided that the prosecutor’s decision to discontinue the proceedings was to be served on the accused and the victim of the alleged offence. Either of them could then appeal against it to the respective firstinstance court within seven days. The court’s decision was in turn subject to appeal to the higher court within seven days of its delivery (Article 344 § 1 of the CCP, as in force between 1 May 2001 and May 2003, and Article 345 § 1 of the CCP). The higher court’s decision was then subject to appeal on points of law to the Supreme Court of Cassation, within fifteen days of its delivery (Article 349 § 5 of the CCP, as in force between 1 May 2001 and May 2003, and Article 353 of the CCP). In May 2003 the CCP was amended again, following which the firstinstance court’s decision was not subject to appeal. Under the 2005 Code of Criminal Procedure, the decision of the firstinstance court to uphold the discontinuation of a criminal investigation by the prosecutor is served on the accused and the victim of the offence and is subject to appeal before the higher court, but the latter’s decision is not appealable on points of law (Article 243 §§ 3, 6 and 7 of that Code). Article 359 of the CCP enumerated the judicial rulings which could be set aside by way of reopening. In its version between 1 January 2000 and 30 April 2001 the list included the decisions confirming the discontinuation of a criminal investigation by the prosecutor (see above). The amendment to the CCP which entered into force on 1 May 2001 (see above) removed those decisions from the list, with the result that decisions upholding the discontinuation of a criminal investigation made after its entry into force were not annullable by way of reopening. However, the amendment was silent on the issue whether such decisions made prior to its entry into force were likewise no longer capable of being set aside by way of reopening. The issue was settled in a couple of judgments given by the First and the Second Criminal Chambers of the Supreme Court of Cassation in April 2002: the judgment in the applicant’s case and a judgment delivered three days earlier, on 22 April 2002 (реш. № 168 от 22 април 2002 г. по н.д. № 34/2002 г., ВКС, I н.о.). In both of them the court, after analysing in some detail the amendment’s overall scheme, ruled, against the views of the Chief Prosecutor, that decisions made prior to the entry of the amendment into force – 1 May 2001 – could not be set aside by way of reopening. A majority of the First Criminal Chamber of the court confirmed this approach in a decision of 14 March 2003 (опр. № 550 от 14 март 2003 г. по н.д. № 273/2002 г., ВКС, I н.о.), against the dissent of the presiding judge, who was of the view that reopening was still available in respect of decisions made before 1 May 2001. Article 419 § 1 of the 2005 Code of Criminal Procedure provides that judicial decisions upholding the discontinuation of a criminal investigation by the prosecutor are capable of being set aside by way of reopening. Requests for reopening are examined by the Supreme Court of Cassation (Article 363 of the CCP and Article 424 § 1 of the 2005 Code of Criminal Procedure). Requests based on material breaches of the substantive or the procedural law (Article 362 § 1 (5) in conjunction with Article 352 § 1 (1) and (2) of the CCP, superseded by Article 422 § 1 (5) in conjunction with Article 348 § 1 (1) and (2) of the 2005 Code of Criminal Procedure), can be made only by the Chief Prosecutor (Article 361 § 1 in fine of the CCP). | 0 |
dev | 001-59363 | ENG | LUX | CHAMBER | 2,001 | CASE OF THOMA v. LUXEMBOURG | 1 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Christos Rozakis | 9. On 6 November 1991 Tageblatt, a Luxembourg daily newspaper published in German, printed an article by journalist Josy Braun on various reafforestation techniques that had been used after the storms in early 1990 that devastated part of the Luxembourg woodlands. The article appeared under the title “Wiederaufforstung ... das ganze noch einmal” (“Reafforestation ... all over again”) and included the following: [Translation from a French translation provided by the applicant] “The cynicism really knows no limits, since it should not be forgotten that these forest gardeners cut down trees, buy, plant, ‘treat’ with public funds, to the tune of millions of francs. (Ministers, lend an ear!) What does all this hide? Of course, there will be a full denial by all concerned, but the conclusion to be drawn after various discussions with people in the industry should be this: It is better to replant two or three times with plants from a seller who gives a generous percentage than once with plants from a firm that has the nerve to refuse to pay bribes. (Comment from someone familiar with the system: ‘I know of only one person who is incorruptible.’ He gave the name of the forest warden from ‘Bambësch’.) ‘Naturally’, it’s a case of the tabloid press yet again publishing ‘unsubstantiated monstrosities’; ‘naturally’, there is no truth in any of it, but the owners of the woodlands, whether the State, municipalities or private individuals, should be aware of one thing: they are the ones who must pay for the repeated reafforestation of dubious benefit; and they the ones who should demand that the political authorities remove the dung from Augeas’s Stables, instead of continually trying, with mixed success, to muzzle those who have the nerve to put the public interest before the private interests of a few ‘fleas in the scrotum of the Welfare State’ (dixit Degenhard).” 10. The applicant was at the time a journalist on a national radio station, RTL 92.5, for whom he presented a weekly programme in Letzeburgesch entitled “Oekomagazin” dealing with nature and the environment. He had raised the subject of the problems connected with reafforestation after the 1990 storms on a number of occasions on the programme and had alluded, along with other Luxembourg publications, to a breakdown in the system. 11. The applicant had chosen reafforestation as the subject matter for his “Oekomagazin” programme of 6 November 1991. He began the programme with an introduction in which he reminded listeners that he had spoken the previous week about “the temptation for Forestry Commission people to take advantage when an opportunity present[ed] itself” and had referred to “a series of telephone calls from people all over the country who [had] interesting tales to tell”. He went on to say “in any event, one thing is clear: the woodland management chapter is much thornier than people might think”. He also reported, indicating that he was giving an example, that a person who had had work done in woodland he owned by a private contractor “no longer knew which way to turn” after receiving a bill for the work from the Forestry Commission responsible for the sector rather than the private contractor. After that introduction, he quoted certain passages from the aforementioned article, which he said was “strongly worded”. He said, inter alia: [Translation from a French translation provided by the applicant] “But there is money to be made at the sawmill as well as in wood. The same applies to the plantations, because they can be counted in millions. In a two-page article in today’s edition of Tageblatt, Josy Braun does not mince his words in denouncing various plantation practices used by the Water and Forestry Commission and he makes no concessions. The journalist writes, and I quote: ‘One already requires a certain dose of cynicism not to forget that these gardeners of the forest do not clear out, buy, plant, and (in inverted commas) treat the publicly owned woodlands with their own money, but with public funds to the tune of millions.’ Josy Braun then provides the proof (fazit) of the proposition: ‘It is better to replant two or three times with plants from a seller who pays a percentage than once with plants from a firm that has the nerve to refuse to pay a percentage.’ The Tageblatt journalist then cites an authoritative source from the industry who is quoted as saying: ‘I know of only one person who is incorruptible.’ The name of the forest warden from Baumbusch is given in that connection. ‘The owners of our forests, whether the State, municipalities or private individuals should be aware of one fact: they are the ones who must pay for umpteen questionable reafforestation projects’, to quote again from the Tageblatt journalist, ‘It is they who ought to demand that the political authorities clean out Augeas’s Stables once and for all’ ...” 12. The applicant explained that with that “strongly worded” article, Josy Braun had implicitly referred to the provision in the Criminal Code relating to intermeddling, which prohibits civil servants working for the State or the municipalities to use their official status to derive personal gain. He added that people working for the Water and Forestry Commission “have a reasonable salary and can under no circumstances claim a hand-out and get rich at the expense of public-owned woodlands or of private owners, buyers of wood or tree nurseries”. 13. He then proceeded with the theme of the programme and put questions to W., a Water and Forestry Commission engineer, before asking R., a private woodlands owner: [Translation from a French translation provided by the applicant] “In a strongly worded article by journalist Josy Braun this morning, it is said: ‘It is better to replant two or three times with plants from a seller who is generous with bribes than once with plants from a firm that has the nerve to refuse to pay bribes.’ Mr R., what do you think of that strongly worded phrase. You also work a little in this branch: what is your experience in this sphere? Is what Josy Braun says true?” 14. After R. had expressed his opinion on that point, the applicant questioned him further on the subject of the importation of plants, a matter he had previously raised with W., the engineer. He asked R. the following questions: [Translation from a French translation provided by the applicant] “And what is your opinion on the delivery of plants from abroad, possibly through Luxembourg traders? Is it possible that the plants, which come from Hungary or Spain, for example, are delivered without being checked?” 15. After R.’s reply, the applicant ended his programme with a long debate on the theme of public tenders. 16. In a press release on 19 November 1991, the Association of Luxembourg Foresters announced its intention to lodge a complaint for defamation against the applicant. However, it did not do so. 17. Between November 1991 and February 1992 fifty-four forest wardens and nine forestry engineers brought civil actions in damages against the applicant alleging that he had damaged their reputation. They each claimed 1,000,000 Luxembourg francs (LUF) in compensation complaining that he had quoted accusations from the article published in the 6 November 1991 edition of Tageblatt without in any way toning them down, correcting them or commenting on them “the slightest bit critically”, and that he had passed them off as his own. He had thus suggested publicly that all forestry wardens in Luxembourg (of whom there were eighty at the time) and all Luxembourg forestry engineers were, with only one exception, corruptible and corrupt. In their writs, they quoted from a Luxembourg judgment of 1989, in which it was held as follows: “By establishing freedom of the press, the Constitution does not impose any restriction on the fundamental principle contained in Articles 1382 and 1383 of the Civil Code. Freedom of the press is not unlimited and ends where it infringes the legitimate rights and interests of others. Journalists do not enjoy any immunity exempting them from their obligation to exercise care towards all individuals and even the State and its institutions, and any breach, albeit slight, of that obligation is unlawful under the aforementioned Articles of the Civil Code which oblige anyone who, through his wrongdoing, or negligent act or omission causes damage to another, to make reparation. Journalists may be held severally liable for any breach of their obligation to be truthful and objective” (judgment no. 9.637 of 13 November 1989, Cepal v. Bever). 18. The sixty-three statements of claim were couched in more or less identical terms. 19. The applicant requested that the various actions against him be joined and declared inadmissible on the ground that he had merely quoted statements made by a clearly identified person. He offered to adduce witness evidence to show that his investigations revealed numerous offences in the sphere concerned. He also lodged a counterclaim against each of the claimants for payment of LUF 25,000 as an allowance for preparing the case for trial and LUF 100,000 for abuse of process and vexatious proceedings; he also claimed costs and expenses. 20. The Luxembourg District Court examined the sixty-three cases at a single hearing and handed down sixty-three almost identical judgments on 14 July 1993. It awarded each of the claimants one franc in nominal damages, dismissed the counterclaims and ordered the applicant to pay the costs and expenses. 21. After examining the text of the aforementioned passage from the Tageblatt article and the aforementioned quotations from the transcript of the applicant’s radio programme, the District Court held, inter alia: “The journalist, Thoma, seized upon the article by Josy Braun and, in particular, the impugned passage, to persuade the public that the legislation in force was not being complied with and to adopt Josy Braun’s ‘fazit’ conclusion. This Court considers that the use of the words ‘Forstleit, Forstverwaltung’ to restrict the circle of people concerned by the programme, the use of Braun’s conclusion to support the assertions, citing a person who was supposedly familiar with that circle (Berufener Stemm aus dem Milieu), the assertion that that person knew only one person – from that background – who was incorruptible, meant that those against whom the accusation was made are sufficiently identifiable. In view of his position (as a Forestry Commission employee), the claimant has sufficiently established in law that Thoma’s remarks were directed against him. This Court must analyse whether by so acting the defendant has committed an act that falls to be dealt with under the provisions of Articles 1382 and 1383 of the Civil Code. It is true that the press has the right, and even the duty, to criticise abuses that come to light in public life (CSJ 23 March 1912 P.8, p. 346). It is incumbent on professional journalists to publish breaking news, news items and, generally, anything which seems to them to present an interest as soon as they can (Luxembourg District Court, 14 February 1990, no. 100/90). The press must preserve its right to criticise the social activity of individuals, that is to say all those whose dealings directly concern the community. The press is entitled to say what it thinks about their activities, provided that it does not attack their reputation and provided that it acts in good faith (Luxembourg District Court, 27 October 1986, Feuille de liaison de la conférence St Yves no. 69, p. 43). Marc Thoma was, accordingly, perfectly entitled to investigate the problems posed by the reafforestation of our woodlands after the storms and to denounce and to criticise practices which he considered to be inconsistent with the laws and regulations. Indeed, through a series of articles in the press, the Luxembourg journalists have not missed the opportunity of drawing the attention of the public and the public authorities to matters which they believe it was their duty to criticise. While it is true that absolute objectivity cannot be required of journalists, in view of their relatively unreliable means of investigation, they nonetheless have an obligation to act on information that has been verified to the extent the means available to them reasonably permit. The law requires journalists to act in good faith and does not seek to give immunity to persons who through spite, malice or foolishness seek by publication to discredit others. A mala fide intention may appear when a journalist had reasons to doubt the truth of the facts or his ability to produce evidence establishing them (Civ. Bruxelles, 29 June 1987 J.T. 1987). In the instant case, it was for Thoma to prove that he had obtained sufficient evidence to enable him to adopt Braun’s allegations and to assert that the claimant had been guilty of corruption in connection with the reafforestation of the woodlands.” 22. After rejecting an offer by the applicant to adduce evidence as being too vague, the District Court concluded: “Marc Thoma has, accordingly, not established that he has sufficient evidence to show that the claimant was guilty of corruption in connection with the reafforestation of the woodlands. It is not for this Court to order or complete investigative measures of its own motion in order to assist the journalist to carry out ex post facto the investigations and research which he should have performed before publishing the impugned article. By giving the impression without evidence and without qualification that all the Water and Forestry Commission officials concerned by the reafforestation work were, with but one exception, corruptible, Thoma has overstepped the boundaries of his right to impart bona fide information and has, accordingly, committed a tort.” 23. The applicant appealed against all sixty-three judgments. In his appeal submissions, he requested the joinder of the fifty-four cases brought by the forestry wardens and the nine actions brought by the forestry engineers. His opponents contested that request. The applicant did not renew the offer to adduce evidence which he had made at first instance. 24. The Court of Appeal of the Grand Duchy of Luxembourg (Seventh Division) gave its decision in almost identical judgments delivered on 30 January 1996. It acceded to the applicant’s request for joinder and upheld the impugned judgments. In support of its decision to award each of the claimants nominal damages of one franc, the Court of Appeal added the following grounds to those that had been relied on by the District Court: “By attributing the phrases ‘Ich kenne nur einen der unbestechlich ist. Sie nannte den Namen des Baumbusch-Försters’ not to a particular individual, but to a ‘berufene Stimme aus dem Milieu’, that is to a person in the know, someone from the background who is aware of confidential matters and can be relied upon not to provide false information, the text of Braun’s article quoted by the appellant suggests to the public and leads it to believe that, apart from the forest warden responsible for Baumbusch there was not one other Water and Forestry Commission official, whether ordinary forest wardens or even members of its management, who was incorruptible. It follows that, contrary to the appellant’s assertion, the text quoted by him qualifies as corruptible ‘a defined group of identified people’, since he suggests that all Water and Forestry Commission officials are in that position and together they constitute a defined group of identified persons. It follows from the foregoing that the claimants at first instance and respondents to this appeal – on whom the burden of proving the merits of their claims lies – have, in view of their position (as Forestry Commission staff), established that Josy Braun’s text quoted by the applicant was directed at them. Further, the applicant fails in his attempts to deny liability by arguing that his remarks are no more than a quotation from the impugned article by Josy Braun. A journalist cannot escape liability by arguing that the impugned article which he has published is merely a reproduction of one already published by someone else since, by choosing to reproduce the article, he appropriates the allegation contained in the reproduced text and thus incurs personal liability. That is the position and a journalist who merely quotes from an article that has already appeared will only escape liability if he formally distances himself from the article and its content and if in terms of newsworthiness an interest exists in communicating the content of the article that has already been published. In the instant case it is quite clear that in repeating in the ‘Oekomagazin’ programme of 6 November 1991 in Letzeburgesch the impugned passage from Josy Braun’s article in that day’s edition of Tageblatt, the appellant did not distance himself from the quoted text and, in particular, the aforementioned allegation which it contains. It follows that even supposing that the appellant had merely quoted the impugned passage from Josy Braun’s article, that quotation nonetheless rendered him liable. Finally, the Court of Appeal holds below that the appellant has failed to establish the merits of the allegation of corruption contained in the impugned passage in Josy Braun’s article which he quoted from without formally distancing himself from it. Under these circumstances, that allegation establishes by itself that when in the 6 November 1991 edition of ‘Oekomagazin’ the appellant repeated the passage from Braun’s article containing that allegation unreservedly, there was, contrary to what he asserts, no ‘lack of malice’ on his part ... It follows that by leading public opinion to believe without evidence that the entire staff of the Water and Forestry Commission from forest wardens to the director were corruptible, the only honest employee being the forest warden from Baumbusch, the appellant has not complied with his obligation to impart bona fide information and has consequently committed a tort rendering him liable under Articles 1382 and 1383 of the Civil Code ...” 25. The applicant appealed to the Court of Cassation, which dismissed his appeals in two judgments of 20 March 1997. The Court of Cassation said, inter alia, that Articles 1382 and 1383 of the Civil Code established a system of reparation and that, subject to the last sentence of Article 24 of the Constitution and of section 16(2) of the Law of 20 July 1869 on the Press, the scope of those Articles in press cases was unlimited since, as in every other sphere, the courts would take account of the special nature of the activity of journalists in deciding whether a tort had been committed. It added that the courts below had justified their decision in law for finding a tort. 26. The relevant provisions of the Luxembourg Civil Code concerning liability under the general law read as follows: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone is liable for the damage which they have caused not only through their acts, but also through their negligent omissions or acts.” 27. For the purposes of Articles 1382 and 1383 the tort may result from a violation of a rule of criminal law. In that eventuality, the victim may either bring a civil action, or institute or be joined to criminal proceedings as a civil party. 28. The offence of damaging a person’s reputation is laid down by Article 443 of the Criminal Code, which provides: “Anyone who, in the circumstances set out hereafter, maliciously accuses another of something that is liable to damage that person’s reputation or expose him to public scorn shall be guilty of calumny if, in cases where it is possible by law to plead a defence of justification, no admissible evidence supporting the accusation is adduced. He shall be guilty of defamation if the law does not allow of a defence of justification.” 29. Section 16 of the Law on the Press provides: “Everyone who shall have taken part, as a principal, co-offender or accomplice in press offences shall incur criminal and civil liability. However, if the principal is of known identity, a Luxemburger and domiciled in the Grand Duchy, the printer, editor and any accomplice shall be immune from suit.” 30. That provision introduced the notion of “indirect liability” in proceedings against the press. According to legal commentators, the system obviates the need for the author’s work to be subjected to prior censorship by the editor, printer or distributor. It is not a question of liability being diluted but of its attaching to one person, that person being the author, if his identity is known and he is domiciled in Luxembourg, or, failing that, the editor, printer or distributor. 31. Section 18 of the statute provides: “No one shall be entitled to invoke by way of excuse or justification the fact that the writings, printed material, pictures or emblems are merely a reproduction of materials published in the Grand Duchy or abroad.” | 1 |
dev | 001-82172 | ENG | GBR | GRANDCHAMBER | 2,007 | CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM | 1 | No violation of P1-1 | Alvina Gyulumyan;Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Pavlovschi;Viera Strážnická;Vladimiro Zagrebelsky;Volodymyr Butkevych | 10. The second applicant company is the registered owner of a plot of 23 ha of agricultural land in Berkshire. The first applicant company acquired the land by a series of transactions between 1975 and 1977 and owned it until April 1986, when it transferred the land to the second applicant company subject to an option to repurchase. The owners of a property adjacent to the land, Mr and Mrs Graham (“the Grahams”) occupied the land under a grazing agreement until 31 December 1983. On 30 December 1983 a chartered surveyor acting for the applicant companies wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In January 1984 the applicant companies refused a request for a further grazing agreement for 1984 because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission. 11. Notwithstanding the requirement to vacate the land at the expiry of the 1983 agreement, the Grahams remained in occupation at all times, continuing to use it for grazing. No request to vacate the land or to pay for the grazing which was taking place was made. If it had been, the evidence was that the Grahams would happily have paid. 12. In June 1984 an agreement was reached whereby the applicant companies agreed to sell to the Grahams the standing crop of grass on the land for 1,100 pounds sterling (GBP). The cut was completed by 31 August 1984. In December 1984 an inquiry was made of the applicant companies as to whether the Grahams could take another cut of hay or be granted a further grazing agreement. No reply to this letter or to subsequent letters sent in May 1985 was received from the applicant companies and thereafter the Grahams made no further attempt to contact the applicant companies. From September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicant companies. 13. In 1997 Mr Graham registered cautions at the Land Registry against the applicant companies’ title on the ground that he had obtained title by adverse possession. 14. On 30 April 1998 the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions. On 20 January 1999 the applicant companies issued further proceedings seeking possession of the disputed land. 15. The Grahams challenged the applicant companies’ claims under the Limitation Act 1980 (“the 1980 Act”), which provides that a person cannot bring an action to recover any land after the expiration of twelve years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the twelve-year period, the registered proprietor was deemed to hold the land in trust for the squatter. 16. Judgment was given in favour of the Grahams on 4 February 2000 ([2000] Ch 676). Mr Justice Neuberger held that since the Grahams had enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant companies’ title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. At the conclusion of his thirty-page judgment, Neuberger J remarked that the result he had reached did not accord with justice and could not be justified by practical considerations: the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at the Land Registry. The fact that an owner who had sat on his rights for twelve years should be deprived of the land was in his view “illogical and disproportionate”. 17. The applicant companies appealed and on 6 February 2001 the Court of Appeal reversed the High Court decision on the ground that the Grahams did not have the necessary intention to possess the land, and the applicant companies were therefore not “dispossessed” of it within the meaning of the 1980 Act ([2001] EWCA Civ 117, [2001] Ch 804). Although this conclusion was sufficient to dispose of the appeal, two members of the Court of Appeal went on to address the question whether the applicant companies’ loss of title to the land could also have given rise to a violation of Article 1 of Protocol No. 1 as applied in domestic law by the Human Rights Act 1998. 18. Lord Justice Mummery, giving the judgment of the court, held that Article 1 of Protocol No. 1 did not impinge on the relevant provisions of the Limitation Act 1980, which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for twelve years or more after being dispossessed by another. The extinction of the applicant companies’ title was not, in his view, a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. In the alternative, Mummery LJ found that any deprivation was justified in the public interest, the conditions laid down in the 1980 Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of twelve years being reasonable and not imposing an excessively difficult burden on the landowner. 19. Lord Justice Keene took as his starting-point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of Protocol No. 1. 20. The Grahams appealed to the House of Lords, which, on 4 July 2002, allowed their appeal and restored the order of the High Court ([2002] UKHL 30, [2002] 3 All ER 865). Lord Browne-Wilkinson, with whom Lord Mackay of Clashfern and Lord Hutton agreed, held that the Grahams did have “possession” of the land in the ordinary sense of the word, and therefore the applicant companies had been “dispossessed” of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. Concluding, Lord Browne-Wilkinson held as follows: “... Despite Pye’s notification to quit the land in December 1983, its peremptory refusal of a further grazing licence in 1984 and the totally ignored later requests for a grazing licence, after 31 December 1983 the Grahams stayed in occupation of the disputed land using it for what purposes they thought fit. Some of those purposes (i.e., the grazing) would have fallen within a hypothetical grazing agreement. But the rest are only consistent with an intention, verified by Mr Michael Graham, to use the land as they thought best. That approach was adopted from the outset. In my judgment, when the Grahams remained in factual possession of the fully enclosed land after the expiry of the mowing licence they manifestly intended to assert their possession against Pye. ... Before your Lordships’ House, it was conceded that the Human Rights Act [incorporating the European Convention on Human Rights] did not have a retrospective effect. But Pye submitted that, even under the common-law principles of construction applicable before the Human Rights Act came into effect, the court should seek to apply the law so as to make it consistent with the [Convention]. Any such old principle of construction only applied where there was an ambiguity in the language of a statute. No such ambiguity in the Act of 1980 was demonstrated to your Lordships.” 21. Lord Bingham of Cornhill, agreeing with Lord Browne-Wilkinson, made the following statement in the course of his judgment: “The Grahams have acted honourably throughout. They sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J] ...) ‘arrive at with no enthusiasm’.” (JA Pye (Oxford) Ltd and Others v. Graham and Another [2002] 3 All ER 865, at 867) 22. As noted above, the question whether the result was incompatible with the applicant companies’ rights under Article 1 of Protocol No. 1 was not pursued before the House of Lords. However, in his judgment Lord Hope of Craighead, who also agreed with Lord Browne-Wilkinson on the reasons for dismissing the appeal, observed that the question under the Convention “... is not an easy one, as one might have expected the law – in the context of a statutory regime where compensation is not available – to lean in favour of the protection of a registered proprietor against the actions of persons who cannot show a competing title on the register. Fortunately ... a much more rigorous regime has now been enacted in Schedule 6 to the Land Registration Act 2002. Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain a title to it against the wishes of the proprietor. The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.” 23. The value of the land in issue is disputed between the parties. The applicant companies put their pecuniary loss at over GBP 10 million. The Government put the value of the land in 1996 (when the twelve-year limitation period expired) at GBP 785,000, and in July 2002 (when the House of Lords judgment was delivered) at GBP 2.5 million. 24. At the relevant time, section 15 of the Limitation Act 1980, a consolidating Act, provided: “(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. ... (6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.” 25. Paragraph 1 of Schedule 1 provided: “Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.” 26. The same limitation provisions therefore applied to both registered and unregistered land. In the case of unregistered land, section 17 of the 1980 Act provided that, on the expiration of the limitation period regulating the recovery of land, the title of the paper owner was extinguished. In the case of registered land, section 75(1) of the Land Registration Act 1925 provided that on the expiry of the limitation period the title was not extinguished but the registered proprietor was deemed to hold the land thereafter in trust for the squatter. 27. Halsbury’s Laws of England (Fourth Edition, Reissue 1998) sets out the law in the following terms: “258. When the owner of land has been out of possession, and a stranger has been in possession, for a period sufficient to bar the owner’s right to re-enter or to recover possession by action, the owner’s title is extinguished, and the stranger acquires a title which is good against all the world, including the former owner. The Limitation Act 1980 operates negatively to bar the right and extinguish the title of the true owner, and does not effect a transfer of his estate to the stranger; the new title depends on the principle that possession gives title, coupled with the extinction of the rights of the former owner, and is subject to any easements [etc.] which remain unextinguished.” 28. The Law Reform Committee considered the law on limitation periods in its report of 1977 (Cmnd 6923). It commented negatively on the courts’ practice of granting an implied licence to the would-be adverse possessor, which had the effect of stopping time running against the owner, and proposed no change to the existing limitation periods, and agreed that the expiration of the limitation period should serve to extinguish the claimant’s title. 29. A Law Commission Consultation Paper on Limitation of Actions of 1998 (Consultation Paper No. 151) gave a number of general policy aims of the law on limitations. The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right. The State, too, has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial, and as guarantor of legal certainty. Finally, limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly. 30. A separate Law Commission Consultative Document on land registration in 1998 (prepared with the Land Registry; Law Com No. 254) noted that, although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format, there were certain areas where this was not wholly true. One example given was the position of the rights of adverse possessors (section 75(1) of the Land Registration Act 1925 was referred to). The Consultative Document set out and commented on four particularly cogent reasons often given for the law on adverse possession: (i) Because it is part of the law on limitation of actions. It noted: “... because adverse possession is an aspect of the law of limitation, it is of course customary to account for it, in part at least, in terms of the policy of limitation statutes generally, namely to protect defendants from stale claims and to encourage plaintiffs not to sleep on their rights. However, adverse possession does not merely bar claims. Its effect is positive: ‘a squatter does in the end get a title by his possession and the indirect operation of the [Limitation Act] ...’ This can only be justified by factors over and above those which explain the law on limitation. In this context it should be noted that a landowner may be barred even where he or she is quite blameless. As we have explained above, adverse possession can take place without it being readily detectable. In any event, this particular justification has much greater force in relation to unregistered land than it does for land with registered title. Unregistered title ultimately depends upon possession. It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights. ... [w]here title is registered, ... the basis of title is primarily the fact of registration rather than possession. Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ...” (ii) Because if land and its ownership are out of kilter, the land may become unmarketable. Where the registered owner has disappeared, and cannot be traced, and a squatter takes possession, the doctrine of adverse possession “does at least ensure that in such cases land remains in commerce and is not rendered sterile”. Where there have been dealings “off the register”, such as where a farmer agrees to a land swap with a neighbour under a “gentleman’s agreement” but does not register the change, “adverse possession fulfils a useful function”. (iii) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure. In such circumstances adverse possession can be justified on grounds of hardship, and there are parallels with the principles of proprietary estoppel. (iv) Because it facilitates and cheapens investigation of title to land. The Law Commission accepted this last reason as being very strong for unregistered land, but considered that for registered land, where title depends on the contents of the register rather than possession, it was not applicable. 31. The Law Commission proposed, provisionally, that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration, and that it should be limited to very few, exceptional cases. 32. A Report on Limitation of Actions (Law Com No. 270) and one on registered land (Law Com No. 271) followed the Consultation Papers, and were published in July 2001. 33. The Law Commission Report on Limitation of Actions recommended that the general limitation period for actions in respect of land should be ten years. It added that if the proposals made on registered land in Law Com No. 254 were accepted, the proposal would relate only to interests in unregistered land (and unregistrable interests in registered land). 34. As a result of the various criticisms, including those made by a number of the judges in the present case and the Report on registered land (Law Com No. 271), the Land Registration Act 2002 made a number of changes to the law as it related to registered land. It provided that adverse possession, for however long, would not of itself bar the owner’s title to a registered estate. A squatter was entitled to apply to be registered as proprietor after ten years, and would be so registered if application was not opposed. If the application was opposed, it would be refused. If the application was refused but no steps were taken to evict the squatter or otherwise regulate the position, he was entitled to apply again to be registered as proprietor, and would be so registered whether or not the application was opposed. The 2002 Act came into force on 13 October 2002. 35. On 23 March 2005, Deputy Judge Strauss in the Chancery Division gave judgment in the case of Beaulane Properties Ltd v. Palmer (Times Law Reports, 13 April 2005). The case concerned a licensee who had remained in possession of registered land for over twelve years after the expiry of his licence. Applying the judgment of the House of Lords in the present case, the judge found that under English law as it stood up to the entry into force of the Human Rights Act 1998 the registered owner of the land lost all claim to it. However, on analysing the facts on a Convention basis, he found that there was no real public or general interest in the law on adverse possession in the case of registered land, and that the adverse consequences for the landowner were disproportionate. By reinterpreting the relevant legislation in accordance with section 3 of the Human Rights Act, the judge found that the claim by the former licensee to have acquired the disputed land failed. | 0 |
dev | 001-88663 | ENG | RUS | CHAMBER | 2,008 | CASE OF BELOUSOV v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | 5. The applicant was born in 1973 and lives in the town of YuzhnoSakhalinsk in the Sakhalin region. 6. In December 1999 the applicant arrived in Moscow. On 3 December 1999 he was examined by the Moscow medical commission, which found him to be in good health and fit to drive a car. 7. On 5 December 1999 the applicant gave an interview to a national TV station, NTV, which was running a story on a dispute between private holders of government bonds and the Ministry of Finance. During the interview the applicant, the head of a group of private bondholders, accused the Ministry of initiating a vendetta against him and ordering assaults on bondholders to pressurise them into withdrawing their lawsuits against the Ministry. The interview was aired on NTV’s weekly political analysis show, Itogi. 8. On the same day police officers stopped the applicant and his brother in the street and asked them to show identification documents. The Government alleged that the police officers had acted on information about wanted criminals who looked remarkably similar to the applicant and his brother. According to the Government, the applicant and his brother were not in possession of any papers which could have proved their identity and they were taken to Koptevo police station in Moscow (ОВД «Коптево» г. Москвы) owing to their “refusal to comply with the orders of the police officers and use of obscene language in public”. According to the applicant, he and his brother disclosed their identity, his brother presenting a military ID card and the applicant showing a work pass. 9. At the station a police officer, Kh., drew up a note addressed to the head of the Koptevo police department. The note read as follows: “[I] am writing to inform you that on 5 December 1999, at 1.45 p.m., Mr Belousov was brought to the police station together with Mr V. [NB: the police officer]; at the address ..., following several requests to present documents proving his identity, [Mr Belousov] refused to show them and started swearing at us in the presence of private individuals, using obscene language and at the same time repeating that it would cost us five thousand roubles; the two men refused to follow us to Koptevo police station. The identity check was prompted by telephone message no. 12316.” 10. According to the applicant, he was severely beaten in the police station by a group of allegedly drunk police officers. After the beatings he was moved to a cell. Several hours later he was brought to a room and forced to strip to the waist. He placed his clothes in a bag and was forced to lift the bag, which weighed approximately four kilograms, and to put it down. He had to perform this “exercise” over and over again. The applicant alleged that the task had been extremely difficult for him, as on 6 October 1999 he had undergone surgery and had been prohibited from lifting weights heavier than a kilogram. The applicant lost consciousness and was taken to the Botkin clinical hospital. 11. The Government, relying on information provided by the Prosecutor General’s Office, confirmed the fact that the applicant had sustained injuries. 12. In the hospital the applicant was examined by a neurosurgeon, a neuropathologist, a urologist and an oculist. Medical report no. 29314 was drawn up. The report indicated that the applicant had been admitted to the hospital at 6.45 p.m. on 5 December 1999 and that he had been diagnosed with “an injury to the front abdominal wall, bruises on the forehead and left hand, an injury to the kidneys, a craniocerebral injury and concussion”. 13. The applicant stayed in the hospital until 10 December 1999. According to medical certificates nos. 081114, 066415 and 091922 issued on 10 and 21 December 1999 and 4 February 2000 respectively, the applicant was on sick leave until 10 February 2000 and underwent treatment at home. 14. On 10 February 2000 the applicant was examined by an occupational medical expert panel (врачебно-трудовая экспертная комиссия) and recognised as physically disabled. Medical certificate no. 163147 issued by the panel indicated that the applicant had “a second-degree disability”. 15. The applicant’s mother complained to the Koptevo district prosecutor’s office that on 5 December 1999 the applicant had been unlawfully arrested and beaten up. 16. On 14 December 1999 the Koptevo district deputy prosecutor sent a letter to the applicant’s mother informing her that criminal proceedings had been instituted against the police officers at Koptevo police station. 17. On 14 March 2000 an investigator from the Koptevo district prosecutor’s office closed the criminal proceedings, finding that there was no case of ill-treatment to answer. The relevant part of the decision read as follows: “In the course of the investigation it was established that on 14 December 1999, at 1.45 p.m., Kh. and V., on-duty officers from the Koptevo district police department, stopped two persons near house no. ... who resembled persons wanted in connection with telephone message no. 12316. The persons concerned refused to present identity documents and were brought to Koptevo police station for an identity check. At the station one of them identified himself as Mr Dmitriy Aleksandrovich Belousov, a third-year student at a military academy; the other introduced himself as Mr Aleksandr Aleksandrovich Konstantinov. Following a check though the Central Data System the identity of Mr D.A. Belousov was confirmed, and at 4 p.m. he was handed over to a representative of the military commander’s office. The second person (Mr I.A. Belousov, as it was established later) was placed in a cell for administrative arrestees; later he felt sick and an ambulance was called for him. At 5.45 p.m. he was handed over to an emergency team which took him to the Botkin clinical hospital. According to a statement by [the applicant], on 5 December 1999 he and his brother Dmitriy were on their way to Koptevo market. At approximately 12.10 p.m. a police officer, wearing no badge of rank or insignia, stopped them and asked them to show some identity documents. [The applicant] showed his “Lukoil-City” company work pass, and [his brother] showed his military ID card. At that moment another police officer, wearing badge no. 4461, approached them and pushed [the applicant]; [the latter] screamed and the police officer then twisted his arm. Consequently [the applicant] asked to be taken to a police station for an explanation. An on-duty patrol which had arrived at the scene took [the applicant] and [his brother] to Koptevo district police station. At the police station [the applicant] went into the lobby to smoke a cigarette. An on-duty sergeant, wearing badge no. 4491, said that arrestees could not smoke there; [the applicant] responded that he had not been arrested, and the sergeant then called a captain who was standing on the steps of the police station. The captain started hitting [the applicant]; when, responding to [the applicant’s] screams, [his brother] ran from the duty room, the captain hit [his brother] with a machine gun and dragged him back to the duty room. The sergeant wearing badge no. 4491 and another sergeant, wearing badge no. 4488, continued beating [the applicant] up. Then [the applicant] crawled to the duty room and asked the police officers who were there to call an ambulance. [The applicant] and [his brother] were placed in a cell for administrative arrestees; the police officers dismissed all their requests to place a call to their house or to call an ambulance. During his detention at the station [the applicant] was twice submitted to a bodily search without any record being taken ... At 5.20 p.m. a major from the military academy arrived to pick up [his brother]. Subsequently a district police officer arrived at the station and, after forcing [the applicant] to strip to the waist, he and the captain present at the station made [the applicant] lift his clothes and move them from one place to another, following which [the applicant] lost consciousness. [The applicant] regained consciousness in a room where it was extremely hot; the police officers took him to a shower room where an officer on duty provided him with medical assistance. From that time on [the applicant] was almost unconscious until his transfer to the surgical wing of the hospital. An ambulance was called for him and subsequently [the applicant] was brought to the Botkin clinical hospital. [The applicant’s brother], who was questioned as a witness, confirmed [the applicant’s] statements in general, but also stated that two police officers had carried [the applicant] from the lobby. When [the applicant’s brother] was leaving the station, [the applicant] had not had any injuries to his head and hands. According to a report by the Koptevo district police department, badge no. 4461 is assigned to Mr P., badge no. 4488 is attributed to Mr V. and badge no. 4491 is assigned to Mr Kh. During an identification parade in which the police officer wearing badge no. 4491 (Mr Kh.) took part, [the applicant] identified him and noted that the police officer in question had not beaten him up but that he had arrested him; [that statement] is corroborated by other police officers’ statements. According to a statement by the police officer, Mr Kh., he and Mr V. were on duty near Koptevo market on 5 December 1999. At approximately 1.40 p.m. they noticed two men who looked similar to criminals wanted in connection with telephone message no. 12316. In response to a request for identity documents, a man ([the applicant], as it was subsequently established) started screaming obscenities at the police officers. The two men refused to show identity documents. In response to the officers’ request that they go to Koptevo police station, [the applicant] said that he would not follow the officers and that he would not speak to a police officer below the rank of major; he also demanded that they call a car. A group on patrol was called to the scene to bring the two men to the police station. Physical force was not used against the two men. Mr Kh.’s statements are fully corroborated by a statement from Mr V. Mr D., who was questioned as a witness, stated that on 5 December 1999, in response to a call from an on-duty officer he, as a member of a group on patrol, together with Mr L. and Mr K., had arrived to render assistance to the on-duty officers. Two apprehended persons were handed over to them; the patrol took them to Koptevo police station. They did not use physical force against the two men. Mr D.’s statements are fully corroborated by statements from Mr L. and Mr K. Mr Do., an officer on duty at Koptevo police station, who was questioned as a witness, stated that on 5 December 1999 two apprehended persons had been brought to the duty unit of Koptevo police station. One of the arrestees introduced himself as Mr Dmitriy Aleksandrovich Belousov, a student at the military academy, and showed his military ID card...; the other person introduced himself as Mr Aleksandr Alekseyevich Konstantinov and did not have any documents on him. Following a check through ... databases which produced a negative response, [the applicant] was asked to state his real name. Subsequently [the applicant] attempted to leave the station and started smoking. An officer on duty, Mr P., made a remark, following which [the applicant] fell to the floor and started screaming that he was being beaten up. When [Mr Do.] asked him what was going on, [the applicant] said that he had undergone surgery and showed scars on his stomach. The arrestee was reprimanded and placed behind bars. Subsequently [the applicant] continued behaving provocatively, used obscene language, threatened the police officers and tore up roubles and dollars. At 5.30 p.m. he complained that he did not feel well and emergency doctors were called, who transferred him to the Botkin clinical hospital. The police officers behaved properly towards [the applicant]; no physical force was used. Mr Do.’s statements were confirmed by statements from police officers Mr R., Mr P., Mr Ka. and Mr S. According to the statements given by a witness, Mr F., on 5 December he and a group of emergency doctors arrived at Koptevo police station. A man was sitting in the station behind bars, with his hand on his stomach. He complained of pain in his stomach. During conversation he stated that he was disabled and that he had recently undergone surgery during which a part of his stomach had been removed; he began showing the scars on his stomach. No visible injuries were discovered on [the applicant]. The police officers behaved properly towards [the applicant]. The patient was taken to the Botkin clinical hospital. Mr Vu., an emergency team medical assistant, who was questioned as a witness, testified that on 5 December 1999 he and the emergency team had arrived at Koptevo police station. A man (the applicant, as was later established) was sitting on a couch behind bars with his hand on his stomach. [The applicant] said that he had been beaten up by the police. Other arrestees held at the station said that [the applicant] was lying. In the car [the applicant] talked, saying that he had undergone surgery. He stated that when he had been approached by police officers in the street and had been asked to show some identity documents he had used obscene language. Ms S., who was questioned as a witness, stated that on 5 December 1999 she had been in a room for administrative arrestees. Three more persons were being held there; one of them ([the applicant], as it transpired later) behaved provocatively, screaming and threatening the police officers. The police officers behaved properly towards all the arrested persons; they did not use physical force. During an additional interview [the applicant] stated that a captain had begun hitting him in the lobby. At first [the captain] had hit him with his right hand on the upper part of the left shoulder; after that blow [the applicant] slipped down by the wall and fell near a rubbish bin. Then the captain kicked [the applicant] twice: once in the stomach and once in the back near the kidneys. The first kick in the stomach was particularly hard. After that the sergeants approached [the applicant] and hit him approximately six times in the stomach and back. The applicant then crawled into the duty room where he was hit several times in the buttocks... According to a report issued in the Botkin clinical hospital [the applicant] had an injury to the abdominal wall, an injury to the right kidney, bruises on the forehead and left hand, a craniocerebral injury and concussion; his state of health was satisfactory. Following ultrasound examinations of the abdominal cavity and kidneys no pathology was detected. A forensic medical examination of [the applicant] was performed in the case. According to the expert report, [the applicant] had sustained concussion and an injury to the forehead, which constituted elements of a single trauma and belonged to the category of injuries causing mild damage to health, that is, a short-term deterioration in health lasting less than three weeks... The diagnosis of “an injury to a kidney” indicated in the medical documents was not confirmed by objective clinical data and the results of the special examinations... The diagnosis “traumatic encephalopathy” indicated in the medical documents could not be examined by the expert, because there was insufficient objective data for analysis... At present [the applicant is suffering] from psycho-vegetative syndrome and depression, and needs psychiatric treatment. There is no mention of an injury to the post-surgical sutures in the medical documents presented for expert examination. Differences in the scar tissue along the line of the postsurgical sutures do not exclude a possible partial opening of the sutures in the upper part. Taking into account the fact that the arguments raised by [the applicant] were not objectively confirmed in the course of the pre-trial investigation ..., [the investigator] orders the closure of the criminal proceedings instituted pursuant to Article 286 § 3 (a) of the Criminal Code of the Russian Federation...” 18. The applicant complained to the Moscow city prosecutor and the Koptevo District Court of Moscow that the criminal proceedings against the policemen had been closed. 19. According to the Government, the decision of 14 March 2000 was quashed on 24 March 2000 by a higher-ranking prosecutor and the case was remitted for additional examination. No copy of that decision was submitted to the Court. 20. On 27 April 2000 an investigator from the Koptevo district prosecutor’s office again discontinued the criminal proceedings, finding that there was no case of ill-treatment to answer. The decision of 27 April 2000 was identical in its wording to the decision of 14 March 2000, save for two additional paragraphs in which the investigator recounted the testimonies of two witnesses, Mr Ch. and Mr Ku., who had been detained at the police station together with the applicant. Both witnesses stated that they had not seen the alleged beatings and that the applicant had behaved “provocatively”. According to the applicant, the decision of 27 April 2000 was not served on him. 21. In the meantime, on 18 April 2000, the Koptevo District Court of Moscow disallowed the applicant’s complaint against the decision of 14 March 2000. The District Court held as follows: “The plaintiff challenges the decision issued in criminal case no. 268869. A complaint concerning a decision issued in the course of criminal proceedings cannot be examined in civil court proceedings. Complaints concerning actions of the prosecution authorities cannot be examined by courts of general jurisdiction, as special laws exist relating to the prosecution”. The Government, relying on a report issued by the President of the Koptevo District Court in March 2006, submitted that the District Court had refused to examine the applicant’s complaint because the decision of 14 March 2000 had been quashed by a prosecutor and the investigation had been reopened. 22. On 12 May 2000 the applicant received a copy of the decision of 18 April 2000. The applicant’s representative asked the District Court to restore the time-limit for lodging an appeal against that decision. A copy of the statement of appeal was attached to the request. No response followed. On 27 November 2001 the applicant’s representative complained to the President of the Koptevo District Court that her request had not been examined. The stamp on the letter of 27 November 2001 shows that the District Court received the letter the same day. The applicant did not receive any response. 23. On 20 March 2006 the Moscow city deputy prosecutor quashed the decision of 27 April 2000 and reopened the investigation into the applicant’s ill-treatment complaint, finding as follows: “The decision [of 27 April 2000] on the closing of a criminal case was issued unlawfully and without any grounds and should be quashed, because in this case it is necessary to question [the applicant’s mother]; to identify and question all the individuals detained in the cell for administrative arrestees when [the applicant] and [his brother] were at the police station; to question further [the applicant’s brother] about his and [the applicant’s] injuries and about material evidence showing that those injuries were sustained; to question further the emergency doctors who arrived at the police station and took [the applicant] to the Botkin clinical hospital in Moscow about the visible injuries; to question thoroughly the doctor who performed the initial examination of [the applicant] in the Botkin hospital; to organise, if necessary, confrontation interviews between the doctors; to carry out a legal evaluation of the [the applicant’s] injuries discovered during the forensic medical examination (concussion, an injury to the forehead, an injury to the left hand and an injury to the right shoulder) and to perform other investigative actions aimed at establishing the truth in the case.” 24. On 29 October 2006 an investigator from the Koptevo district prosecutor’s office discontinued the criminal proceedings against the police officers, concluding that no criminal conduct had occurred (Article 24 § 2 of the Code of Criminal Procedure). The investigator copied the wording of the decision of 27 April 2000, merely adding that the forensic medical examination had established that the applicant’s injuries could have been caused by blows administered with a blunt firm object, possibly on 5 December 1999. He also included additional statements by the two witnesses Ms S. and Mr Ku., who had been unable to recall further details of their stay at the police station in December 1999 owing to the length of time since the events, and had merely confirmed their statements given to the investigator in 2000. The investigator did not question the applicant’s mother and brother because he could not establish their place of residence. He was also unable to identify all the individuals who had been detained at the police station together with the applicant, because the registration logs bearing the names of persons detained at Koptevo police station had been destroyed. 25. On 19 January 2007 the Moscow city deputy prosecutor quashed the decision of 29 October 2006, reopened the investigation into the applicant’s ill-treatment complaints and ordered that investigators should “take procedural decisions concerning the fact that injuries were inflicted on [the applicant], question [police officers] Mr Sh. and Mr V. and take other investigative actions necessary in the course of the investigation”. It appears that the proceedings are now pending. 26. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209). 27. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 28. The Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides, in so far as relevant, as follows: “1. Everyone has a right to liberty and personal security. 2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.” Section 239 of the Administrative Code (in force until 1 July 2002) provided that the police could subject a person to an administrative arrest to prevent an administrative offence, to establish a person’s identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. Section 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders including those who had committed a minor disorderly act, who could be detained as long as necessary until their case was considered by a district (town) judge or a high-ranking police officer. Section 240 set out the requirements with regard to arrest reports. By virtue of section 240 an arrest report was to be signed by the official enforcing the arrest and the arrestee. Section 246 of the Administrative Code provided for appeal against administrative arrest to a prosecutor or a high-ranking police officer. 29. Section 158 of the Administrative Code (see above) established that a minor disorderly act, that is, use of offensive language in public, harassment and other similar acts which disturbed the public order and the peace of individuals, was punishable by up to fifteen days’ administrative arrest. | 1 |
dev | 001-58174 | ENG | FRA | CHAMBER | 1,998 | CASE OF CAZENAVE DE LA ROCHE v. FRANCE | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | C. Russo;John Freeland | 6. Under the technical and cultural convention concluded between France and Morocco on 13 January 1972, the Moroccan Government recruited Mrs Cazenave de la Roche on 4 January 1982 as a senior lecturer at the Rabat National School of Architecture. 7. On 22 September 1983 the French embassy in Morocco sent the applicant a certificate of termination of payment, the date of expiry of her contract having been set at 4 January 1984 by the Moroccan authorities. The certificate stated: “… Certifies that Mrs Cazenave de la Roche … Senior Lecturer without tenure … will have her name removed from the list of staff serving overseas on 4 January 1984 and will be paid by the Ministry of Foreign Affairs until 3 January 1984. …” 8. On 3 December 1984 Mrs Cazenave de la Roche applied to the Minister for Foreign Affairs, seeking to have the decision of 22 September 1983 revoked and to be appointed to the town-planning teaching staff on the basis of the provisions of section 9 of the Law of 11 June 1983 (see paragraph 28 below). 9. On 22 February 1985 the Minister for Foreign Affairs refused the applicant’s requests on the ground, in particular, that the application of the Law in question was conditional on the publication of implementing decrees, which did not exist when the impugned decision was taken. 10. On 4 April 1985 Mrs Cazenave de la Roche applied to the Paris Administrative Court to quash the decision of 22 February 1985; she also sought a declaration that she was entitled to be established as a civil servant with effect from 3 January 1984. 11. The Minister of State at the Ministry of Foreign Affairs filed his pleading on 13 July 1985 and the applicant did likewise on 9 December 1985. 12. On 24 January 1986, having held a hearing on 10 January, the court delivered the following judgment: “… As to the submissions concerning the refusal to establish the applicant as a civil servant As to the ground based on infringement of sections 9 et seq. of the Law of 11 June 1983 and sections 80 et seq. of the Law of 11 January 1984 … By section 9 of Law no. 83-481 of 11 June 1983, ‘Civilian cultural, scientific and technical cooperation staff’ have ‘the right to become established if they so request’. The application of that Law and, in particular, of the … provisions of section 8 was, however, conditional on the enactment of decrees adopted after consultation of the Conseil d’Etat, which had not been published by the date on which the provisions in question were in turn taken over in sections 74 et seq. of Law no. 84-16 of 11 January 1984, and the decrees to be adopted after consultation of the Conseil d’Etat which were also necessary for the application of these had likewise not been enacted by the date of the impugned decision. While it is established that the authority empowered to make regulations is under a legal obligation to take, within a reasonable time, those measures which are within its powers and are necessary for the implementation of a legislative enactment, it does not appear that the time which has elapsed since the publication of the legislative enactment can be regarded as excessive. Mrs Cazenave de la Roche consequently cannot rely on that circumstance to challenge the lawfulness of the decision whereby the Minister of State at the Ministry of Foreign Affairs refused her application. …” 13. On 13 May 1986 Mrs Cazenave de la Roche appealed to the Conseil d’Etat against the Paris Administrative Court’s judgment. She filed a supplementary pleading on 11 September 1986. 14. The Conseil d’Etat held a hearing on 10 September 1990 and delivered its judgment on 24 September. It quashed the Administrative Court’s judgment of 24 January 1986 and the Minister for Foreign Affairs’ decision of 22 February 1985 and dismissed the remainder of the appeal as follows: “… As to the lawfulness of the decision under appeal By the provisions of section 8 and sub-paragraph 1 of section 9 of the Law of 11 June 1983, which was taken over in sub-paragraph 1 of section 74 of the Law of 11 January 1984, State employees not on the establishment who are civilian cultural, scientific or technical cooperation staff in post in foreign States have the right to become established… By the first sub-paragraph of section 17 of the same Law, ‘Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice’… Although Mrs Cazenave de la Roche, at the end of her contract, was placed at the disposal of the French Government by the Moroccan Government and although she was recruited to fill a specific post in Morocco, the Minister could not lawfully dismiss her other than for professional shortcomings or for a disciplinary offence. It is established that in refusing to renew Mrs Cazenave de la Roche’s contract by sending her notice of termination of payment … a decision which may be regarded as a dismissal in the light of the aforementioned provisions of section 17 … the authorities relied exclusively on the fact that Mrs Cazenave de la Roche had been placed at their disposal by the Moroccan Government. That being so, the decision was taken in breach of section 17 of the Law of 11 June 1983 and Mrs Cazenave de la Roche is consequently justified in maintaining that the Administrative Court in its impugned judgment of 24 January 1986 was wrong to dismiss her application in so far as she was seeking to have the decision … [of] 22 February 1985 quashed. As to the submissions concerning the applicant’s being placed on the establishment While under sections 73 and 74 of the Law of 11 January 1984 certain employees who are not established and civilian cultural … cooperation staff have the right to become established, if they so request, in vacant posts or ones that are to be created in the Budget Acts, it is apparent from sections 79 and 80 of the same Law that the legislature provided that the arrangements for implementing the principle should be laid down in decrees adopted after consultation of the Conseil d’Etat. Consequently, in any event, since the decree to be adopted after consultation of the Conseil d’Etat providing for appointment to a body of State teaching staff as an established civil servant had not been published, the Minister could not do other than dismiss the application for establishment submitted on the basis solely of sections 73 and 74 of the Law of 11 January 1984.” 15. On 29 January 1988 Mrs Cazenave de la Roche submitted a preliminary claim to the Minister for Foreign Affairs for compensation for the loss sustained on account of her not having become an established member of the State’s architect teaching staff. 16. On 15 June 1988 she lodged an application with the Paris Administrative Court, seeking to have the implicit refusal of her compensation claim quashed. 17. On 9 April 1990 the applicant submitted a fresh compensation claim to the Ministry and, in consequence, updated her court claim on 11 September 1990. She filed a supplementary pleading on 10 June 1991. 18. Concurrently with the proceedings on the merits, Mrs Cazenave de la Roche made an application to the court on 2 November 1990 for an interim award. 19. In an interim order of 5 April 1991 the court directed the Minister for Foreign Affairs to pay the applicant the sum of 600,000 French francs (FRF) as an advance representing the amount of loss of remuneration over the period from 22 September 1983 to 31 December 1989. The order read as follows: “… In her application Mrs Cazenave de la Roche sought an order that the State, represented by the Minister for Foreign Affairs, should pay her the sum of 600,000 francs as an advance on the sums sought in her substantive application by way of salary which, pursuant to the Conseil d’Etat’s judgment of 24 September 1990, was due to her… Although the application was communicated to the Minister for Foreign Affairs …, he did not dispute the existence of the obligation on which the applicant relied against the State. The existence of that obligation is not refuted by any of the evidence and cannot be seriously challenged. …” 20. On 18 December 1992, on a second application for an interim order on 27 October 1992, followed by a defence filed on 12 December, the court ordered the State to make a further interim payment of FRF 150,000. 21. Having held a hearing on 29 April 1993, the Paris Administrative Court delivered its judgment on 15 July 1993. It joined the applications of 15 June 1988 (see paragraph 16 above) and 11 September 1990 (see paragraph 17 above), held that the loss allegedly caused by the refusal of the application to become established did not sound in damages and that the unlawfulness of the decision to terminate employment, as found by the Conseil d’Etat, amounted to a culpable act capable of rendering the State liable. The State was ordered to pay the applicant the sum of FRF 850,000, including the interim awards. The court gave the following reasons for its decision: “As to the State’s liability … while it is true that the Government was under an obligation to adopt the decrees in issue within a reasonable time, the provisions of the Law of 11 January 1984 conferred on the applicant, not a present right [droit] but only a contingent right [vocation] to become established, such a measure being also conditional on the creation of the corresponding posts and, where appropriate, professional recruitment… The Minister, however, could not lawfully decide that Mrs Cazenave de la Roche’s name would be removed from the list of staff serving overseas or refrain from acting on the application made by the applicant on 3 December 1984 seeking to be appointed to a post of non-established employee equivalent to the one from which she had been dismissed. That unlawfulness amounts to a culpable act capable of rendering the State liable to the applicant. …” 22. On 7 March 1994 the applicant asked to be notified of the judgment and it was served on her on 28 October 1994. 23. On 21 December 1994 Mrs Cazenave de la Roche appealed against the Administrative Court’s judgment to the Paris Administrative Court of Appeal, seeking an order that the State should pay her an additional sum of FRF 1,523,405. 24. On 15 February 1995 the Minister for Cooperation filed a pleading in which he argued that it was for the Minister for Foreign Affairs to reply to the applicant’s submissions. The applicant argued the same in a pleading of 2 June 1995, pointing out that the Minister for Foreign Affairs had ignored the court’s formal notice that he should submit his defence. 25. The Minister for Foreign Affairs filed a pleading on 11 July 1995, that is to say after the time-limit laid down in the formal notice sent by the registry of the Administrative Court of Appeal, and Mrs Cazenave de la Roche replied on 31 July 1995. She filed a further pleading on 10 July 1996. 26. Having held a hearing on 25 October 1996, the Paris Administrative Court of Appeal dismissed the applicant’s appeal in a judgment of 12 November 1996 and varied the Administrative Court’s judgment by reducing the amount of the sum payable by the State to FRF 711,494. The judgment was served on the applicant on 13 November 1996. 27. Section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in post in foreign States provides: “Staff other than those mentioned in section 2, second sub-paragraph, shall, at the end of their cooperation assignment and on the terms laid down by decree, enjoy the guarantees provided for non-established public employees who lose their jobs. Cooperation service by those same staff shall be treated as service carried out in France by staff who are not established or not permanent, in particular as regards the appointment or establishment as national civil servants of established employees of local authorities and public bodies or permanent staff of public services, bodies or undertakings of an industrial or commercial nature.” 28. When the applicant’s contract expired, her position was governed by Law no. 83-481 of 11 June 1983 laying down the procedure for filling permanent civilian posts in the service of the State and its public bodies and authorising the establishment of non-established employees occupying such posts, and more particularly by the following provisions: Section 8 “Employees not on the establishment who occupy a post with the characteristics laid down in section 1 above shall have the right to become established, if they so request, in posts that are vacant or that are to be created in the Budget Acts, provided that they (1) either are in post at the date of publication of the present Law, or are on leave at that date pursuant to Decree no. 80-552 of 15 July 1980 on the social welfare of non-established State employees, or are on leave at that date pursuant to Decree no. 82-665 of 22 July 1982 on the social welfare of non-established employees of the State and of State public administrative or cultural and scientific bodies, of French nationality and in service abroad; (2) have, at the date of making their application, carried out actual service of a duration equivalent to at least two years of full-time service in one of the above-mentioned posts; and (3) satisfy the conditions laid down in section 16 of the above-mentioned Ordinance no. 59-244 of 4 February 1959.” Section 9 “The following shall also have the right to become established, if they so request, on the terms laid down in section 8 above: (1) civilian cultural, scientific and technical cooperation staff in post in foreign States or in the institution to which they have been assigned who satisfy the conditions laid down in the second sub-paragraph of section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in service in foreign States; …” Section 14 “… access to the various corps of civil servants may be provided for the non-established employees mentioned in sections 8 and 9 … by means of decrees adopted after consultation of the Conseil d’Etat…” Section 17 “Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice. …” 29. Sections 8, 9, 14 and 17 of the Law of 11 June 1983 were taken over in sections 73, 74, 79 and 82 of Law no. 84-16 of 11 January 1984 making provisions governing the civil service. 30. Article R. 129 of the Administrative Courts and Administrative Courts of Appeal Code provides: “The President of the Administrative Court or of the Administrative Court of Appeal or a judge delegated by one of them may make an interim award to a creditor who has made a substantive application to the Administrative Court or Administrative Court of Appeal where the existence of the obligation is not seriously disputable. He may, even of his own motion, make the payment of such an award conditional on the provision of security.” | 1 |
dev | 001-90738 | ENG | TUR | CHAMBER | 2,009 | CASE OF SOLOMONIDES v. TURKEY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 8. The applicant was born in 1934 and lived in Nicosia. He was the director of the private trading companies "A. Solomonidis Ltd", and "Solomonidis & Kozolidis Ltd". 9. The applicant stated that he was the owner of 99 plots of land in the Districts of Kyrenia, Famagusta and Nicosia, in northern Cyprus. In support of his claim of ownership, he produced copies of the relevant affirmations of ownership issued by the Republic of Cyprus. 10. The applicant claimed that from 1974 onwards he had been deprived of his property rights, his plots of land being located in the area which was under the occupation and the overall control of the Turkish military authorities. The latter had prevented him from having access to and use of his property. 11. In a letter of 17 June 2003 the applicant’s lawyer observed that the private trading companies "A. Solomonidis Ltd", and "Solomonidis & Kozolidis Ltd" were not the owners of the properties claimed in the application, the original and only owner being the applicant, Mr Antonakis Solomonides. | 1 |
dev | 001-57648 | ENG | DEU | CHAMBER | 1,989 | CASE OF MARKT INTERN VERLAG GMBH AND KLAUS BEERMANN v. GERMANY | 2 | No violation of Art. 10 | C. Russo;J.A. Carrillo Salcedo;N. Valticos | 8. The first applicant, markt intern, is a publishing firm, whose registered office is at Düsseldorf. The second applicant, Mr Klaus Beermann, is its editor-in-chief. 9. Markt intern, which was founded and is run by journalists, seeks to defend the interests of small and medium-sized retail businesses against the competition of large-scale distribution companies, such as supermarkets and mail-order firms. It provides the less powerful members of the retail trade with financial assistance in test cases, lobbies public authorities, political parties and trade associations on their behalf and has, on occasion, made proposals for legislation to the legislature. However, its principal activity in their support is the publication of a number of bulletins aimed at specialised commercial sectors such as that of chemists and beauty product retailers ("markt intern - Drogerie- und Parfümeriefachhandel"). These are weekly news-sheets which provide information on developments in the market and in particular on the commercial practices of large-scale firms and their suppliers. They are printed by offset and are sold by open subscription. They do not contain any advertising or any articles commissioned by the groups whose cause they espouse. Markt intern claims to be independent. Its income is derived exclusively from subscriptions. It also publishes other series of bulletins containing more general consumer information, such as "Steuertip", "Versicherungstip" and "Flugtip", which are aimed respectively at taxpayers, holders of insurance policies and air travellers. 10. On several occasions undertakings which had suffered from the applicants’ criticism or their calls for boycotts instituted proceedings against them for infringement of the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act"). 11. On 20 November 1975 an article by Mr Klaus Beermann appeared in the information bulletin for chemists and beauty product retailers. It described an incident involving an English mail-order firm, Cosmetic Club International ("the Club"), in the following terms: "‘I ordered the April beauty set ... from Cosmetic Club International and paid for it, but returned it a few days later because I was not satisfied. Although the order-form clearly and expressly stated that I was entitled to return the set if I was dissatisfied, and that I would be reimbursed, I have not yet seen a pfennig. There was also no reaction to my reminder of 18 June, in which I gave them until 26 June to reply.’ This is the angry report of Maria Lüchau, a chemist at Celle, concerning the commercial practices of this English Cosmetic Club. On 4 November we telexed the manager of the Club, Doreen Miller, as follows: ‘Is this an isolated incident, or is this part of your official policy?’ In its swift answer of the following day, the Club claimed to have no knowledge of the set returned by Mrs Lüchau or of her reminder of June. It promised however to carry out a prompt investigation of the case and to clarify the matter by contacting the chemist in Celle. Notwithstanding this provisional answer from Ettlingen, we would like to put the following question to all our colleagues in the chemists and beauty product trade: Have you had similar experiences to that of Mrs Lüchau with the Cosmetic Club? Do you know of similar cases? The question of whether or not this incident is an isolated case or one of many is crucial for assessing the Club’s policy." "‘Habe beim Cosmetic-Club International das Schönheits-Set ... von April bestellt und bezahlt, aber wegen Nichtgefallen nach wenigen Tagen zurückgesandt. Obwohl auf dem Bestellcoupon klar und deutlich geschrieben steht, dass ich bei Nichtgefallen berechtigt bin, das Set zurückzusenden und mir Erstattung zugesichert wird, habe ich bis heute keinen Pfennig wiedergesehen. Auch auf meine Abmahnung vom 18. Juni mit Fristsetzung 26. Juni erfolgte keine Reaktion.’ So der empörte Bericht der Celler Drogistin Maria Lüchau über die Geschäftstätigkeit des aus England importierten Cosmetic-Clubs. Unser Telex vom 4. November an CCI-Geschäftsführerin Doreen Miller: ‘Handelt es sich hier um eine Einzelpanne, oder gehört dieses Verhalten zu Ihrer offiziellen Politik?’ In seiner prompten Antwort tags drauf will der CCI weder etwas von Frau Lüchaus Set-Retoure noch von ihrer Abmahnung im Juni wissen. Er verspricht aber eine sofortige Untersuchung des Falles sowie eine klärende Kontaktaufnahme mit der Drogistin in Celle. Unabhängig von dieser vorläufigen Antwort aus Ettlingen unsere Frage an alle Drogerie/Parfümerie-Kollegen: Haben Sie ähnliche Erfahrungen wie Frau Lüchau mit dem Cosmetic-Club gesammelt? Oder sind Ihnen ähnliche Fälle bekannt? Die Ein- oder Mehrmaligkeit solcher Fälle ist für die Beurteilung der CCI-Politik äusserst wichtig." 12. Previously, on 20 September and 18 October 1974 and on 29 October 1975, markt intern had already published articles on the Club and advised retailers and manufacturers to be cautious in their dealings with it because the Club had failed to respect certain dates and promises. On 29 October 1975 markt intern described as correct the Club’s statement in a legal pleading that "a change in the attitude of the industry show[ed] that the call for a boycott [had] not failed to make an impression". 13. The Club instituted proceedings in the Hamburg Regional Court (Landgericht) which, on 12 December 1975, pursuant to Articles 936 and 944 of the Code of Civil Procedure, issued an interim injunction prohibiting markt intern from repeating the statements published on 20 November. 14. Since the applicants had requested a decision as to the main issue (Articles 936 and 926 of the Code of Civil Procedure), the Club instituted the appropriate proceedings within the time-limit laid down by the court. It asked the court "to restrain markt intern from publishing in its information bulletins: 1. the statement that Mrs Lüchau had given an angry account of the Club’s commercial activities to the effect that she had returned the beauty set - because she was dissatisfied with it - but had not been reimbursed despite sending a reminder, without stating at the same time that the Club had immediately sent to Mrs Lüchau an enquiry, which it had prepared, for submission to the postal authorities, and that it had assured her that it would reimburse her expenses; 2. the statement that in its immediate response to markt intern, sent on the following day, the Club had stated that it had no knowledge of the beauty set’s being returned or of the reminder sent in June, without making clear at the same time that there was no intention to raise doubts as to the accuracy of the Club’s statement; 3. the question asking colleagues of the chemists and beauty product retailers trade whether they had had similar experiences to that of Mrs Lüchau or knew of similar cases - because it was of the greatest importance in assessing the Club’s policy to know whether this case was an isolated incident or whether there had been others, without making clear at the same time that it was not sought to insinuate that the Club’s official policy was to accept payment without immediately supplying the products due". 15. The Regional Court gave its decision on 2 July 1976. It dismissed the Club’s first head of claim because the statement was accurate and there was no reason to think that markt intern would disseminate it again without indicating what had occurred since the publication of its information sheet of 20 November 1975 (enquiries made to the postal authorities, etc.). On the other hand, it allowed the other two heads of claim, basing its decision on Article 824 of the Civil Code, according to which, "anyone who untruthfully alleges or disseminates a fact liable to affect adversely a person’s creditworthiness or to cause him other disadvantages relating to his earning capacity or his career advancement, shall be liable to pay compensation for any such damage he may have caused". It found that Article 823 of the Civil Code was not applicable and left open the question whether the Club could also rely on the 1909 Act. In the Regional Court’s view, in writing that the Club claimed to have no knowledge of the return of the beauty set and of Mrs Lüchau’s reminder (the Club’s second head of claim), markt intern had not only expressed doubts as to the accuracy of this information but had also virtually asserted, without providing any proof, that the information provided was untruthful. By inviting chemists to inform it of any "similar experiences" with the Club (the Club’s third head of claim), markt intern had solicited information, which, if possible, was to be of a negative character regarding the Club, despite the fact that there were not at that stage sufficient grounds to suggest that the Club’s commercial policy was reprehensible. The Regional Court acknowledged that economic activities were subject to critical review by the press. However, it considered that the principles of the protection of legitimate interests (Article 193 of the Criminal Code) and of the freedom of expression (Article 5 of the Basic Law) did not protect the repetition of untruthful statements. The court concluded that the applicants’ conduct was culpable. Markt intern ought not to have generalised from the case of Mrs Lüchau, the circumstances of which had not yet been clarified, and used it to formulate criticism of the Club. This method of proceeding could not be reconciled with the obligations incumbent on journalists. The defendants ought to have begun by taking their enquiries further, but not in the form of their request for information from the retailers. Under the terms of the judgment, for each contravention the applicants were liable to a fine (Ordnungsgeld) or detention (Ordnungshaft) to be fixed by the court, but not exceeding DM 500,000 or six months, respectively. 16. On 31 March 1977 the Hanseatic Court of Appeal found for the applicants and quashed the Regional Court’s judgment. In the Court of Appeal’s view, the 1909 Act was not applicable because, by publishing its article on 20 November 1975, markt intern had not acted from competitive motives, in other words with a view to increasing the turnover of chemists and beauty shops, to the detriment of the Club; it had sought to inform its readers that the Club had not dealt as it should have done with a matter concerning one of its own customers. Nor could the Club rely on Articles 824 and 823 of the Civil Code because the allegations published on 20 November 1975 were not untruthful. As regards the return of the beauty set and Mrs Lüchau’s reminder (the Club’s first head of claim), the applicants’ statements had been consistent with their obligations as journalists. The Criminal Code (Article 193) in principle allowed unfavourable assessments regarding business services in so far as they sought to protect legitimate interests. Article 5 of the Basic Law recognised that the role of the press was to contribute to the forming of public opinion. Finally, there was no risk that markt intern would repeat this particular statement. The statement that the Club had claimed to have no knowledge of the beauty set and Mrs Lüchau’s reminder ("will ... weder ... noch ... wissen The form of words merely indicated to the readers that markt intern could not confirm the information provided by the Club. By its request for information from chemists (the Club’s third head of claim), markt intern had not cited facts or made allegations suggesting that the incident in question represented the Club’s official policy. It had simply recommended that its readers verify the Club’s commercial practices and, indeed, had left open the question whether Mrs Lüchau’s case was an isolated incident. It had of course expressed the opinion that it was, in its view, possible that there had been a number of other cases of the same type. This was, however, merely a value judgment. 17. The Club appealed to the Federal Court of Justice which, on 16 January 1980, set aside the Hanseatic Court of Appeal’s judgment and, varying the Hamburg Regional Court’s judgment, ordered the applicants to refrain from publishing in their information bulletin the statements disseminated by markt intern on 20 November 1975 in the form referred to by the Club in its heads of claim at first instance (see paragraph 14 above). For each contravention, the applicants were liable to a fine or detention to be fixed by the court, but not exceeding DM 500,000 or six months, respectively. 18. The Federal Court of Justice based its judgment on section 1 of the 1909 Act, according to which: "Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices may be enjoined from further engaging in those acts and held liable in damages." "Wer im geschäftlichen Verkehre zu Zwecken des Wettbewerbes Handlungen vornimmt, die gegen die guten Sitten verstossen, kann auf Unterlassung und Schadensersatz in Anspruch genommen werden." (a) Notwithstanding the lack of a competitive relationship between markt intern and the Club, the 1909 Act was said to apply because it was sufficient in this respect that the contested conduct was objectively advantageous to an undertaking, to the detriment of a competitor. That was exactly the aim pursued in this instance. On these points, the Federal Court referred to the established case-law, and in particular its own, concerning the 1909 Act. In so far as the Court of Appeal had held that the applicants did not intend to intervene in favour of the specialised retail trade to the detriment of the Club, its judgment did not stand up to scrutiny. It had not taken sufficient account of all the circumstances nor attached the correct weight to the evidence adduced. Having regard in particular to the previous reports published by markt intern on the Club (see paragraph 12 above), the Court of Appeal ought to have found that the applicants had not merely provided information as an organ of the press, but had embraced the interests of the specialised chemists trade and, in order to promote those interests, had attacked the Club’s commercial practices. The Court of Appeal ought consequently to have concluded that markt intern intended to act in favour of the specialised trade and to the detriment of the Club. In general, it was extremely unusual for the press and the news media to cite an isolated incident such as the case of Mrs Lüchau - according to markt intern it could even have been simply "a breakdown in communications" - in order to raise immediately in public the controversial question whether this case reflected the Club’s official policy. The Court of Appeal ought to have regarded markt intern’s call for information from its readers concerning negative experiences of a similar type as an even more unusual step, which again revealed the intention to influence the market. (b) Section 1 of the 1909 Act was thus applicable in this case. It was infringed because the disputed statements were contrary to honest practices on the following grounds: "By their publication of the article complained of ..., the respondents acted in a way contrary to honest practices within the meaning of section 1 of the 1909 Act. It is immaterial in this connection whether the statements regarding the witness Lüchau (first head of claim) were true. The mere fact that a commercially damaging statement is true does not necessarily constitute a defence against a charge of acting in breach of the principles of fair competition. According to the rules of competition, such statements are acceptable only if they are based on sufficient grounds and if the manner and extent of the criticism in question remains within the limits of what is required by the situation because it is contrary to honest practices to engage in competition by making disparaging statements about competitors (see Federal Court of Justice, Gewerblicher Rechtsschutz und Urheberrecht ("BGH GRUR") 1962, pp. 45 and 48 - Betonzusatzmittel). In this case, at the time of the publication there was not sufficient cause to report this incident. The exact circumstances had not yet been clarified. The appellant in its reply had agreed to undertake an immediate investigation and to contact Mrs Lüchau in order to clarify the position. The respondents were aware that criticism of the appellant could not be fully justified before further clarification had been sought, as they themselves had described the appellant’s reply as a provisional answer. Accordingly, they should have taken into consideration that any such premature publication of this incident was bound to have adverse effects on the appellant’s business, because it gave the specialised retailers an effective argument which was capable of being used against the appellant with their mutual customers, and one which could be used even if the incident should turn out to be an isolated mishap from which no conclusion could be drawn as to the appellant’s business policy. In these circumstances, at all events at the time of the publication, there were not sufficient grounds for reporting this isolated incident. Such conduct is, moreover, very unusual in business competition. As regards the second head of claim, the appeal on a point of law must be allowed for the simple reason that the sentence: ‘The Club claimed to have no knowledge of the set returned by Mrs Lüchau or of her reminder of June’ can be understood only in the light of the information contrary to honest competition which is referred to under the first head of claim. As, simply, an additional and related item of information, it qualifies for the same legal assessment, in particular because it was liable to strengthen the unfavourable impression which inevitably resulted from the mere recounting of the incident. The Court of Appeal considered that this was no more than an illustration of the fact that the journalist had not been in a position to verify what had been told to him, but this observation conflicts with its earlier conclusion that the wording used expressed at least serious doubts as to the accuracy of the information and that in this case, consequently, the description of events put forward by the appellant was presented as being, probably, unreliable. The Court of Appeal ought therefore to have stated on what basis it reached a conclusion contrary to the ordinary meaning of the words. It did not do so, so that it may be presumed that at least a significant proportion of the readers of the bulletin would interpret the words employed in accordance with general usage, which was liable to show the appellant in an even more unfavourable light. The Court of Appeal’s dismissal of the third head of claim was based on the following considerations. The question put to chemist and beauty store colleagues asking whether their experiences with the Club had been similar to that of Mrs Lüchau or whether they knew of similar cases, which was said to be very important in assessing the Club’s policy, indicated that the respondents considered it possible that a number of cases of this type had occurred. However, this merely represented a value judgment, and as such could not give rise to objections. Yet, under section 1 of the 1909 Act, the decisive issue is not whether the statement is to be regarded as a value judgment or as an allegation of fact. The expression of a value judgment can also exert an unacceptable influence in the field of competition under section 1 of the 1909 Act (see BGH GRUR 1962, p. 47 - Betonzusatzmittel). In this case, there were in any event not sufficient grounds for such a sweeping suspicion. A single case of this type did not constitute evidence for suspecting immediately that the appellant’s commercial policy was fraudulent. It is moreover contrary to honest commercial practices to solicit, in such circumstances and at such an early stage, compromising information. As the respondents were aware of the circumstances giving rise to the criticism that they had acted contrary to honest practices, there can be no reservations, from the subjective point of view, against finding a contravention of section 1 of the 1909 Act. As regards the risk of repetition, regard must be had to the principle laid down by the Federal Court of Justice in its case-law, according to which, where the rules of competition are infringed, there is a presumption of fact that such a risk exists (see Federal Court of Justice, civil cases ("BGHZ") 14, pp. 163 and 171 - Constanze II). This is the case for articles in the press where - as here - the nature of the questions dealt with gives grounds for supposing that the debate was not closed by the publication of the first article (BGHZ 31, pp. 318 and 319 - Alte Herren; BGH, Neue Juristische Wochenschrift ("NJW") 1966, pp. 647 and 649 - Reichstagsbrand). The respondents have not put forward any legally valid evidence that the danger no longer existed." 19. The applicants then appealed to the Federal Constitutional Court, claiming a violation of the freedom of the press (Article 5 § 1 of the Basic Law). Sitting as a committee of three judges, the Constitutional Court decided, on 9 February 1983, not to entertain the appeal. It considered that the appeal did not offer sufficient prospects of success, for the following reasons: "As the Federal Constitutional Court held in its decision of 15 November 1982 (1 BvR 108/80 and others [Entscheidungen des Bundesverfassungsgerichts, volume 62, pp. 230-248]), the requirements which must be satisfied in order for freedom of expression and of the press to override other legal interests protected under statutes of general application are not fulfilled where an item published in the press is intended to promote, in the context of commercial competition, certain economic interests to the detriment of others. This is the case as regards the statements prohibited by the Federal Court of Justice. The second sentence of Article 5 § 1 of the Basic Law did not therefore require a different interpretation and application of section 1 of the 1909 Act from that given by the judgment appealed. As that decision is not based on a violation of the second sentence of Article 5 § 1 of the Basic Law (freedom of the press), it is immaterial that the Federal Court did not, in the reasons given for its decision, expressly address the question of the scope of the freedom of the press in relation to the application of section 1 of the 1909 Act." * * * 20. Mrs Lüchau was not the only customer to complain about the Club. Two others informed the applicants that they had encountered similar difficulties; the first approached them before the publication of the bulletin of 20 November 1975 and the second after it. According to its own statements, the Club sold 157,929 beauty sets between 1 December 1974 and 30 November 1975. In 1975, 11,870 identifiable persons returned the sets and were reimbursed. | 0 |
dev | 001-100469 | ENG | DEU | CHAMBER | 2,010 | CASE OF SCHÜTH v. GERMANY | 1 | Violation of Art. 8;Just satisfaction reserved | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 6. The applicant was born in 1957 and lives in Essen. 7. On 15 November 1983 the applicant took up the position of organist and choirmaster at the Catholic parish church of Saint Lambertus (“the parish church”) in Essen. 8. Article 2 of his contract of employment dated 30 January 1984 stipulated, inter alia, that the Ecclesiastical Employment and Remuneration Regulations (see paragraph 37 below), as currently in force, formed an integral part of the contract and that any serious breach of the Church’s principles constituted a material ground for termination of contract without notice, in accordance with Article 42 of those regulations. 9. After the contract had been approved by the Bishop’s Vicar General, the applicant took the following oath: “I hereby undertake to discharge my professional duties and to fulfil and observe ecclesiastical obligations.” 10. From 1 January 1985 onwards he also held the position of head musician in the deanery and was paid a gross monthly salary of 5,688.18 marks (about 2,900 euros). 11. In 1994 the applicant left his wife, who was the mother of his two children. The separation was made public in January 1995. Since then the applicant has been living with his new partner, who has also been his representative before the employment tribunals and the Court. 12. On 2 July 1997, after the applicant’s children had told people at their kindergarten that their father was going to have another child, the Dean of the parish discussed the matter with the applicant. 13. On 15 July 1997 the parish church dismissed the applicant with effect from 1 April 1998 on the ground that he had breached his duty of loyalty under Article 5 of the Catholic Church’s Basic Regulations (the “Basic Regulations” – see paragraph 38 below). In the light of the Catholic Church’s fundamental principles enshrining the sanctity of marriage, the applicant, by having an extramarital relationship with another woman, who was expecting his child, was accused not only of committing adultery but also of bigamy. 14. Following the applicant’s dismissal his wife petitioned for divorce, which was granted on 13 August 1998. 15. On 24 July 1997 the applicant took his case to the Essen Employment Tribunal. 16. On 9 December 1997 the Employment Tribunal granted the applicant’s claim and found that the dismissal of 15 July 1997 had not terminated his contract of employment. Observing the findings of the Federal Employment Court’s judgment of 9 April 1997 (see Obst v. Germany, no. 425/03, §§ 12-19, 23 September 2010), which had applied the principles set out by the Federal Constitutional Court in its leading decision of 4 June 1985 (see paragraph 35 below), it took the view that the applicant’s conduct did not yet (noch nicht) justify his dismissal, under section 1(1) of the Protection from Dismissal Act (see paragraph 36 below). In the Tribunal’s view, he had not been bound by heightened duties of loyalty (gesteigerte Loyalitätsobliegenheiten) because he did not perform pastoral or catechistic duties, did not have a canonical mandate (missio canonica) and was not a member of the managerial staff (leitender Mitarbeiter) within the meaning of Article 5 § 3 of the Basic Regulations. In the Tribunal’s view, the respondent had not proved that the applicant’s duties as head musician of the deanery were equivalent to managerial office; accordingly, pursuant to Article 5 §§ 1 and 2 of the Basic Regulations, the parish church should first have summoned him for a clarification interview (klärendes Gespräch) or issued him with a warning (Abmahnung) before having recourse to the most serious of the disciplinary measures available, his dismissal, especially on account of his length of service in the parish church (fourteen years) and the fact that he had practically no chance of finding work as an organist on the labour-market outside the Catholic Church. The Employment Tribunal observed that an employer could only be dispensed from the obligation to issue a warning in the first instance where the employee could not expect his or her conduct to be tolerated by the employer in view of the seriousness of the breach, or where he or she was not inclined to perform, or capable of performing, his or her professional duties. 17. In the Tribunal’s view, in so far as the parish church reproached the applicant for having fathered a child out of wedlock, such a shortcoming, after fourteen years of service, did not attain a level of seriousness that justified dismissal on that ground alone without prior warning. Article 5 § 4 of the Basic Regulations expressly required consideration of the question whether a staff member opposed the precepts of the Catholic Church or, whilst recognising its precepts, had not succeeded in complying with them in practice. The Tribunal added that the parish church had failed to prove that the applicant had told the Dean he did not wish to put an end to his new relationship. 18. On 13 August 1998 the Düsseldorf Employment Appeal Tribunal dismissed an appeal by the parish church. It endorsed the findings of the Employment Tribunal, observing that the reason for dismissal had not been the applicant’s paternity of a child born out of wedlock but rather his long-term extramarital relationship. The Tribunal pointed out that, whilst the applicant’s duties in the Church did not fall under Article 5 § 3 of the Basic Regulations, his dismissal nevertheless remained possible under Article 5 § 4, in view of the proximity between his work and the Church’s proclamatory mission. However, after formally hearing evidence from the applicant as a party to the proceedings, the Appeal Tribunal reached the conclusion that the dismissal had been vitiated by a procedural omission, as the parish church had failed to prove that the Dean had first sought to induce the applicant to put an end to his extramarital relationship. In view of the fundamental significance of the case, the Tribunal granted leave to appeal on points of law before the Federal Employment Tribunal. 19. On 12 August 1999 the Federal Employment Tribunal quashed the judgment of the Appeal Tribunal. It took the view that Article 5 § 1 of the Basic Regulations, which required a clarification interview, applied not only to dismissals decided under paragraph 2 of that Article (dismissal as the ultimate measure for a serious breach) but also to those based on paragraph 3 (exclusion from post as a matter of principle, and possibility of waiving dismissal on an exceptional basis). The difference between the two paragraphs being merely a question of degree, a clarification interview would be necessary in all cases. In the case before it, the Federal Tribunal took the view that considering the lack of clarity of the ecclesiastical provisions applicable to the applicant as to whether or not his functions entailed heightened duties of loyalty, it had not been clearly established that the applicant could have known with sufficient foreseeability that his dismissal would fall under Article 5 § 3 of the Basic Regulations. If the holding of a clarification interview had been mandatory in the applicant’s case, the absence of such an interview was thus capable of rendering his dismissal wrongful (sozialwidrig). However, the Federal Employment Tribunal observed that the Employment Appeal Tribunal had been mistaken in finding that no interview had been conducted with the applicant. On that point it took the view that the Appeal Tribunal had wrongly omitted to hear evidence also from the Dean, as a party to the proceedings, in order to establish whether or not he had attempted to induce the applicant to put an end to his extramarital relationship and that, accordingly, the judgment appealed against was to be quashed. However, since the facts had not yet been sufficiently established, the Federal Employment Tribunal was not in a position to rule on the question whether the applicant’s dismissal had been justified. As a result, it referred the case back to the Employment Appeal Tribunal. 20. The Federal Employment Tribunal further observed that, where an employing church entered into employment contracts, it used not only the freedom of contract (Privatautonomie) provided for under ordinary domestic labour law, but also the institutional guarantee of autonomous management enjoyed by the Churches. Church labour law was therefore applicable in conjunction with the ordinary domestic law. The enactment of the Basic Regulations, in particular Articles 4 and 5, reflected the principle of the Catholic Church’s autonomy, as provided for in Article 137 § 3 of the Weimar Constitution (see paragraph 34 below). The application of domestic labour law could not call into question the specificity of ecclesiastical service, which was protected by the Constitution. The Catholic Church was therefore entitled to base its contracts of employment on the model of a Christian service community and, in particular, to require its Catholic employees to recognise and comply with the principles of Catholic religious and moral precepts, as provided for in Article 4 § 1 of the Basic Regulations. As the credibility of the Church might depend on its employees’ conduct and respect for the ecclesiastical order, including in their day-to-day lives, Articles 4 and 5 of the Basic Regulations stipulated the applicable criteria on which to assess contractual duties of loyalty and the seriousness of any breach of such duties. 21. The Federal Employment Tribunal added that the specificity of the duties of loyalty lay in the fact that they concerned not so much occupational duties as conduct falling within secondary duties or even private life. It noted that the sanctity of marriage formed an integral part of the basic principles of the Catholic Church’s religious and moral precepts. The case concerned not only a relationship and a contract but also a sacrament. Even though adultery was no longer an offence since the new version of the 1983 Code of Canon Law, marriage had retained its indissoluble, perpetual and exclusive nature. 22. The Federal Employment Tribunal noted that, when employment tribunals applied ordinary labour law, they were bound by the precepts of religious denominations in so far as those precepts took account of the criteria recognised by established Churches. However, in applying those precepts the employment tribunals’ decisions could not run counter to the fundamental principles of law, which included the concepts of “morality” and “public order”. According to the case-law of the Federal Constitutional Court (see paragraph 35 below), it was for the employment tribunals to ensure that religious denominations did not impose excessive requirements of loyalty on their employees. The Federal Employment Tribunal found that the beliefs of the Catholic Church regarding fidelity in marriage were not at odds with the fundamental principles of law. Marriage enjoyed special protection under Article 6 of the Basic Law and adultery was regarded as a serious fault in a civil law context. The Tribunal observed that it had, moreover, already found in its judgment of 24 April 1997 that adultery constituted a serious fault in the view of the Catholic Church (see Obst, cited above, § 15). 23. The Federal Employment Tribunal concluded that the Employment Appeal Tribunal had rightly considered that the applicant’s conduct could be characterised as a serious personal moral fault, within the meaning of Article 5 § 2 of the Basic Regulations, and that it therefore constituted a ground for dismissal for the purposes of section 1(2) of the Protection from Dismissal Act. It noted that the applicant’s opinion that only a new marriage – which, according to the Catholic Church’s belief would be null and void – could be regarded as a serious breach was not substantiated by any provision of the Basic Regulations or other instruments. 24. On 3 February 2000, after the case had been referred back to it, the Düsseldorf Employment Appeal Tribunal upheld the parish church’s appeal against the judgment of the Employment Tribunal of 9 December 1997. After hearing evidence from the Dean as a party to the proceedings, and with the applicant having acknowledged that he had, at his interview of 2 July 1997 with the Dean, described as permanent his new relationship with his lawyer, the Tribunal held that the parish church had dismissed him in accordance with Article 5 § 1 of the Basic Regulations. According to the Dean’s statements at the hearing – which the Tribunal found more credible than those of the applicant – there had indeed been an interview between the two parties. In view of the applicant’s inflexible position as regards his new relationship, the Dean and the parish church had rightly considered that a prior warning would be superfluous. 25. The Employment Appeal Tribunal added that it was not unaware of the consequences of the applicant’s dismissal, which would most likely prevent him from exercising his profession and from paying the same amount in child maintenance. However, it admitted that the parish church could not continue to employ the applicant without losing all credibility in relation to the mandatory nature of its religious and moral precepts. In this connection it was necessary to take into account the fact that, even if the applicant was not among those members of staff that were bound by heightened duties of loyalty under Article 5 § 3 of the Basic Regulations, his activity was closely related to the Church’s proclamatory mission. It was thus hardly conceivable vis-à-vis the general public that the applicant and the Dean could continue to perform the liturgy together. According to the Employment Appeal Tribunal, the interests of the parish church prevailed by far over those of the applicant. 26. On 29 May 2000 the Federal Employment Tribunal found inadmissible a request by the applicant to appeal on points of law. 27. On 8 July 2002 the Federal Constitutional Court disallowed a constitutional complaint by the applicant (no. 2 BvR 1160/00) on the ground that it had insufficient chances of succeeding. In the Federal Court’s opinion, the decisions appealed against did not raise any constitutional issues in the light of its 4 June 1985 judgment (see paragraph 35 below). 28. Since September 2002 the applicant has been employed as choirmaster for a Protestant church in Essen and he also directs three choirs on a voluntary basis. 29. On 22 December 1997 the parish church issued a second dismissal with effect from 1 July 1998. On 4 December 1998 the Employment Tribunal rejected an application for annulment lodged by the applicant. To date those proceedings are still pending before the Düsseldorf Employment Appeal Tribunal. 30. The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919, as incorporated into the Basic Law by Article 140 of that Law. A large number of Churches and religious societies, including the Catholic Church (about 24.9 million members) and the Protestant Church of Germany (about 24.5 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of public-law entity but are not, however, part of government. Other religious denominations have legal capacity under civil law. The status of public-law entity enables the Churches concerned, among other things, to receive Church tax and to employ public servants. 31. The Catholic Church and the Protestant Church employ over one million individuals, particularly in their charities, making them the second largest employer in Germany after the State. The two main charities alone, Caritas (Catholic) and Diakonie (Protestant), employ respectively almost 500,000 and 450,000 “staff members”. Their activities concern mainly the running of hospitals, schools, kindergartens, homes for children and the elderly and advice centres (for HIV sufferers, migrants, victims of domestic violence). The Catholic and Protestant Churches regard their social activities as being part of their proclamatory mission and a way of putting the “love thy neighbour” commandment into practice. 32. The law governing employment relationships between Churches and their public servants is based on civil-service law. As regards other employees, the ordinary domestic labour law will apply, but with a certain number of exceptions stemming from the Churches’ right of autonomy. As a result of that right they may, among other things, impose specific duties of loyalty on their employees (see below). Moreover, in terms of industrial-relations law, Churches and their institutions are not bound by the domestic right of employee participation. Considering that their activities, especially charity work, are based on the model of a Christian service community, formed by the whole body of staff, they do not accept legal structures based in principle on an opposition between employer and employee. The Catholic Church and most of the Protestant denominations thus refuse to enter into collective agreements with trade unions, and the right to strike or lock-out are non-existent in their institutions. However, they have created their own systems of representation and staff participation in management. 33. As regards their financing, Churches and religious societies having the status of public-law entity are entitled to receive Church tax, which constitutes a significant portion (about 80%) of their total budget. Church tax is levied by the State tax authorities on behalf of Churches and religious societies, which in return pay the State 3 to 5% of their tax revenue. This is based on income tax, amounting to between 8 and 9% thereof. It is paid directly to the Treasury by the taxpayer’s employer together with income tax. In this connection municipal authorities issue “wage-tax cards” (Lohnsteuerkarte) that employees are required to give their employers. The card contains information about the employee, including the tax regime, rebates for dependent children and membership of a Church or religious society entitled to receive Church tax. 34. Article 140 of the Basic Law provides that Articles 136-139 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows: “(1) There shall be no State church. (2) The freedom to form religious societies shall be guaranteed. ... (3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities. (4) Religious societies shall acquire legal capacity in accordance with the general provisions of civil law. (5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ... (6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land. (7) Associations whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies. (8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land.” 35. On 4 June 1985 the Federal Constitutional Court delivered a leading judgment on the validity of dismissals of Church employees on the grounds of a breach of their duty of loyalty (nos. 2 BvR 1703/83, 1718/83 and 856/84, judgment published in the Reports of Judgments and Decisions of the Federal Constitutional Court, volume 70, pp. 138-73). The subject matter of the constitutional complaints was, on the one hand, the dismissal of a doctor practising in a Catholic hospital on account of a view he had expressed on abortion, and on the other, the dismissal of a commercial employee of a youth home run by a Catholic monastic order because he had left the Catholic Church. The two dismissed employees had been successful in proceedings before the employment tribunals and the employing Churches had then taken their cases to the Federal Constitutional Court, which allowed their complaints. The Federal Constitutional Court observed that the right of religious societies to manage their affairs autonomously within the limit of the general law, as enshrined in Article 137 § 3 of the Weimar Constitution, applied not only to the Churches, but also, regardless of legal form, to any institution associated with them and participating in their mission. This constitutional guarantee included the right for the Churches to choose the staff they needed for the fulfilment of their mission and, accordingly, to enter into employment contracts. When the Churches chose to exercise their freedom of contract, like everyone else, then ordinary domestic labour law became applicable. However, the applicability of labour law did not have the effect of removing employment relations from the domain of a Church’s own affairs. The constitutional guarantee of autonomy (Selbstbestimmungsrecht) afforded to Churches affected the content of contracts of employment. A Church could thus, in the interest of its own credibility, base its contracts of employment on the model of a Christian service community, and, accordingly, require its employees to respect the general principles of its dogmatic and moral doctrines and the basic duties applicable to all its members. That did not mean, however, that the legal status of a Church’s employee became “clericalised”. It merely concerned the nature and scope of duties of loyalty stemming from employment contracts. The civil-law employment relationship was not thereby transformed into an ecclesiastical status that subsumed the employee and dominated his entire private life. The Federal Constitutional Court further observed that the freedom of the Churches to manage their own affairs was circumscribed by the general law, including those provisions that granted protection against wrongful dismissal such as section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code. However, those provisions did not automatically prevail over the so-called “Church Articles” of the Weimar Constitution. It was thus appropriate to balance the different rights, with particular weight being accorded to the Churches’ interpretation of their own faith and legal order. The Federal Constitutional Court continued as follows: “It follows that, whilst the constitutional guarantee of the Churches’ right to manage their affairs autonomously permits them to base their contracts of employment on the model of a Christian service community and to lay down the basic ecclesiastical duties, such guarantee must be considered in terms of constitutional law and its scope must be stipulated when it comes to applying the provisions concerning protection against dismissal to dismissals for a breach of duties of loyalty. An application of labour law that did not take account of the duties of Church employees to respect the fundamental principles of Christian life that the Churches are entitled to impose would be at odds with their constitutional right of autonomy. Consequently, in the event of a dispute, the employment tribunals must apply the criteria laid down by the Churches concerning the assessment of the contractual duties of loyalty since the Constitution affords to Churches the right to decide on such matters autonomously. It is thus in principle for the established Churches (verfasste Kirchen) to determine what is required by ‘the credibility of the Church and its proclamation’, what ‘specific ecclesiastical tasks’ are, what ‘proximity’ to the Church means, what ‘the basic principles of religious and moral precepts are’ and what constitutes a breach – a serious breach in some cases – of its precepts. Matters governed by the Churches’ right of autonomy also include the question whether and how a scale of duties of loyalty must be applied to staff members working in the service of a Church. In so far as such principles correspond to the criteria laid down by the established Churches, a question that must be referred by the tribunal to the Church authorities in case of doubt, the employment tribunals will be bound by them, unless by applying them they put themselves in conflict with the fundamental principles of law, such as the general prohibition of arbitrariness, the principle of morality, and public order. It is therefore a matter for the domestic courts to ensure that ecclesiastical institutions do not impose on their staff unacceptable demands of loyalty that might, in some cases, be at odds with the very principles of the Church ... If the tribunal reaches the conclusion that there has been a breach of such duties of loyalty, it must ascertain whether that breach objectively justifies dismissal under section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code ...” 36. Section 1(1) and (2) of the Protection from Dismissal Act (Kündigungsschutzgesetz) provides, in particular, that a dismissal is socially unjustified unless based on reasons related to the employee himself or his conduct. Article 626 of the Civil Code allows each party to the contract to terminate the employment relationship without notice on serious grounds. 37. Article 2 § 2 (b) of the Ecclesiastical Employment and Pay Regulations (Kirchliche Arbeits- und Vergütungsverordnung) for the Dioceses (or Archdioceses) of Aachen, Essen, Cologne (Köln), Münster (part of North Rhine-Westphalia) and Paderborn, dated 15 December 1971, as in force until 1 January 1994, required that the way of life of the employee and the members of his household be compliant with the basic principles of the religious and moral precepts of the Catholic Church. Article 6 provided that respect, manifested in words and deeds, for the principles of the Catholic Church, and a conduct in line with that required by ecclesiastical staff members, formed part of the employee’s duties. Article 42 § 1, in the version currently in force, provides in particular that a serious ground justifying dismissal without notice is constituted by a patent breach (großer äusserer Verstoß) of ecclesiastical principles, for example the fact of leaving the Church (Kirchenaustritt). 38. Articles 4 and 5 of the Basic Regulations of the Catholic Church for ecclesiastical service in the context of ecclesiastical employment relationships (Grundordnung der Katholischen Kirche für den kirchlichen Dienst im Rahmen kirchlicher Arbeitsverhältnisse), which were adopted by the Episcopal Conference of German Bishops on 22 September 1993 and which came into force in the Diocese of Essen on 1 January 1994, read in their relevant parts as follows. “1. Catholic employees [Mitarbeiterin und Mitarbeiter] are required to respect and comply with the basic principles of the Catholic Church’s religious and moral precepts. The example of personal life led in conformity with those principles is seen as important in particular for employees who perform pastoral, catechistic or educational duties, or who have a canonical mandate [Missio canonica]. These duties also apply to senior management staff. ... 4. Employees shall refrain from any hostile attitude towards the Church. They shall not undermine, by their personal way of life or professional conduct, the credibility of the [Catholic] Church and of the institution for which they work.” “1. Where an employee no longer satisfies the employment criteria, the employer shall seek by discussion to prevent the breach in question with permanent effect. The employer will have to ascertain whether, to put an end to the said breach of duty, a clarification interview [klärendes Gespräch], a warning [Abmahnung], a formal reprimand, or any other measure (relocation, contractual amendment) would be appropriate. Dismissal may be envisaged in the last instance. 2. The Church shall regard as serious and as justifying dismissal on specifically ecclesiastical grounds [Kündigung aus kirchenspezifischen Gründen] the following breaches of the duty of loyalty: – a breach of the duties provided for in Articles 3 and 4 hereof, in particular the fact of leaving the Church and public defence of positions that run counter to the Catholic Church’s guiding principles (for example those concerning abortion), and serious personal moral misconduct [schwerwiegende persönliche sittliche Verfehlungen]; – the fact of entering into a marriage that is null and void in the light of the Church’s faith and legal order, as interpreted thereby ... 3. The existence of one of the forms of conduct referred to under paragraph 2 of the present Article, and which are regarded as a general rule as grounds for dismissal, shall preclude the possibility of maintaining an employee in his or her post if the employee performs pastoral or catechistic duties, is a member of the managerial staff, or has a canonical mandate [Missio canonica]. 4. Where the employee belongs to one of the categories referred to in paragraph 3 [of the present Article], the possibilit institution might be called into question, the burden placed on the ecclesiastical service community, the nature of the institution and its task, the institution’s proximity to the Church’s proclamatory mission, the employee’s position within the institution and the nature and seriousness of the relevant breach of the duties of loyalty. It will also be necessary to consider whether the employee has opposed the precepts of the Church or whether, whilst recognising those precepts, has not succeeded in complying with them in practice.” 39. Under section 2(3) of the Ecclesiastical Law on Religious Music of 15 June 1996, a church musician employed by the Protestant Church must in principle be affiliated with a denomination which is a member of the Protestant Church of Germany or part of an ecclesiastical union therewith. Under section 21(2) of that Law, in conjunction with section 7(1) of the implementing law of 13 November 1997, a person not fulfilling this condition may nevertheless be appointed, on an exceptional basis, to a post of church musician in secondary employment (Nebenamt) if he or she is affiliated with a Christian denomination that is part of the Labour Association of Christian Churches in Germany (Arbeitsgemeinschaft christlicher Kirchen in Deutschland), to which the Roman Catholic Church belongs. Under the Regulations of 18 November 1988 on the employment of church musicians, the average working week of such musicians in secondary employment represents less than eighteen hours. Recital 24 “The European Union in its Declaration No. 11 on the status of Churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of Churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.” Article 4 Occupational requirements “1. ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within Churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ... Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of Churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.” 41. The German legislature transposed the Directive into national law by means of the General Equal Treatment Act (Gesetz zur Umsetzung europäischer Richtlinien zur Verwirklichung des Grundsatzes der Gleichbehandlung – Allgemeines Gleichbehandlungsgesetz) of 14 August 2006. Section 9 thereof reads as follows: “(1) Without prejudice to the provisions of section 8 [hereof], a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a justified occupational requirement is constituted by a given religion or belief, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities. (2) The prohibition of differences in treatment based on religion or belief shall not affect the right of the religious societies, institutions affiliated therewith, regardless of legal form, or associations whose purpose is to foster a religion or belief in the community, as referred to in the previous subsection, to require their employees to demonstrate loyal and sincere conduct within the meaning of their own perception.” 42. On 31 January 2008 the European Commission sent a letter of formal notice to the Federal Republic of Germany (procedure no. 2007/2362) concerning the transposition of Directive 2000/78/EC into German law and concerning, among other things, “dismissals not covered by anti-discrimination law”. It noted that, whilst the Directive permitted a difference in treatment only if the religion or belief constituted a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos, section 9(1) of the General Equal Treatment Act also provided for different treatment when the religion or belief constituted an occupational requirement on the basis of its right of autonomy and the religious society’s or association’s own perception, without necessarily having regard to the nature of the activity. According to the European Commission, such a difference not being covered by the terms of the Directive, this manner of transposition did not fulfil the Directive’s objectives. Such transposition would enable a religious society to define an occupational requirement purely on account of its right of autonomy, without the requirement undergoing a proportionality test in the light of the actual activity. In addition, whilst Article 4 § 2 of the Directive presented the question in terms of genuine and determining occupational requirements, section 9(1) of the General Equal Treatment Act had reduced that notion to one of justified occupational requirements, which was a weaker standard than that of the Directive. The European Commission further observed that, whilst an organisation’s particular ethos played a role in determining the occupational requirement, it should not be the sole criterion, otherwise German legislation might not guarantee such a difference in treatment and, even as regards ordinary assistance activities, specific requirements related to religious affiliation might be imposed. On 29 October 2009 the European Commission sent a reasoned opinion to Germany. It was stated in a press release published on the same day (IP/09/1620) that in its opinion the Commission had pointed out, among other things, that protection against discriminatory dismissals was not covered by German anti-discrimination law. The government’s reply to the letter of formal notice, the Commission’s reasoned opinion and the government’s reply to that opinion have not been made public to date. | 1 |
dev | 001-5670 | ENG | NLD | ADMISSIBILITY | 2,001 | HENKEL NEDERLAND B.V. v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm | The applicant is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid, “B.V.”) having its registered seat in Nieuwegein, the Netherlands. It is represented before the Court by Mr G.J.H. van Hoof, a lawyer and professor of International Law. The respondent Government are represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 February 1986, the limited liability company Viho B.V. instituted civil proceedings before the Regional Court (Arrondissementsrechtbank) of Amsterdam against the applicant company for alleged breach of contract (wanprestatie) claiming, inter alia, damages to an amount of 60,504.60 NLG (Netherlands guilders). On 12 March 1986, Viho B.V. submitted its statement of claim (conclusie van eis). In its statement of defence (conclusie van antwoord), submitted on 2 July 1986, the applicant company contested Viho B.V.’s claim. By interim judgment of 20 August 1986, the Regional Court ordered the parties’ appearance (comparitie van partijen) at a hearing scheduled for 13 October 1986 in order to clarify certain issues and to examine the possibilities for a settlement (minnelijke schikking). In its interlocutory judgment of 13 October 1986, following a hearing held on the same day, the Regional Court invited the applicant company to prove allegations made. Pursuant to this invitation, two witnesses for the applicant company were heard (enquête) before the Regional Court on 8 December 1986. After this taking of evidence the Regional Court scheduled the case for 7 January 1987 to allow Viho B.V. to state whether it wished to submit evidence to the contrary (uitlating contra-enquête). This time-limit was prolonged several times. By letter of 3 December 1987, Viho B.V.’s lawyer informed the Regional Court that Viho B.V. did not wish to submit evidence to the contrary and requested the court to proceed with the case. The applicant company submitted its further conclusions as to these points of evidence (conclusie na enquête) on 30 March 1988, to which Viho B.V. responded on 31 August 1988. In its submissions of 31 August 1988, Viho B.V. further sought to amend its initial claim for damages by increasing it to NLG 160,504.60. In its interlocutory judgment of 1 March 1989, the Regional Court noted that Viho B.V. had failed to submit two of the three exhibits it had announced in connection with the amendment of its claim. After having considered the parties’ written submissions after the taking of evidence on 8 December 1986, the Regional Court further held that the applicant company had failed to prove that it had been discharged by Viho B.V. of its contractual obligations and invited Viho B.V. to substantiate certain claims and scheduled the case for 29 March 1989. Viho B.V. submitted the substantiation requested on 23 May 1990, in which it argued that the breach of contract had caused direct damages amounting to NLG 170,386 and additional consequential damages (gevolgschade) amounting to NLG 12,210,000. In its written reply submitted to the Regional Court on 20 February 1991, the applicant company objected to the increase of the claim. In its interim decision of 20 March 1991, the Regional Court accepted an increase of the initial claim up to an amount of NLG 170,386 but refused to take into consideration Viho B.V.’s additional claim for consequential damages. The applicant company made further written submissions to the Regional Court on 24 April 1991, as did Viho B.V. on 18 December 1991. In its judgment of 22 July 1992, the Regional Court found against Viho B.V. On 20 October 1992, Viho B.V. filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. It was not before 9 February 1995 that Viho B.V. submitted its objections against the judgment of 22 July 1992. The applicant company’s reply was submitted to the Court of Appeal on 4 May 1995. In its judgment of 21 December 1995, the Court of Appeal quashed the judgment of 22 July 1992 and found against the applicant company. In the applicant company’s reply of 4 May 1995 to Viho B.V.’s objections to the judgment of 22 July 1992, the applicant company had argued that Viho B.V. had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of Article 6 of the Convention, inter alia, by having submitted its objections against the judgment of 22 July 1992 more than two years after having issued the appeal summons. In its judgment of 21 December 1995, the Court of Appeal construed the applicant company’s submissions as meaning that Viho B.V.’s appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings. It then rejected this argument. It held that Viho B.V.’s appeal had been lodged within the applicable time-limit. Moreover, the applicant company could have itself limited the delay by asking the Court to set Viho B.V. a peremptory time-limit (peremptoirstelling), of which possibility it had apparently not availed itself. The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to the Supreme Court (Hoge Raad). By letter of 7 March 1996, Mr H., a lawyer practising in The Hague, advised that such an appeal was likely to fail. Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings, Mr H. considered that it was doubtful that the Supreme Court would accept such a complaint under Article 6 § 1 of the Convention. He noted that the Court of Appeal had rejected the argument that Viho B.V.’s appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings, pointing out that the applicant company could have sought a peremptory time-limit. Mr H. further referred to the Supreme Court’s case-law according to which this provision of the Convention only created obligations for Contracting States and had no horizontal application between private parties. Pursuant to Article 134 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a claimant may amend the claim submitted to the civil courts throughout the proceedings. The adversary party may, however, object to such an amendment if, inter alia, this would cause an undue delay in the proceedings. Article 143 of the Code of Civil Procedure states that the judge shall determine time-limits for written submissions and that, where the parties agree on this point, the judge shall respect their wishes unless this would lead to an unreasonable delay. Where one of the parties seeks an extension of a given time-limit, which is considered unacceptable by the court or the opposing party, the court may decide to set a peremptory time-limit, i.e. a final time-limit. | 0 |
dev | 001-97815 | ENG | AUT | CHAMBER | 2,010 | CASE OF KRUMPHOLZ v. AUSTRIA | 3 | Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1965 and lives in Grafengehaig. 6. On 26 February 2003 at 3.03 p.m. the car of which the applicant is the registered keeper was recorded by police officers using a radar speed detector travelling at a speed of 181 k.p.h., thus exceeding the speed limit of 130 k.p.h. 7. On 26 March 2003 the Graz-Umgebung District Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis. The applicant did not reply. 8. On 14 April 2003 the Graz-Umgebung District Authority issued a provisional penal order (Strafverfügung). Relying on sections 20(2) and 99(3)(a) of the Road Traffic Act, it sentenced the applicant to pay a fine of 181 euros (EUR) with three days' imprisonment in default for speeding. In addition, relying on sections 103(2) and 134(1) of the Motor Vehicles Act, it sentenced the applicant to pay a fine of EUR 181 with three days' imprisonment in default for failure to comply with the order of 26 March 2003 to disclose the driver's identity. 9. The applicant lodged an objection against this decision. On 19 May 2003 he filed submissions stating that he had not been driving his car but that he refused to disclose the driver's identity as he considered this obligation to be at variance with Article 6 of the Convention. 10. Subsequently, the Graz-Umgebung District Authority heard evidence from the police officer who had initiated the proceedings for speeding. On 15 July 2003 the statement of the police officer, who had confirmed that the radar detector, which had been duly calibrated, had measured a speed of 181 k.p.h. and that he had recorded the number of the car, was communicated to the applicant and he was requested to submit his defence in respect of the speeding offence. At the same time he was informed that the proceedings for failure to disclose the identity of the driver had been discontinued. 11. By letter of 31 July 2003 the applicant, represented by counsel, maintained his defence. 12. On 15 October 2003 the Graz-Umgebung District Authority dismissed the applicant's objection and issued a penal order (Strafverfügung) in which it convicted him of speeding and imposed a fine of EUR 180 with three days' imprisonment in default. It also ordered him to pay procedural costs in the amount of EUR 18. 13. The authority noted that the applicant had refused to disclose who had driven his car on 26 February 2003 when it had been recorded exceeding the speed limit. The authority therefore concluded that he had himself been the driver. It observed that this presumption was based on the case-law of the Administrative Court, which had considered that in a case in which the registered keeper of a car did not disclose the driver's identity and did not submit any exculpating evidence in his defence, the authority could reasonably conclude that the keeper himself had been the driver. 14. The applicant appealed to the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat). He maintained that the obligation to disclose the identity of the driver pursuant to section 103(2) was incompatible with Article 6 of the Convention, as was the drawing of inferences from the mere fact that he had refused to disclose the driver's identity. In this connection the applicant referred to John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996I). In addition, he reiterated that he had not been driving his car on 26 February 2003 and had not even been in Austria at the relevant time. He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information. 15. On 18 November 2003 the Styria Independent Administrative Panel dismissed the appeal. It dispensed with a hearing by virtue of section 51e(3) of the Administrative Offences Act (Verwaltungsstrafgesetz). 16. The Independent Administrative Panel's reasoning reads as follows: “In accordance with the principle of establishment of the facts of the authorities' own motion for the purposes of section 37 of the General Administrative Procedure Act (AVG), the material truth must be ascertained; in this regard the authorities are not bound by the facts submitted by the parties, but must establish the true facts by taking the necessary evidence. Under section 45(2) of the AVG the authorities must assess freely, giving careful consideration to the results of the investigation, whether or not a given fact is to be accepted as proven. On the basis of the principle that the court controls the conduct of the proceedings, articulated in section 39 of the AVG, the obligation to establish the facts lies with the authorities; this does not, however, dispense the party from the obligation to contribute to the establishment of the relevant facts. The obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him, without submitting equally specific statements in reply and adducing the relevant evidence ... Nor can the appellant in the present case be released from this obligation by relying on Article 6 of the European Convention on Human Rights. On the contrary, the fact of refusing to name the driver of the vehicle amounts to an infringement of the obligation to cooperate as set forth above. Hence, merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant's obligation to contribute to the establishment of the relevant facts. In accordance with section 45(2) of the AVG the authorities therefore presume that the appellant himself was the driver. His statements are to be regarded as an attempt to justify his conduct. It has not been established during the proceedings, nor has the applicant seriously asserted in substance, that he could not have contributed to the establishment of the facts without incriminating himself and could not have been expected to do so. The offence with which the appellant was charged is therefore to be regarded as subjectively and objectively proven and imputable to him. His appeal submissions concerning Article 6 of the European Convention on Human Rights are unfounded in relation to the offence with which he was charged.” Turning to the fixing of the sentence, the Independent Administrative Panel noted that the applicant had been charged with exceeding the speed limit substantially, by 45 k.p.h. As excessive speed on motorways was often the reason for serious or very serious traffic accidents, the imposition of a fine of EUR 180 had been appropriate. 17. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). Referring to John Murray (cited above), he asserted that he had been convicted solely on account of the fact that he had made use of his right to remain silent. The Independent Administrative Panel had not been in possession of any evidence to indicate that he was the driver. Moreover, it had disregarded his defence that he had not been in Austria at the material time and was unable to provide the name of the driver as he had not kept any records. These procedural deficiencies were aggravated by the fact that the Independent Administrative Panel had failed to hold a hearing. 18. On 9 June 2004 the Constitutional Court declined to examine the applicant's complaint for lack of prospects of success. 19. On 19 October 2004 the Administrative Court declined to examine the applicant's complaint by virtue of section 33a of the Administrative Court Act, since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake. 20. Section 51e of the Administrative Offences Act (Verwaltungsstraf-gesetz) reads as follows: “(1) The Independent Administrative Panel shall hold a hearing in public. ... (3) The Independent Administrative Panel may dispense with an appeal hearing if 1. the appeal is based solely on an incorrect legal assessment, or 2. the appeal is directed solely against the amount of the penalty, or 3. the decision being appealed against imposed a financial penalty not exceeding 500 euros 4. the appeal is directed against a procedural decision and no party has requested that a hearing be held. Any request by the appellant for a hearing to be held must be made in the appeal itself...” | 1 |
dev | 001-23209 | ENG | NOR | ADMISSIBILITY | 2,003 | P4 RADIO HELE NORGE ASA v. NORWAY | 1 | Inadmissible | Georg Ress;Mark Villiger | The applicant, P4 Radio Hele Norge ASA (hereinafter referred to as P4), is a radio broadcasting company established in Norway. The applicant company is represented before the Court by Mr. Kyrre Eggen, a lawyer practising in Oslo. On 5 March 2001 P4 applied for authorisation to radiobroadcast, in whole or in part, the main hearing (hovedforhandling) in a major criminal trial concerning charges against four persons of triple murder, the so-called Orderud case, scheduled to take place before the Nes District Court (herredsrett) as from 18 April 2001. According to the applicant, this was probably the most spectacular and media-focused criminal case in Norwegian history. The case involved a son and his wife, the wife’s half-sister and a friend of the latter, who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner. The district court judge (sorenskriveren), who received the application on 26 March 2001, replied by fax: “APPLICATION FOR BROADCASTING The Orderud case Hereby rejected Nobody is granted such permission” The above decision was taken under section 131A (in its version as applicable at the relevant time) of the Administration of Courts Act 1915 (domstolloven). P4 appealed against this decision to the Eidsivating High Court (lagmannsrett) and requested it to quash the District Court’s refusal to broadcast and to give a new decision. The applicant maintained that there was no justification for refusing radio broadcasting from the lawyers’ opening statements and closing arguments and from the delivery of verdict. On 4 April 2001 the High Court dismissed (avviste) the appeal. In so far the procedure was concerned, it found no error which warranted setting aside the refusal. Regarding the substance of the decision, it held that this was a matter which by its very nature could not form the subject of an appeal (uangripelig). The High Court added incidentally that, notwithstanding this limitation on its own jurisdiction, it did not find that the disputed refusal conflicted with either the Convention provisions concerning the public character of judicial proceedings or those on freedom of expression. On 23 April 2001 the Appeals Selection Committee of the Supreme Court unanimously rejected an appeal by P4 against the High Court’s decision. The Committee’s reasoning could be summarised as follows. The Committee noted the absence, in section 131 (incorporating the provision of section 131A according to an amendment in 1999, which had not yet entered into force) of the Administration of Court’s Act 1915, of an express provision on the right to appeal against a refusal to broadcast, unlike sections 129 and 130 concerning respectively prohibition on reporting from judicial proceedings (referatforbud) and publication of judicial decisions. This suggested that section 131 decisions were not intended to be open to appeal. However, the Committee did not find it necessary to consider the applicant’s argument that a right of appeal would follow from Article 377 of the Code of Criminal Procedure (straffeprosessloven), since such a right could in any event follow from the fact that it had been claimed that a Convention right had been violated. In this connection the Committee mentioned the provisions of the Human Rights Act on the precedence of international human rights conventions over domestic law and Article 13 of the Convention on the right to an effective remedy for “arguable claims” of violation. The Committee noted a decision by the former Commission (Atkin and Others v. the United Kingdom, application no. 13366), which concerned complaints by two journalist under Articles 10 and 13 of the Convention about judicial orders to prohibit reporting and to hear a case in camera, rejected as manifestly ill-founded. It was found that the interference was justified for the purposes of Article 10 § 2 and that, absent an arguable claim of violation, Article 13 did not apply. The Committee further observed that the “arguable claim” criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under Norwegian procedural law was that the appellant’s claim of violation did not appear entirely unfounded. As regards the decision under challenge, the Committee, noting that the High Court had dismissed the appeal on jurisdictional ground, quoted its findings on the merits and upheld those findings. As regards the latter aspect, the Committee observed: “The Committee agrees with what has been stated by the High Court and points to the fact that the principle of publicity in Article 6 § 1 is to ensure democratic control of the courts, not the right of the public to receive information, and that the principle is preserved by the provisions on public hearing and the freedom to report in ... the Administration of the Courts Act. The Committee cannot see that the prohibition in section 131A, first paragraph, of the Act on, inter alia, recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under Article 10 of the Convention. It is recalled that the media are not excluded from, or imposed a duty of silence about, the proceedings. The Committee finds no support in the Court’s or the [former] Commission’s case-law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting. At last, it should be noted that, under section 131A, second paragraph, a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties.” In the meantime, on 18 April 2001 the trial started before the District Court. It was held in open court. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and picture were transmitted live and shown on a television screen. Section 131A, as in force at the material time, of the Administration of Courts Act 1915 (domstolloven) provided: “During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent. If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.” Article 377 of the Code of Criminal Procedure (straffeprosessloven) reads: “An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person, or by reason of its nature or a specific statutory provision is unchallengable.” | 0 |
dev | 001-23337 | ENG | DEU | ADMISSIBILITY | 2,003 | WENDENBURG AND OTHERS v. GERMANY | 1 | Inadmissible | Ireneu Cabral Barreto | The applicants, Mr Albrecht Wendenburg and seventeen others, are German nationals. Their names and personal details are listed in the Annex at the end of this decision. They are represented before the Court by Mr Wolfgang Peukert, a lawyer practising in Karlsruhe, Germany. The respondent Government are represented by Mr Klaus Stoltenberg, Ministerialdirigent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants enjoyed exclusive rights of audience (Singularzulassung) in German courts of appeal pursuant to section 25 of the Federal Barristers Act (Bundesrechtsanwaltsordnung) of 1 August 1959. Under section 25, no barrister with exclusive rights of audience in a court of appeal was entitled to such a right in any other court. This meant that in civil matters, they could not appear before the lower courts, while lawyers with exclusive rights of audience in the lower courts could not appear in the courts of appeal. Section 25 was held unconstitutional by a decision of the Federal Constitutional Court of 13 December 2000. The applicants, most of whom have families and children to support, had previously worked on some 100 to 500 appeals per year, which brought in 90% or more of their annual income and covered between 40% and 50% of their office expenses. In its decision of 13 December 2000, the Federal Constitutional Court, following a complaint lodged by a lawyer with an exclusive right of audience in the lower courts, reached the following conclusions: “1. Section 25 of the Federal Barristers Act is incompatible with Article 12 § 1 of the Basic Law. The provision is valid in respect of existing rights of audience until 30 June 2002. As from 1 January 2002, barristers enjoying a right of audience in the courts of appeal may, on application, at the same time acquire rights of audience in district and regional Courts with jurisdiction in the place in which their practice is located. 2. In so far as it is confined to the Länder mentioned therein, Section 226 § 2 of the Federal Barristers Act shall cease to apply on 1 July 2002. 3. The remainder of the constitutional complaint is rejected. 4. The Federal Republic of Germany shall pay the applicant’s costs. Grounds: A. The applicant, a barrister and notary who has practised in Münster, where he has his chambers, for over five years, directs his constitutional complaint against the fact that, under section 25 of the Federal Barristers Act, he does not also have a right of audience in the Hamm Court of Appeal since the provision concerning exceptions contained in section 226 does not apply to North-Rhine Westphalia. I. Most recently amended by the law entailing the application of the EC Directive in the field of the law governing the exercise of the profession of barrister of 9 March 2000 ..., the Federal Barristers Act ... of 1 August 1959 ... in its second chapter sets out in its second schedule a comprehensive regulation of barristers’ admission to bars affiliated to courts. Every barrister must be admitted to a bar affiliated to a specific court of ordinary jurisdiction and is required to establish his practice within the area to which such authorisation extends (Sets. 18, 27 of the Federal Barristers Act). Any barrister admitted to a court of appeal bar may not combine such right with a similar admission to any other court bar ( ... Section 25 of the Federal Barristers Act). In contrast, any barrister admitted to a district court bar may, on request, be admitted to the regional court bar in whose area the said district court has its seat (Section 23 of the Federal Barristers Act). In addition, Section 226 § 2 of the Federal Barristers Act in the text of the Law of 2 September 1994 (... hereinafter referred to as BRNOG) on the New System for the exercise of the profession of barrister and patent lawyer opens up the possibility of lawyers becoming admitted to both regional court bars and court of appeal bars (combined rights of audience), albeit not in the Länder of Brandenburg, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North-Rhine Westphalia, Rhineland-Palatinat and Schleswig-Holstein. The relevant provisions of the Federal Barristers Act read as follows: ‘Section 25 Exclusive nature of admissions restricted to the court of appeal bar No barrister admitted to the court of appeal bar shall be entitled to admission to the bar of any other court. Section 226 Concurrent admissions to a district court bar and a court of appeal bar (1) ... (2) Barristers admitted to a regional court bar in the Länder of Baden-Württemberg, Bavaria, Berlin, Bremen, Hamburg, Saarland, Saxony, Saxony-Anhalt and Thuringia may, on request, at the same time be admitted to a court of appeal bar if they have previously been admitted to a court of first instance bar for five years.’ Barristers with rights of audience in the courts of ordinary jurisdiction were originally restricted when participating in proceedings to appearing before the court to whose bar they had been admitted. Since 1 January 2000, section 78 of the Code of Civil Procedure has extended rights of audience to all proceedings before the district and regional courts. As previously, only duly accredited barristers may be admitted to the bars of the higher courts ... Barristers may appear before the Labour-, Finance-, Social - and Administrative Courts, as well as - in criminal matters - before the courts of ordinary jurisdiction in all proceedings and at all levels of jurisdiction regardless of their court of registration. The Federal Barristers Act of 1959 aimed to restore the legal unity of the law governing the exercise of the profession of barristers ... After the Second World War, differing regulations had emerged in the occupation zones and subsequently in the Länder. In a number of courts of appeal, by way of deviation from the principle of exclusive rights of audience, there had already been an optional combined right of audience in the regional court and the court of appeal, this being the case in Hamburg, Munich, Bamberg, Zweibrücken, Brunswick and Oldenburg. This practice was later introduced in Karlsruhe, Stuttgart and Tübingen. Subsequently, the question as to whether exclusive rights of audience should be preserved or give way entirely or at least in certain fields to combined rights of audience exercised the minds of the German Bundestag and its committees as well as those of the Federal Council over two legislatures ... Finally the Federal Barristers Act, which entered into force on 1 October 1959, provided for an ongoing combined right of audience to the courts of appeal only for barristers admitted to the bars of the Berlin, Bremen and Saarbrücken Regional Court, subject, however, in each case to a waiting period of five years. Furthermore, this right was extended to barristers who already enjoyed combined rights of audience. In Bavaria consideration was given to a combined right of audience for a transitional period. Ten years later, Hamburg (cf. Section 1 § 51 of the Law on the Amendment of the Federal Barristers Act and the Law on Patent Lawyers of 13 January 1969 ... ), followed a further three years later by Baden-Wurttemberg and Bavaria (cf. Section 1 of the Law on the Amendment of the Federal Barristers Act and the Federal Regulation on Scales and Fees for Barristers and other prescriptions of 24 October 1972 ... ), was included in the circle of Länder in which lawyers enjoyed combined rights of audience. In Hamburg no sufficiently strong body of barristers had managed to develop within the Court of Appeal. When the occasion arose, barristers attached to the regional courts would have themselves sponsored by a colleague admitted to the local court of appeal bar in order to be able to appear before that court themselves (cf. Record of the 328th Session of the Legal Affairs Committee of the Federal Council (Bundesrat) of 13 March 1968, p. 16 with further reference; cf. Summary Record of the 96th Session of the Legal Affairs Committee of the 5th German Bundestag of 24 October 1968, p. 10 and the Written Report of said Committee, ... ). In Baden-Wurttemberg and Bavaria, the co-existence of exclusive and combined rights of audience had led to distortions in competition. The experience of barristers with combined rights of audience was considered positive (... cf.. also the Resolution of the 87th Session of the Legal Affairs Committee of the 6th Bundestag of 9 June 1972, p. 16, 33 et seq.). Barristers in the new Länder who were entitled to appear before the latters’ courts continued to enjoy rights of audience in all courts, even after the Treaty of Unification (Law on Barristers of 13 September 1990 ... ; Treaty of Unification, Appendix II, Chapter III, Subject Matter A, Paragraph III, No. 1 ... ). Under the Law on the Adaptation of the Administration of Justice in the Acceding Areas of 26 June 1992 ..., it was left to the new Länder to choose which of the two systems of rights of audience - exclusive or unrestricted - they preferred. The Federal legislature had no wish to give pride of place to one or the other ... Saxony, Saxony-Anhalt and Thuringia opted in favour of the system of unrestricted rights of audience, whereas Brandenburg and Mecklenburg-West Pomerania preferred exclusive rights of audience. Before the relevant Länder law had taken effect in practice, the law of 2 September 1994 on the reorganisation of the exercise of the profession of barrister and patent lawyer, contrary to a planned nation-wide freedom of choice for Länder to decide themselves as to the form of admission ... , left Section 25 of the Federal Barristers Act untouched and only the new Länder which had opted for unrestricted rights of audience were included under Section 226, subset. 2 of the Federal Barristers Act. II. The applicant applied in 1995 to the President of the Hamm Court of Appeal for an unrestricted right of audience to that court after having practised as a barrister for more than five years. His appeal to the Court of Lawyers of the Land of North-Rhine-Westphalia against the decision to reject his application proved unsuccessful. Like the Court of Lawyers, the Federal Court of Justice, in its decision of 18 November 1996 upholding the latter’s view, found that the legislature had not written into Section 25 of the Federal Barristers Act impugned by the applicant any disproportionately restrictive interference in his freedom to exercise his profession. The Regulations on the Exercise of the Profession (Berufsausübungsregelung) were in conformity with the Constitution ... . The system of exclusive rights of audience served the common good in so far as, after the decision of first instance, the subject matter of the proceedings when laid before a fresh barrister should be examined and judged by him uninfluenced by what had gone on before (principle of two pairs of eyes). Despite the exceptions in Section 226 subsection 2 of the Federal Barristers Act, the law did not breach Article 3 § 1 of the Basic Law either. To the extent that exceptions apply also to a part of the new Länder, this is constitutionally acceptable having regard to their weight as grounds conducive to the accession of the new Länder. III. In his constitutional complaint the applicant contests the breach of Article 12 § 1 and Article 3 § 1 of the Basic Law as a result of the adverse decisions of the President of the Hamm Court of Appeal, the Court of Lawyers and the Federal Court, together with sections 25 and 226 of the Federal Barristers Act. Hitherto deemed to be in conformity with the Constitution, the rules, so it is argued, have been superseded by amendments to the law on the exercise of the profession of barrister and by the evolution that has taken place in the practical relations between practitioners. They are said to lead to distortions in competition that are not only a bar to equality but also incompatible with the freedom of choice and the freedom of exercise of the profession. It was claimed that there was a restriction on the freedom to exercise one’s profession affecting the very choice of a profession. The applicant contended that he could be admitted to the Hamm Court of Appeal Bar by abandoning his solicitor’s practice in Münster. The principle of the two pairs of eyes was not so much in the general interest as to justify the interference. Its observance was exclusively a matter of the internal organisation of a law practice. Even in Länder with the system of exclusive rights of audience it has broadly lost its validity. This was said to be the consequence of the introduction authorised in the meantime of mixed practices encompassing two or more localities in which barristers specialised and could also appear in respect of appeals before the courts of appeal. Given the great number of barristers admitted to the regional courts, those with exclusive rights of audience would always be able to find a partner. Should the legislature allow barristers with exclusive rights of audience to gain access to all the regional courts situated in the district of the court of appeal through partnerships with colleagues practising in cases of the first instance before the regional courts, it would then have to enable barristers admitted to the regional court bars to gain access to the courts of appeal. For the specialisation of barristers, what was decisive was the size of the practice and not whether they enjoyed exclusive rights of audience. Given the considerable disadvantages for barristers not admitted to the court of appeal bar, the interference was however disproportionate. A barrister not able to appear before the court of appeal seemed to be less qualified than his colleague; this in itself was a competitive disadvantage. The effect of this was particularly felt along the frontiers between Länder with different systems. For example, barristers from Hamburg or Bremen with unrestricted rights of audience were fully successful in the surrounding area where the system of exclusive rights of audience was in force. Unequal treatment within the Federal Republic was also said to run counter to Article 3 § 1 of the Basic Law. To that extent a more stringent measure should be included in the law of the Constitution, since the diversity of legal situations affected Article 12 of the Basic Law. The legislature had no overriding reasons for this unequal treatment; in 1994, he had rather merely accepted it because no majority had emerged in favour of any alternative rule. The legislature was unable to take purchase on the principle of two-pairs-of-eyes because, had it carried weight, it could not have been confined to individual regions. Regional peculiarities could no longer be invoked as a justification. Such peculiarities might have existed in the historical development of the City Länder and the southern Länder; however, they were totally absent in the new Länder. Moreover, as early as 1972, when the unrestricted rights of audience in courts was reintroduced in the Länder of Baden-Wurttemberg and Bavaria, the legislature had considered the system of unrestricted rights of audience as objectively better attuned to legal policy and the requirements of competition. IV. The Federal Ministry of Justice on behalf of the Federal Government, the Lower Saxony State Chancellery, the President of the Hamm Court of Appeal, the Federal Order of Barristers, the German Bar Association and the Association of Barristers with exclusive rights of audience in the Courts of Appeal took a stand on the matter and added further detailed comment at the hearing. They conclude and largely concur that the impugned decisions and the norm on which they are based are compatible with the Basic Law. In a Land the legislature is entitled to take account of regional particularities resulting from the historical development of the West and from the special situation of rebuilding an effective legal system in the East. The principle of two pairs of eyes was necessary for the administration of justice, as could be confirmed by statistics. In civil actions, the principle of the production of evidence applied. A change of barrister protected parties against possible failure to discover opportunities for an effective defence. The compulsory change in barrister provided a possibility of a further examination of the case and an improvement in its factual basis. Not having been involved in the trial proceedings, the new barrister was not under pressure to win the case or to justify himself. The system of exclusive rights of audience, so it is argued, facilitates specialisation by barristers in procedural law and substantive law, thus being conducive to a more thorough examination of the case. This specialisation, it is claimed, matches that of the Specialised Divisions of Courts of Appeal. Section 59a of the Federal Barristers Act cannot be read as being in favour of abandoning the principle of two pairs of eyes. Mixed practices of barristers with differing rights of audience had always been available. Despite the increase in the number of these so-called mixed practices, the principle of exclusive rights of audience had not been abandoned in practice. In court districts with the system of exclusive rights of audience, changeover of barristers handling cases continues to take place. Such a practice cannot be achieved in areas with unrestricted rights of audience; there is especially no way of ensuring that the appeal lawyer is equally familiar with the case-law of the appeal court. The bench also values the improved quality resulting from the ‘principle of two pairs of eyes’. Should the system of exclusive rights of audience be abandoned, constitutional reasons would require a transitional solution. Barristers, it is claimed, would have been encouraged by the decision of the Chamber of the Constitutional Court of 13 July 1993 ... to expect the right to continue to remain valid. This discontinuation of the system of exclusive rights of audience would not allow the survival of the specialisations of barristers vested with such rights. This would have resulted in a devaluation of their legal practice, for the colleagues dealing with cases in the first instance would as a rule no longer pass on to them the representation of clients in proceedings before the court of appeal. A transitional solution would first and foremost have to take account of the fact that the great majority of barristers enjoying exclusive rights of audience did not possess a source of clients of their own among persons seeking justice. Their continued existence would depend on the development of a practice dealing with cases of first instance and general legal advice. Therefore, only a transitional arrangement laying down a deadline on the prohibition of exclusive unrestricted rights of audience unilaterally in favour of barristers hitherto enjoying exclusive rights of audience in the court of appeal and allowing only them to appear before regional courts and courts of appeal would seem suitable. A 10-year period would be appropriate. B. The constitutional complaint is in essence well-founded. The system of exclusive rights of audience as laid down in Section 25 of the Federal Barristers Act is not compatible with Article 12 § 1 of the Basic Law. There is thus no need for an examination on the basis of Article 3 § 1 of the Basic Law. The constitutional complaint is to be rejected, in so far as it is directed against the impugned decisions, as the hitherto applicable right continues to be available to the applicant. I. The impugned decisions and their underlying regulations limit the applicant’s exercise of his profession. A sector of professional activity is closed to him, whereas it is generally open to barristers in other Länder, while in North-Rhine Westphalia, for example, it is reserved for barristers admitted to the Court of Appeal Bar. ... At the same time, other barristers who - like the applicant - are not admitted to the Court of Appeal Bar are excluded from forensic activity in the Court of Appeal in proceedings where the presence of a barrister is mandatory. Such legislative regulations over the exercise of a profession have been held by the Constitutional Court’s constant case-law to be admissible when they are justified on cogent grounds as being in the general interest, when the chosen means is in accord with the aim sought and when an overall weighing of the degree of the interference and the grounds serving to justify it do not exceed the limit of what is reasonable ... . The more the practitioner suffers hindrance in the exercise of a profession, all the greater has to be the weight of the general interest that the arrangement is designed to serve ... . The impugned decision does not suffice to meet these constitutional requirements. 1. The institution of exclusive rights of audience was originally based on a variety of concerns for the general interest. These included the legal tradition and the existence of a counterpart to the institution in civil-law procedures ... , and the advantages for the administration of justice resulting from an easier access to qualified barristers and from the furtherance of a climate of mutual trust between the Court and the barristers established in its area of jurisdiction ... . The legislature also relied on the last of these grounds to justify Section 78 of the Code of Civil Procedure, previous version, during the period when it was in force. The right of practice restricted to cases of the first instance was designed to expedite proceedings before the Civil Courts, to further trust-based co-operation between Bench and Bar and to enhance the quality of advice given by barristers thanks to a knowledge of the local habits and traditions. However, in the process of reforming the regulation of the profession of barrister, the legislature itself did not hold this aim to be defensible as a justifiable means of imposing restrictions on the right of audience to the regional court bars ... . (a) Technological progress has prompted the legislature to cease to attach great weight to the disadvantages that might arise for the Courts as a result of the acceptance by barristers of cases from outside areas. Increased mobility brought about by improved means of transport and the emergence of modern means of communication (such as portable telephones, facsimile, laptops), together with the ability to transmit large quantities of documents to law practices and increasingly to the Courts, offers a reliable mode for contacting a barrister provided he continues to be required to have his practice in the district where he is registered. In all other jurisdictions, the fixing of dates of hearings has long been successfully achieved without recourse to locally based barristers and this is now also the case in civil matters with district and regional courts. The courts of appeal show no special features that could stand in the way of the general interest. The frequency of travel to outside hearings will depend on how much importance the client or the barrister attaches to attendance in person, the responsibility assumed by the barrister in the specific case and his ability to adjust various hearing dates to one another ... . Dates for hearings before the courts of appeal can also be fixed effectively and swiftly with barristers with unrestricted rights of audience. (b) In civil matters before district and regional courts, the legislature has also abandoned the aim of a trust-based personal contact between barrister and judge as a requirement for the administration of justice ... . It is not clear that the viewpoint was a decisive reason in upholding exclusive rights of audience in the courts of appeal. (c) Neither can the specialisation of barristers pleading before them be relied on to justify the system of exclusive rights of audience in the courts of appeal as being a matter of public interest. This applies to both specialisation in individual fields (bb) and a thorough acquaintance with the case-law of a particular court (aa). The weight attaching to matters referred to as being in the general interest has diminished so much in this area that they can no longer serve to justify the exclusive rights of audience in the courts of appeal. These general-interest arguments were based on circumstances and conditions that no longer exist. Moreover, the legislature has made it clear through the revised rules of procedure and organisation of the profession of barrister that these approaches no longer carry any weight. (aa) True, a knowledge of the case-law of a given court and features peculiar to a locality may be of advantage to the client. However, such knowledge does not come into play at the appeal stage first of all, but is made much use of at the court of first instance, since it may provide a means of avoiding recourse to appeal. In any case, such circumstances were more relevant in matters dealt with by the administrative courts of the second instance which would usually reach a final decision based on the law of the Land than they were in matters falling under the jurisdiction of the civil courts. However, rights of audience in administrative appeal procedures was never restricted to a small circle of barristers possessing such a right. (bb) In the meantime, the specialisation of barristers outside the area where they enjoy exclusive unrestricted rights of audience has become much more widespread with the support of the legislature (cf. Sets. 59 a, 59 b subset. 2 Nr. 2 and Section 59c of the Federal Barristers Act). In so far as a specialised corpus of barristers had already developed at an early stage, this was not the result of exclusive rights of audience. First of all, specialisation in matters dealt with by the courts of appeal requires a corresponding distribution of labour in the court of appeal concerned, which was only the case of the larger courts of appeal. The views uttered by the President of the Hamm Court of Appeal do not apply uniformly to places such as Brunswick, Oldenburg, Rostock or Zweibrücken. Specialisation as a rule requires above all that barristers be able to work in large practices where the work is divided among them, thus enabling them to specialise. As a result of changes in the laws governing the barristers’ profession such large practices have grown up on a broad scale, as was to be foreseen when the Federal Barristers Act came into force in 1959. Barristers joined forces in various structures and worked across the borders of the local area of jurisdiction and those between Länder in practices comprising barristers enjoying either of the two types of rights of audience and members of other professional groups. This development clearly shows that the services of barristers specialised in various areas of the law were already in great demand at the stage of preliminary advice and first instance and not only as the result of their enjoying exclusive rights of audience in the Court of Appeal. 2. The only common-interest arguments that the legislature continued to view as relevant were the improved quality of legal advice and the ability to reach an independent assessment of the prospects of the success of an appeal thanks to the principle of two pairs of eyes. However, this principle and the expectations to which it gives rise do not suffice to justify the interference in barristers’ professional freedom. (a) It is already unclear whether the legislature continues to look upon the system of exclusive rights of audience as an appropriate and necessary means of improving the administration of justice. (aa) Granted, there are many pointers to the effect that, against the background of the sources of information then available, the legislature of 1959 saw in exclusive rights of audience a particularly suitable means of securing an administration of justice of high quality on the basis of the principle of two pairs of eyes. The principle of exclusive rights of audience was the practice in the great majority of appeal-court districts and was such as to give the legislature the impression that, in conjunction with the strong local concentration of the capacity to conduct first-instance proceedings as per section 78 of the Code of Civil Procedure, it represented a principle of proven practical value. Decisions of appeal courts were published less frequently, so that the case-law of these courts may have increasingly tended to develop in different directions. In addition, practices were small and were not allowed to operate in more than one locality. Barristers were more dispersed and far less specialised. There were practically no specialist lawyers and no reported emergence of pools of special skills. Experience of Labour-, Financial -, Social - and Administrative jurisdictions where restrictions on rights of audience had been waived from the outset was seldom to be found. (bb) However, it is to be doubted whether the 1994 legislature continued to abide by his assessment having regard to changes in real-life situations. Already in 1972 the rapid and readily accepted spreading of the system of unrestricted rights of audience in Baden-Wurttemberg and Bavaria showed that the legislature did not consider that the experience so far acquired endangered the administration of justice if an amendment to the law offered a means of ending competitive pressures among barristers. However, it would appear from the legislative history prior to the authorisation of mixed practices in 1994 that there were doubts as to the suitability of exclusive rights of audience as a means of achieving the desired aims. When preparing the Federal Barristers Act in 1959 the legislature still considered a ban on such practices as an additional measure indispensable for the preservation of the principle of two pairs of eyes (cf. In extenso Report of the 15th Session of the Legal Affairs Committee of the 3rd German Bundestag of 27 March 1958, p. 4 et seq. Such a ban could not be executed at this stage (cf. In extenso Report of the 33rd Session of the Legal Affairs Committee of the 3rd German Bundestag of 6 November 1958, p. 14 et seq.; Report of the Plenary Session of the German Bundestag of 1989 February 1959, 3rd WP, 62nd Session, p. 3359; Report of the Plenary Session of the German Bundestag of 18 March 1959, 3rd WP, 66th Session, p. 3532); however, practices operating in more than one locality were not viewed as admissible ... . A relevant connection between the forms of law firms, the restricted capacity to conduct proceedings before the courts of first instance and the exclusive right of audience to the appeals courts also featured prominently in the Report of the Commission on Deregulation of 15 March 1991 (cf. p. 109 of the Report). It was only in 1994 that the legislature reacted with section 59 of the Federal Barristers Act to the changes that had in fact taken place and to the case-law of the Federal Court that had moved in a similar direction. At the same time, it abandoned linkage of the capacity to conduct proceedings and the nation-wide professional localisation for civil proceedings before the Regional and Family Courts (Section 78 of the Code of Civil Procedure in the wording of Section 3, Nr. 1 BRNOG). Last but not least, doubt was occasionally expressed in the debates about the amendment as to whether the principle of two pairs of eyes required the existence of a system based on exclusive rights of audience (cf. ... the Report of the 106th Session of the Legal Affairs Committee of the 12th German Bundestag of 12 January 1994, p. 28 about talks at the Federal Ministry of Justice). (cc) Further, In Section 1 of the First Law on the amendment of the Law on the Implementation of the Directive of the Council of the European Communities of 22 March 1977 on greater flexibility of the practical exercise of their services by barristers of 14 March 1990 (... hereinafter referred to as the...), the legislature found another means of compulsorily adhering to the principle of two pairs of eyes without the need for exclusive rights of audience ... . According to the third sentence of Section 3 § 1 of the Law on the Exercise of Barristers’ Services, barristers from member States of the European Communities are entitled to appear before the civil chambers of appeal courts even without exclusive rights of audience according to section 25 of the Federal Barristers Act, provided however that it has been ascertained that such barristers have not acted as full legal representatives in the initial proceedings. Already in 1990, the legislature had thus demonstrated that there was an alternative and less demanding way of ensuring the free exercise of the profession and of implementing the principle of two pairs of eyes, merely by prescribing a changeover in staff from one instance to the other. This solution, which was favourable to barristers from EU member States, failed to obtain majority support from barristers authorised to practise in Germany during the debates on the amendment of sections. 25 and 226 of the Federal Barristers Act (cf. Verbatim Record of the 106th Session of the Legal Affairs Committee of the 12th German Bundestag of 12 January 1994, p. 28; the matter was not taken up again later), although the system of exclusive rights of audience is less conducive to the observance of the principle of two pairs of eyes. Thereafter, the legislature, contrary to what was laid down in Section 3 of the Law on the Exercise of Barristers’ Services (henceforth section 27.1 of the Law on the Professional Activities of European Barristers in Germany), has ceased to consider the changeover of staff as indispensable. (dd) It Is consequently to be noted that, overall since 1990, the legislature has increasingly and clearly distanced himself from ‘its initial assessment that the system of exclusive rights of audience was on the whole more necessary for the administration of justice than unrestricted rights of audience. The basis for this clearly lay in the recognition that grew up in a number of Länder and in other branches of the judiciary of the capacity of the administration of justice to function on the basis of a system of unrestricted rights of audience, as well as in advantages that accrued to the administration of justice, especially from the clients’ standpoint. Foremost among these advantages was the special relationship of trust between barrister and client underpinned not only by the knowledge of the case-file in a specific case, but also by long-standing advice and successful co-operation concerning all the legal business involving the client. For a client who has won his case in the first instance, a mandatory change of barrister can be disturbing. Although the consequences of such a change may be offset to some extent by bringing into the appeal proceedings the barrister already fully conversant with the case when tried in the first instance, additional costs would be entailed. Hence the marked reticence shown by the legislature in the 1992 Administration of Justice Revision Act and its failure to decide itself whether the administration of justice would be better served by a system of exclusive rights of audience or a system of unrestricted rights of audience ... . The idea was first of all to offer the new Länder an opportunity of deciding according to their own preferences. A corresponding freedom of choice was then thrown open to all the Länder in the initial draft reform of 1994 ... . This was to make clear the fact that, under Federal legislation, neither unrestricted nor exclusive rights of audience were to enjoy precedence before the Appeal Court. The Legal Affairs Committee of the German Bundestag rallied to this view of the law at its hearing of 1 December 1993 ... . (b) These doubts in the legislature’s mind as to the suitability and the necessity of the system of exclusive rights of audience as a means of improving the quality of the administration of justice were strengthened by the body of experience acquired in the Federal Republic. According to Section 25 of the Federal Barristers Act, exclusive rights of audience are no longer required for the achievement of the desired aims and are in breach of Article 12 § 1 of the Basic Law. Neither have any drawbacks emerged in the administration of justice when, further to the introduction of unrestricted rights of audience, the client has himself decided whether he wishes a change of barrister for the appeal proceedings and himself determines what he deems to be the relevant criteria, such as geographical proximity, specialisation and size of the law firm, familiarity with the case-law of the competent chamber of the court or perhaps merely dissatisfaction with his previous legal representative. The principle is clearly not a requirement for the formation of a body of specialised barristers which the association of barristers enjoying exclusive rights of audience, together with the President of the Hamm Appeal Court, consider to be in the common interest. There are barristers specialising in Labour -, Financial -, Social - and Administrative law and who appear before all levels of jurisdiction in those sectors. Specialist barristers also work on an appreciable scale in practices which associates with rights of audience in appeal courts are allowed to join. It is thus irrelevant whether the rights of audience in the particular sector are exclusive or unrestricted. In certain appeal courts barristers enjoying exclusive rights of audience belong without exception to mixed practices with some members specialising in specific areas in which they are particularly qualified. In addition, in the new Länder with the system of exclusive rights of audience, no law firms dealing exclusively in appeal court proceedings have so far been formed. No need for barristers specialising in appeal matters has been felt, as was already clearly the case at an early stage in the City Länder and other places with unrestricted rights of audience. Significant advantages that might flow from the system of exclusive rights of audience are not to be seen. True, the figures that have been presented do reveal deviations in the frequency and the success of appeals as well as fluctuations over the years and in results as between individual Länder. However, since the performance of barristers is expressed in terms of numbers and results of judgments, no clear view of the pros and cons of either system can be obtained. Judgments handed down by independent courts can hardly be attributed to the preparatory work by barristers appearing before appeal courts or to the applicable right of audience. True, judges have always favoured the system of exclusive rights of audience since it facilitates their task. On the other hand, clients gain a greater freedom of choice when barristers enjoy unrestricted rights of audience. Evidence that they often have no wish to change barristers is to be seen in a long-standing avoidance of the rule restricting admission to a single bar. Restrictions on the exercise of the profession must take account of the fact that above all else barristers have a duty to their clients as an independent adviser and representative ... . Restrictions on the free exercise of their activity by barristers cannot be required solely on the ground that they are looked upon as objectively useful by the appeal courts and judges in the districts where the system of exclusive rights of audience holds sway. If, over the course of the years, the legislature restricts the freedom to exercise the profession only in a part of Germany without this entailing either greater drawbacks where greater freedom prevails or significant advantages where that freedom is more restricted, then it is clear that the restrictions were not needed. II. Although section 25 of the Federal Barristers Act is not in tune with Article 12 § 1 of the Basic Law, the prescription is to continue to abide by the measures clearly arising out of the operative part until 30 June 2002. The barristers concerned in the Länder that are not identified in Section 226.2 of the Federal Barristers Act need a certain period of adjustment. The time-scale first of all serves to help barristers appearing before appeal courts on the basis of the system of exclusive rights of audience to prepare to obtain admission to the relevant district and regional courts and to establish contacts with fellow-professionals. Many of them will also need to consider the matter of the siting of their practices for all or some of their partners. Planning and implementation will require appreciable time. For barristers who have been involved in first-instance proceedings for over five years (Section 20.1, Nr. 4 of the Federal Barristers Act) the question arises of their concurrent admission to the appeal-court bar. Clients with their roots in a local community situated in the larger Länder will be able to use the period of transition in order to decide whether they wish to consider one or other of the barristers who have served them before the courts of first and second instance as possible permanent legal representatives for the future. Since it was argued in the proceedings that barristers enjoying exclusive rights of audience in appeals courts have so far been kept at full stretch by their forensic activity, it would then seem questionable to allow them throughout the transitional phase to take on the additional work resulting from their rights of audience to the courts of first instance with the shift of the centre of gravity of their activity this would entail, notwithstanding that the unconstitutional nature of the norms bar any new granting of exclusive rights of audience. The better barristers so far appearing exclusively before courts of second instance succeed in their reorientation, the more energy they will have to devote to first-instance cases and to advising new clients, so that cases still to be pleaded by them before the appeal courts could no longer continue to receive the same degree of care as hitherto. Since, however, it should not be overlooked that the reorientation will entail greater difficulties for second-instance barristers than for those who have so far acted exclusively at first-instance level, it is proper to stagger the opening of the system of unrestricted rights of audience. Barristers who have so far enjoyed exclusive rights of audience in the appeal courts can have additional rights of audience in courts of first instance as from 1 January 2002, whereas barristers who have so far appeared exclusively at first instance will be able to be accredited to the appeal courts at the earliest on 1 July 2002. III. As a consequence of the transitional regulations, the applicant will also have to wait until mid 2002 in order to achieve his aim. The constitutional complaint is thus rejected in so far as it is directed against the decisions of the Federal Court, the Court of Lawyers and ruling of the President of the Hamm Appeal Court. These decisions remain valid for the past. The applicant will have to lodge a fresh application. IV. Inasmuch as the constitutional complaint succeeded as regards the norm underpinning the decisions, it appears appropriate to award the applicant the necessary costs (Section 34 a, subsections 2 and 3 of the Federal Constitutional Court Act).” The system of exclusive rights of audience at courts of appeal applied in seven of the sixteen Länder. Statistical material on lawyers with such a restricted right of audience is available for the Länder Lower Saxony (for the year 2000) and for Brandenburg, Hesse, Mecklenburg-West Pomerania, North-Rhine Westphalia, Rhineland-Palatinate and Schleswig Holstein (March/April 2002): In Lower Saxony, ninety-two lawyers had restricted rights of audience at the Celle Court of Appeal; twenty (24 %) of them worked on their own or with other lawyers specialised in appeals matters and seventy worked in mixed partnerships. All lawyers with restricted rights of audience at the Braunschweig Court of Appeal and the Oldenburg Court of Appeal worked in mixed partnerships. In Brandenburg, seventy-two lawyers had restricted rights of audience at courts of appeal, thirty (42%) worked in regional partnerships, thirty-two (44 %) in mixed partnerships and ten lawyers (14%) worked on their own. In Hesse, all lawyers with a restricted right of audience at the Frankfurt/Main Court of Appeal worked in mixed partnerships. Of the sixty-five lawyers with a restricted right of audience at the Kassel Court of Appeal, fifty-nine worked in mixed partnerships and six in an individual practice. In Mecklenburg-West Pomerania, two of the 103 lawyers with restricted rights of audience at the Rostock Court of Appeal did not work in mixed partnerships. In North-Rhine Westphalia, 330 lawyers had restricted rights of audience at the Düsseldorf Court of Appeal. Ninety-five of them worked as single lawyers or in practices with other appeals lawyers. The majority were titular or syndicate lawyers not forensically active, or had merged with mixed partnerships. Most of the lawyers with restricted rights of audience at the Cologne Court of Appeal worked in mixed partnerships. No update information was available for the situation with regard to lawyers with restricted rights of audience at the Hamm Court of Appeal. In Rhineland-Palatinate, sixty-two lawyers had restricted rights of audience at the Koblenz Court of Appeal and the Zweibrücken Court of Appeal. Twenty-five worked in practices with other lawyers specialised in appeals matters, while thirty-seven worked in mixed partnerships. In Schleswig-Holstein, six of the thirty-eight lawyers with restricted rights of audience at the Schleswig Court of Appeal worked in mixed partnerships. With regard to Länder where a combined right of audience already applied in the past, no statistical information on the number of lawyers specialised in appeals matters is available. 4. Proceedings before the Federal Constitutional Court According to Article 93 § 1 (4a) of the Basic Law, the Federal Constitutional Court rules on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act. Sections 90 to 96 of that Act concern constitutional complaints lodged by individuals. According to section 90 (1), any person who claims that one of his basic rights or one of his rights under Articles 20 § 4, Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. These rights include rights regarding the fairness of proceedings and the rule of law, and the right to freedom of profession, i. e. the right to exercise the profession of your choice. 5. Ensuing legislation concerning the legal representation before courts of appeal On 23 July 2002, the legislature changed the law governing the legal representation before courts of appeal (Gesetz zur Änderung des Rechts der Vertretung durch Rechtsanwälte vor dem Oberlandesgericht), namely Section 78 of the German Code of Civil Procedure. While before, lawyers admitted to the bar of a certain court of appeal could only plead before that court of appeal, they may now plead before any German court of appeal, regardless of which bar they are admitted to. | 0 |
dev | 001-101263 | ENG | CZE | ADMISSIBILITY | 2,010 | BENET PRAHA, SPOL. S R.O. v. THE CZECH REPUBLIC | 3 | Inadmissible | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | The applicant, Benet Praha, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. It was represented before the Court by Mr P. Klimeš, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In April 2001 criminal proceedings were instituted against a former manager of the applicant company on the suspicion of having committed tax evasion. Within the framework of the criminal proceedings a search of the applicant company's premises was carried out on 24 April 2001. Cash in several currencies in the total amount of approximately CZK 20 mil. (EUR 770,000) and several documents such as financial files, books of accounts and business documents were seized. According to the applicant company these documents and most of the cash have not yet been returned to it. On 25 and 27 April 2001, the prosecuting authorities seized all of the applicant company's assets deposited on its five bank accounts on the suspicion that they constituted a profit from criminal activities of the manager. The seizure orders, which were notified to the applicant company on 8 October 2001, did not specify what assets had been seized, nor to what amount. This was remedied on 28 November 2001 by the Prague High Prosecutor (vrchní státní zástupce) who amended the original decisions by writing in the sums to be seized. While doing so, he froze all assets deposited on the applicant company's accounts on that day, i.e. inclusive of payments which had come in after 25 April 2001 and 27 April 2001, respectively. The applicant company's assets amounting to CZK 101,909,105 (EUR 3,919,580) were thus seized. The criminal proceedings against the former manager of the applicant company are currently pending before an appellate court. On 4 June 2009 the Prague Municipal Court acquitted the manager. The prosecutor, however, appealed. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses and requested legal assistance from the competent authorities of 16 countries. Meanwhile, numerous tax and custom proceedings were brought against the applicant company in regard of a suspected retrenchment. They all were later discontinued as no tax and customs evasion by the applicant company was detected. On 25 March 2005 the applicant company lodged a request with the police, seeking to have the seizure of its bank accounts lifted. On 11 April 2005 the request was transferred to the High Prosecutor who, on 24 June 2005, dismissed it, stating that the reasons for the seizure continued. The High Prosecutor added that the fact that the tax proceedings brought against the applicant company had been discontinued was irrelevant to the seizure. On 14 July 2004 the applicant company appealed to the Prague High Court (vrchní soud) which dismissed the appeal on 11 August 2005. On 16 November 2005 the applicant company lodged a constitutional appeal against the High Court's decision of 11 August 2005. In the appeal, the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length. On 9 March 2006 the Constitutional Court (Ústavní soud) declared the appeal inadmissible, finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck. The decision was served on the applicant company's lawyer on 16 March 2006. On 30 January 2008 the Constitutional Court found a violation of the right to property of a company Benet Czech, spol. s r.o., which was in a similar position as the applicant company. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. The applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of the Constitutional Court. On 6 March 2008 the High Prosecutor lifted the seizure of the applicant company's bank accounts holding that the conclusions of the Constitutional Court applied also to the applicant company. | 0 |
dev | 001-5988 | ENG | POL | ADMISSIBILITY | 2,001 | MACIEJEWSKI v. POLAND | 4 | Inadmissible | null | The applicant, Ryszard Maciejewski, is a Polish national, born in 1949 and living in Leszno Górne, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 September 1993 the Agricultural Co-operative “N” lodged with the Słubice District Court (Sąd Rejonowy) an action in which it sought the dispossession of the applicant of a property situated in Kunowice. The property consisted of a detached house located on a plot of land. The first hearing was held on 17 September 1993 but it was adjourned as the plaintiff had submitted to the court a wrong address for the applicant and he had not been served with a summons. Between 19 October 1993 and 7 July 1994 the court adjourned three hearings because of the ill-health of the applicant and the presiding judge, and held seven hearings. The applicant failed to attend two of them. In the meantime, on 16 June 1994, the applicant asked the court to stay the case as he had initiated administrative proceedings concerning the contested property. On 25 August 1994 the Słubice District Court delivered a judgment in which it ordered the dispossession of the applicant. The court pointed out that on 18 August 1993 the applicant had moved into the house after it had been abandoned by a certain Mr A. Ł. However, the property belonged to the Co-operative, which had never agreed that the applicant should acquire its tenancy. On 14 November 1994 the applicant filed with the Gorzów Wielkopolski Regional Court (Sąd Wojewódzki) an appeal against the judgment of the District Court. On 17 January 1995 the Gorzów Wielkopolski Regional Court quashed the judgment of 25 August 1994 and remitted the case to the Słubice District Court, instructing it to take additional evidence. The applicant was absent during the hearings held on 19 June and 7 September 1995. On the latter occasion his absence was caused by ill-health. The applicant was absent during the hearing held on 5 October 1995 because he refused to collect a summons. During the hearing held on 20 November 1995 the plaintiff changed its claim and asked the court to order the eviction of the applicant. It also requested the court to stay the case pending the outcome of the administrative proceedings instituted by the applicant, which request was granted. On 7 July 1999 the Słubice District Court decided to resume its examination of the case in view of the fact that the administrative proceedings and those concerning the title to the property, which the applicant had initiated on 10 September 1996, had been terminated. The applicant failed to attend the hearing held on 26 August 1999. On 23 September 1999 he sent to the court a letter which included the following statement: “The refusal to take part in the proceedings will prevent a scandal which the court intends to cause. The betrayal of their independence by the courts in Słubice and Gorzów Wielkopolski allowed me to apply to the European Court of Human Rights in Strasbourg, where I already await the examination of my complaint. Therefore I am returning the served summons.” On 28 September 1999 the Słubice District Court delivered a judgment ordering the eviction of the applicant. He failed to lodge an appeal against that decision in accordance with the relevant formalities. | 0 |
dev | 001-67194 | ENG | TUR | CHAMBER | 2,004 | CASE OF ÇELİK AND İMRET v. TURKEY | 3 | Violation of Art. 3 with regard to first applicant;No violation of Art. 3 with regard to second applicant;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicants, Abdurrahman Çelik and Kasim İmret were born in 1958 and 1947 respectively and live in Batman. 10. On 17 May 1998 the applicants, accused of acting as couriers for the PKK, were arrested by police officers from the Batman Security Directorate. 11. Prior to their detention in police custody, the applicants were examined by a doctor who found that they did not bear the marks of any injury. The applicants were then taken to the Batman Security Directorate where they were detained and questioned. 12. On 18 May 1998 the public prosecutor authorised the applicants' continued detention until 20 May 1998. 13. On 18 and 20 May 1998 the applicants were again examined by two doctors who found that there was no evidence that the applicants had been illtreated. 14. The applicants allege that they were subjected to various types of torture and inhuman treatment during their detention in police custody. They claim they were blindfolded and immersed in high pressure cold water. They had to stand naked and electric shocks were administered to various parts of their bodies including their sexual organs. They state that their testicles were squeezed and that their hands and legs were tied. They were severely beaten and deprived of food and water and prevented from using toilet facilities. They were also kept in isolation, subjected to unbearable noises, insulted and threatened with death. From time to time, police officers applied medication to their injuries. 15. On 20 May 1998 the applicants were brought before the Batman public prosecutor and then before the Batman Magistrates' Court (Sulh Ceza Mahkemesi). According to a protocol dated 20 May 1998 signed by six police officers, the applicants bumped into each other while they were getting out of the police car and Abdurrahman Çelik fell. It is to be noted that the applicants deny the authenticity of this protocol. 16. Both before the public prosecutor and the Batman Magistrates' Court the applicants denied the veracity of the statements that had been taken from them by the police and stated that they had been subjected to ill-treatment during their detention in police custody. The judge of the Batman Magistrates' Court observed that there was a violet-coloured bruise around Abdurrahman Çelik's left eye. She also noted the applicants' allegation that their statements were incorrect and had been obtained under duress. The Batman Magistrates' Court ordered the applicants' detention on remand. 17. On the same day the applicants were taken to the Batman prison. 18. On 21 May 1998 the applicants were examined by the prison doctor, Dr. T. D., who noted that there were marks on Abdurrahman Çelik's body resulting from the physical violence inflicted on him. He reported the following in respect of Abdurrahman Çelik: “There is a bruise of 3 cm underneath the left eye. Furthermore, there are two petechial lesions on both right and left inguinal areas.” 19. In respect of Kasım İmret, Dr. T.D. noted that the latter's body did not bear any injury resulting from physical violence. The doctor further reported the following regarding Kasım İmret: “There is a scar of 0,5 cm in diameter on the left side of the lower lip on the exterior.” 20. On the same day, the applicants filed petitions with the Batman Magistrates' Court and requested the latter to annul the order for their detention on remand. They emphasised, inter alia, that the statements taken by the police were false as they had been signed under duress 21. On 15 July 1999 one of the applicants, Abdurrahman Çelik was examined by a commission of medical experts from the Izmir Chamber of Doctors (tabipler odası). According to the report drafted by the commission, the applicant suffered somatic and psychological problems. The commission opined that the medical findings were a result of physical ill-treatment inflicted on the applicant. 22. On 12 June 1998 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicants under Article 169 of the Criminal Code with aiding and abetting the members of the PKK. 23. On 27 July 1998 the applicants' representative filed a petition with the Diyarbakır State Security Court, alleging that the applicants had been tortured while in detention at the Batman Security Directorate. He requested the court to order the Batman Prison Administration to send the prison doctor's medical reports of 21 May 1998. 24. On 29 July 1998 the Batman prison administration submitted copies of the medical reports to the office of the Batman public prosecutor who transferred them to the Diyarbakır State Security Court. 25. On 13 August 1998 the Diyarbakır State Security Court held the first hearing against the applicants. Before the court, the applicants denied the charges and stated, inter alia, that they were forced to sign statements while blindfolded at the Batman Security Directorate. They also denied the veracity of the content of these statements. 26. The Diyarbakır Security Court read out the medical reports of 21 May 1998 drafted by the doctor of the Batman prison and asked the applicants' representative to make comments if he wished. The representative submitted that he had no objections to their contents. He further added that there was no evidence against the applicants other than the statements taken by the police at the Batman Security Directorate and that these statements were inadmissible as evidence against the applicants given that they had been obtained through ill-treatment. With reference to the medical report of 21 May 1998, the applicants' representative formally requested the court to initiate a criminal investigation (suç duyurusu) against the police officers responsible for the ill-treatment of the applicants and against the doctor who examined them following their release from police custody, for failing to note their injuries in his medical report of 20 May 1998. 27. The Diyarbakır State Security Court dismissed the request of the applicants' representative. It decided that the applicants had to lodge their complaints themselves with the local public prosecutor's office. It further decided that that there was no ground for the continued detention of the applicants and ordered their immediate release. 28. On 4 February 1999 the Diyarbakır State Security Court acquitted the applicants. The court held that there was no evidence against the applicants, other than the statements taken at the Batman Security Directorate which was insufficient to ground a conviction. 29. On 11 November 1999 the International Law and Foreign Relations Directorate of the Ministry of Justice sent a letter to the public prosecutor's office in Batman informing the latter about the applicants' allegations before the European Court of Human Rights. 30. Following the letter of 11 November 1999, the Batman public prosecutor initiated a preliminary investigation into the applicants' allegations. He took statements from the accused police officers who denied the charges against them. The police officers alleged that the applicants sustained their injuries on account of the crowd in the prison vehicle while they were being taken to the Batman Magistrates' Court. 31. On 15 February 2001 the Batman public prosecutor filed a bill of indictment with the Batman Assize Court (Ağır Ceza Mahkemesi) charging nine police officers, who were on duty at the Batman Security Directorate at the relevant time, with inflicting ill-treatment on the applicants. The charges were brought under Article 243 § 1 of the Criminal Code. The defendants were accused of illtreatment of the applicants in order to obtain a confession from them. The public prosecutor however stated in the indictment that there was not sufficient evidence against the police officers which could prove that the applicants had been ill-treated in police custody. 32. The Batman Assize Court held thirteen hearings in the case against the police officers between 16 February 2001 and 22 May 2003. The court heard oral evidence from the accused police officers, the witnesses and the applicants. 33. On 22 May 2003 the Batman Assize Court acquitted the accused police officers holding that there was insufficient evidence to conclude that the accused had ill-treated the applicants in police custody. 34. On 25 June 2003 the Batman Assize Court's judgment became final. 35. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey, no. 33097/96 and 57834/00, § 96100, 3 June 2004 and Elçi and Others v. Turkey, no. 23145/93 and 25091/94, §§ 573 and 575, 13 November 2003. | 1 |
dev | 001-80958 | ENG | RUS | CHAMBER | 2,007 | CASE OF NURMAGOMEDOV v. RUSSIA | 3 | No violation of Article 6 - Right to a fair trial;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Christos Rozakis | 6. The applicant was born 1961 and is now serving a custodial sentence in the town of Yemva in the Komi Republic. 7. On 11 April 1991 the Kochubeyevskiy People's Court of the Stavropol Region convicted the applicant of aggravated robbery (Article 146 § 2 of the RSFSR Criminal Code) and the involvement of minors in criminal activities (Article 210 of the RSFSR Criminal Code). It sentenced him to eight years' imprisonment in a correctional colony. On 29 May 1991 the Stavropol Regional Court upheld the judgment on appeal. 8. The applicant was sent to a correctional colony to serve his sentence. On 14 March 1994 the colony director granted him home leave and he travelled to his native village in the Dagestan Republic. He was due back at the colony on 1 April 1994. 9. According to the applicant, he found his wife and children in a precarious situation and decided not to return to the colony but to start working to support his family. The applicant and his family moved to the town of Gubkinskiy in the Tyumen Region. 10. On 29 April 1999 the colony officials launched a criminal investigation in connection with the applicant's failure to return from home leave. On 29 August 2000 the applicant was summoned to a police station in Gubkinskiy and taken into custody. 11. On 16 November 2000 the Pechora Town Court of the Komi Republic convicted the applicant of evading punishment (Article 188.1 of the RSFSR Criminal Code) and sentenced him to six months' imprisonment to run consecutively to the time left to serve under the judgment of 11 April 1991 (four years and seven months in total). 12. The applicant filed an application for supervisory review of the judgment of 11 April 1991. On 18 April 2002 the Prosecutor General's office refused his application but forwarded a copy of it to the Stavropol prosecutor “to bring the applicant's sentence into conformity with the new Criminal Code [of 1 January 1997]”. The Stavropol prosecutor forwarded the request to the Komi prosecutor. 13. On an unspecified date a deputy prosecutor of the Komi Republic lodged an application “for [an order] bringing the applicant's sentence into conformity with the Criminal Code of the Russian Federation”. 14. On 28 June 2002 the Knyazhpogostskiy District Court of the Komi Republic granted the prosecutor's motion. It established that Article 162 § 2 of the Criminal Code of the Russian Federation provided for a more lenient punishment for aggravated robbery than Article 146 § 2 of the RSFSR Criminal Code. As the provisions providing for lighter sentences could be applied retrospectively to convicted prisoners, the court considered it necessary to recharacterise the offence committed by the applicant in accordance with the new Criminal Code. It also deleted from the original judgment a reference to the applicant's inebriated state at the time of the offence as the new Code no longer classified inebriated as an aggravating circumstance. However, that did not result in a reduction of the applicant's sentence because the original sentence remained within the limits of Article 146 § 2 of the new Code. 15. On 3 July 2002 the colony correspondence office informed the applicant that the application by the Komi prosecutor “would be heard in the Knyazhpogostskiy District Court”. 16. On 4 July 2002 the applicant asked the Knyazhpogostskiy District Court to obtain the case file from the Kochubeyevskiy People's Court to enable him to study the file, attend the hearing, make representations and apply for legal aid. According to the stamp on the applicant's letter, the District Court received it on 18 July. 17. On 26 July 2002 the applicant received a copy of the ruling of 28 June 2002 from the prosecutor's office. 18. On 2 August 2002 the judge of the Knyazhpogostskiy District Court who had made the ruling of 28 June, advised the applicant that that court had no power to obtain case files from other courts or to review final convictions and that the applicant could seek legal aid from the local bar council. 19. On 20 October 2003 the prosecutor of the Komi Republic lodged an application for supervisory review of the ruling of 28 June 2002 on the ground that it had been made in the applicant's absence. 20. On 19 November 2003 the Presidium of the Supreme Court of the Komi Republic granted the prosecutor's application. It quashed the ruling of 28 June 2002 and remitted the matter to the same court. 21. The applicant described the subsequent events as follows: “On 11 December 2003 I was called to the colony headquarters where I was told, in room no. 2, that the ruling of the Knyazhpogostskiy court of 28 June 2002 would now be reviewed... I was told right away that the new ruling would be identical to the ruling of 28 June 2002, the only difference being that it would be made in my presence. I asked to appoint prisoner S. as my representative but was told, 'Prisoner S. is now restricted in his movements and cannot attend the court hearing'. I asked for the refusal to be certified in writing, but this was refused. I asked those present at the 'court hearing' to give their names, but was told, 'you will find out from the ruling'. I considered my further participation in this farce inappropriate and asked that my refusal to participate further in the hearing ... be entered in the record and left the room. On 24 December 2003 I received the ruling of 11 December 2003 containing the phrase, '... having heard the submissions by convict T.S. Nurmagomedov...'” 22. On 11 December 2003 the Knyazhpogostskiy District Court issued a new ruling similar to the ruling of 28 June 2002. 23. The applicant lodged an appeal. On 31 December 2003 the judge informed him that his appeal could not be processed because of certain formal defects. The applicant did not re-submit his appeal. 24. According to the applicant, on 23 May 2002 he submitted an application to the European Court to the correspondence office of colony 222-35/2 (спецчасть ИК 222-35/2). Twenty-five days later the application was returned to him and he was told that he had no right to petition international institutions until he had exhausted all domestic remedies. 25. He sent a copy of his application to the Court through an informal channel and complained about the actions of the colony administration to a prosecutor's office. 26. On 12 July 2002 the Ust-Vymskiy prosecutor in charge of compliance with laws in correctional colonies (прокурор по надзору за соблюдением законов в ИУ) confirmed the lawfulness of the actions of the colony administration, finding as follows: “An application to [i]nternational institutions is only possible after the issue has been resolved (or has not proved possible to resolve) within the country because otherwise the complaint or application would immediately be returned for resolution in the country... This procedure also applies to convicted prisoners... Therefore the actions of the administration of correctional colony no. 2 declining to send your application to the Registry of the European Court of Human Rights were lawful...” 27. The applicant further submitted that the first package sent by the Court on 13 August 2002 had not been given to him until 31 December 2002. The envelope had been removed to make verification of the date of receipt impossible. 28. On 10 October 2003 the acting deputy colony director approved the findings of an internal inquiry that had been carried out by the deputy colony director in charge of prisoners' human rights into the circumstances surrounding the applicant's request to dispatch his application to the European Court. According to the inquiry's findings, in May 2002 the applicant had asked a senior inspector of the special registration group about the procedure for lodging applications with the European Court. The inspector had advised him to apply first to the competent domestic authorities. The applicant had made no further demands to the colony administration concerning his application and had sent it to the Court through informal channels, in breach of the internal regulations. The human-rights deputy director proposed to consider it established that the alleged hindrance had not taken place. 29. On the same date the acting deputy director issued order no. 592-A on behalf of the Mikun directorate of correctional facilities (Микуньское управление лесных исправительных учреждений) for the attention of the human-rights deputy director and the directors of other correctional colonies in the region. The introductory part of the order related the exchange that had taken place between the applicant and the colony inspector. The human-rights deputy director was ordered to provide each colony with a set of educational materials on the procedures for applying to, inter alia, the Russian Ombudsman and the European Court and to prepare test questions on human rights for colony officials. The colony directors were instructed to study the educational materials and to ensure compliance with the order of the Ministry of Justice of 23 December 2001 prohibiting all hindrances to the communication between convicted prisoners and the Court. 30. On 21 November 2003 the deputy Minister of Justice – the authority in charge of the penitentiary system – sent a circular to the heads of regional departments of the Chief Penitentiary Directorate, reminding them that the decision as to whether domestic remedies had been exhausted was made by the European Court itself and that the administration of a penal institution was not competent to determine this issue and were not to prevent prisoners from lodging applications with international human rights' organisations. The deputy minister called for rigorous compliance with the State's obligations under Article 34 of the Convention. 31. Pursuant to Article 146 § 2 of the RSFSR Criminal Code (in force until 1 January 1997), aggravated robbery was punishable by between six and fifteen years' imprisonment and the confiscation of property. Article 210 provided that involving minors in criminal activities, loitering or prostitution was punishable by up to five years' imprisonment. 32. Article 150 § 1 of the Criminal Code of the Russian Federation (in force since 1 January 1997) provides that involving a minor in the commission of a criminal offence through promises, deception, threats or otherwise is punishable by up to five years' imprisonment. Article 162 § 2 provides that aggravated robbery is punishable by between seven and twelve years' imprisonment and the confiscation of property. 33. Article 10 of the Criminal Code (“Retrospective effect of criminal law”) provides that where a new criminal law decriminalises an offence, provides for more lenient punishment or otherwise improves the situation of the offender it shall apply with retrospective effect to offences committed before it came into force, even where the offender is already serving sentence. If the new law provides for a shorter sentence, then the offender's sentence must be reduced accordingly. Laws providing for a heavier sentence or otherwise aggravating the situation of the offender have no retrospective effect. 34. Section 3 of the Criminal Code (Entry into Force) Act (no. 64-FZ of 13 June 1996) provided as follows: “Where a convicted prisoner who was sentenced under the previous Criminal Code has not yet served his sentence, the sentence shall be brought into conformity with the Criminal Code of the Russian Federation if the sentence imposed by the court was more severe than the maximum sentence laid down by the relevant provision of the Criminal Code of the Russian Federation. If the criminal law otherwise improves the situation of offenders or convicted prisoners..., convictions and judicial acts concerning other criminal-law measures must be reviewed by the convicting court or the court with jurisdiction for the locality where the sentence is being served. Relief from punishment, a reduction in sentence or any other improvement in the situation of the offender ... shall be decided upon in accordance with Articles 361.1, 368 and 369 of the RSFSR Code of Criminal Procedure.” 35. Article 361.1 in Chapter 29 (“Execution of Sentences”) of the RSFSR Code of Criminal Procedure (in force until 1 July 2002) provided that a court, acting on an application by a convict or prosecutor in connection with the enactment of a law with retrospective effect, could exempt the convicted prisoner from serving the sentence, reduce his sentence or otherwise improve his situation. In such proceedings the court was required to base its ruling (определение) solely on the circumstances that were established in the final conviction and could not overrule the interpretation of the criminal law by the convicting court. 36. Article 368 determined the territorial jurisdiction of the courts. Article 369 provided that these issues were to be decided at a hearing. “As a rule”, the convict was to be summoned to the hearing. 37. Article 397 § 13 in Chapter 47 (“Proceedings for Examination and Determination of Issues Relating to the Execution of Sentences”) of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 (in force since 1 July 2002) provides that decisions on a reduction of sentence following the enactment of a law with retrospective effect shall be made in accordance with Article 10 of the Criminal Code. 38. As worded at the material time, Article 91 of the Penal Code and paragraph 12 of the Internal Regulations of Correctional Institutions (Order no. 224 of the Ministry of Justice of 30 July 2001) provided that all incoming and outgoing correspondence of detainees, other than correspondence with courts, prosecutors, penitentiary officials, the Ombudsman and counsel, was subject to censorship by the colony officials. Letters were to be put in mailboxes or given to the officials in an unsealed envelope. Paragraph 13 required detainees to submit all complaints through the colony officials. 39. By Order no. 393 of 26 June 1997, the Ministry of the Interior approved the Directive on the Functioning of Special Departments in Correctional Colonies. Paragraph 5.2 established that complaints addressed to authorities, organisations or officials who were not competent to deal with the matter concerned should not be forwarded to the addressees. The complainant was to be informed of that decision in writing and advised where to send his complaint. If the complainant disagreed with the decision not to forward his complaint, he could contest it by applying to the supervising prosecutor. | 1 |
dev | 001-5241 | ENG | NOR | ADMISSIBILITY | 2,000 | HUSSAIN AND C. v. NORWAY | 4 | Inadmissible | null | The first applicant, Mr Shanawar Hussain, and the second applicant, his daughter C., are respectively Pakistani and Norwegian nationals born in 1960 and 1991 and living in Lahore, Pakistan, and Lørenskog, Norway. They are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. The first applicant arrived in Norway in 1976 and was granted a temporary residence permit for education purposes. In 1981 he was granted a residence permit for an indefinite duration. According to the first applicant he had met the second applicant’s mother at the end of 1983. They had established a relationship as from the autumn of 1984, had got engaged in 1985 and had planned to marry in July 1987, but this did not materialise as Mr Hussain was detained on remand in May 1987 on suspicion of drug offences. On 19 February 1988 the Eidsivating High Court (lagmannsrett) convicted the first applicant of the possession and attempted sale of approximately 1 kilo of heroin. It deemed the heroin to have been of a particularly high degree of purity and noted that one user had died. While the first applicant's replies to the charges had said little more than the bare minimum, the High Court did not find it established from where he had received the drugs or what role he had played in the importation and acquisition of the drugs. However, although he had submitted that he had been put under strong pressures and had reluctantly received the heroin in order to store it, the High Court did not find that his role had been as modest as he had claimed. He had failed to explain why, in defiance of what he described as an order, he decided to sell a large part of the drug to one of his co-accused and to keep another part. It was further noted that in connection with a delivery of heroin by the first applicant, one of his co-accused in the trial had come to the agreed place with one other co-accused as a bodyguard. In view of the particularly serious nature of the offence, the High Court sentenced the first applicant to 10 years' imprisonment. On 4 January 1989 the Oslo Police decided to expel the first applicant. On appeal, the latter decision was upheld by the Aliens Directorate (Utlenningsdirektoratet) on 5 May 1989. He subsequently requested that the expulsion order be altered, but the Aliens Directorate and the Ministry of Justice, in decisions dated respectively 16 December 1993 and 12 January 1994, refused the request. The first applicant and his wife were married at Ullersmo prison in June 1989, i.e. after the applicant's conviction and sentence to 10 years' imprisonment and the decision to expel him from Norway. Two daughters were born to them, the second applicant, born in 1991, and S., born in August 1995. While serving his prison sentence the first applicant had extensive contact with his wife and the second applicant. Following his release in January 1994, the first applicant lived with his family for 1 year until 12 January 1995, when he was expelled from Norway to Pakistan. His wife and the second applicant accompanied him to Pakistan, but returned after 1 month. The first applicant was twice granted a visa to enter Norway in order to attend the court proceedings, but was denied a visa in connection with S.'s birth. During the winter of 1995 to 1996, his wife and two children lived with him for 2 months in Pakistan. A medical certificate of 22 October 1996 issued by a paediatrician states that, since the second applicant was a baby, she had suffered from atopical eczema causing her nuisance particularly during spring, summer and autumn, and requiring that her entire body be treated with moistening cream every day and with oil baths. She was allergic to milk and was taking substitute milk products. She was also allergic to eggs and pollen. She had asthma and had experienced asthma fits serious enough nearly to require hospitalisation. According to certain statements dated 23 December 1994 and 23 February 1996 by personnel in charge of the second applicant's kindergarten, the first applicant had been present and actively took part in her care; she had said that she missed her father and there was a clear risk that her separation from him would have negative psychological consequences for her. On 8 November 1994 the City Court (byrett) rejected the first applicant's appeal against the Ministry's above-mentioned decision of 12 January 1994. He then appealed to the High Court, which, on 14 August 1995, upheld the City Court's judgment. He further appealed to the Supreme Court (Høyesterett) which, in a judgment of 26 November 1996, by 3 votes to 2, upheld the High Court's conclusion on the merits but overturned the lower courts' decisions ordering him to pay legal costs. In its judgment the Supreme Court considered, inter alia, whether the expulsion would be consistent with Norway's obligations under Article 8 of the Convention, as interpreted and applied in a number of cases by the Convention institutions, in particular whether the measure was necessary in a democratic society, which the first applicant disputed. Mr Justice Dolva stated on behalf of the majority: “The ground for the expulsion is the very serious drug offence of which Mr Hussain has been found guilty. ... Mr Hussain was convicted under Article 162 (3), cf. (1), of the Penal Code for serious narcotics offences relating to a very large quantity of drugs. The maximum penalty was 15 years' imprisonment, while the minimum was 3 years. It was thus a very serious offence of which he was found guilty and the penalty imposed was 10 years' imprisonment, of which 6 years and 8 months had been served. Mr Hussain was found guilty of the possession and attempted sale in respect of about 1 kilo of heroin of a high degree of purity. It is stated in the High Court’s judgment that each gram of the product could be divided into 30 to 40 doses; so that the substance posed a very great danger of being commercialised. ... … In the present case, there is no information to the effect that Mr Hussain has been involved in other criminal offences. This is relevant to the assessment but is overshadowed by the seriousness of the offence of which he has been found guilty. I now turn to the arguments submitted against expulsion. Even though it has been conceded that Mr Hussain’s own interests would not on their own suffice to make the expulsion incompatible with the Convention, it must be relevant that he has resided in Norway from the age of 16 and has received an education and worked here. Until his detention on remand he had lived here for 11 years. It may be mentioned that it was only after he was detained that he applied for Norwegian citizenship and that his application was refused. He has maintained links with his family in Pakistan during his visits to the country in 1979, 1982, 1986 and 1987. … The circumstances, which most strongly militate against expulsion, are those related to his family life with his spouse and two daughters. The marriage was concluded while Mr Hussain was serving his prison sentence and after the police had ordered the expulsion. Nevertheless, there is agreement that family life was established before he was detained on remand. The couple’s eldest child, [the second applicant], who is now 5½ years old, was born while her father was serving his sentence but, according to the information available, she has had contacts with him during visits and home-leave and the family lived together for 1 year from the applicant’s release until his expulsion was effected. As already mentioned, [the second applicant] has considerable health problems related to asthma and allergies. Like the High Court, I find it established that the maintenance of the expulsion order would split the family since, because of [the second applicant], it is not expected that the mother and the daughters will settle in Pakistan. The possibilities of visits will be limited - in Pakistan, because of [the second applicant’s] health - and in Norway, because Mr Hussain's expulsion is made permanent. It is evident that this will constitute a considerable burden to them all, in particular to [the mother] who will be alone in assuming the care of the daughters, one of whom is in particular need of care. It has been specifically claimed that in Pakistan it will not be possible to bring up the daughters in accordance with the mother’s Christian faith. Reference is made to Article 9 of the Convention, Article 2 of Protocol No. 1 and Article 18 §§ 1 and 2 of the International Covenant on Civil and Political Rights. I will not consider those matters more closely since I take it that it is not expected that the mother and the daughters will move to Pakistan. ... The appellant party has referred, inter alia, to the report recently given by the Commission in the case of Mehemi v. France and has submitted that to a high degree it supports his views. ... As regards this decision, I should like to point out that second generation immigrants often raise particular issues, whereas under Norwegian law expulsion may not be effected with respect to persons who are born in Norway and have lived there continuously. Mr Hussain was 16 years old when he came here for educational purposes and has maintained contacts with Pakistan. The way I interpret the existing case-law is that in cases of such serious narcotics offences as this, it falls within the State’s margin of appreciation to expel foreign nationals, even though it would seriously affect the person expelled and his family. … In the final assessment I cannot see that in the case under consideration the authorities’ decision to expel constitutes a disproportionate measure against the scourge of drug trafficking. This was clear in 1989 when the expulsion was decided by the police and the Aliens Directorate. The interest in protecting family life has nevertheless been given greater weight in the subsequent refusals to alter the expulsion order, the last refusal being issued by the Ministry of Justice on 12 January 1994. The matter was then considered on the basis of the relevant circumstances obtaining at that time. Nevertheless, having regard to the serious drug offence in respect of which Mr Hussain has been found guilty, I consider that the interest of protecting family life does not suggest that expulsion would be disproportionate and incompatible with the Convention, despite the considerable burden it entails. It is, however, a very difficult balancing of interest with which we are faced here.” In his dissenting opinion, Mr Justice Lund concluded on behalf of the minority that the expulsion order must be declared unlawful (ugyldig) as being disproportionate. His reasoning may be summarised as follows. Although the seriousness of the offence was a consideration that weighed heavily and the interests of Mr Hussain could not on their own justify declaring the expulsion order unlawful, the consequences for the family ought to be decisive in this case. The situation for the first applicant's wife and the consequences for their marriage were almost identical to those described in paragraphs 78 and 79 of the Beldjoudi v. France judgment of 26 March 1992 (Series A no. 234-A). In the present case the interests of minor children were also at stake. Because of the second applicant's illness it was excluded that the wife would move to Pakistan. There were great difficulties involved in maintaining family life by means of relatively short, occasional visits by the family to Pakistan. While it was very likely that the spouses sooner or later would be forced to divorce, the interest of avoiding divorce weighed more heavily when, as here, they had children. Moreover, there was obviously a greater risk than normal that the contacts between the father and the children would be damaged. A child in as much need of care as the second applicant would have a particular need for maintaining close contact with both parents. The mother, who alone assumed the responsibility for the two daughters, had a strong need for the father’s help in caring for the children. | 0 |
dev | 001-107627 | ENG | POL | CHAMBER | 2,011 | CASE OF WISNIEWSKA v. POLAND | 3 | Remainder inadmissible;No violation of P1-1 | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. In 1996 the Gdańsk Municipal Office issued an initial approval for a development project on land owned by the applicant (decyzja o warunkach zabudowy i zagospodarowania terenu) providing, on the basis of a local land development plan adopted in 1993, for the improvement and resurfacing of Słowacki Street and the construction of a roadway. On 18 December 1997 the Gdańsk Municipal Council adopted a local land development plan for the construction of a road junction in the vicinity of the applicant’s land, indicating that there was a pressing need to improve and widen a road leading from the city centre to the airport. On 21 December 1999 the Gdańsk Municipal Office (Urząd Miejski) issued another approval for the construction of the roadway, based on the provisions of the local land development plan adopted on 18 December 1997. 6. On 29 March 2000 the Pomorze Governor approved a construction project for the roadway. 7. The applicant owned forty-three plots of a total surface of 4.77 hectares. In September 1999 an estimate of the value of seven plots, covering 6,656 square metres, was prepared by expert R.Ż. with a view to their expropriation. That expert assessed the market value of the land at 479,919 Polish zlotys (PLN). 8. On 21 October 1999 a negotiation meeting was held at the Gdańsk Municipal Office. The town offered PLN 479,912 as compensation for plots nos. 47/30, 47/32, 47/34, 47/36, 55/7, 60/1 and 61, at PLN 70.08 per square metre, calculated on the basis of the September 1999 estimate. The applicant refused to accept this price and argued that the market value of a square metre of similar land in the town was approximately PLN 600. 9. In February 2000 another expert, J.K., estimated the value of the applicant’s properties at PLN 63.70 per square metre, based on the agricultural character of the land. On 2 March 2000, referring to that report, the Gdańsk Municipal Office, acting on behalf of the Mayor of Gdańsk, fixed a two-month time-limit for the applicant to conclude a contract for the sale of her land for the sum of PLN 479,912. It informed her that if further negotiations failed, expropriation proceedings would be instituted and the land would be expropriated against payment of compensation in the amount of PLN 423,987. 10. On 26 April 2000 another negotiation meeting was held. The Municipal Office proposed conditions identical to those proposed in October 1999. The applicant reiterated her position as to the price and submitted that she would accept replacement property within the limits of the municipality as compensation. 11. On 8 May 2000 expropriation proceedings were instituted. 12. On 29 May 2000 an administrative hearing was held in the Gdańsk Municipal Office. The applicant proposed that the City should give her PLN 300 per square metre for her land, but her offer was rejected. The applicant again suggested that she should be given other plots in exchange for her land, but that solution was rejected on the ground that the City did not have any suitable plots at its disposal. 13. In June 2000 expert J.K. updated the estimate, having regard to the passage of time and the increase in market prices. She assessed the price of the applicant’s land at PLN 439,296. In the same month, an expert commissioned by the applicant assessed the price of the land at PLN 2,374,749. 14. On 27 June 2000 the Mayor of Gdańsk gave a decision by which the seven plots referred to in paragraph 7 above were expropriated. The amount of compensation for the land and the fence constructed on it was fixed at PLN 465,537. It was to be paid within 14 days from the date on which the expropriation decision became final. He observed that the amount of the compensation had been fixed on the basis of an estimate prepared by an expert, with reference to prices of similar plots on the local real estate market in June 2000. 15. The applicant appealed. She argued that the decision was in breach of sections 128, 130 and 134 of the Land Administration Act 1997. She submitted that it was based on the estimate drawn up in September 1999, which no longer reflected current prices of land. She referred to the caselaw of the Supreme Administrative Court according to which compensation for expropriated land should take into consideration current local market prices for similar types of land and, also, prices of such land sold by the municipality by way of tender. She referred to a privately commissioned estimate prepared by a certified expert (see paragraph 13 above), according to which the price of 1 square metre of comparable land in Gdańsk at that time was PLN 356. 16. On 25 January 2001 the Pomorze Regional Office, acting on behalf of the Pomorze Governor, upheld the expropriation decision, noting that it had been given in order to have the local land development plan implemented. The expropriation was therefore in the public interest. The negotiations between the parties had failed. Two estimates drawn up for the purpose of the negotiations were consistent and indicated, in the light of prices paid for properties of a similar character and location, that the market value of the property concerned was PLN 60-70 for 1 square metre. In the circumstances, the decision was lawful. 17. The applicant appealed to the Supreme Administrative Court. She argued that the price the municipality had offered during the negotiations bore no reasonable relation to the market value of her land. The municipality had refused to offer her replacement property, despite the fact that at the time it had been selling numerous properties to private buyers by way of tender. At a hearing held on 23 May 2001 the applicant applied for a stay of the enforcement of the expropriation decision. The court refused, noting that the enforcement of the decision had been stayed ex lege because of the authorities’ failure to submit their reply to the applicant’s appeal within the time-limit. 18. By a judgment of 25 July 2001 the Supreme Administrative Court quashed the Governor’s decision. The court observed that the modernisation of Słowacki Street was in the public interest as it was a part of the No. 7 trunk road. It further noted that in the light of the documents in the case file it had not been shown beyond doubt that the expropriation of all of the applicant’s designated plots had been necessary in order to implement the road construction project. In their decisions the authorities had failed to refer to the maps and plans prepared in connection with the local land development plan and road construction projects to show that the plots concerned were indeed covered by those projects. 19. The court further addressed the question of the compensation fixed by the contested decision. It noted that the authorities, when holding the administrative hearing on 29 May 2000, had failed to respect the relevant procedural provisions. Under the provisions of Article 89 of the Code of Administrative Procedure the purpose of an administrative hearing was to ensure, in a situation where there was a discrepancy between expert opinions as to compensation, that the experts were questioned and the discrepancy elucidated. Furthermore, the parties should have been given an opportunity to put questions to the experts and to make oral statements before the administrative authority. No such measures had been taken. The court noted that the hearing had been held prior to the date on which the last expert opinion concerning the compensation had been prepared. There was no proof in the case file that this last opinion had ever been served on the applicant. 20. The judgment with its written reasons was served on the applicant’s lawyer on 9 August 2001. 21. The expropriation and compensation proceedings before the appellate authority were later conducted again. The Pomorze Regional Office informed the parties that the administrative hearing would be held again and requested the Gdańsk Municipal Office to submit further evidence as to the prices of similar properties. Ultimately two hearings were held, on 3 September 2001 and 22 January 2002. Three experts were questioned. The parties were invited to consult the case file. 22. On 25 February 2002 the Pomorze Governor upheld the firstinstance decision in its part concerning the expropriation. He fixed the amount of compensation to be paid to the applicant at PLN 554,898. He referred to the expert opinions prepared for the purposes of the proceedings and explained which evidence and conclusions had been considered credible. He reiterated that the land concerned was of an agricultural nature. 23. Compensation was paid to the applicant on 27 February 2002. She accepted it, but observed that the amount was unsatisfactory. She subsequently appealed, submitting that the method by which the compensation had been fixed was to her detriment, that the second-instance authority had failed to respect the guidance contained in the judgment of the Supreme Administrative Court and that the amount of compensation did not reasonably correspond to the value of the land. 24. On 31 May 2005 the Supreme Administrative Court quashed the contested decision, finding that the method used to establish the value of the expropriated land was not in compliance with the applicable legal regulations. In particular, the expert opinion prepared by J.F., heavily relied on by the first-instance authority, was based on prices applicable in June 2000. The proceedings were subsequently conducted again. The Governor invited the parties to submit new evidence and to consult the case file. Another expert was appointed and submitted his evaluation report, assessing the value of the applicant’s property at PLN 725,231. On 28 April 2006 another administrative hearing was held before the second-instance authority. A time-limit was fixed for the parties to submit new evidence. Both the applicant and the Gdańsk Municipal Office availed themselves of that right. 25. On 4 July 2006 the Governor issued a new decision. It upheld the first-instance expropriation decision and increased the amount of compensation to PLN 725,232, with reference to the new expert report. 26. On 2 August 2006 the applicant, represented by a lawyer, appealed, submitting arguments similar to those on which she had relied in her previous appeal. 27. On 3 August 2006 the applicant revoked the power of attorney given to her lawyer. 28. On 29 September 2006 the Gdańsk Administrative Court rejected her appeal, noting that the applicant had failed to pay court fees. This decision was served on the applicant’s new lawyer on 18 October 2006. On 22 October 2006 the applicant requested the court to grant her retrospective leave to appeal out of time. She submitted that she had dismissed one lawyer and retained another one during the appellate proceedings. She had not been aware that the court fee should have been paid. 29. On 29 December 2006 the Gdańsk Administrative Court refused to grant the applicant retrospective leave to appeal out of time, considering that she had failed to inform the court about the alleged changes in her legal representation and to demonstrate that she had not been at fault in failing to pay the court fee. The applicant’s new lawyer appealed against that decision. 30. On 2 March 2007 the Supreme Administrative Court upheld the refusal to grant the applicant leave to appeal out of time. It observed that the applicant had failed to show that she had not been at fault in neglecting to pay the court fee. She had informed the first-instance court of her decision to revoke her first lawyer’s power to act on her behalf on 24 October 2004. Under the applicable procedural provisions, that was the date on which the revocation had taken effect. 31. As a result, the first-instance decision on expropriation and compensation became final. On 27 April 2007 the Gdańsk Municipality paid the applicant the outstanding amount of PLN 170,333. 32. On 20 September 2006 the Gdansk District Court rejected the applicant’s claim by which she sought compensation for the fact that from September 2000 onwards the municipality had been using her land without a valid expropriation decision. The court considered that the applicant’s claim could not be examined before a civil court and had to be dealt with in administrative proceedings. 33. By a decision of 16 May 2001 the Pomorze Regional Office, acting ex officio, stayed the enforcement of the expropriation decision given on 25 January 2001 (see paragraph 14 above), having regard to the fact that the applicant had lodged an appeal against it. It referred to section 9 of the Land Administration Act. 34. The Gdańsk Road Management Office (Zarząd Dróg i Zieleni) appealed against that decision. It argued that the mere fact that the applicant had contested the first-instance expropriation and compensation decision could not justify the staying of its enforcement. The construction of the road, which was by then well advanced, should not be delayed as this would entail serious financial loss. They further referred to concrete technical difficulties in the road construction and its logistics, caused by the fact that work which had already started could not be continued on the applicant’s land, such as the impossibility of using that land for transport purposes. 35. On 29 June 2001 the President of the National Housing and Local Land Development Office quashed the contested decision on formal grounds and ordered that the enforcement issue be re-examined. 36. On 10 August 2001 the Pomorze Regional Office, acting ex officio, resumed the enforcement of the expropriation decision, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 43 below). It observed that following that judgment, the Office had a legal right to take possession of the land concerned, which was needed for the construction project. 37. After the first-instance expropriation decision had been given on 27 June 2000 (see paragraph 14 above) and when the applicant’s appeal against it was pending, on 7 August 2000 the Mayor of Gdańsk issued a requisition order allowing the Gdansk Road Management Office, on the basis of Article 122 of the Land Administration Act, to take possession of the applicant’s property with a view to starting construction work. He stated that it was necessary in order to proceed with the implementation of the already well-advanced road construction project and to prevent serious social and financial costs that further delay in the realisation of that project would cause. 38. The applicant appealed against that decision, emphasising that it was unlawful. She argued that no final expropriation decision in respect of her property had been given. The grounds invoked by the Mayor in the requisition order were drafted in very broad terms. The Mayor had failed to indicate, with ’s case to impose such a serious restriction on the exercise of her still valid ownership rights. No relevant and sufficient reasons for the occupation of her land had been advanced. In particular, the mere fact that expropriation proceedings had been instituted and construction work was about to start did not warrant the conclusion that such a serious restriction of her ownership rights was justified. 39. In September 2000 road construction work commenced on the neighbouring plots. No work had yet been carried out on the applicant’s land. On 5 September 2000 the applicant applied to the Gdańsk Regional Building Works Inspector for the work on her land to be stopped. On 6 October 2000 the Inspector informed the applicant that no work had yet been conducted on her land. On 20 October 2000 on-the-spot inspection, in the presence of the applicant, confirmed that fact. 40. On 5 December 2000 the Governor of Pomorze dismissed the applicant’s appeal against the requisition order of 7 August 2000, fully endorsing the arguments relied on by the first-instance authority. The applicant appealed against that decision before the Supreme Administrative Court, asking the court to stay the enforcement of the requisition order. 41. On 23 May 2001 the court refused the applicant’s request for a stay of the enforcement of the requisition order, holding that to allow her request would defeat the very purpose of the requisition order. 42. On 15 June 2001 the Pomorze Regional Office requested the Supreme Administrative Court to give priority to the examination of the applicant’s appeal against the requisition order, referring to the fact that the construction work had been seriously delayed because no work could be done on the applicant’s land. The significant investment of public funds, the advanced stage of realisation of the project and the serious disturbance to traffic caused by the construction work called for priority to be given to the case. 43. By a judgment of 25 July 2001 the Supreme Administrative Court dismissed the applicant’s appeal. It observed that the expropriation proceedings had been conducted with a view to modernising the town’s road network, facilitating access to the local airport and reducing the number of road accidents on Słowacki Street. This was clearly in the public interest. The fact that the municipality had no final legal title to occupy the applicant’s property was the only remaining obstacle to starting the construction work on that property. It also hindered progress of the construction work carried out on the neighbouring properties. The Court referred to Article 122 of the Land Administration Act, which expressly provided for requisition orders in the absence of final expropriation decisions if a delay would make the implementation of a public-interest project impossible. 44. On 13 December 2000 the company commissioned by the municipality to carry out the work – the above-mentioned Gdansk Road Management Office – applied to the Gdańsk Municipal Office for a building permit for road construction work to be carried out on the applicant’s land. In April 2001 the applicant applied for the proceedings to be stayed, arguing that in the absence of the final decision on expropriation the Office had no legal right to take possession of her land. On 13 April 2001 the Road Management Office requested the Municipal Office to take steps to resolve the difficulties concerning the legal status of the applicant’s land, arguing that construction work on that stretch of road had advanced, with the exception of the 300 metres planned on the applicant’s land. 45. The proceedings concerning the application for the building permit were subsequently stayed, the authorities having regard to the fact that in the absence of the expropriation decision the construction company had no right to take possession of the land, and that under the applicable building regulations such a right was an essential prerequisite for requesting a building permit. 46. On 10 August 2001 the Pomorze Regional Office resumed the proceedings, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 18 above). It observed that that judgment had conferred on the building company the right to take possession of the applicant’s land for construction purposes, even in the absence of a final expropriation decision confirmed by the administrative court. 47. On 14 August 2001 the Pomorze Regional Office issued the building permit as per the application, thereby authorising the construction company to start the construction work on the plots concerned. The applicant appealed against that decision, reiterating that as long as she had not been expropriated no one had the right to build on her land. 48. On 16 August 2001 the construction company took possession of the applicant’s land. The construction work started shortly afterwards. 49. On 12 November 2001 the Chief Building Works Inspector dismissed the applicant’s appeal and upheld the building permit. The applicant appealed, reiterating essentially that the building permit could not be given because the expropriation proceedings had not been concluded. 50. On 22 May 2002 the construction of the road was officially completed. On 23 January 2002 a decision authorising use of the road by the public was given. 51. On 27 June 2003 the Supreme Administrative Court dismissed the applicant’s appeal against the building permit. It dismissed the applicant’s arguments that the building company had had no legal right to take possession of her land. It noted that the first-instance expropriation decision had been given on 7 June 2000 (see paragraph 14 above). On 7 August 2000 the first-instance requisition order had been given (see paragraph 37 above). The latter order had become final and enforceable following the judgment of 25 July 2001 (see paragraph 43 above). The court held that that judgment had to be deemed to have conferred on the building company the right to possess the land within the meaning of the building regulations. 52. The court stressed that requisition orders were necessary for public-interest works to be able to go ahead where expropriation proceedings were still pending but the works should nevertheless be carried out to prevent certain negative consequences. Such a decision did not infringe the owner’s rights although it did limit them temporarily. 53. A requisition order should be assessed in the context of the expropriation proceedings seen as a whole. Such an order was usually given after the first-instance expropriation decision had been issued. The applicable legal regulations expressly allowed for such orders to be given. The court referred to Article 108 of the Code of Administrative Procedure and to section 122 of the Land Administration and Expropriation Act 1997. Expropriation and requisition orders were two different legal institutions. They conferred different rights on the public authorities. A requisition order was clearly of a temporary character. It was obvious that its legal effects differed from those produced by a decision on expropriation. However, it conferred on the authorities a right to take possession of the land and to use it for public-benefit purposes. By introducing a requisition order into the Land Administration and Expropriation Act 1997 the legislature had intended to avoid situations where expropriation could be blocked as a result of appeals lodged by the affected parties. 54. In the court’s opinion, if one accepted the applicant’s argument that the requisition order did not confer a right to take possession of the land for building purposes, the very purpose of the requisition order would be defeated. 55. A requisition order could not per se be regarded as a violation of ownership. It did not replace the expropriation decision and did not deprive the owner of his or her ownership right; at most it limited it temporarily until the termination of the expropriation proceedings. This was justified under Article 64 § 3 of the Constitution (see paragraph 59 below). The court recalled that the right of property was not an absolute right. 56. The court observed that the grant of the building permit did not infringe the law despite the exceptional character of the applicant’s situation and the pending expropriation proceedings. The applicant’s case demonstrated that, in practice, requisition orders were necessary. In certain cases, it would have been impossible to realise the public-benefit purposes for which expropriation proceedings had been instituted without having recourse to requisition orders. 57. Article 21 of the Constitution provides: “1. The Republic of Poland shall protect ownership and the right of succession. 2. Expropriation shall be allowed only in the public interest and against payment of just compensation.” 58. Article 31 of the Constitution reads: “Freedom of the person shall receive legal protection. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 59. Article 64 of the Constitution provides: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. The right of ownership may be limited only by means of a statute and only to the extent that it does not violate the essence of such right.” 60. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. Under section 112 of that Act expropriation consists in the removal, by way of an administrative decision, of ownership rights 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. 61. Under section 113 an expropriation can be carried out only for the benefit of the State Treasury or the local municipality. 62. Section 122 provides that in cases defined by Article 108 of the Code of Administrative Procedure (see paragraph 68 below) the administrative authority is empowered to issue a requisition order allowing an entity carrying out works for the public benefit to enter and take possession of land in respect of which a decision on expropriation has been given, if a delay would make realisation of the public-benefit works impossible. A clause of immediate enforceability (rygor natychmiastowej wykonalności) may be issued in respect of such an order. 63. In accordance with section 128 § 1 of the Act, expropriation is to be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation is fixed regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of the property is estimated on the basis of an opinion prepared by a certified expert. 64. Section 131 provides for the possibility of awarding the expropriated owner a replacement property if he or she so agrees. 65. Pursuant to section 132, compensation must be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement. 66. Section 134 provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed. The following criteria are to be taken into consideration when establishing the market value of the property: its type, location, the use to which it has been put, the existence of any technical infrastructure on the property, its overall state and current prices of properties in the municipality. 67. In situations specified by Article 108 of the Code of Administrative Procedure, local State administration can authorise an entity charged with the implementation of a public-interest project to occupy the property concerned immediately if a delay would render the implementation of the project impossible. 68. Article 108 of the Code provides for an administrative decision to be rendered immediately enforceable, even if further appeal against it is available, when this is necessary for the protection of life or limb, or for the protection of the national economy against serious damage, or for the protection of other societal interests. | 0 |
dev | 001-103588 | ENG | TUR | ADMISSIBILITY | 2,011 | ARSLAN v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments. The dates of introduction of the applications appear in the table below. The names and dates of birth of the applicants, as well as the names of their representatives appear in the appendix. All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, various types of disciplinary sanctions were imposed on them. Their appeal requests were rejected respectively by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law No. 4675 on Enforcement Judges, dated 16 May 2001. The details of the applications as well as the complaints raised by the applicants appear in the table below. A description of the relevant domestic law may be found in Gülmez v. Turkey, no. 16330/02, §§ 13-15, 20 May 2008 and Aydemir and others (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010. | 0 |
dev | 001-104491 | ENG | HRV | CHAMBER | 2,011 | CASE OF GLUHAKOVIC v. CROATIA | 3 | Remainder inadmissible;Violation of Art. 8;Respondent State to take individual measures;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen | 4. The applicant was born in 1960 and lives in Rijeka. 5. In February 1999 the applicant married A. However, in July, while she was pregnant, A. left the applicant and on 25 December 1999 gave birth to a daughter, I.K. 6. Several separate proceedings concerning contact between the applicant and his daughter I.K. were conducted before the Rijeka Municipal Court as well as before the Rijeka Social Welfare Centre (hereinafter “the Social Welfare Centre”). 7. At the beginning of 2000 the applicant asked the Social Welfare Centre to issue a decision regulating his contact with I.K. 8. On 26 April 2000 the applicant complained to the Social Welfare Centre that he saw his daughter only for one hour a week and that the child, who had started to recognise human faces, was scared of him because his face was not familiar to her. He requested to be allowed to see the child every four days, because he worked in Italy and his work schedule was organised in such a way that he worked for three whole days and then had a fourth day off. 9. On 4 May 2000 the applicant saw a psychiatrist at the suggestion of the Social Welfare Centre's personnel. A medical report drawn up by the psychiatrist indicated that the applicant was suffering from paranoid psychosis and recommended that contact between the applicant and I.K. be supervised by the child's mother or another person. The psychiatrist reiterated that conclusion in his report of 1 June 2000. 10. On 10 June 2000 the Social Welfare Centre issued a decision giving custody of I.K. to the child's mother and ordering that meetings between the applicant and I.K. take place every Tuesday – between 9.30 a.m. and 10.30 a.m. at the Rijeka Counselling Centre for Marriage, Family and Youth (hereinafter “the Counselling Centre”) in the presence of the child's mother and an employee of the Counselling Centre. 11. On 16 June 2000 the Ministry for Work and Social Welfare quashed the first-instance decision on the ground that it was necessary to hold an oral hearing before adopting a decision in the case. Nevertheless, the meetings between the applicant and I.K. were arranged at the Counselling Centre. 12. On 19 January 2003 the Social Welfare Centre issued a decision ordering meetings between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. at the Counselling Centre in the presence of an employee of the Counselling Centre. 13. The applicant lodged an appeal on 19 January 2003 which was dismissed on 7 December 2004 by the Ministry of Health and Social Welfare. 14. Meanwhile, on 21 March 2000 A. brought a civil action in the Rijeka Municipal Court seeking a divorce from the applicant. On 24 July 2002 the Rijeka County Court adopted a divorce judgment ordering the applicant to pay maintenance for I.K. and also granting him contact with I.K. every Tuesday between 9.30 a.m. and 11.30 a.m. in the presence of a third person. The applicant lodged an appeal arguing, inter alia, that it was difficult for him to come to Rijeka every Tuesday, due to his work schedule in Italy. He further explained that in order to see his daughter on Tuesdays, he often had to drive at night and was obliged to ask his colleagues to replace him at work, which caused him significant difficulties. 15. On 15 January 2003 the Rijeka County Court quashed the part of the judgment concerning contact between the applicant and I.K. and that part of the case was remitted to the Municipal Court. 16. For the purposes of the resumed proceedings before the Municipal Court, on 2 March 2005 the Counselling Centre drew up a report on the meetings between the applicant and I.K. The report stated that the applicant and his daughter had been meeting regularly on the Counselling Centre's premises since June 2000 and that they had developed a warm personal relationship. However, in view of the child's age and needs, further meetings on the Counselling Centre's premises would not be possible because the premises were not considered appropriate. 17. At a hearing held on 6 September 2005 a psychologist from the Counselling Centre, S.M., stated that the meetings between the applicant and his daughter had been held in the Centre's kitchen or offices of its employees and that the Centre had no suitable space for the meetings. 18. That opinion was reiterated in a further report of 8 November 2005. 19. In the resumed proceedings the Rijeka Municipal Court gave judgment on 30 November 2006 granting contact between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Counselling Centre, in the presence of a member of staff. The Municipal Court based its decision on reports by a psychologist and a psychiatrist on the applicant's mental health, commissioned for the purposes of the proceedings. The reports established that the applicant suffered from paranoid psychosis and stipulated that contact between him and I.K. should be supervised. The Municipal Court made no comments as regards the applicant's argument about the time of the meetings and his work schedule. 20. As regards the place of the meetings, the relevant part of the judgments reads: “... this court has ordered that contact ... between the child I.K.G. and her father still be held at the premises of the Counselling Centre, under the supervision of a third person, to be designated by ... the Welfare Centre ... because it finds that this decision is in the interests of the welfare of the child. An extension of [the father's] parental rights ... is possible on the condition that he undergoes the treatment recommended in the report by the expert [in psychiatry]. This court has ordered that contact take place on the premises of the Counselling Centre given that during these proceedings the Welfare Centre did not make an adequate proposal as to the premises on which contact – which should be limited in view of the father's diagnosis – should take place. This court has also taken into account the fact that the [child] attends school on a changing schedule and has ordered contact accordingly ...” 21. On 19 December 2006 the applicant lodged an appeal, in which he again explained the situation regarding his work schedule. For that reason he sought an order for contact with I.K. every fourth day for a duration of ten hours, or every eighth day, with I.K. spending the night at his home. He also requested to spend half of the winter and summer school holidays, half of all bank holidays, and half of Christmas Day, which was also I.K.'s birthday, with her. 22. On 9 March 2007 the Rijeka County Court upheld the judgment of the first-instance court. It made no comments as to the applicant's arguments related to his work schedule in Italy. The relevant part of the judgment concerning a suitable place for meetings between the applicant and his daughter reads: “On the basis of the report by the Rijeka Welfare Centre of 28 July 2005 the first- instance court established that the [opinion of the Welfare Centre] was that the meetings between the applicant and his daughter could no longer be held at the premises of the Counselling Centre because it was no longer suitable for the child's needs and in this respect the [first-instance] court heard evidence from witness S.M., a psychologist at the Counselling Centre. On the basis of her evidence the first-instance court established that on several occasions the Rijeka Welfare Centre had sought the opinion of the Counselling centre about the meetings between the applicant and his daughter; that the witness had actively participated in these meetings; that the relationship between the applicant and his daughter was good; and that the staff of the Counselling centre were of the opinion that the decision by the Welfare Centre concerning contact should be altered, an opinion with which she personally agreed, in particular in view of the passage of time since the last decision by the Welfare Centre, that the daughter had advanced in age and that the premises of the Counselling Centre were no longer suitable. However, she had no idea or suggestion as to a suitable location for the meetings or as to whether the presence of a third person was necessary. Finally, [she was of the opinion] that the meetings could also be held outside [the centre], but in the presence of a third person given that the applicant suffered from certain disorders, [which could lead to him acting overly] suspicious. ... On the basis of a further opinion by ... expert [in psychiatry] M.B. of 6 November 2006 the first-instance court established that ... there were no reasons to restrict the rights the applicant had thus far enjoyed in connection with his contact with his daughter, and that a possible extension of his parental rights could be granted on the condition that he cooperated in his medical treatment. Taking the above-mentioned report as a starting point ... the [first-instance] court ordered that the meetings between I.K.G. and the applicant should continue at the premises of the Counselling Centre in the presence of an expert ... since during the proceedings the Welfare Centre had made no adequate proposal as to the premises on which contact, which, in view of the applicant's diagnosis, should be restricted, should take place. The [first-instance] court found that that decision had also taken into account that the daughter attended school on a changing schedule and ordered contact with her father accordingly. An extension of his parental rights ... was possible on the condition that he undergo treatment, as recommended in the opinion of the expert. ... ... in its reasoning the first-instance court cites correct and valid reasons which this court endorses completely. ... the first-instance court ordered that the meetings between the applicant and his daughter were to be held on the premises of the Counselling Centre, because during the proceedings the Welfare Centre did not make an adequate proposal as to suitable premises for those meetings ...”. 23. On 5 June 2007 the applicant lodged a constitutional complaint. Inter alia, he reiterated his arguments about the time of the meetings with I.K. and his work schedule and the arguments concerning the suitability of the premises for their meetings. 24. On 25 September 2008 the Constitutional Court dismissed the applicant's constitutional complaint. It made no comments as to the applicant's arguments about the time of the meetings and his work schedule and his arguments concerning suitable premises for the meetings. 25. In the meantime, and subsequent to the judgment of the Rijeka County Court of 9 March 2007 (see paragraph 22 above) on 27 August 2007 the applicant sought the Rijeka Municipal Court to change the decision on contact between him and I.K. in view of his work schedule, and in view of the statement of the Counselling Centre that there was no suitable space there for meetings between the applicant and I.K. He also stated that on 23 July 2007 the Counselling Centre had informed him that meetings were no longer possible on its premises. The applicant asked that meetings between him and I.K. be held in his flat in Rijeka. 26. In his submissions of 6 September 2007 the applicant complained that he had not seen I.K. since July 2007 because the Counselling Centre had been closed. 27. At a hearing held on 29 October 2007 the applicant stated that he had had no contact with I.K. for the past three months. 28. On 29 October 2008 the Rijeka Municipal Court ordered contact between the applicant and I.K. one day a week for two hours on the premises of the Rijeka Social Welfare Centre in the presence of J.T., a retired special needs expert. The relevant part of the decision reads: “... this court has ordered that the meetings [between the applicant and his] daughter shall take place one day a week for a duration of two hours, depending on the child's school activities and the day when the father is in Croatia. Since the father is free every fourth day, because he works for three whole days, he is always free on one day of the week. Since the applicant had no adequate suggestion as to the premises of the meetings, this court holds that the meetings are to be held on the premises of the Rijeka Social Welfare Centre, which is the most suitable place [in terms of] space for the meetings.” 29. On 7 January 2009 the applicant lodged an appeal with the Rijeka County Court complaining that the meetings were not possible at the Social Welfare Centre and asking that the meetings be held in his flat in Rijeka. He also complained that for the past seventeen months he had had no contact with I.K. 30. On 20 January 2009 the Social Welfare Centre submitted to the Rijeka County Court that they had no suitable place for meetings between the applicant and I.K. since, owing to a shortage of space, two to three staff members shared the same office. The only space where the applicant and I.K. could meet was the corridor, which, in the Centre's view, was not a suitable location. 31. On 3 November 2009 the Rijeka County Court upheld the decision of the Rijeka Municipal Court of 29 October 2008 and specified that meetings be held between the applicant and I.K. every Thursday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Social Welfare Centre, in the presence of J.T. The relevant part of the decision reads: “The assessment of the first-instance court as regards the place for the meetings is correct ... ... the first-instance court correctly assessed that, in view of the circumstances of the case, the most suitable place for the meetings could for now only be the premises of a State institution, since an institutional setting would enable an appropriate response to made to any unexpected situation. ... ... this court finds that the [Rijeka Social Welfare Centre] as a public institution responsible for ... implementation of measures aimed at protecting the interests of minor children, is obliged to enforce such measures, including the supervision of meetings between children and their parents, and to ensure that all necessary conditions are met. This includes [providing] the premises for meetings where they cannot be organised in a different manner. ... ... this court finds that it is in the interest of the daughter, irrespective of her current age ..., to meet her father every Thursday for two hours, depending on her school schedule, because Thursday is, owing to the child's weekly schedule, the most appropriate day.” 32. On 7 May 2009, while his appeal against the decision of the Municipal Court was still pending, the applicant again requested the Rijeka Municipal Court to change its decision on contact between him and I.K. He relied on the above allegations of the Centre about the shortage of space. 33. The applicant also reiterated his arguments as regards his work schedule. 34. On 8 March 2010 the Rijeka Municipal Court ordered contact between the applicant and I.K. once a week when the applicant was free for a duration of three hours in the presence of a third person. The parents were to find a solution as to the place of the meetings. 35. The applicant alleged that this judgment was not properly enforced because no suitable place for the meetings was found and the child's mother refused to let him meet I.K. in his flat. 36. The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 85/2010. of 9 July 2010, consolidated text) provide: “Everyone has the right to respect and legal protection of his or her private and family life ...” 37. The relevant part of the Family Act from 1998 (Obiteljski zakon, Official Gazette no 162/1998), in force until 22 July 2003, reads: “When parents do not live together a social welfare centre shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent, where it is not decided by this Act that such decision is to be adopted by a court. ...” 38. The relevant part of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) reads: “(1) When parents do not live together a court shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent. (2) In order to ensure the child's welfare contact and meetings between the child and the parent he or she is not living with may be restricted or banned, and in view of the circumstance of each case a court may also designate a person who shall be present during contact. ...” | 1 |
dev | 001-96762 | ENG | DEU | ADMISSIBILITY | 2,009 | MEISTER (V) v. GERMANY | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Ms Galina Meister, is a German national who was born in 1961 and lives in Hamburg. In August 2006 the applicant applied for the advertised post of application developer (Anwendungsentwickler) with the S-GmbH & Co. KG (“S”), a limited liability company developing and trading navigation software. S decided to hire another candidate, inter alia because of the latter’s proven interest in navigation. In October 2006 the applicant, relying on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), brought an action for damages against the company, claiming that she had been discriminated against on the grounds of her sex, age and possibly also (Russian) origin. On 13 February 2007 the Hamburg Labour Court dismissed her action as unfounded. It pointed out that according to the General Equal Treatment Act a person claiming compensation was required to establish the existence of at least some indications of discrimination. It held that the applicant had failed to set out sufficiently that she had been discriminated against on one of the grounds enumerated in the General Equal Treatment Act. In its reasoning the court dealt with the applicant’s arguments and set out why there were neither sufficient indications nor any kind of proof of the alleged discrimination. On 16 October 2007 the Hamburg Labour Court of Appeal confirmed the first-instance decision. It referred to the reasons given by the Labour Court and again set out the main reasons why there was no indication of discrimination under the General Equal Treatment Act. It refused to grant leave to appeal on points of law. The judgment was served on the applicant’s lawyer on 21 January 2008. By a letter of 22 January 2008 the applicant requested the Federal Labour Court to assign her counsel and legal aid. On 25 January 2008 the Federal Labour Court gave her the file number of her legal aid request. By letters of 25 and 27 January 2008 the applicant informed the Federal Labour Court that her letter of 22 January 2008 should also be seen as a complaint against the refusal to be granted leave to appeal on points of law (Nichtzulassungsbeschwerde) and supplemented her reasoning. On 31 January 2008 the Federal Labour Court gave her the file number of her complaint about the refusal to be granted leave to appeal on points of law. By a letter of 1 February 2008 the applicant added further arguments to her requests. In the following months the applicant sent several further letters to remind the Federal Labour Court of her requests. On 12 March 2008 the applicant lodged a constitutional complaint against the Federal Labour Court’s failure to act in the proceedings concerning her requests of January 2008. On 18 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without giving any reasons. On 14 May 2008 the Federal Labour Court informed the applicant that with regard to the Federal Constitutional Court’s decision of 18 April 2008 about her constitutional complaint “against the decision of the senate”, it “considered the matter resolved” (“betrachtet der Senat die Streitsache als erledigt”). By a letter of 16 May 2008 the applicant again asked the Federal Labour Court to decide upon her requests and pointed out that her constitutional complaint was directed against its failure to act and not against a “decision of the senate”, as there had never been such decision. On 19 June 2008 and 6 February 2009 the Federal Constitutional Court refused to admit for adjudication further constitutional complaints by the applicant against the Federal Labour Court’s failure to act. By a letter of 23 December 2008 the applicant lodged a motion for bias against the judges of the Federal Labour Court involved in her proceedings. Hereupon the Federal Labour Court on 17 March 2009 again informed the applicant that her requests of January 2008 had been resolved and struck off the list, so that there was no point in deciding her motion for bias. On 21 April 2009 the Federal Constitutional Court refused to admit for adjudication the applicant’s constitutional complaint against the Federal Labour Court’s failure to decide on her motion for bias. It held that due to a misinterpretation of the Federal Constitutional Court’s decision of 18 April 2008 the Federal Labour Court had considered the matter resolved and failed to take a decision in the proceedings. The right to effective legal protection required court proceedings to be terminated within a reasonable time. In this regard it also pointed to Article 6 of the Convention. The Federal Constitutional Court concluded that with regard to its clarification, it could be expected that the Federal Labour Court would neither continue to refuse to take a decision in the applicant’s proceedings (concerning her requests of January 2008 and the motion for bias of 23 December 2008) nor would it fail to take such decisions within reasonable time. On 5 August 2009 the Federal Labour Court rejected the applicant’s legal aid request for her complaint against the refusal to be granted leave to appeal, holding that the complaint lacked reasonable prospects of success. On the same day the Federal Labour Court declared inadmissible the applicant’s complaint against the refusal to be granted leave to appeal because she was not represented by counsel, as statutorily required. In June 2008 the applicants lodged a criminal complaint (Strafanzeige) against the Federal Labour Court judges involved in her proceedings. On 8 July 2008 the Erfurt Public Prosecutor’s Office refused to institute preliminary investigations. It held that the applicant’s allegations were unsubstantiated. There were no indications of a criminal offence in the applicant’s submissions. The applicant appealed against this decision with the General Public Prosecutor’s Office. According to section 72a §§ 1 and 2 of the Labour Courts Act (Arbeitsgerichtsgesetz) the Labour Court of Appeal’s refusal to grant leave to appeal on points of law can be challenged by a complaint (Nichtzulassungsbeschwerde) to the Federal Labour Court. According to section 11a of the Labour Courts Act a party has the opportunity to request legal aid and the assignment of counsel. Pursuant to section 11 § 4 of the Labour Courts Act the parties in proceedings with the Federal Labour Court and the Labour Court of Appeal have to be represented by counsel. | 0 |
dev | 001-76256 | ENG | NLD | CHAMBER | 2,006 | CASE OF SALAH v. THE NETHERLANDS | 1 | Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved | null | 4. The applicant was born in 1964 and is currently serving a prison sentence in the Netherlands. 5. On 1 October 1997 the applicant was detained on remand (voorlopige hechtenis) on suspicion of involvement, together with others, in the robbery of a couple in the Netherlands in the course of which the man had been killed in front of the woman, who had been raped several times and had eventually been killed in Belgium. The criminal proceedings brought against the applicant, in which he stood accused of offences including rape, deprivation of liberty, murder, theft and robbery, came to an end on 5 September 2000 when the Supreme Court (Hoge Raad) confirmed the judgment of the 's-Hertogenbosch Court of Appeal (gerechtshof) dated 22 April 1999 in which the applicant had been sentenced to twenty years' imprisonment. In the meantime, requests for his extradition from the authorities of both Germany and Belgium, where the applicant was wanted on suspicion of various serious offences, had been declared permissible on 18 March 1998 and 24 June 1998 respectively. 6. The applicant was initially detained in an ordinary remand centre (huis van bewaring). On 16 January 1998, on the basis of information that the applicant appeared to be playing a key role in the preparation of an escape plan involving the taking of hostages, he was transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in a Rotterdam detention facility. On 2 February 1998 he returned to an ordinary remand centre, but on 11 May 1998 – following a report that the applicant and another detainee were involved in smuggling a telephone and weapons into the remand centre – he was transferred back to the National Segregation Unit. 7. On 25 June 1998, on the advice of the special selection board of the EBI, the Minister of Justice decided to place the applicant in the pre-trial detention unit of the EBI, which is part of the Nieuw Vosseveld Penitentiary Complex in Vught. His detention in the pre-trial unit of the EBI was reviewed and extended by the Minister every six months. On 26 October 2000, on the advice of the EBI special selection board, the applicant's stay in the EBI was extended once again by the Minister. As the applicant's conviction had become final in the meantime, he was transferred to the EBI prison unit. His detention in the EBI prison was reviewed and extended by the Minister every six months. The applicant unsuccessfully challenged each extension decision before the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing). On 1 April 2001 the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming). 8. In May 2001, after a fight between the applicant and a co-detainee, the applicant was placed under a so-called individual regime, as it was held that his security could not be guaranteed by the institution if he were to come into contact with other detainees. This measure, which resulted in the applicant's being excluded from communal activities and being allowed to participate in activities on an individual basis only, was reviewed and extended every fortnight. The applicant unsuccessfully challenged each decision to extend the measure. The measure was lifted on an unspecified date in May 2002. 9. According to a report dated 17 October 2001 further to an examination of the his psychological condition by the Penitentiary Selection Centre (Penitentiair Selectie Centrum), the applicant left a strong impression of a very angry, impulsive and combative man. He displayed no clear symptoms of depression and his references to suicide appeared to arise from feelings of anger at having been unjustly convicted and placed in the EBI and to be aimed at “punishing” those around him for what they had done to him. He gave the impression of suffering from a serious personality disorder with mainly narcissistic and anti-social features. After a difficult period, the situation around him had now stabilised to a reasonable degree and his dealings with the EBI staff had become easier. 10. In a letter of 23 October 2001 the applicant was informed that the Minister of Justice had decided to extend his detention in the EBI once again. That letter, in its relevant part, read as follows: “From the information held about you, it appears – quite apart from your membership of a criminal organisation – that you must be regarded as likely to try to escape (vluchtgevaarlijk). In this respect, I would inform you as follows. You are currently detained in connection with the commission, together with others, of very serious crimes which provoked a public outcry and undermined law and order to a serious degree. In addition you are suspected of having committed very serious crimes in other European countries, resulting in extradition requests by Belgium and Germany which have been accepted as permissible by the Breda Regional Court (arrondissementsrechtbank). You will be extradited to Belgium. On 20 October 1999 you were questioned by the German police and on 17 April 2001 by the Belgian authorities. The expectation is that you will face (a) lengthy prison sentence(s) in those countries. On 16 January 1998 there were indications concerning you – in [the ordinary] Breda [remand centre] – from which it appeared that you (and others) intended to escape. It further appeared that there were plans to take staff members hostage. You were to play a key role in the planned escape attempt. At an earlier stage of your detention – also in Breda [remand centre] – (official) reports had been received indicating that you had the intention of escaping using a visitor's pass. This resulted in your placement – on 16 January 1998 – in the [Rotterdam] National Segregation Unit. On 2 February 1998 you were placed in [the ordinary] Middelburg [remand centre]. On 11 February 1998 you reported that you had received clothes and shoes not belonging to you. A clasp knife measuring 23-25 cm was found in the shoes, which you surrendered to a staff member. On 4 April 1998 you smashed in the window of your cell. On 6 May 1998 reports concerning you were received, according to which you were intending to smuggle a telephone and/or weapons into the detention centre inside audio equipment. On 11 May 1998 you were again placed in the National Segregation Unit, pending a decision on a proposal to place you in the EBI. After you had been placed in the EBI on 25 June 1998 you displayed a particular interest in the security of the establishment. When other detainees were being moved, you observed the course of events closely, noting which doors opened and which remained closed. You also enquired of staff how well the building was secured, whether conversations were monitored and how many detainees the building could accommodate. Around 30 July 1999 you twice tried to circumvent the EBI security measures, resulting in a warning being issued to you. In the period between January 2000 and 19 June 2000 you displayed recalcitrant behaviour and a desire to push back boundaries, in particular with regard to the rules governing the prison regime. Between July 2000 and 23 October 2000 you issued threats against various persons, including a judge. You declared in that connection 'that you still knew people outside who would take care of this for you'. Also in the period between November 2000 and 11 April 2001, you issued threats against EBI staff. You argued that the prison authorities and prison doctor were to blame for the situation in which you found yourself. In that connection you (further) indicated that those persons would pay for the things that they, in your opinion, had done to you. From the above, the assumption appears justified that (you realise that) you have nothing more to lose and, in consequence, will seize every opportunity to escape. After you had been sentenced to life imprisonment in first-instance proceedings, you were sentenced by an irrevocable judgment to twenty years' imprisonment for serious crimes. In addition, you are suspected of having committed very serious crimes in various other European countries, resulting in extradition requests by Belgium and Germany which have been accepted as permissible by the Breda Regional Court. You will be extradited to Belgium. The expectation is that you will face (a) lengthy prison sentence(s) in those countries. An escape on your part would be unacceptable to society. Noting the above, and also the grave concern expressed by society and public opinion at the very serious crimes which you have committed, as a result of which law and order was undermined to a serious degree, the [EBI] selection board, having heard evidence from the selection officer who has spoken with you, has advised me to continue your detention in the EBI. I have taken a decision to that effect.” 11. As he had done in respect of the previous such decisions, the applicant again challenged the decision to extend his stay in the EBI, by lodging an appeal with the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles, arguing that his (continued) detention in the EBI was, inter alia, in breach of his rights under Articles 3 and 8 of the Convention. 12. On 29 January 2002 the Appeals Board dismissed the appeal. It noted that the applicant had been sentenced to twenty years' imprisonment for very serious crimes giving rise to grave concern in society and public opinion. In addition, he was suspected of having committed serious offences in other European countries, in connection with which Belgium and Germany had sought his extradition. The expectation was that he would face lengthy prison sentences in both countries. It therefore considered that the applicant, in the event of an escape, would pose an unacceptable risk to society, in terms of severe disturbance of public order. Of lesser importance was the risk of escape in itself, that is, the situation provided for in Article 6 (b) of the Regulation of 15 August 2000 on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden). The Appeals Board further concluded that, having found no facts or circumstances militating against the continuation of the applicant's stay in the EBI, the decision to extend his detention there was lawful and that, weighing up all the interests involved, it could not be considered as unreasonable or unjust. The Board did not deal with the applicant's arguments under Articles 3 and 8 of the Convention. 13. By a decision of 19 April 2002 the applicant's detention in the EBI was again extended. His appeal to the Appeals Board, in which he again relied on, inter alia, Articles 3 and 8 of the Convention, was dismissed on 22 July 2002. 14. The Appeals Board reaffirmed its opinion that the applicant, in the event of an escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, and that the risk of escape was, in itself, of lesser importance. In the absence of any facts or circumstances militating against a continuation of the applicant's stay in the EBI, it also found that the decision to extend his detention there was lawful and that, weighing up all the interests involved, it could not be considered as unreasonable or unjust. It did, however, add that – before a decision was taken on whether to extend further the applicant's detention in the EBI – the applicant should speak with a psychologist from the Penitentiary Selection Centre, and that the report to be drawn up following that conversation was to be taken into account in the decisionmaking process. 15. On 12 May 2003 the applicant was transferred to an ordinary prison in Maastricht. 16. On 10 August 2004 another individual – who had been detained in the EBI between 26 June 1998 and 24 December 2003 – brought a civil action in tort (onrechtmatige daad) against the Netherlands State before the Regional Court of The Hague. One of the grounds on which he claimed payment of compensation in respect of non-pecuniary damage for unlawful acts for which he considered the Netherlands State to be liable was that, from his arrest in March 1998 until the end of December 2003, he had been subjected to inhuman and degrading treatment on account of the conditions of his detention, including having had to undergo humiliating and unnecessary strip-searches. He based this part of his claim on, inter alia, the Court's findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-II) and Lorsé and Others v. the Netherlands (no. 52750/99), the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as set out in two reports (see paragraphs 44-45 below), and a report drawn up on 10 October 2003 by academic researchers on the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraph 21 below). 17. On 11 July 2005 the applicant and eight other (former) EBI detainees applied to the Regional Court for leave to join the civil action against the Netherlands State. Their application related to the part of the claim concerning compensation for non-pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. Those civil proceedings are still pending and, to date, no decision has been taken on the applicant's request to join them. 18. An overview of the relevant domestic law and practice is given in the Court's judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands, no. 50901/99, §§ 26-35, ECHR 2003-II, and in Baybaşın v. the Netherlands (dec.), no. 13600/02, 6 October 2005. 19. On 1 March 2003, in the light of the Court's findings in its judgments of 4 February 2003 in the cases of Van der Ven, cited above, and Lorsé and Others, cited above, the EBI house rules (huisregels) were amended with the result that the practice of weekly routine strip-searches accompanying the weekly cell inspections was abandoned. Under the amended Article 6(4) of the EBI house rules, strip-searches could be carried out at random during or directly after a weekly cell inspection. 20. From 10 July 2003 onwards, pursuant to a ruling given on 7 July 2003 by the judge responsible for provisional measures (voorzieningenrechter) at the Regional Court of The Hague in summary injunction proceedings brought against the Netherlands State by thirteen EBI detainees in June 2003, the random strip-searches were no longer linked to cell inspections and the EBI authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for. The situation of each individual detainee is now discussed at the monthly EBI staff meeting on detainees. 21. On 10 October 2003 researchers from the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraphs 45-46 below). It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, with particular reference to the speed of processing information and response inhibition. This was probably a result of the lack of stimuli in the detention situation. The report further concluded that the EBI regime caused more depression than a restricted community regime and that strip-searches were perceived as humiliating, constituting an extra burden for persons detained in the EBI. On the other hand, the EBI regime provided a better balance between rest and activity than a restricted community regime, as a result of which EBI detainees maintained a healthier rhythm of everyday life. In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress. 22. Under Netherlands law the civil courts have traditionally had jurisdiction to grant relief against the authorities, if and in so far as no other relief is available. Where a person bases a claim against the authorities on an allegation that they have committed a tort within the meaning of Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) against him or her, the civil courts have jurisdiction in principle. Where the civil courts have jurisdiction, they can also act in summary injunction proceedings (kort geding) in which a claimant can, inter alia, request the civil court to issue an order against the authorities. An act by the authorities is unlawful and constitutes a tort when it violates a right of the claimant or is contrary to a rule of international or domestic law which seeks to protect the claimant's interests, or to general principles of proper administration (algemene beginselen van behoorlijk bestuur). An action in tort is subject to a five-year limitation period under Article 3:310 (1) of the Civil Code. 23. However, as to the jurisdiction of the civil courts in cases where an administrative appeal lies, it is an established principle under Netherlands law that – given the closed system of legal remedies (gesloten system van rechtsmiddelen) in the Netherlands legal system – the civil court should refrain from examining the lawfulness of an administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure. On this topic, extensive case-law has been developed by the Netherlands Supreme Court (Hoge Raad) over the last decades, supported by a number of authorities, to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure, the civil courts have full jurisdiction to review the lawfulness of the administrative decision. On the other hand, a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings (see Supreme Court, 12 December 1986, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1987, no. 381; see also Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, §§ 21-35 and §§ 53-56). 24. In a case in which it gave judgment on 3 December 1971, the Supreme Court examined the question whether a party which considered that it had been injured by a judicial ruling against it could bring a subsequent civil action in tort against the State, arguing that the judge had failed to act with due care in giving that ruling. The Supreme Court found that this was not possible, holding that it was solely for the legislature to decide in what cases a remedy was to be provided. It would be incompatible with this principle if an unsuccessful party were to have the possibility, through a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, thus obtaining a fresh examination in a manner other than that provided for by statute. It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles (fundamentele rechtsbeginselen) that the case could no longer be said to have been determined in a fair and impartial manner, and if there was no possibility of appeal nor had there ever been such a possibility, could the State be held liable for the effects of such a ruling through a civil action in tort (NJ 1972, no. 137; see also Supreme Court, 29 April 1994, NJ 1995, no. 727; Court of Appeal of The Hague, 16 July 1998 and 12 November 1998, NJ 1999, nos. 256 and 127; and Court of Appeal of The Hague, 7 April 2000 and 18 May 2000, Administrative Law Reports (Jurisprudentie Bestuursrecht) 2000, nos. 147 and 142). 25. In a judgment given on 3 April 1987 concerning civil proceedings taken against the Netherlands State by an association of detainees who wished to challenge a special restricteddetention regime in a specific wing of the prison in The Hague, the Supreme Court held that, as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned (that is to say, the individual complaint procedure provided for in Article 51 et seq. of the Prisons Act 1953 (Beginselenwet Gevangeniswezen) as in force at that time) and it was not in dispute that that remedy offered sufficient procedural safeguards, the claimant's case had been correctly declared inadmissible, as the association had acted solely “in the context of promoting the interests of its members”, which were already safeguarded by the individual complaint procedure under Article 51 et seq. of the Prisons Act 1953 (NJ 1987, no. 744). 26. In a judgment given on 1 February 1991 (NJ 1991, no. 413) in a civil action against the Netherlands State brought by a coaccused of a successful applicant to Strasbourg (Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166), the Supreme Court held as follows: “It is embedded in the [Netherlands] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should, but must, be executed. It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity, through a claim [for tortious damage] against the State, to bring a fresh set of legal proceedings challenging the decision of the criminal court or the acceptability of the [criminal] proceedings leading to the decision and to have [the subject matter of those proceedings] reviewed by the civil courts. Considering the obligations flowing from Articles 1, 5 and 13 [of the Convention] to secure the rights set out in Article 6 [of the Convention] and to provide an effective remedy in the event of a violation of those rights, an exception must be made to the above-mentioned rules should a ruling of the European Court [of Human Rights], which the criminal court judge could not take into account in his decision, prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article 6 § 1 [of the Convention]. When such an exceptional case arises, immediate execution of the decision can no longer be regarded as permitted under the legal system, and the person convicted can institute interim injunction proceedings [before the civil court] seeking – depending on the circumstances – to have execution prohibited, stayed or limited. Having regard to the nature of interim injunction proceedings and the reticence to be observed by the judge in such proceedings when examining the manner in which an irrevocable decision of the criminal court has come about, there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of the European Court [of Human Rights] indeed requires that the above-mentioned conclusion be reached.” In that case, the Supreme Court accepted the Court of Appeal's finding against the claimant in view of the fact that, when the impugned ruling was given on 22 December 1988, the Court had not yet delivered its judgment in the Kostovski case. 27. A number of persons detained in the EBI have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime, or certain aspects of it, relaxed (for further details, see Lorsé and Others, cited above, §§ 40-42). 28. On 1 January 2003 an amendment to Article 457 of the Code of Criminal Procedure (Wetboek van Strafvordering – “the CCP”) entered into force, governing possible means of obtaining revision (herziening) of final judgments. The amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by the European Court of Human Rights that the criminal proceedings leading to that conviction had been in violation of the Convention. The relevant part of the amended text of Article 457 of the CCP reads: “1. An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res judicata can be lodged: ... 3o. on the ground of a ruling of the European Court of Human Rights in which it has been established that there was a violation of [the Convention or one of its Protocols] in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of Article 41 of [the Convention].” A request for revision can be lodged with the Supreme Court by the Procurator General, the convicted person or the latter's lawyer within a period of three months after the convicted person has become aware of the Court's ruling referred to in Article 457 (1), subparagraph 3 (Article 458 of the CCP). 29. If the Supreme Court accepts a request for revision based on Article 457 (1), subparagraph 3, it may either itself determine the criminal charges after reopening the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 567 (2) of the CCP). 30. In its judgment of 23 April 1997 in the case of Van Mechelen and Others v. the Netherlands (Reports of Judgments and Decisions 1997III), the Court found a violation of the Convention in that the criminal proceedings against the four applicants had not been conducted in compliance with the requirements of Article 6 §§ 1 and 3 (d) of the Convention. In its judgment it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants' claim for non-pecuniary damage, considering that that part of the applicants' claim for just satisfaction was not ready for decision. 31. On 23 April 1997 the applicants in that case lodged a request for their immediate release from detention, failing which they would bring summary injunction proceedings against the State. On 25 April 1997 the Minister of Justice decided to grant them temporary release (strafonderbreking) and they were released from prison on the same day. 32. The Court determined the applicants' claims for non-pecuniary damage in its judgment of 30 October 1997 (Van Mechelen and Others v. the Netherlands (Article 50), Reports 1997VII), in which it noted that under domestic law it was not possible for the applicants to obtain a retrial1. The applicants had claimed 250 Netherlands guilders (NLG) for each day spent in detention, resulting in total claims of between NLG 746,000 and NLG 752,500. After having examined the respondent Government's comments on those claims, the Court awarded one applicant NLG 30,000 (13,613.41 euros (EUR)) and each of the three other applicants NLG 25,000 (EUR 11,344.51) for non-pecuniary damage, and rejected the remainder of the applicants' claims for non-pecuniary damage. 33. On 19 February 1999 the Committee of Ministers of the Council of Europe, exercising its supervisory powers under the Convention as regards the execution of the Court's judgments of 23 April 1997 and 30 October 1997, adopted a final resolution (Res DH(99)124) in the case. Having noted the measures taken by the Netherlands on the basis of the Court's judgments, the Committee of Ministers concluded that the manner in which the Netherlands had executed both judgments was in compliance with their obligations under the Convention. 34. On 29 April 1999 three of the four applicants brought a civil action in tort against the Netherlands State before the Regional Court of The Hague. They sought a declaratory ruling that the Netherlands State was liable for pecuniary and non-pecuniary damage arising out of unlawful administration of justice in violation of their rights under Article 6 §§ 1 and 3 (d). They sought payment of compensation corresponding to NLG 250 for each day spent in detention, less the compensation awarded by the Court. They based their claims on the argument that, given the Court's findings in its judgment of 23 April 1997, it had been established that in the domestic criminal proceedings against them the Dutch court had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful. 35. In its judgment of 5 July 2003, following appeal proceedings taken by the Netherlands State, the Court of Appeal of The Hague quashed the impugned judgment given on 17 January 2001 by the Regional Court, and for the time spent in detention (pre-trial and following conviction) awarded compensation for non-pecuniary damage to the first claimant in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court. It awarded the second claimant EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third claimant EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia, as follows: “The finding of the European Court [of Human Rights] that full redress (volledige genoegdoening) by means of a 'retrial' in the Netherlands is not possible, means that the European Court may award compensation on grounds of equity (vergoeding naar billijkheid), but not that in subsequent civil proceedings the domestic court can no longer award full compensation for damage (volledige schadevergoeding). The State's argument, that [the three claimants] requested compensation for damage for the first time before the European Court and not previously before the domestic court, and that the European Court would have taken into account in its judgment the same claims for damages (schadeposten) as those now in issue in the present proceedings, fails because no rule exists prohibiting the bringing of a claim before the Dutch court seeking compensation for damage, a part of which – namely an award in equity – has already been awarded in separate proceedings before the European Court.” 36. In its judgment of 18 March 2005 on the appeal on points of law brought by the Netherlands State against the ruling of 5 July 2003, the Supreme Court held that the State had been correct in not challenging this part of the reasoning in the impugned judgment. 37. On 4 February 2003 the Court delivered its judgment in the case of Lorsé and Others (cited above), finding a violation of Article 3 of the Convention in respect of the applicant Mr Lorsé in that, during his stay in the EBI for more than six years, the applicant – who was already subjected to a great number of control measures – had been subjected to weekly routine strip-searches without convincing security reasons. It found no violation in respect of the other grievances raised by Mr Lorsé and the other applicants (his spouse and children) under Articles 3, 8 and 13 of the Convention. As regards damages, the applicants requested the Court to award them a symbolic amount of NLG 1,000 (EUR 453.78), stating that no amount of money would be capable of compensating for the harm suffered by them. Taking the view that Mr Lorsé had sustained some psychological damage on account of the treatment which had been found contrary to Article 3, the Court awarded him, in respect of such damage, EUR 453.78, that is to say, the full amount claimed under that head. 38. On 6 February 2003 Mr Lorsé brought summary injunction proceedings against the Netherlands State before the judge responsible for provisional measures in the Civil Law Division of the Regional Court of The Hague, seeking an order against the State to discontinue, with immediate effect, the execution of the fifteen-year prison sentence that had been imposed on him, to release him immediately from prison and not to seek payment of the fine of NLG 1,000,000 (EUR 453,780.22) that had also been imposed. 39. On 12 February 2003 the judge responsible for provisional measures ruled on the applicant's request. The decision, in its relevant part, reads: “3.1. The claimant has an urgent interest in his claim. The civil court judge – in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [of the case], as the claimant claims that the State has acted unlawfully toward him, inter alia by continuing his detention. 3.2. For the determination of the claim, it is a fact that the State has violated the applicant's rights under Article 3 ... 3.3. Under Article 41 of [the Convention] the applicant is entitled to reparation (rechtsherstel) in respect of this irreparable violation of the Convention. If need be, he can assert that right before the courts. The State is deemed to be acting unlawfully towards him if no suitable form of redress is provided. 3.4. The parties have provided different answers to the question whether the measures requested by the claimant ... constitute a form of redress compatible with our legal system and, if so, whether those measures are suitable and appropriate in this case. 3.5. [The judge responsible for provisional measures rejects] the argument of the State that the closed system of legal remedies in criminal proceedings, and the corresponding obligation of the State to execute rulings of the criminal courts, militate against this form of redress. In this system, no provision has been made to date for (a suitable response to) a violation of the kind at issue in the instant case. There have been no prior similar cases, and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in case-law. In principle, early release or non-execution of a fine imposed may constitute a suitable form of redress for a violation of Article 3 of the Convention of the kind in issue. This exception to the closed system of legal remedies in criminal cases is, to that extent, consistent with the Supreme Court's approach in its judgment of 1 February 1991 (NJ 1991, 413). 3.6. The State has referred to the financial compensation awarded by the [European Court of Human Rights] and to the just satisfaction which, in the case of the applicant, lies in the fact that his complaint was declared well-founded [by the European Court of Human Rights]. However, these two elements do not form a suitable, and certainly not a sufficient, form of redress for the claimant. Consequently, they do not stand in the way of the claims being allowed. The claimant can request the domestic court to order that additional measures be taken. 3.7. In reply to a question, the State stated that it was possible, in this connection, to consider measures such as the claimant's serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure. ... Again, these options do not form an obstacle to allowing the claims. The first option does not constitute sufficient redress in this case, while the option of a pardon corresponds to (a request for) a concession rather than the granting of a right, which is what is at issue here. 3.8. In these circumstances, the State should release the claimant earlier than June 2004 [when he becomes eligible for early release] and waive the execution of the sentence in its entirety. Having regard to the nature of the violation of the Convention which is an established fact, a form of redress (genoegdoening) which relates to the claimant's liberty is more suitable, and in any event warrants greater priority than waiving payment of the part of the fine still outstanding. 3.9. No fixed standard exists for 'offsetting' the remaining part of the claimant's prison sentence. There are no pertinent reference points on the subject in existing legislation. This means that the amount of the compensation must be determined on an equitable basis (naar billijkheid). The seriousness of the violation [of the Convention] justifies reduction of the sentence by a period equal to 10% of the number of days for which the applicant was subjected to the regime in the EBI... This amounts to a reduction of 230 days (round figure)... 3.10. On the basis of this solution, the claimant's claim should be rejected. Indeed, the claimant has no urgent interest in a provisional measure which will only take effect after about nine months [when the applicant has served his mitigated sentence]... It is assumed that the State (the Minister of Justice) will execute this ruling and release the claimant at a time that can be determined precisely on the basis of the standard set out here. If need be, the claimant may apply again in due course to the judge responsible for provisional measures. 3.11. Each of the parties can, in fact, be deemed to have been ruled against.” 40. Both parties agreed to lodge a direct “leapfrog” appeal on points of law (sprongcassatie) with the Supreme Court, which dismissed both appeals on 31 October 2003. Although it agreed with the Netherlands State that the judge responsible for provisional measures had incorrectly assumed that Article 41 of the Convention gave Mr Lorsé an (independent) right to redress which, if need be, could be asserted before the domestic court, it held that this could not lead to the setting-aside of the judgment as, pursuant to the Convention, the State was obliged to provide redress. However, relying on the Court's reasoning in the cases of Papamichalopoulos and Others v. Greece ((Article 50), judgment of 31 October 1995, Series A no. 330B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000VIII), the Supreme Court considered that, although the State was in principle free to determine the manner in which redress was to be provided, that freedom did not mean that the domestic court was unable to take a decision on that point, but simply that a suitable form of redress was to be sought within the domestic legal order. As the Netherlands State had acted unlawfully towards Mr Lorsé in so far as his rights under Article 3 had been violated, as found by the Court, Mr Lorsé was entitled to claim compensation from the State, which would be acting unlawfully if it failed to provide a suitable form of redress. The Supreme Court accepted that such compensation could be granted in a manner other than by paying a sum of money. In cases such as the present, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of discontinuing the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to discontinue execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of Mr Lorsé. As regards the argument raised by the State that the closed system of legal remedies and the corresponding obligation for the State to execute rulings of the criminal courts precluded the form of redress claimed by Mr Lorsé, the Supreme Court – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [as in the case of Van Mechelen and Others] and a situation in which the violation found was unrelated to such a conviction or proceedings [as in the case of Mr Lorsé] – held that this difference did not mean that the judge responsible for provisional measures had based point 3.5 of the impugned ruling on an incorrect interpretation of the law. Given the particular violation of Article 3 found by the Court and the fact that there was no specific statutory remedy for determining redress for such a violation, the Supreme Court concluded that in that case an exception to the closed system of legal remedies could be accepted. It further found that the judge responsible for provisional measures had given sufficient reasons as to the determination of the compensation awarded to Mr Lorsé. 41. In its judgment of 8 April 2003 in the case of M.M. v. the Netherlands (no. 39339/98), in which the applicant complained that his telephone conversations with a Mrs S. had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him, the Court found a violation of Article 8 of the Convention on the ground that the conversations in question had not been recorded “in accordance with the law”. As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage, stating that he intended instead to pursue such claims before the domestic courts, the Court made no award for just satisfaction under those heads. In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings, the Court rejected the applicant's argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case, taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant's part, and recalling that it had already, at the admissibility stage, rejected the applicant's complaints touching on the use made of the evidence obtained as a result of the violation found. 42. On an unspecified date and on the basis of the Court's findings in its judgment of 8 April 2003, the applicant M.M. filed a request with the Supreme Court for revision of the final domestic judgment of 16 June 1995, in which the Court of Appeal – without the recorded telephone conversations having been relied on in evidence – had convicted him of having sexually assaulted Mrs S. and another woman and had sentenced him to a suspended term of four months' imprisonment, together with a fine of NLG 10,000 (EUR 4,537.80), to be replaced by 100 days' detention for default of payment. 43. On 27 September 2005 the Supreme Court accepted the request for revision and, in accordance with Article 467 (2) of the CCP, determined the matter itself. It held as follows: “4.4. ... the State has the obligation to provide redress if the European Court of Human Rights has found a violation of a Convention provision. Such redress can be provided in whole or in part within the framework of the revision procedure, amended for this purpose. 4.5. Having regard to the violation of Article 8 found by the European Court of Human Rights, the Supreme Court is of the opinion that revision is necessary for the purposes of redress. To that extent, the request is well-founded. ... The request is aimed primarily at having the Supreme Court declare the prosecution inadmissible, while quashing the judgment in respect of which revision is sought. 4.6. The Supreme Court cannot accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible, and the instant case cannot be regarded as such. In this connection the petitioner relies mistakenly on [the Supreme Court's judgment of 19 December 1995; NL 1996, no. 249]. In that case the Supreme Court held that, in certain circumstances, a serious breach of the principles of due process may lead to the prosecution being declared inadmissible if, as a result of that breach, deliberately or owing to gross disregard of the defendant's interests, the defendant's right to a fair hearing has been infringed. As the European Court of Human Rights, in its decision on admissibility [M.M.. v. the Netherlands (dec.), no. 39339/98] of 21 May 2002, preceding its judgment of 8 April 2003, declared inadmissible the [applicant's] complaint under Article 6 of the Convention as being manifestly ill-founded, it cannot be said that there has been a serious breach of the principles of due process as a result of which, deliberately or owing to gross disregard of the [applicant's] interests, his right to a fair hearing has been infringed. 4.7. Taking into account that, in the proceedings leading to the judgment of which revision is sought, there was no breach of Article 6 and that the content of the recorded telephone conversations was not used in evidence, there is no ground for referring the case to another Court of Appeal under Article 461 of the CCP for the purposes of obtaining redress, as requested by the petitioner in the alternative. 4.8. In the light of the significance of the violation [of the Convention] and the nature and seriousness of the irreparable defects in the preliminary criminal investigation, as found by the European Court of Human Rights, the Supreme Court will, after accepting the [revision] request, determine the matter itself, in accordance with Article 467 (2) of the CCP, and reduce the fine imposed by the Court of Appeal in the following manner. ...” The Supreme Court quashed the original judgment of the Court of Appeal in part, that is, in respect only of the amount of the fine imposed and the duration of the detention for default, reducing the fine by 10% to EUR 4,000 and the detention for default to 90 days. 44. The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) with regard to the EBI, as set out in its Report on a visit to the Netherlands from 17 to 27 November 1997, together with the Netherlands Government's response to those findings, are set out in the Court's judgment of 4 February 2003 in the case of Van der Ven (cited above, §§ 32-35). 45. The CPT visited the Netherlands again from 17 to 26 February 2002 and, in the course of that visit, carried out a follow-up visit to the EBI. Its findings were the following (Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002, CPT/Inf (2002) 30, excerpts): “33. At the time of the February 2002 visit, the Extra Security Institution (EBI) at the Nieuw Vosseveld Prison Complex was being renovated, and the inmates allocated to it were being held in the Temporary Extra Security Institution ((T)/EBI) building nearby (cf. paragraph 58 of CPT/Inf (98) 15). In addition to paying a brief visit to the facilities undergoing renovation, the CPT's delegation examined the regime currently being applied, and devoted attention to the procedures governing placement and extension of placement in EBI. In the course of the visit, interviews were held with all 14 inmates, the establishment's management and staff, as well as representatives of the EBI Selection Board. ... c. regime 37. Following its first visit to the EBI, the CPT expressed considerable concern about the regime applied within the institution. It recommended that the regime be revised, in particular as regards certain of its features: the group system (if not discarded, to at least be relaxed and inmates to be allowed more out-of-cell time and a broader range of activities); searching policies (to be reviewed in order to ensure that they are strictly necessary from a security standpoint); and visiting arrangements (to be reviewed, the objective being to have visits take place under more open conditions) (cf. paragraphs 61 to 70 of CPT/Inf (98) 15). However, in their response (dated 1 March 1999) to the CPT's visit report, the Dutch authorities defended point by point the different aspects of the regime being applied in the EBI (cf. paragraph 29 of CPT/Inf (99) 5). 38. In the course of the February 2002 visit, the Director of the Nieuw Vosseveld Prison Complex and the Acting Director of the EBI informed the CPT's delegation that a limited number of modifications to the regime and its implementation had taken place. For instance, steps were being taken to increase staff/inmate communication through a training programme known as “Safety at the door”, as well as by the previously-mentioned adaptations of the exercise yards. Further, a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells. Another positive development was that the special “handcuffs regime” (cf. paragraph 8 of CPT/Inf (98) 15) had not been applied in respect of any inmate since 1999. However, despite these welcome developments, the regime in the unit was essentially the same as in 1997, and the prison's management acknowledged that there had been “no change in most of the rules”. Although the official allowance for activities was generous (50 or more hours per week), in practice, most inmates' out-of-cell time did not appear to have increased (averaging 2 to 4 hours per day). The stringing of plastic curtain hooks on short rods, which was performed individually in the cells, continued to be the only work offered. It remained the case that body searches - including anal inspections - were performed on each prisoner at least once a week 13, a process which was invariably perceived as humiliating. Conditions under which visits and sessions with non-custodial staff took place also continued to be very restrictive. Inmates' remarks to the delegation (e.g. “losing positivity”, lacking “future feelings”, “beginning to hate people from the heart”, and/or having to cope by being “mentally separate”) frequently echoed those made in November 1997. To sum up, inmates held in the EBI remained subject to a very impoverished regime. 39. In an environment which is potentially hazardous to the mental health of prisoners, it is of critical importance to provide a varied programme of appropriate stimulating activities (including education, sport, work of vocational value, etc.). The CPT calls upon the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff. Following a recommendation made by the CPT in its previous periodic visit report (cf. paragraph 70 of CPT/Inf (98) 15), the Dutch authorities commissioned the University of Nijmegen to carry out an independent study of the psychological state of current and former inmates of the EBI. A preliminary study completed on 17 April 2000 concluded that “an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible.” The Dutch authorities have indicated that such an empirical examination has in fact commenced and would be completed by Summer 2003. The CPT trusts that it will receive the results of the study in due course. One point raised by the preliminary study may be noted, i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI. The Committee would like to receive the views of the Dutch authorities on this statement. [footnote] 13. Each prisoner was also subjected to such a search before and after being interviewed by members of the CPT's delegation.” 46. The Netherlands Government responded to these findings in the following terms (CPT/Inf (2003) 39, excerpts): “The “Extra Security Institution” at the Nieuw Vosseveld Prison Complex recommendations ... - the Dutch authorities [are called upon] to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff (paragraph 39) Response: Prisoners in the EBI spend a total of about 52 hours a week on out-of-cell activities, and these activities are no less varied than in other prisons. They include exercise, visits, sport, work, education and recreation. Not all prisoners take part in all activities. What they do depends partly on interest and ability. The work in the EBI is simple. However, it is difficult to provide work that is more varied and yet meets security requirements. In principle, work in the EBI is done jointly. The Government refutes the claim that, on average, prisoners participate in activities for no more than between two and four hours a day. In fact they spend an average of four to five hours a day in out-of-cell activities. The Government agrees that prisoners and staff should have more contact. Fenced-off walkways for staff have now been erected in the exercise yards. They provide more opportunities for informal contact and interaction between prisoners and staff. The number of searches has been sharply reduced since the opening of the EBI. Besides a weekly search during cell checks, searches are carried out after visits to areas containing potentially dangerous objects, such as the hairdresser's or the doctor's or dentist's surgery, and after contact with the outside world, such as visits. Searches are still necessary from the point of view of security. The Government would point out that searches are also conducted in ordinary prisons. On 4 February 2003, in two separate cases against the Netherlands, the European Court of Human Rights ruled that: “the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of article 3 of the Convention. There has thus been a breach of this provision.” (Van der Ven v. the Netherlands, Application no. 50901/99, ECtHR 4 February 2002, § 63; see also Lorsé et al v. the Netherlands, Application no. 52750/99, ECtHR 4 February 2002, § 74). These judgments and other considerations have prompted the Government to stop routine weekly searches in the EBI over a long period of time. The EBI's regulations will be amended. ... requests for information - the results of the “empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners”, being conducted by the University of Nijmegen (paragraph 39) Response: The study is expected to be completed by autumn 2003 as indicated. As soon as the findings are available, the Government will forward them to the Committee. - the views of the Dutch authorities on the statement, made in the preliminary study carried out by University of Nijmegen, to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI (paragraph 39) Response: The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime. However, opportunities to exercise influence are necessarily more restricted in the EBI than in other prisons because of the nature of the system. The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society. Placement in the EBI is mainly determined by considerations of safety and security. In this sense the EBI differs from other prisons. The emphasis on safety and security means that placement in the EBI does not depend on a prisoner's behaviour but on the risk he represents.” | 1 |
dev | 001-61853 | ENG | DEU | CHAMBER | 2,004 | CASE OF VON HANNOVER v. GERMANY | 1 | Violation of Art. 8;Just satisfaction reserved | Ireneu Cabral Barreto | 8. The applicant, who is the eldest daughter of Prince Rainier III of Monaco, was born in 1957. Her official residence is in Monaco but she lives in the Paris area most of the time. As a member of Prince Rainier’s family, the applicant is the president of certain humanitarian or cultural foundations, such as the Princess Grace Foundation or the Prince Pierre of Monaco Foundation, and also represents the ruling family at events such as the Red Cross Ball or the opening of the International Circus Festival. She does not, however, perform any function within or on behalf of the State of Monaco or any of its institutions. 9. Since the early 1990s the applicant has been trying – often through the courts – in a number of European countries to prevent the publication of photos about her private life in the tabloid press. 10. The photos that were the subject of the proceedings described below were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in the German magazine Neue Post. 11. These photos show her with the actor Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the magazine refers to “The most tender photos of her romance with Vincent” (“Die zärtlichsten Fotos Ihrer Romanze mit Vincent”) and the photos themselves bear the caption “These photos are evidence of the most tender romance of our time” (“Diese Fotos sind der Beweis für die zärtlichste Romanze unserer Zeit”). 12. The first photo shows her on horseback with the caption “Caroline and the blues. Her life is a novel with innumerable misfortunes, says the author Roig” (“Caroline und die Melancholie. Ihr Leben ist ein Roman mit unzähligen Unglücken, sagt Autor Roig”). The second photo shows her with her children Pierre and Andrea. The photos are part of an article entitled “I don’t think I could be a man’s ideal wife” (“Ich glaube nicht, dass ich die ideale Frau für einen Mann sein kann”). 13. The first photo shows her canoeing with her daughter Charlotte, the second shows her son Andrea with a bunch of flowers in his arms. The third photo shows her doing her shopping with a bag slung over her shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone on a bicycle. The sixth photo shows her with Vincent Lindon and her son Pierre. The seventh photo shows her doing her shopping at the market, accompanied by her bodyguard. The article is entitled “Pure happiness” (“Vom einfachen Glück”). 14. These photos show the applicant on a skiing holiday in Zürs/Arlberg. The accompanying article is entitled “Caroline... a woman returns to life” (“Caroline... eine Frau kehrt ins Leben zurück”). 15. Seven photos show her with Prince Ernst August von Hannover at a horse show in Saint-Rémy-de-Provence. The accompanying article is entitled “The kiss. Or: they are not hiding anymore” (“Der Kuss. Oder: jetzt verstecken sie sich nicht mehr”). Four other photos show her leaving her house in Paris with the caption “Out and about with Princess Caroline in Paris” (“Mit Prinzessin Caroline unterwegs in Paris”). 16. These photos show the applicant on the front page with Prince Ernst August von Hannover and on the inside pages of the magazine playing tennis with him or both putting their bicycles down. 17. The sequence of photos published in Neue Post magazine (issue no. 35/97) shows the applicant at the Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos, which are quite blurred, are accompanied by an article entitled “Prince Ernst August played fisticuffs and Princess Caroline fell flat on her face” (“Prinz Ernst August haute auf den Putz und Prinzessin Caroline fiel auf die Nase”). 18. On 13 August 1993 the applicant sought an injunction in the Hamburg Regional Court (Landgericht) against any further publication by the Burda publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights (Persönlichkeitsrecht), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law (Grundgesetz), and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act (Kunsturhebergesetz – “the Copyright Act” – see paragraphs 40-41 below). 19. In a judgment of 4 February 1993, the Regional Court granted the application only in respect of the distribution of the magazines in France, in accordance with the rules of private international law (section 38 of the Introductory Act to the Civil Code – Einführungsgesetz in das bürgerliche Gesetzbuch) read in conjunction with Article 9 of the French Civil Code. With regard to the distribution of the magazines in Germany, however, the Regional Court reiterated that it was German law which applied. Under section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of contemporary society “par excellence” (eine “absolute” Person der Zeitgeschichte), had to tolerate this kind of publication. The Regional Court held that she had failed to establish a legitimate interest (berechtigtes Interesse) justifying an injunction against further publication because, where figures of contemporary society “par excellence” were concerned, the right to protection of private life stopped at their front door. All the photos of the applicant had been taken exclusively in public places. 20. The applicant appealed against that judgment. 21. In a judgment of 8 December 1994, the Hamburg Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal and set aside the injunction against subsequent publications in France. Indeed, like the Regional Court, the Court of Appeal found that the applicant was a contemporary figure “par excellence” and therefore had to tolerate publication without her consent of the photos in question, which had all been taken in public places. Even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public. 22. The applicant appealed on points of law against that judgment. 23. In a judgment of 19 December 1995, the Federal Court of Justice (Bundesgerichtshof) allowed the applicant’s appeal in part, granting her an injunction against any further publication of the photos that had appeared in Freizeit Revue magazine (issue no. 30 of 22 July 1993) showing her with Vincent Lindon in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life. The Federal Court held that even figures of contemporary society “par excellence” were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos. Outside their home, however, they could not rely on the protection of their privacy unless they had retired to a secluded place – away from the public eye (in eine örtliche Abgeschiedenheit) – where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in a public place. Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and/or by catching unawares a person who had retired to such a place. That was the position here, where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye. However, the Federal Court dismissed the remainder of her appeal on the ground that, as a figure of contemporary society “par excellence”, the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions. The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public. 24. The applicant then appealed to the Federal Constitutional Court (Bundesverfassungsgericht), submitting that there had been an infringement of her right to the protection of her personality rights (Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law). In the applicant’s submission, the criteria established by the Federal Court of Justice regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality, be it in the context of private life or family life. Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media. Given that the photos were not used genuinely to inform people, but merely to entertain them, the right to control the use of one’s image in respect of scenes from private life, which had been recognised by the case-law of the Federal Constitutional Court, prevailed over the right – also guaranteed by the Basic Law – to freedom of the press. 25. In a landmark judgment of 15 December 1999, delivered after a hearing, the Constitutional Court allowed the applicant’s appeal in part on the ground that the publication of the three photos in issues nos. 32 and 34 of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law. It referred the case to the Federal Court of Justice on that point. However, the Constitutional Court dismissed the applicant’s appeal regarding the other photos. The relevant extract of the judgment reads as follows: “The appeal is well-founded in part. ... II. The decisions being appealed do not fully satisfy the requirements of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. 1. The provisions of sections 22 and 23 of the KUG [Kunsturhebergesetz – Copyright Act] on which the civil courts based their decisions in the present case are, however, compatible with the Basic Law. Under Article 2 § 1 of the Basic Law, general personality rights are guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographical representations of persons listed in sections 22 and 23 of the KUG are part of that constitutional order. They derive from an incident which at the time caused a scandal (photos of Bismarck on his deathbed ...) and from the ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair balance between respect for personality rights and the community’s interest in being informed ... Under section 22, first sentence, of the KUG, pictures can only be disseminated or exposed to the public eye with the express approval of the person represented. Pictures relating to contemporary society are excluded from that rule under section 23(1) of the KUG ... Under section 23(2) of the KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community’s desire to be informed and the interest of the media which satisfy that desire. That much has already been established by the Federal Constitutional Court ... ... (b) In the instant case regard must be had, in interpreting and applying sections 22 and 23 of the KUG, not only to general personality rights, but also to the freedom of the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as the provisions in question also affect those freedoms. ... The fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment (‘infotainment’). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage ... Nor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life, values and behaviour models. In that respect, it fulfils important social functions ... When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ... The same is true of information about people. Personalisation is an important journalistic means of attracting attention. Very often it is this which first arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a particular event or situation is usually stimulated by personalised accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallisation for adoption or rejection and act as examples or counter-examples. This is what explains the public interest in the various ups and downs occurring in their lives. As regards politicians, this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control. Nor can it in principle be disputed that it exists in respect of other public figures. To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom. It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters, designed merely to satisfy the public’s curiosity, are being disseminated ... (c) The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules. (aa) The Federal Court of Justice cannot be criticised under constitutional law for assessing the conditions of application [Tatbestandsvoraussetzungen] of section 23(1) no. 1 of the KUG according to the criterion of the community’s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of Monaco were lawful. Under section 23(1) no. 1 of the KUG, the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section 22 of the KUG. Judging from the drafting history of the Act ... and from the meaning and purpose of the words used, the provision in question takes into consideration the community’s interest in being informed and the freedom of the press. Accordingly, the interpretation of this element [Tatbestandsmerkmal] must take account of the interests of the public. Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned. The other element that is affected by fundamental rights, that of a ‘legitimate interest’ for the purposes of section 23(2) of the KUG, concerns only – and this must be stressed at the outset – figures of contemporary society and cannot therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined. It is in keeping with the importance and scope of the freedom of the press, and not unreasonably restrictive of the protection of personality rights, that the concept of contemporary society referred to in section 23(1) no. 1 of the KUG should not only cover, in accordance with a definition given by the courts, events of historical or political significance, but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have, within legal limits, sufficient margin of manoeuvre to allow it to decide, in accordance with its publishing criteria, what the public interest demands, and the process of forming opinion to establish what amounts to a matter of public interest. As has been stated, entertaining coverage is no exception to these principles. Nor should the Federal Court of Justice be criticised for including in the ‘domain of contemporary society’, within the meaning of section 23(1) no. 1 of the KUG, pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who, on account of their status and importance, attract the public’s attention in general and not just on the odd occasion. Account should also be taken in this regard of the fact that, compared to the situation at the time the Copyright Act was passed, increased importance is given today to illustrated information. The concept of a ‘figure of contemporary society “par excellence” ’ [‘absolute’ Person der Zeitgeschichte], often employed in this respect in the case-law and legal theory, does not conclusively derive from statute or the Constitution. If, as was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned, it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out between the public’s interest in being informed and the legitimate interests of the person concerned. General personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society. Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense. It can, on the contrary, by virtue of the particular function and its impact, extend to information about the way in which these figures behave generally – that is, also outside their function – in public. The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements. If, on the other hand, the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions, insufficient account would be taken of the public interest properly aroused by such figures and this would, moreover, favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio-political life, having regard to the function of role model of such figures and the influence they exert. The press is not, however, allowed to use every picture of figures of contemporary society. On the contrary, section 23(2) of the KUG gives the courts adequate opportunity to apply the protective provisions of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law ... (bb) In theory the criteria established by the Federal Court of Justice for interpreting the concept of ‘legitimate interest’ used in section 23(2) of the KUG are irreproachable from the point of view of constitutional law. According to the decision being appealed, the privacy meriting protection that must also be afforded to ‘figures of contemporary society “par excellence” ’ presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public. The Federal Court of Justice accepted that there had been a breach of sections 22 and 23 of the KUG where this type of picture was taken secretly or by catching the person unawares. The criterion of a secluded place takes account of the aim, pursued by the general right to protection of personality rights, of allowing the individual a sphere, including outside the home, in which he does not feel himself to be the subject of permanent public attention – and relieves him of the obligation of behaving accordingly – and in which he can relax and enjoy some peace and quiet. This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the daily or private life of figures of contemporary society, but allows them to be shown where they have appeared in public. In the event of an overriding public interest in being informed, the freedom of the press can even, in accordance with that case-law authority, be given priority over the protection of the private sphere ... The Federal Court of Justice properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot. However, the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public. On the contrary, the development of the personality cannot be properly protected unless, irrespective of his behaviour, the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen. That is not in issue here, however, since, according to the findings on which the Federal Court of Justice based its decision, the first of the conditions to which protection of private life is subject has not been met. Lastly, there is nothing unconstitutional, when balancing the public interest in being informed against the protection of private life, in attaching importance to the method used to obtain the information in question ... It is doubtful, however, that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home. Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares, the existence of unlawful interference with that privacy cannot in any case be made out merely because the photo was taken in those conditions. As, however, the Federal Court of Justice has already established in respect of the photographs in question that the appellant was not in a secluded place, the doubts expressed above have no bearing on the review of its decision. (cc) However, the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant’s situation is strengthened by Article 6 of the Basic Law regarding those persons’ intimate relations with their children. (dd) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question: The decision of the Federal Court of Justice cannot be criticised under constitutional law regarding the photos of the appellant at a market, doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well-attended restaurant. The first two cases concerned an open location frequented by the general public. The third case admittedly concerned a well-circumscribed location, spatially speaking, but one in which the appellant was exposed to the other people present. It is for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban photos showing the appellant in a restaurant garden, which were the subject of the decision being appealed but are not the subject of the constitutional appeal. The presence of the appellant and her companion there presented all the features of seclusion. The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view. Nor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle. In the Federal Court of Justice’s view, the appellant had not been in a secluded place, but in a public one. That finding cannot attract criticism under constitutional law. The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way. The three photos of the appellant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for one or other or all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision. (d) The decisions of the Regional Court and the Court of Appeal resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance, moreover, with a rationale that was in keeping with the case-law at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court. ...” 26. Following the remittal of the case to the Federal Court of Justice in connection with the three photos that had appeared in Bunte magazine (issue no. 32 of 5 August 1993 and no. 34 of 19 August 1993) showing the applicant with her children, the Burda publishing company undertook not to republish the photos (Unterlassungserklärung). 27. On 14 May 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Burda publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act. 28. In a judgment of 26 September 1997, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995. 29. The applicant appealed against that judgment. 30. In a judgment of 10 March 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons. 31. As the Court of Appeal did not grant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions. 32. In a decision of 4 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999. 33. On 5 November 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act. The applicant submitted, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to the effect that the swimming baths in question were a private establishment, access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment. The fact that the photos were very blurred showed that they had been taken secretly, at a distance of several hundred metres, from the window or roof of a neighbouring house. 34. In a judgment of 24 April 1998, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995. The court stated that the Monte Carlo Beach Club had to be considered as an open-air swimming pool that was open to the public, even if an entry fee was charged and access restricted. 35. The applicant appealed against that judgment. 36. In a judgment of 13 October 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons. The Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public’s eyes. 37. As the Court of Appeal did not grant the applicant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions. 38. In a decision of 13 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999. The Constitutional Court held that the ordinary courts had properly found that the Monte Carlo Beach Club was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life. II. RELEVANT DOMESTIC AND EUROPEAN LAW 39. The relevant provisions of the Basic Law are worded as follows: “The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” “Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz].” “1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [Recht der persönlichen Ehre].” “1. Marriage and the family enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty.” 40. Section 22(1) of the Copyright (Arts Domain) Act provides that images can only be disseminated with the express approval of the person concerned. 41. Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)). 42. The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded as follows: “1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. 14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines: (i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy; (ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel; (iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned; (iv) economic penalties should be envisaged for publishing groups which systematically invade people’s privacy; (v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited; (vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘visual or auditory enhancement devices’ to capture recordings that they otherwise could not have captured without trespassing; (vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; (viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. 15. It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 16. The Assembly also calls upon the governments of the member states to: (i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct; (ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole; (iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users’ awareness of what the right to privacy necessarily entails; (iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims’ rights are better protected.” | 1 |
dev | 001-76964 | ENG | RUS | CHAMBER | 2,006 | CASE OF BORSHCHEVSKIY v. RUSSIA | 3 | Violation of Art. 6-1 and P1-1 (quashing of final judgment);Violation of Art. 6-1 and P1-1 (enforcement delays);Pecuniary damage - financial award;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1941 and now lives in the Moscow Region. 5. In 1987 the applicant’s employer, the State-owned construction and industrial holding “Mosenergostroy”, seconded him for participation in the clean-up works at the site of the Chernobyl nuclear plant disaster. As a consequence of exposure to radioactive emissions, on 15 September 1989 the applicant was assigned to the second disability category. 6. Until March 1996 the applicant’s former employer had paid him monthly compensation for health damage. In November 1994 the holding was privatised and re-organised into a public company OAO “SPK Mosenergostroy”. 7. Between 2 March 1996 and 1 February 2002 the compensation was paid by the Stupino Department of the Pension Fund (now renamed as Department no. 25 of the Pension Fund, hereinafter “the Stupino Pensions Department”). 8. Since 1 February 2002 the compensation has been paid by the Social Security Committee of the Stupino District Council in the Moscow Region. 9. In 1997 the applicant brought a civil action against his former employer, “Mosenergostroy”, claiming that the amount of the compensation paid had been incorrectly calculated in the period from 1989 to 2 March 1996. 10. On 15 April 1997 the Korenovskiy District Court of the Krasnodar Region granted his claim in part. 11. On 7 July 1997 the Krasnodar Regional Court quashed the judgment of 15 April 1997 and remitted the matter for a new examination on the ground that the obligation to pay compensation for health damage had been transferred to the social security authorities. 12. On 8 September 1997 the Korenovskiy District Court joined the Stupino Pensions Department as a co-defendant to the proceedings. 13. On 18 December 1997 the Korenovskiy District Court of the Krasnodar Region granted the applicant’s claims against his former employer and established that the applicant had been entitled to monthly payments of RUR 15,035. No award against the Stupino Pensions Department was made because the applicant apparently objected to its being joined as a co-defendant. By interim decision (opredelenie) of 9 December 2000, an arithmetical error in the judgment was corrected. 14. In 2002 the applicant asked the Korenovskiy District Court to supplement the operative part of the judgment of 18 December 1997 with a reference to the fact that from 2 March 1996 the Stupino Pensions Department should have been the legal successor to his former employer in respect of payment of compensation for the health damage. The Stupino Pensions Department objected to the applicant’s request, claiming that it had been lodged outside the time-limit and that its granting would determine a matter that fell outside the scope of the judgment of 18 December 1997, namely the issue of its succession to the obligations of the applicant’s former employer. 15. By judgment (reshenie) of 5 April 2002, the Korenovskiy District Court amended the judgment of 18 December 1997. It established that from 2 March 1996 the Stupino Pensions Department should have paid compensation to the applicant in lieu of his applicant’s former employer, in the same amount (RUR 15,035), with subsequent adjustment for increases in the minimum monthly wage. The judgment of 5 April 2002 was not appealed against. 16. It appears that the Stupino Pensions Department continued to underpay the applicant. He asked the Korenovskiy District Court to clarify the procedure for enforcement of the judgment of 5 April 2002 and to issue him with a writ of execution. 17. On 14 October 2002 the Korenovskiy District Court, noting that the defendant had been duly notified of the hearing but failed to appear, found that the Stupino Pensions Department had not complied with the judgment of 5 April 2002 and continued to pay the applicant significantly smaller amounts. By decision (opredelenie) of that date, the court ordered that the Stupino Pensions Department pay the applicant, at the expense of the Treasury, the amounts outstanding for the period from 2 March 1996 to 1 July 2002 to the total of RUR 5,412,251.81 and issued him with a writ of execution. The decision of 14 October 2002 was not appealed against. 18. The applicant submitted the writ to the Ministry of Finance. 19. On 5 February 2003 the Ministry of Finance forwarded the writ to the Ministry of Labour and Social Development, which, in turn, forwarded it to the Moscow Regional Social Security Committee. 20. On 13 February 2003 the Moscow Regional Social Security Committee advised the applicant that his writ of execution had been accepted for enforcement. However, enforcement was only possible “within the funding limits and budgetary constraints” and “in the chronological order as [writs of execution] had been issued by courts”. 21. On 9 June 2003 a court bailiff of the Moscow Regional bailiffs’ service opened enforcement proceedings against the Stupino Pensions Department and invited it to execute the judicial decision within five days. 22. On 13 August 2003 the Korenovskiy District Court heard the application of the Stupino Pensions Department for an amendment of the procedure for enforcement of the judgment of 5 April 2002 and determined as follows: “Having regard to the difficult social situation in the Russian Federation in the current year... the court considers it necessary to recover 5,412,251.81 Russian roubles in [the applicant’s] favour from the Russian Treasury in twenty monthly instalments... It has been established that the deferred instalments shall be guaranteed against inflation in accordance with the Russian laws...” 23. On 1 September 2003 the Korenovskiy District Court clarified its decision of 13 August 2003, indicating that the instalments should be equal and that the decision had immediate effect. 24. According to the Government, on 28 October 2003 the Krasnodar Regional Court quashed the decision of 13 August 2003 and remitted the matter for a new examination. On 10 December 2003 the Korenovskiy District Court refused the application by the Stupino Pensions Department for a change of the debtor and stay of enforcement. Copies of these decisions have not been made available to the Court and their precise contents are not known. 25. On 2 February 2004 the Stupino Pensions Department asked the Moscow Pensions Fund for the resources necessary to pay the debt to the applicant. On 5 February 2004, in response to an inquiry by a bailiff into the progress of the request, the Moscow Pensions Fund replied that they had asked the Ministry of Labour and Social Development to allocate the necessary amount (RUR 5,412,251.81). 26. On 6 February 2004 the Supreme Court of the Russian Federation examined “an application by Pensions Department no. 25 for supervisory review of the Korenovskiy District Court’s judgment of 5 April 2002... which contained a request for a stay of enforcement”. Pursuant to Article 381 §§ 2 (1) and 4 of the Code of Civil Procedure, it decided to obtain the case file and suspended enforcement proceedings. 27. On 20 February 2004 the bailiffs received the Supreme Court’s decision and stayed the enforcement proceedings. 28. On 21 May 2004 the Supreme Court of the Russian Federation examined “an application by the Head of Pensions Department no. 25 Ms L[.] for supervisory review of the case”. The Supreme Court accepted as meritorious Ms L.’s argument that that the Korenovskiy District Court had not been competent to issue the judgment of 5 April 2002. Pursuant to Article 384 of the Code of Civil Procedure, it remitted the supervisory-review application for examination on its merits by the Presidium of the Krasnodar Regional Court. 29. On 22 July 2004 the Presidium of the Krasnodar Regional Court quashed, by way of supervisory review, the judgment of 5 April 2002 and remitted the applicant’s request for supplementing of the operative part of the judgment of 18 December 1997 to the Korenovskiy District Court for a new examination. 30. On 13 September 2004 the Korenovskiy District Court determined that it had issued the judgment of 5 April 2002 in excess of jurisdiction because the Code of Civil Procedure had not provided for issuing of judgments in such situations. 31. A judicial decision became legally binding upon expiry of the time-limit for lodging an appeal if no such appeal had been lodged (Article 208). The time-limit for lodging an appeal was set at ten days (Article 284). 32. A judgment was to be enforced after it had become legally binding, unless it provided for immediate enforcement (Article 209). 33. The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) violation or incorrect application of substantive or procedural legal provisions.” “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “2. Having examined an application for supervisory review, the judge issues a decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision... 4. If a decision to obtain the file has been made, the judge may suspend enforcement of the judicial decision until the supervisory-review proceedings have been completed...” “1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain: (7) a reasoned description of the grounds for remitting the case for examination on the merits...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination;... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” 34. Resolution no. 2 of the Plenary Supreme Court of the Russian Federation of 20 January 2003, “On certain issues arising in connection with adoption and coming into force of the Code of Civil Procedure of the Russian Federation”, provided that – “22. ...The [one-year] time-limit for lodging an application for supervisory review of judicial decisions that became legally binding before 1 February 2003, shall run from 1 February 2003.” 35. In response to question no. 4 concerning calculation of the time-limit for lodging an application for supervisory review of judicial decisions that became legally binding before 1 February 2003, the Presidium of the Supreme Court clarified that the final date for lodging such an application should be 2 February 2004. 36. Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13). | 1 |
dev | 001-57765 | ENG | NLD | CHAMBER | 1,992 | CASE OF ABDOELLA v. THE NETHERLANDS | 3 | Preliminary objection rejected (out of time);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | N. Valticos | 6. On 18 January 1983 Mr Abdoella was taken into police custody and charged with incitement to murder. He was subsequently detained on remand. On the conclusion of the investigations, in which several suspects were involved, he was summoned, on 14 April, to appear for trial before the Regional Court (Arrondissementsrechtbank) of The Hague. On 17 May 1983 he was convicted and sentenced to twelve years’ imprisonment less the time already spent in police custody and in detention on remand. The applicant appealed to the Court of Appeal (Gerechtshof) of The Hague. By judgment of 29 August 1983 it upheld the Regional Court’s decision. The applicant then, within the time-limit of fourteen days prescribed by Netherlands law (see paragraph 11 (d) below), introduced an appeal on points of law to the Supreme Court (Hoge Raad) by means of a statement made at the registry of the Hague Court of Appeal. The documents of the case were sent by the registry of that court to the registry of the Supreme Court and received there on 3 July 1984. The Procurator-General in his advisory opinion proposed its dismissal. However, by judgment of 15 January 1985, the Supreme Court quashed the Hague Court of Appeal’s judgment on technical grounds and referred the case to the Amsterdam Court of Appeal. The registry of the Supreme Court sent the documents to the registry of the Amsterdam Court on 1 February 1985; they were received on the same day. 7. On 31 May 1985 the Attorney-General at the Amsterdam Court of Appeal issued a summons against the applicant. The Court of Appeal heard the case on 28 June 1985. During the hearing the applicant requested a suspension of his detention on remand and also an adjournment of the hearing in order to have examined two witnesses who had been summoned at the request of the defence but who had failed to appear. The Court of Appeal refused the first request. However, with the agreement of counsel for the defence it adjourned the hearing until 20 September 1985; the reason given for a delay of that length (see paragraph 11 (a) below) was that the court’s calendar for the intervening period did not permit an earlier date. The Court of Appeal resumed its hearing on 20 September 1985, at which point the witnesses who had failed to appear on 28 June were examined. It refused a new request by the applicant for suspension of his detention on remand. By judgment of 4 October 1985 the Court of Appeal convicted the applicant and sentenced him to ten years’ imprisonment less the time already spent in police custody and detention on remand. 8. Within the time-limit of two weeks prescribed by Netherlands law, Mr Abdoella introduced a second appeal on points of law to the Supreme Court by means of a statement made at the registry of the Amsterdam Court of Appeal. Pending the hearing of that appeal the applicant made a number of requests to the Amsterdam Court of Appeal concerning his detention on remand. It suspended the measure for two weeks in April 1986 and again for two weeks in July 1986. However, on 29 October 1986 it rejected a request, based inter alia on Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention, for the detention to be terminated or else suspended. In April 1987 the Amsterdam Court of Appeal again granted two weeks’ leave, but refused to terminate or otherwise suspend the detention. 9. The documents of the case were sent by the registry of the Amsterdam Court of Appeal to the registry of the Supreme Court, which received them on 15 September 1986. On a date in October 1986, the President of the Criminal Division of the Supreme Court set the hearing for 10 February 1987. The applicant, through his counsel, subsequently filed his grounds of appeal. Counsel for the defence proposed five grounds of appeal. The first of these, the only one which raised points with which this Court is concerned, was a complaint about violation of, inter alia, Article 5 para. 3 in conjunction with Article 5 para. 1 (c) and Article 6 para. 1 (art. 5-3, art. 5-1-c, art. 6-1) of the Convention. The explanatory note emphasised that the applicant had been in police custody and detention on remand since 18 January 1983 and that, as a consequence, both he and his family had developed psychiatric problems. Detention on remand had only been suspended twice on this ground, in each case for two weeks, the last such occasion having been in July 1986. Although the case was not complex, it had already taken more than four years, so that the "reasonable time" laid down by Article 5 (art. 5) of the Convention had been exceeded. A separate assessment of the various phases of the proceedings led to the same conclusion: in particular, the lapses of time involved in the first appeal on points of law, that involved in the procedure before the Amsterdam Court of Appeal and the treatment of the second appeal on points of law were such that the said provisions had not been complied with. In accordance with the advisory opinion filed on 10 March 1987 by the Procurator-General the Supreme Court dismissed the applicant’s appeal by judgment of 19 May 1987. It held, inter alia, that it had to be assumed that neither the applicant nor his counsel had raised the issue of the length of the proceedings at the Amsterdam Court of Appeal’s hearings on 28 June 1985 and 20 September 1985; that the mere circumstance that the preparation of the case and its examination by the Regional Court and the Court of Appeal of The Hague and the Supreme Court had taken two years (less some days) did not in itself oblige the Amsterdam Court of Appeal to address explicitly the question whether or not the case had been decided within a reasonable time; and that in addition, taking into account the time that had elapsed between the Amsterdam Court of Appeal’s judgment of 4 October 1985 and the Supreme Court’s 1987 hearing, no violation of Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention had taken place. The personal circumstances of the applicant did not warrant any other conclusion. 10. On 4 June 1987 Mr Abdoella submitted a request for a pardon. This was refused on 12 November 1987 by the Deputy Minister of Justice (Staatssecretaris van Justitie). An application for review was lodged by the applicant on 28 December 1987 but declared inadmissible by the Supreme Court on 6 December 1988. The applicant was released from prison on 22 December 1989. 11. The following is a translation from the original Dutch of the relevant provisions of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering). "1. If the accused is in detention on remand, the following paragraphs of this article shall apply. 2. If the Regional Court suspends the examination at the hearing for a fixed period, it shall as a rule set the period of the suspension at no longer than one month. For compelling reasons, which are to be mentioned in the official record, it can decide on a longer period, but in no case more than three months. 3. ..." For the purposes of this provision, a month is taken to mean thirty days (Article 136 para. 1). Article 277a is equally applicable to proceedings before the Court of Appeal (Article 415). "1. The judgment shall be signed within twice twenty-four hours after its pronouncement by the judges who heard the case and by the registrar who was present at the deliberations. 2. If one or more of them are unable to do so, this shall be mentioned at the end of the judgment. 3. As soon as the judgment is signed, and in any case after the end of the period laid down in the first paragraph, the accused or his counsel can take cognisance of it and of the official record of the hearing." This article too is equally applicable to proceedings before the Court of Appeal (Article 415). "1. An objection [against a default judgment], an appeal or an appeal on points of law shall be lodged by means of a statement to be made by the person exercising that legal remedy at the registry of the court by which or at which the decision was given. 2. ... 3. ..." "1. An appeal must be filed: a. if the summons to appear at the hearing has been notified to the accused in person or the accused has appeared at the hearing, within fourteen days after the pronouncement of the final judgment; b. in other cases, within fourteen days after a circumstance has occurred from which it follows that the accused is aware of the judgment. 2. ..." "1. After an appeal is filed, the registrar of the District Court shall send the documents of the case to the registrar of the Court of Appeal as soon as possible. 2. ..." "1. An appeal on points of law must be filed: a. if the summons to appear at the hearing has been notified to the accused in person or the accused has appeared at the hearing, within fourteen days after the pronouncement of the final judgment; b. in other cases, within fourteen days after a circumstance has occurred from which it follows that the accused is aware of the judgment. 2. ..." "1. The prosecution (Openbaar ministerie) is obliged, on pain of inadmissibility of the prosecution, to file, together with its appeal or within ten days thereafter, at the registry of its court, a written statement of its grounds of appeal on points of law. 2. The accused by whom or in whose name an appeal on points of law has been filed is entitled to file such a written statement with the Supreme Court until the day of the hearing at the latest. 3. The registrar of the court which delivered the judgment shall send the documents of the case to the registrar of the Supreme Court within thirty days after the time-limit for the prosecution to file its written statement has expired or after it has filed a written statement earlier. 4. ..." In practice it was generally assumed that the time-limit according to paragraph 3 of this article was fifty-four days after the date of pronouncement of the Court of Appeal’s judgment, irrespective of whether or not the prosecution had lodged an appeal on points of law. Before the Act of 14 January 1976 (Staatsblad (Official Gazette) 9), which altered (inter alia) Article 433 para. 3, this provision, like Article 409, provided only that the documents were to be sent in "as soon as possible". The time-limit of thirty days was introduced "with a view to expediting the transmission of the file". By the Act of 27 November 1991 (Staatsblad 663), which came into force on 1 May 1992, the time-limit of thirty days incorporated in the third paragraph of Article 433 in 1976 was removed; that paragraph now once more provides that the documents are to be sent in "as soon as possible". The reasons given therefor were firstly that, according to the case-law of the Supreme Court (see paragraphs 13 and 14 below), non-compliance with Article 433 para. 3 did not entail nullity and the rights of the accused in case of unreasonable delay in the proceedings before the Supreme Court were in any case protected by Articles 6 para. 1 (art. 6-1) of the Convention and 14 para. 1 of the International Covenant on Civil and Political Rights. Secondly, it was pointed out that in practice this time-limit was only rarely met and that it appeared inappropriate to maintain a provision which "in relation to the - speedy - pursuit of the proceedings before the Supreme Court creates expectations which in practice can hardly if at all be fulfilled". "1. After the documents have been at the registry for a period of eight days, they shall be taken by the Procurator-General against receipt and forwarded to the Supreme Court along with his proposal for fixing a hearing date. 2. The president shall fix the date for the hearing and shall appoint a rapporteur to report at the hearing." 12. After referral by the Supreme Court, the documents of the case must be sent by its registry to the registry of the court which is to retry the case. However, due to the fact that the Code of Criminal Procedure contains no provisions at all relating to proceedings after referral, a provision comparable to Articles 409 and 433 and applicable in these cases does not exist. 13. Non-compliance with Article 409 para. 1 or Article 433 para. 3 of the Code of Criminal Procedure does not, according to the case-law of the Supreme Court, entail nullity: that sanction is not expressly provided for; neither are these provisions so essential that non-compliance should ipso facto lead to nullity. However, non-compliance is relevant in connection with the question whether the requirement of trial "within a reasonable time" within the meaning of Article 6 (art. 6) of the Convention has been complied with (see, for instance, the judgments of the Supreme Court of 23 September 1980, NJ (Nederlandse Jurisprudentie) 1981, 116, and 29 March 1988, NJ 1988, 813). 14. The case-law of the Supreme Court relating to the requirement of "trial within a reasonable time" within the meaning of Article 6 (art. 6) of the Convention in general, and more especially in relation to the question of the consequences of non-compliance with Articles 409 para. 1 and 433 para. 3 of the Code of Criminal Procedure, may be summarised as follows. (a) If the court decides to impose a more lenient sentence, it must take into account the extent of the violation and also indicate the reduction which it has thought fit to apply (see, for instance, the Supreme Court’s judgments of 29 January 1985, NJ 1985, 690; 7 April 1987, NJ 1987, 587; 29 March 1988, NJ 1988, 813; 25 April 1989, NJ 1989, 705). (b) In order to determine whether or not a "reasonable time" has been exceeded, the court must consider both the various phases of criminal proceedings and their overall time-span and take into account all appropriate circumstances in reaching its decision, such as the complexity of the case, the conduct of the accused and the way in which the case has been handled by the competent authorities (see, for instance, the judgment of the Supreme Court of 19 February 1985, NJ 1985, 581). (c) As the decision as to whether or not a reasonable time has been exceeded is thus partly dependent on the assessment of factual circumstances, the Supreme Court, which essentially has competence only as regards points of law, can examine the validity of the decision of the judge of fact only to a limited degree; thus a judgment can only be quashed if it reveals an incorrect view of the concept of trial within a reasonable time or of the standards set out in the preceding paragraph, or if the grounds given for its decision are insufficient (see, for instance, the judgments of the Supreme Court of 5 January 1982, NJ 1982, 339; 9 March 1982, NJ 1982, 409; 11 May 1982, NJ 1983, 280; 12 October 1982, NJ 1983, 371; 3 January 1984, NJ 1984, 403; 29 January 1985, NJ 1985, 690; 10 December 1985, NJ 1986, 480; 1 November 1988, NJ 1989, 680; 31 October 1989, NJ 1990, 257). Although the Supreme Court has held that delaying criminal proceedings for more than two years does not in itself warrant the conclusion that a "reasonable time" has been exceeded (see its judgment of 16 December 1986, NJ 1987, 637), it is commonly assumed that in its above-mentioned limited assessment it applies, as a general guideline, a rule presumed to have been derived from the report of the Commission of 12 March 1984 in application no. 9193/80 (Marijnissen) (Decisions and Reports 40, pp. 83-99) endorsed by the Committee of Ministers in its resolution of 25 January 1985 (DH (85)4). This rule may be summarised as follows: in principle, a "reasonable time" has been exceeded if the proceedings in one of their phases have not been pursued for more than two years due to circumstances for which the accused is not responsible; if such an eventuality occurs and is pleaded by the defence, then a rejection of that plea must be particularly well reasoned. The character of this rule as a general guideline implies, on the one hand, that under certain circumstances stagnation for a shorter period may be a reason for applying such strict requirements to the grounds given for rejecting the defence’s plea that a reasonable time has been exceeded and, on the other hand, apparently, that exceeding the time-limit of two years may sometimes, perhaps also depending on the further circumstances of the particular case, be allowed to pass. (d) The courts must also address ex officio the question whether a reasonable time has been exceeded. However, it must only appear from the judgment that this has been done if there are special circumstances. In considering whether or not such special circumstances are present, the Supreme Court uses the general guideline, mutatis mutandis, indicated in sub-paragraph (c). This means that, as a rule, it only holds the lower courts bound to address ex officio the question whether or not a reasonable time has been exceeded if it appears from the documents that the proceedings have been held up for more than two years due to reasons for which the defence cannot be held accountable. However, if there are special circumstances, the courts are obliged to address the question ex officio even if the period of inactivity is shorter (see, for instance, the Supreme Court’s judgments of 1 July 1981, NJ 1981, 625; 1 May 1990, NJ 1990, 641). (e) The Supreme Court applies these rules itself in the procedure of appeal on points of law and thus addresses, ex officio if need be, the question whether it must be assumed that the duration of proceedings in this phase has led to excessive length of the proceedings. In this connection, it appears from its abundant case-law that the time elapsed between the filing of the appeal on points of law and the sending in of the documents to the registry of the Supreme Court has some significance: if this causes such a delay that the case comes up before the Supreme Court for the first time more than two years after the appeal on points of law was filed, then as a rule the judgment will be quashed and the case will be referred for retrial, at which point the judge of fact will have the options indicated in sub-paragraph (a) above of declaring the prosecution inadmissible or of reducing the sentence. However, the Supreme Court may itself reach the opinion that no other decision is possible than to declare the prosecution inadmissible, which it may then do of its own motion (see, for instance, its judgments of 12 January 1988, NJ 1988, 814; 29 March 1988, NJ 1988, 813; 12 April 1988, NJ 1988, 970; 25 April 1989, NJ 1989, 705; 6 June 1989, NJ 1990, 92; 13 February 1990, NJ 1990, 633). On the other hand, if the period of inactivity is shorter, the Supreme Court will merely state that the delay is longer than is desirable but that judgment of the case cannot be held not to have taken place within a reasonable time; it will then determine, applying the rule set forth in the preceding sub-paragraph, whether or not special circumstances warrant any different decision (see, for instance, its judgments of 13 January 1981, NJ 1981, 240; 3 March 1981, NJ 1981, 367; 16 February 1982, NJ 1982, 410; 4 June 1985, NJ 1986, 182; 16 September 1985, NJ 1986, 495; 11 February 1986, NJ 1986, 553; 11 February 1986, NJ 1986, 644; 16 February 1988, NJ 1988, 823). | 1 |
dev | 001-22786 | ENG | FIN | ADMISSIBILITY | 2,002 | LELLA v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Pauli Lella, is a Finnish national, born in 1944 and living in Kehro. At the relevant time the applicant had been politically active for over twenty years, as a member of the Urjala Municipal Assembly and as candidate for Parliament on two occasions. In 1996 he was convicted of aggravated debtor’s dishonesty and a book-keeping offence and sentenced to one year and six months’ imprisonment. The judgment was upheld by a court of appeal and the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal in September 1998. A subsequent request for the case to be re-opened was likewise refused. On 29 September 1998 the Department for Prison Administration of the Ministry of Justice refused the applicant’s request that the enforcement of his sentence be postponed due to his illness. On 19 October 1998 the Urjala Municipal Assembly voted to disqualify the applicant from sitting on the assembly on account of his having been sentenced to over six months’ imprisonment. His appeal was refused by the County Administrative Court (lääninoikeus, länsrätten) of Häme on 11 May 1999. His further appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) was apparently likewise refused. Meanwhile, on 29 October 1998, the Chief Enforcement Officer (kihlakunnanvouti, häradsfogden) of Valkeakoski granted the applicant’s further postponement request in order to enable him to organise certain private matters prior to serving his sentence. He was ordered to start serving his prison term on 4 January 1999. In November 1998 the applicant requested that the enforcement of his sentence be postponed until 1 April 1999 so as to allow for his effective participation in the parliamentary elections on 21 March 1999 in which he intended to present himself as a candidate. On 30 November 1998 this request was dismissed, the Chief Enforcement Officer having concluded that the already fixed enforcement would not engender any exceptional and significant losses or difficulties to the applicant, his family, his employer or to society within the meaning of the chapter 2, section 1 (c) of the Act on the Enforcement of Sentences (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff). Moreover, the considerations militating in favour of the immediate enforcement of his sentence clearly outweighed the inconvenience which such enforcement would cause. Under chapter 2, section 1 (d) of the said Act the decision was automatically referred to the Department for Prison Administration which upheld it on 10 December 1998. Having started to serve his sentence on 4 January 1999, the applicant, on 11 February 1999, filed an extraordinary appeal to the Supreme Administrative Court, seeking to have the refusal quashed as it had been based on a manifestly incorrect application of the law. He also sought to have the enforcement of his sentence stayed at least until the court had decided the matter. On 12 March 1999 the court refused to re-open the case. Meanwhile, on 4 February 1999 the applicant registered as candidate in the upcoming elections. His three requests for leave immediately prior to and on the election day, in order to enable him to complete his campaign, were all refused by the Prison Governor. The refusals were automatically referred to the Department for Prison Administration which upheld them. The applicant was not elected. The sentences imposed on four other defendants convicted in the same criminal proceedings were allegedly not enforced until 1 October 1999. B. Relevant domestic law Parliamentary elections are normally held every four years in Finland. Under the Parliament Act (valtiopäiväjärjestys, riksdagsordning), as in force at the relevant time, anyone entitled to vote in parliamentary elections is likewise entitled to stand as a candidate, unless placed under guardianship (section 7). | 0 |
dev | 001-81817 | ENG | DEU | ADMISSIBILITY | 2,007 | BADER v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Klaus Bader, is a German national who was born in 1956 and lives in Ravensburg in Germany. He is represented before the Court by Mr A. Poppe, a lawyer practising in Berlin. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of the child R., born out of wedlock on 19 January 1987. The applicant acknowledged paternity immediately after his son’s birth. The applicant and the child’s mother (Ms K.) separated permanently in 1989. The last contact between the applicant and his son to which Ms K. gave her consent took place in May 1990. Following this, Ms K. denied the applicant any access to his son. The applicant’s frequent requests to the family courts to be granted access rights remained unsuccessful. On 7 December 1990 Ms K. married Mr K. On 10 April 1992 Mr and Ms K. applied to adopt the applicant’s son. By order of 20 May 1992 the Ravensburg District Court (Amtsgericht) granted the adoption. On 7 March 1995, following the applicant’s complaint, the Federal Constitutional Court (Bundesverfassungsgericht) lifted the binding effect of the adoption order of 20 May 1992 insofar as it prevented a fresh consideration of the case (Aufhebung der Rechtskraft) and remitted the case to the District Court. The Constitutional Court found that the legal provision permitting adoption of a child by his mother and stepfather without the natural father’s consent and without taking into account the latter’s interests in the maintenance of a parental relationship violated his rights to the enjoyment of his family life as guaranteed by Article 6 § 2 sentence 1 of the Basic Law (Grundgesetz). Accordingly, the legislator was ordered to amend the legal provisions. On 1 July 1998 new legislation entered into force, providing that a minor’s adoption depended on both parents’ consent. However, if the mother of a child born out of wedlock exercised sole custody, the court had to substitute the natural father’s consent if the child would suffer a disproportionate disadvantage if not adopted (section 1748 § 4 of the amended Civil Code, see relevant domestic law below). On 1 August 1998 the counsel representing Mr and Ms K. filed a request to substitute the applicant’s consent to the child’s adoption by Mr K. On 31 January 2001 the Ravensburg District Court, having heard the applicant, Mr and Ms K. and the child as well as expert opinion, substituted the applicant’s consent to the adoption pursuant to Article 1748 § 4 of the amended Civil Code. That court found that the child’s interest in being adopted by his stepfather outweighed the applicant’s interest in the maintenance of the parental bonds by far. It noted that the child R. had expressed that he felt as a full member of the K. family and that he strongly wished to be legally accepted as Mr K.’s child. It further noted that the K. family had been considerably disturbed during the previous ten years by numerous confrontations with the applicant. Furthermore, the court-appointed expert had clearly stated that the adoption would be in the child’s interest. With regard to the applicant’s interests, the District Court noted that the adoption would lead to a severing of the parental bonds. It took however into consideration that the child had lived for more than eleven years with the K. family and that no father-son relationship existed between the applicant and the child. Finally, the District Court considered that the adoption might put an obstacle to a later reconciliation between the applicant and the child, but considered that this would not prevent the child from getting in touch with the applicant if he later on might wish to do so. On 16 March 2001 the Regional Court rejected the applicant’s complaint against the District Court’s decision. On 22 March 2001 the applicant lodged a complaint against the decision of the Regional Court of 16 March 2001 with the Federal Constitutional Court and a further complaint against that same decision with the Stuttgart Court of Appeal (Oberlandesgericht). On 27 April 2001 the applicant lodged his application with the Court. On 9 May 2001 the Federal Constitutional Court rejected the applicant’s constitutional complaint as inadmissible. On 17 July 2001 the Court of Appeal rejected the applicant’s complaint. That court found that the impugned decisions did not violate the applicant’s rights under the Basic Law and under the Convention. In so far as the requirements of adoption in the case of an unmarried father who had never held (joint) custody and had never “had responsibility for the child” were less than in the case of other parents, this distinction appeared factually justified in the circumstances of life that were typically found in this case. Furthermore, the lower courts had duly considered the applicant’s interests. The Court of Appeal added that the applicant’s long lasting fight for his rights had forced the child and his new family into the defensive, which made it necessary in the child’s interest to permit the adoption. It further noted that the last contact between the applicant and the child, which had taken place with the mother’s consent, was in 1990 – when the child was merely three years old – and that the applicant’s further endeavours to get into touch had contributed to the child’s aversions. The Court of Appeal considered that the length of the proceedings – which could not be attributed to the courts – had put the child under particular pressure and had thus weakened the applicant’s position. On 31 August 2001 the District Court issued an order confirming the child’s adoption by Mr K. The District Court noted that the child had fully integrated into the K. family. According to the courts’ previous findings, the child would suffer a disproportionate disadvantage if not adopted. The District Court found that the other legal prerequisites were met and, in particular, that the child had firmly expressed that he wished to be adopted. On 19 October 2001 the Regional Court rejected the applicant’s complaint as being inadmissible. On 6 August 2001 the applicant filed a constitutional complaint against the Court of Appeal’s decision of 17 July 2001, the Regional Court’s decision of 16 March 2001 and the District Court’s decision of 31 January 2001. On 17 September 2001 the applicant lodged a constitutional complaint against the District Court’s decision of 31 August 2001. He alleged that the impugned decisions and the legal provisions they were based upon violated his right to the enjoyment of his family life under Article 6 of the Basic Law and under Article 8 of the Convention. He further complained about a violation of his right to equal treatment as guaranteed by Article 3 of the Basic Law. By letter of 12 February 2004 the Federal Constitutional Court informed the applicant that it had communicated his joint complaints to the Government and to several other interested parties for comments. By letter of 28 February 2005 the court informed the applicant that – due to the high workload of the section – it could not be predicted when a decision on the admissibility of his complaint could be given. On 29 November 2005 the Federal Constitutional Court, sitting as a panel of three judges, quashed the decisions of the Court of Appeal of 17 July 2001, of the Regional Court of 16 March 2001 and of the District Court of 31 January and 31 August 2001 and ordered the Land of Baden-Württemberg to reimburse the applicant the necessary expenses incurred by the proceedings before the Constitutional Court. The Federal Constitutional Court found that the applicant’s case could be adjudicated by a chamber of three judges as the questions raised by the applicant were no longer of fundamental importance. The court noted in particular that the Federal Court of Justice, in a decision given on 23 March 2005 (see relevant domestic law and practice, below), had issued valid guidelines which assured that section 1748 § 4 of the Civil Code was interpreted in accordance with the Basic Law and that a father who had never held parental authority was not discriminated against as compared to a father who had. The Constitutional Court emphasized the fact that the adoption severed all legal bonds to the natural father, including alimony claims and rights of succession. Furthermore, it was generally not to be regarded as being in the child’s best interest to exclude access rights of the natural parent. Summing up, the Federal Constitutional Court found that a child’s adoption by his or her stepfather could not generally be regarded as being in the child’s best interest. Turning to the applicant’s case, the Federal Constitutional Court found that the impugned decisions violated the applicant’s right to equal treatment under Article 3 § 1 of the Basic Law, as they discriminated against the applicant when compared to a father who had previously held parental authority. It noted, in particular, that the lower courts had failed to take into account the applicant’s submissions that he had lived for a certain period of time with the child and had thus assumed his responsibility as a parent. The lower courts had further failed to examine the reasons which had prevented the applicant from maintaining a father-child relationship. As could be established from the case-file, the child’s mother had prevented the applicant’s access to the child after meeting her future husband. The Federal Constitutional Court finally found that the applicant’s later attempts to get in touch with the child should not be held against him. Having regard to these findings, the Federal Constitutional Court did not find it necessary to examine the applicant’s further complaints. As a result of this judgment, the proceedings concerning the adoption of the applicant’s son were terminated. On 14 January and 18 February 2003 the District Court ordered the applicant’s arrest on the basis of section 901 of the Code of Civil Procedure, because he had refused to reimburse court fees incurred by the adoption proceedings and in order to compel him to render an affidavit (eidesstattliche Versicherung). On 24 May 2004 the Federal Constitutional Court refused to entertain the applicant’s complaint against the arrest orders. The applicant was arrested on 28 May 2004 and released following court order of 30 July 2004. Article 6 of the Basic Law (Grundgesetz) reads as follows: “(1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty...” The statutory provisions on adoption are to be found in the Civil Code (Bürgerliches Gesetzbuch). Section 1747 (2) of that law originally provided that a child born out of wedlock could be adopted by its mother or stepfather without the natural father’s consent. On 7 March 1995 the Federal Constitutional Court (Bundesverfassungsgericht) ruled that this provision violated the natural father’s rights to the enjoyment of his family life as guaranteed by Article 6 § 2 (1) of the Basic Law insofar as it did not require the natural father’s consent and did not allow to weigh the latter’s interests. On 1 July 1998 the Act Concerning the Reform of Childhood Rights (Gesetz zur Reform des Kindschaftsrechts) entered into force, which amended the relevant provisions on child adoption as follows: Under section 1741 § 1 the adoption of a child is permissible if it is in the interest of the child’s well-being and if it can be expected that parent-child relations will develop between the person applying for the permission to adopt and the child. An adoption may only take place with the natural parents’ consent (section 1747 §1). Section 1748, insofar as relevant, reads as follows: Section 1748 substitution of a parent’s consent “(1) Upon the child’s request, the court has to substitute its consent for that of a parent, if that parent has grossly and persistently violated his or her duties toward the child or if he has demonstrated that the child is indifferent to him, and if the child would suffer a disproportionate disadvantage in the absence of an adoption... ... (3) The court can further substitute its consent for that of a parent who is...permanently unable to care for the child if the child, in the absence of an adoption, could not be raised within a family, which would seriously endanger its development. (4) In the cases of section § 1626a § 2 the court has to substitute its consent for the father’s if the child would suffer a disproportionate disadvantage in the absence of an adoption. “ Section 1626a § 2 provides that the mother of a child born out of wedlock exercises sole custody if no other agreement has been reached between the parents. On 23 March 2005 the Federal Court of Justice (Bundesgerichtshof) in separate proceedings which did not concern the applicant’s case, laid down the following guiding principle for the interpretation of section 1748 § 4 of the Civil Code: “A disproportionate disadvantage in the absence of an adoption can only be assumed if the adoption would be so beneficial for the child that a parent who reasonably cared for the child’s well-being would not insist on the maintenance of parental ties.” (“Das Unterbleiben der Adoption gereicht ... nur dann dem Kind zu unverhältnismäßigen Nachteil, wenn die Adoption einen so erheblichen Vorteil für das Kind bieten würde, daß ein sich verständig um sein Kind sorgender Elternteil auf der Erhaltung des Verwandschaftsbandes nicht bestehen würde.”) The Federal Court of Justice further emphasised that it was not, as a general rule, in the child’s interest if the adoption was aimed at excluding the natural father from exercising access rights. It further had to be considered that the adoption generally did not alter the child’s opportunity to live within the new family, and only gave a legal framework to a factually existing situation. With regard to the father, one had to consider whether there existed a real parent-child-relationship or, if not, which reasons had prevented the father from building up such a relationship. The Federal Court of Justice concluded that section 1748 § 4, if interpreted in accordance with these guidelines, respected the natural father’s rights under the Basic Law. | 0 |
dev | 001-85814 | ENG | SVN | ADMISSIBILITY | 2,008 | BITENC v. SLOVENIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat | The applicant was born in 1936 and lives in Preserje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 November 1985 the applicant’s daughter S.F. made a contract of purchase with a company named Stanovanjska zadruga SCT (“SCT”) to buy a house which SCT was planning to build. S.F. later divorced and changed her name to S.B. On 29 January 1988 the applicant and her husband instituted civil proceedings on behalf of their daughter (“the plaintiff”) in the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) requesting that SCT comply with the contract and seeking damages for non-completion. They had legal representation in these proceedings. On 7 March 1989, after two hearings were held, the court issued an interim judgment upholding S.F.’s claim on the merits. On 29 March 1989 SCT lodged an appeal with the Ljubljana Higher Court (Višje sodišče v Ljubljani). On 25 October 1989 the court allowed the appeal and set aside the first-instance court’s judgment as it was premature. In order to estimate the amount of damage incurred by the plaintiff, the first-instance court appointed two experts in construction engineering, one of whom was subsequently replaced by another expert. Until 28 June 1994, the day the Convention took effect with respect to Slovenia, the court held three hearings. On 1 January 1995 the reform of the Slovenian judicial system took effect and the case was transferred to the Ljubljana Local Court (Okrajno sodišče v Ljubljani). On 13 December 1995 the plaintiff requested that a date be scheduled for a hearing. On 5 November 1996 the court held a hearing. On 8 January 1997 the court, upon the plaintiff’s request, appointed a new expert in construction engineering who delivered an expert opinion on 4 November 1997. On 7 April 1998 the court held a hearing where the plaintiff increased her claim. As a result, SCT raised an objection to the amendment, arguing that the claim was barred by prescription (zastaranje). It also objected to the subject-matter jurisdiction of the court. The latter dismissed the objections in a separate decision issued that same day. On 29 May 1998 SCT appealed against this decision to the Ljubljana Higher Court. On 25 November 1998 the court allowed the appeal, set aside the contested decision and remitted the case to the first-instance court for fresh examination. On 1 October 1999 the Ljubljana Local Court held a hearing and declared the case out of its jurisdiction. It transferred the case to the Ljubljana District Court (Okrožno sodišče v Ljubljani). On 11 June 2001 the Ljubljana District Court held a hearing and heard one of the appointed experts. On 22 June 2001 the court sought additional information from the appointed expert which he provided five days later. On 5 July 2001 the court held a hearing. SCT informed the court that bankruptcy proceedings had been instituted against it. The court decided to issue a written judgment. The judgment, upholding S.B.’s claim in part, was served on the plaintiff on 24 September 2001. On 21 November 2001 the applicant’s lawyer also received a copy of the judgment. On 30 October 2001 the judgment of 5 July 2001 became final. | 0 |
dev | 001-112305 | ENG | POL | CHAMBER | 2,012 | CASE OF WALDEMAR NOWAKOWSKI v. POLAND | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Non-pecuniary damage - award;Pecuniary damage - reserved (Article 41 - Pecuniary damage) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1933 and lives in Warsaw. 6. The applicant is a veteran of the Polish Resistance during the Second World War and a former professional officer of the Polish Army. His veteran status on the grounds of his involvement in the underground Scouts movement during that war was recognised by an administrative decision given on an unspecified date by the Director of the Veterans’ Office. 7. For the last fifty years the applicant collected antique arms and weapons from the period of the Second World War and earlier. 8. On 7 and 8 July 2008 the police searched the applicant’s home and summer cottage. They confiscated the applicant’s collection which at that time numbered 199 pieces. 9. On 16 July 2008 the Director of the Warsaw Uprising Museum (“the Museum”) in Warsaw issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure. He stated that the applicant had been cooperating with the Museum as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the Museum. He stated that the applicant’s expertise was highly valued by the Museum. 10. On 8 July and 29 August 2008 the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms. 11. On 18 October 2010 the Director of the Veterans’ Office sent a letter to the Warszawa Wola District Court. He stated that the applicant’s integrity and the fact that he was a law-abiding citizen were wellknown. He had been decorated on a number of occasions for his involvement in the Polish Resistance during the Second World War. By accumulating a unique collection of historical weapons, uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of Poland. He had financed this collection himself, at considerable personal sacrifice. The fact that criminal proceedings had been instituted against him had met with general disbelief. It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order. On the contrary, it had played a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence. The applicant’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him. 12. On 16 July 2010 the prosecution ordered that 24 pieces of the collection should be returned to the applicant, relying on an expert opinion prepared for the purposes of the investigation. The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary. On 20 July 2010 a bill of indictment against the applicant on charges of illegal possession of arms was filed with the Warszawa Wola District Court. 13. On 18 November 2010 the Warszawa Wola District Court discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms, contrary to Article 263 § 2 of the Criminal Code. 14. The court first listed 171 pieces of the applicant’s collection, the oldest of them produced in 1889. 15. The court noted that the applicant had explained that he had been collecting old arms, mostly memorabilia of the Second World War as well as other older pieces, for almost fifty years. He had previously on numerous occasions made parts of his collection available on loan to various museums. He had been collaborating as an expert in old weaponry with the Warsaw Uprising Museum. The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with three locks and equipped with an alarm. He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms. He declared his willingness to take such measures also in respect of the remaining pieces. 16. The court acknowledged that no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant. However, he must have known that the possession of arms without a permit was unlawful. He had not availed himself of the possibility of legalising his collection by having recourse to the 2005 Arms Legalisation Act, devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of Poland to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance. 17. The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent. It emphasised that the applicant was, at that time, 77 years old, a war veteran who had fought in the Warsaw Uprising and who was a retired professional officer of the Polish Army with no criminal record. He was a lawabiding citizen. 18. The court observed that the applicant’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts. The experts had found that it was impossible to use most of the pieces as weapons, but that some of them could be made to work again (“ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu, niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału, jak również możliwym było przywrócenie cech użytkowych broni”). 19. The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant, referring to Article 17 paragraph 1 (3) of the Criminal Code. At the same time, the court decided to apply Article 100 of the Criminal Code in conjunction with its Article 39 and to confiscate 171 pieces of the collection. 20. The court, explaining why it decided to avail itself of its discretionary power to confiscate the entire collection, stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value. It noted that the collection should, because of its historical interest, be handed over to an institution capable of securing appropriate storage and display conditions for it. 21. The applicant and the prosecution appealed. The applicant essentially challenged the confiscation measure. 22. By a decision of 22 February 2011 the Warsaw Regional Court upheld the first-instance decision. It fully endorsed the reasoning of the lower court. It further noted that the confiscation of the collection should not lead to its destruction. The State authorities should be well aware of the historical value of the collection (“organy państwa winny zdawać sobie sprawę z ... wartości historycznej zabezpieczonych przedmiotów”). 23. On 16 March 2011 the Warszawa Wola District Court invited the Warsaw Uprising Museum to indicate whether they would be interested in the applicant’s collection. On 28 June 2011 the Director of the Museum replied, indicating that the Museum wished to take certain pieces selected by P.B., the Museum’s expert. On 16 September 2011 the court authorised the transfer of these pieces to the Museum and on 17 October 2011 they were transferred. 24. On 16 September 2011 the same court requested the Office for the Protection of Monuments in Warsaw, the Regional Curator for Monuments (Urząd Ochrony Zabytków w Warszawie, Mazowiecki Wojewódzki Konserwator Zabytków), to indicate the name of a cultural institution which would accept the remainder of the collection. A number of cultural institutions expressed their interest, including the Warsaw Uprising Museum. The Warsaw Uprising Museum also expressed interest in the remainder of the collection covered by the forfeiture decision. The Regional Curator for Monuments gave a positive opinion in this regard. This part of the collection is currently being transferred to the Museum. “1. The Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and against payment of just compensation.” 26. Article 31of the Constitution reads: “Freedom of the person shall be legally protected. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 27. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 28. Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 29. Article 17 paragraph 1(3) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible. 30. Article 100 of the Criminal Code provides that where the seriousness of a criminal offence is negligible, the court may order confiscation, within the meaning of Article 39 of that Code, of objects connected with the offence. 31. Article 263 paragraph 2 of the Criminal Code penalises possession of weapons or ammunition without a licence. | 1 |
dev | 001-102288 | ENG | UKR | CHAMBER | 2,010 | CASE OF BOROTYUK v. UKRAINE | 4 | Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 6-3-c | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1970 and is currently serving a sentence in Polytska no. 76 Prison in the Rivne region. 6. The applicant had had a relationship with his neighbour, Ms M. He received from her a duplicate of the key to her house, which he never returned. The relationship was terminated in December 2002 at the instigation of Ms M., whose husband had returned home from a long business trip. 7. During the night of 18-19 April 2003 Mr M., the husband of Ms M., was sleeping in his house, which was locked from the inside, while his wife was at work, and was attacked by a man wearing a mask. The victim's son, ten years old, who was sleeping in the same room, was woken by the noise and saw the intruder leaving the room with an object which looked like a stick. After the incident the entrance door to Mr M.'s house remained locked. Mr M. died without regaining consciousness. 8. On 19 April 2003, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death (see also paragraph 18 below). 9. On 22 April 2003 the Sarny Town Court (“the Sarny Court”) remanded the applicant in custody in Rivne no. 24 Detention Centre (“the SIZO”) at the investigator's request. The court based its decision on the seriousness of the charges against the applicant, as well as the fact that he had no family of his own and might therefore abscond. 10. On 19 June 2003 the Sarny Court extended the applicant's pre-trial detention to four months. It justified this decision with the necessity to undertake a number of investigative measures, the seriousness of the charges against the applicant and the inherent risk of his absconding or hindering the investigation if at liberty. The court examined the applicant's argument about his frail health and noted, referring to a medical report, that his condition was not incompatible with detention. 11. During both the pre-trial investigation and the judicial proceedings the applicant's lawyer introduced numerous requests for the applicant's release on bail, referring to his illness and specific medical needs which could not be accommodated by the SIZO administration and placed an excessive financial burden on his parents (for more details see paragraphs 45-47 below). It was also noted in the requests that the applicant did not have a criminal record and had a permanent place of residence and elderly parents to care for. By way of bail the applicant's father offered his minibus, whose value was estimated at 24,732 Ukrainian hryvnias (UAH), which at the time was equal to about 3,700 euros (EUR). 12. By rulings of 15 and 26 March, 26 April, 27 May, 23 June, 13 and 22 July, 12 August and 2 September 2004, the Sarny Court rejected the aforementioned requests for the applicant's release. The reasoning of all those nine rulings was identical and read as follows: “[The applicant] is accused of a serious crime punishable by imprisonment of over seven years. Therefore, to prevent [him] from attempting to abscond or hindering the establishment of the truth, the preventive measure – detention – should remain unchanged.” 13. Seven of the rulings contained an additional phrase following the first sentence in the above quotation: “There are considerable discrepancies in the witnesses' 14. All the rulings, with the exception of that of 15 March 2004, also noted that the applicant was “free to address requests to the [SIZO] administration for medical assistance under the [legislation on pre-trial detention].” 15. On 8 November 2005 the Rivne Regional Court of Appeal (“the Court of Appeal”), in its ruling ordering an additional investigation in the case, noted that “the preventive measure in respect of [the applicant was to] be unchanged – pre-trial detention” (see also paragraph 33 below). 16. On 26 May 2006 the Sarny Court, following a preparatory hearing prior to the applicant's retrial (see also paragraph 38 below), rejected his request for release on bail or subject to an undertaking not to abscond. The court noted that the applicant was suspected of a dangerous crime and there was a risk of his absconding given his young age, single status and the fact that he had no children. The court examined the applicant's argument about his health and noted, referring to some medical findings, that it was not incompatible with detention. 17. On 19 April 2003 the police searched the applicant's house and seized the key to Ms M.'s house. The applicant was delivered to the police station, where he was questioned from 8:45 p.m. to 10 p.m. as a witness. He denied involvement in the crime being investigated. 18. Later that evening, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death. The arrest report listed all the possible reasons for an arrest contained in the report template, without giving any details. As noted there, the applicant refused to sign it, for unspecified reasons. 19. At an unspecified time on 20 April 2003 the applicant wrote a statement of surrender to the authorities (“явка з повинною”), in which he confessed to beating Mr M. to death with a car axle (kept in the applicant's garage). The investigator accepted that statement, relying on Article 96 of the Code of Criminal Procedure (see paragraph 54 below). 20. On the same date – according to the applicant, at 4:10 p.m. – the investigator delivered an “Act of explanation to the suspect of his rights”. It contained the applicant's handwritten note as follows: “For this questioning, I waive legal assistance. I will be testifying of my own will.” The applicant also signed a formal legal assistance waiver “for the period of questioning”, and the investigator accepted it. 21. Later on 20 April 2003 the applicant was questioned as a suspect and repeated his confession. 22. In the evening of 20 April 2003 the applicant was questioned again, during which he drew the car axle in question and stated that he would be able to recognise it. 23. At some point during the day on 20 April 2003 the applicant's parents signed a contract for legal representation by lawyer O. The lawyer tried to get access to the applicant, but was refused it on the pretext that he was being questioned as a witness and therefore his status did not warrant legal representation. 24. During the night of 20 to 21 April 2003, between 1.20 a.m. and 2 a.m., a videotaped reconstruction of the crime was conducted, during which the applicant again repeated his confession. 25. On 21 April 2003 the classification of the investigated crime was changed from infliction of grievous bodily harm causing the victim's death to premeditated murder. 26. On 24 April 2003 the applicant's parents signed a contract with lawyer R. for legal representation of the applicant, and on 30 April 2003 they informed lawyer O. that her services were not needed any longer. 27. On 30 April 2003 lawyer R. requested to be involved in the investigations as the applicant's legal representative. The investigator granted the request, and he received permission to have meetings with the applicant “without any time restrictions”. 28. On the same date, 30 April 2003, the investigator delivered another “Act of the explanation to the suspect of his rights”, in which the applicant noted that he wished to be represented by lawyer R. 29. As soon as the applicant was legally represented he retracted all his earlier confession statements. 30. On 3 July 2003 the pre-trial investigation was declared complete and the applicant was committed for trial. 31. On 17 November 2004 the Sarny Court found the applicant guilty of premeditated murder and sentenced him to twelve years' imprisonment. It dismissed his not-guilty plea made at the hearing as untruthful and found his guilt proved by the confessions he had made on 20 April 2003 and repeated in the course of the reconstruction of the crime on 21 April 2003, as well as the corroborating material evidence (the duplicate key and the car axle). The court noted that the applicant had had explained to him his right not to incriminate himself before he had confessed and that he had voluntarily waived his right to legal representation. Having heard lawyer O., who stated that she had been refused a meeting with the applicant on 20 April 2003, the court found her allegation unsubstantiated, with a reference to “a thorough investigation into the matter”. The court also found no evidence that the applicant had admitted guilt under duress, given the fact that he had raised no complaints in that regard before any authorities. 32. The applicant appealed, alleging that the sole evidence of his guilt had been his confession extracted by the police under duress and in the absence of a lawyer. He submitted in particular that during the initial questioning and investigative activities he had been deprived of his medicines, and that he had not been receiving proper nutrition, water and sleep. Moreover, according to the applicant, he had been threatened with deprivation of legal assistance unless he confessed, and the police officers from time to time hit him on the back of the head with their hands or files. The applicant also insisted that he could not be regarded as having surrendered to the police under Article 96 of the CCP, as presented by the investigator, given the fact that prior to his statement in that regard he had already been arrested as a suspect. Furthermore, lawyer O. had not been allowed to see him on 20 April 2003, that is after his arrest, on the ground that he was being questioned as a witness, but not because he had waived his right to legal assistance. 33. On 8 November 2005 the Court of Appeal quashed the first-instance judgment and remitted the case for additional investigation, having allowed the applicant's appeal in part. It found in particular that an additional investigation and a retrial were required in order to rectify certain shortcomings. The Court of Appeal noted that the applicant's conviction had largely been based on mere presumptions, namely that the Sarny Court had relied on the confession he had made during the pre-trial investigation in the absence of a lawyer; this confession was not corroborated by any strong evidence against him. It further criticised the first-instance court for its failure to address the applicant's complaint that he had had no access to a lawyer following his arrest as a suspect. Although it disregarded the lawyer's statements made under oath as untruthful, the Sarny Court did not initiate criminal proceedings against her for perjury. According to the Court of Appeal, the first-instance court had selectively admitted and interpreted evidence (thus, according to the report of the first questioning of the victim's son, he had replied in the negative to a quite suggestive question from the investigator as to whether the intruder looked like the applicant to him, while it was noted in the verdict that he had stated the contrary). Lastly, the Court of Appeal pointed out some issues, which, although pertinent, remained uninvestigated: for example, that the victim was visited by unidentified persons on the eve of his murder, and the disorder in his house, which was not mentioned in the applicant's confession. 34. Following the additional investigation, on 27 January 2006 the applicant was again charged with premeditated murder. 35. On 30 January 2006 the Sarny Town Prosecutor delivered a ruling, refusing to institute criminal proceedings against the investigator who had allegedly refused the applicant's lawyer permission to represent him on 20 April 2003. The prosecutor noted firstly that on 20 April 2003 the applicant was questioned as a witness and therefore did not require legal representation, and secondly that even when he was recognised as a suspect he had voluntarily waived his right to legal assistance. 36. On 30 January 2006 the prosecutor delivered another ruling refusing to institute criminal proceedings in respect of the applicant's allegation of unlawful arrest and ill-treatment. The prosecutor referred in particular to the statements by the police officers involved, who denied any coercion. He also took into account the fact that the applicant had not raised any complaints about his health. 37. On 30 March 2006 the applicant was indicted as charged, and on the following day the case was sent to the court for trial. 38. On 26 May 2006 the Sarny Court held a preparatory hearing. 39. On 2 March 2007 it issued a new judgment which in its operative part, was identical to that of 17 November 2004. 40. The court examined the applicant's complaint that he had had no access to a lawyer and dismissed it as unsubstantiated: on one hand, the court referred to the investigator's statements, according to which the lawyer had not submitted any documents to him authorising her to represent the applicant; and, on the other hand, it noted that the contract for legal representation submitted to it by the defence had indicated the applicant (but not his parents) as a party, while he was in detention at that time and could not have signed it. Furthermore, it was mentioned in the judgment that the prosecutor had examined the applicant's allegation that the investigator had refused to allow the lawyer to see him, and refused to institute criminal proceedings against the investigator for lack of corpus delicti in his actions, which the applicant had failed to challenge. The court also noted that on 20 April 2003 the applicant had waived his right to legal assistance. It dismissed his allegation of duress, because the applicant had not complained to anybody about it apart from his father. In any event, the prosecuting authorities had already examined that allegation and rejected it, and the applicant had not appealed against that decision (see paragraph 35 above). The court therefore concluded that the applicant “had not been refused access to a lawyer”. 41. The judgment further referred to the statements of the victim's son, who had not recognised the murderer, although he noted that he was the same height as the applicant. The court further noted that although several witnesses had seen two unidentified persons looking for Mr M. on the eve of his murder, this fact did not negate the finding of the applicant's guilt. The court made a similar observation concerning the disorder in the victim's house not mentioned in the applicant's confession. It also relied on the material evidence obtained on the basis of the applicant's confession, namely the car axle found in his garage, having explained the lack of any traces of the crime on it with the fact that the applicant had wrapped it in cloth and plastic, which he had later burnt. 42. The applicant appealed against the judgment as based on unlawfully obtained confession statements and lacking a solid evidential basis. He reiterated his earlier grievances, namely that his right to defence during the early stages of the investigation had been restricted, and argued that the Sarny Court had failed to address a number of specific issues raised in the Rivne Regional Court of Appeal ruling of 8 November 2005. 43. On 19 June 2007 the Court of Appeal upheld the applicant's conviction, finding that the first-instance court had rightly relied on his confession statements as they had been given in compliance with the legislation on criminal procedure and were corroborated by other evidence. 44. On 21 January 2008 the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated. 45. The applicant has been suffering for many years from diabetes insipidus (нецукровий діабет). In 1990 he was recognised as falling into the third category of disability (the mildest) on account of that condition. Apart from the diagnosis and the aforementioned fact about his disability, the applicant did not provide the Court with any details about his medical condition. 46. According to a note issued on 3 February 2004 by the local clinic at the request of the applicant's lawyer, the applicant had been being monitored by an endocrinologist, who had prescribed him certain antidiuretic hormones, which cost about UAH 420 a package. The clinic provided the applicant with one package a month free of charge, while the required intake was three packages. 47. On 10 December 2003 the applicant's lawyer wrote a letter to the SIZO administration in which he referred to the applicant's medical needs as outlined above and enquired whether the SIZO was able to provide him with the medication he required. The reply was that the SIZO was providing the applicant with some symptomatic treatment. As to the “expensive medications of narrow specification”, such as the antidiuretic hormone referred to, the administration was ready to accept those from the applicant's relatives. It was also noted in the letter that for the time being the applicant had an adequate supply of that medication. 48. On 16 May 2008 the applicant authorised his father to represent him in the proceedings before the Court. The prison administration countersigned the authority form. 49. On 5 June 2008 the Court received a letter from the applicant's father dated 29 May 2008, in which he complained in particular that his son had been deprived of legal assistance for several days after his arrest and that a lawyer had been admitted to him only after he had made confession statements while he was in a state of physical and emotional exhaustion. 50. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 51. The Criminal Code envisages imprisonment of seven to fifteen years for deliberate murder without aggravating circumstances (Article 115 § 1) and seven to ten years for deliberate infliction of grievous bodily injuries causing death (Article 121 § 2). 52. The relevant provisions of the Code of Criminal Procedure (“the CCP”) concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008. 53. Article 154-1 of the CCP, as well as the relevant extracts from Resolution No. 6 of the Plenary Supreme Court of 26 March 1999 “on the practice of applying bail as a preventive measure”, can be found in the judgment in the case of Koval v. Ukraine, no. 65550/01, §§ 60-61, 19 October 2006. 54. As regards admissions of guilt, Article 73 of the CCP requires verification of a suspect's statements. His or her admission of guilt may provide a basis for the accusation only if corroborated by the totality of the evidence. Article 96 of the CCP defines a statement of surrender to the authorities as follows: “a personal voluntary written or verbal statement made by a person, before the institution of criminal proceedings against him or her, to an enquiry authority, a police officer, an investigator, a prosecutor, a judge or a court, about a crime committed or planned for by him or her”. Where criminal proceedings have already been instituted, such a statement must be made before formal charges are brought against the person. | 1 |
dev | 001-113771 | ENG | HUN | COMMITTEE | 2,012 | CASE OF BARANYI AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time) | András Sajó;Paulo Pinto De Albuquerque | 5. In February 1994 the Hungarian National Bank authorised a private limited company (“the Company”) to issue payment cards to its customers. After 1995, however, purchase with such cards was no longer possible. Despite this fact, in 1996 the applicants concluded agreements with the Company for so-called “savings cards” in which they invested various amounts of money. 6. In November 1996 bankruptcy proceedings were initiated against the Company and its insolvency was established in June 1997. The applicants recovered part of their investments through partial reimbursement by the Company. They sold their remaining claims against the Company to third parties. 7. On 26 October 1998 three hundred and thirty private individuals, including the applicants, who were all represented by one law firm, brought an official liability action against the Hungarian National Bank before the Budapest Regional Court. They claimed that the respondent had not exercised its supervisory duties over the Company, therefore making it possible for the applicants to conclude the above-mentioned agreements which had resulted in substantial losses. 8. On 11 January 2001 the Regional Court dismissed their action, finding that the respondent had no duty of supervision according to the relevant domestic legislation. 9. On 28 January 2003 the Supreme Court, acting as a second-instance court, quashed the Regional Court’s decision and remitted the case to the first instance court due to the incomplete findings of fact. 10. In the resumed proceedings the Budapest Regional Court found for the applicants on 6 December 2005. It established that the Company had unlawfully overstepped the boundaries of its activities, which had been known to the respondent; nevertheless, the latter could not prove that it had fulfilled its supervisory duties in this respect. 11. On 26 October 2006 the Budapest Court of Appeal dismissed their appeal. It acknowledged that there were omissions on the respondent’s side. However, since the applicants had already sold their claims to third parties, the court held that they could have no substantive claims whatsoever in the circumstances. 12. The applicants lodged a petition for review with the Supreme Court. It upheld the Court of Appeal’s decision on 5 June 2007, finding that the latter decision had been in compliance with the law. | 1 |
dev | 001-57885 | ENG | ITA | CHAMBER | 1,994 | CASE OF VENDITTELLI v. ITALY | 3 | No violation of Art. 6-1;No violation of Art. 6-1+P1-1;Violation of P1-1;Just satisfaction rejected (out of time) | C. Russo | 8. Mr Manlio Vendittelli, an architect, lives in Rome. 9. On 19 May 1986 the Rome municipal police (vigili urbani) sealed his flat, on the ground that he had infringed the town-planning regulations. 10. On 20 May 1986 the Rome magistrate (pretore) confirmed the sequestration (sequestro) and criminal proceedings were instituted against the applicant. Mr Vendittelli lodged three applications for release of his property from sequestration on 30 May 1986 and 5 and 26 June 1987 but they were dismissed on 12 June 1986 and 9 July 1987 for reasons of prevention and of preservation of evidence (per fini preventivi e cautelari). 11. On 25 July 1987 the applicant sought an early hearing, pointing to the damage caused him by his being unable to enjoy the benefit of his property. The trial was initially set down for 17 November 1987 but was postponed to 15 December 1987. In a judgment delivered the same day, which was filed in the registry on 30 December 1987 and notified on 1 December 1988, the magistrate imposed on Mr Vendittelli, who was present when the judgment was delivered, a suspended sentence of twenty days’ imprisonment and a fine of ten million lire, without any entry in the criminal records, for having carried out works in his flat without a permit from the mayor (concessione edilizia). 12. The applicant appealed against this decision within three days of its delivery and filed his pleadings on 10 December 1988; the twenty-day period allowed for filing grounds of appeal began to run on the day of service of the judgment. The hearing in the Rome Court of Appeal began on 2 May 1989. It was adjourned on 8 January and 27 March 1990 - on the first occasion at the request of Mr Vendittelli, whose doctor had ordered him to rest for five days, and on the second occasion because his counsel was unable to attend. In the meantime, on 13 January 1990, the lawyer had already applied for the trial to be resumed. 13. In a judgment of 4 July 1990, which was filed in the registry on the same day and became final and therefore enforceable on 30 October 1990, the Court of Appeal held that the offence had been amnestied and the prosecution barred as a result of a presidential decree that had been issued on 12 April 1990. It did not, however, order that the property should be released from sequestration, nor was the judgment notified to the applicant, who had to obtain a copy from the registry on 5 December 1990. In the meantime, by a letter of 19 July 1990, Mr Vendittelli had applied for a hearing to be fixed. 14. On 19 November 1990 the file was sent to the magistrate for placing in the archives. In a letter of 10 December 1990 to the President of the Rome Court of Appeal, which was sent on 17 December to the magistrate’s court (pretura), the applicant again sought to have his property released from sequestration. He complained of the bad state of his flat. 15. On 17 December the registrar of the magistrate’s court sent the file to the magistrate for execution of the judgment, that is to say release from sequestration. On 31 January 1991 the magistrate held that he had no jurisdiction and ordered that the file should be returned to the Court of Appeal. 16. It arrived the next day. The central registry of the Court of Appeal recorded the point raised regarding execution (incidente di esecuzione) and on 11 February 1991 sent the file to the registry of the Second Criminal Division. On 10 April and 9 May 1991 Mr Vendittelli again sought to have his property released from sequestration. 17. In an order of 17 May 1991, which was filed on 21 May, sent to Rome Town Hall on 23 May "for execution of what was ordered in it" and served on the applicant on 3 June, the Rome Court of Appeal allowed Mr Vendittelli’s application and also noted that the mayor had issued a permit in the meantime. | 0 |
dev | 001-67538 | ENG | RUS | CHAMBER | 2,004 | CASE OF PROKOPOVICH v. RUSSIA | 1 | Preliminary objection rejected (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Christos Rozakis | 7. The applicant was born in 1940 and lives in Vladivostok. 8. In 1988 the applicant and her partner, Mr Filippov, together moved into a flat provided by Mr Filippov’s employer, a State enterprise. The applicant left the flat where she had previously lived to her daughter and her daughter’s family. 9. Although the applicant and Mr Filippov never married, from 1988 onwards they lived together as husband and wife. They purchased all household items for the new flat jointly. Between 1992 and 1995 Mr Filippov supported their family financially because the applicant was unemployed. According to the applicant, Mr Filippov’s relatives and their neighbours considered them to be a family. Postcards and letters were addressed to Mr and Ms Filippov and the applicant received correspondence at the new address. 10. The applicant retained her residence registration at her old address. The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear-specialist. Had she changed her residence registration, she would no longer have been entitled to visit the doctor practising in her former neighbourhood. 11. The applicant and Mr Filippov spent the summer of 1998 in their country cottage. On 18 August 1998 Mr Filippov returned to the town for a week. 12. On 24 August 1998 Mr Filippov died and his body was found by a neighbour. On 26 August 1998 Mr Filippov was buried in the presence of his son and his two sisters who had been summoned by a telegram. 13. The applicant was not notified of her partner’s death or funeral service. She only learnt of it when she returned to the city late in the day on 26 August 1998. 14. On 27 August 1998 the applicant received a phone call from the local housing maintenance authority (жилищно-эксплуатационное управление), requesting an explanation as to why the flat was not empty. The applicant responded that she did not have formal residence registration in the flat, but she had lived there for more than ten years. On 1 September 1998 a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty. The applicant was not given a copy of the report. The representative advised the applicant to secure her right to use the flat through a court. 15. On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate (ордер) for the flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to Mr Valetov, the head of the local police department and hierarchical superior of Mr Filippov’s son. 16. On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. The applicant states that the possessions were removed in the presence of Mr Valetov, Mr Filippov’s son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, the applicant was told to vacate the premises immediately. When the applicant refused to comply with the request, she was thrown out of the flat by force. The door was replaced and the applicant was not given keys. 17. On 7 September 1998 the applicant filed a complaint against Mr Valetov with the prosecutor’s office of the Sovietskiy District of Vladivostok. The applicant requested a criminal investigation into her forcible eviction and the removal of her possessions. On 14 September 1998 the prosecutor’s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings. 18. On 1 October 1998 the applicant filed a civil action against the Vladivostok City Council and Mr Valetov. The applicant claimed that she should be recognised as a member of her late partner’s household and asked for the occupation certificate issued to Mr Valetov to be declared void. The applicant submitted in evidence many witness statements by relatives, by neighbours living in the same block of flats and by summer house neighbours, as well as personal photographs, letters, postcards and mail receipts. 19. On 27 November 1998 the applicant complained to the Vladivostok city prosecutor’s office about the refusal to open a criminal investigation into Mr Valetov’s actions. By a letter of 17 December 1998 the applicant was informed that the prosecutor’s office had reversed the refusal and ordered the Sovietskiy District prosecutor’s office to carry out an inquiry. 20. On 5 January 1999 the Sovietskiy District prosecutor’s office reported that an inquiry had not established any indication of a criminal offence. On 7 May 1999, after the applicant had complained again, the Vladivostok city prosecutor’s office examined the matter and confirmed this conclusion. 21. On 9 August 1999 the Sovietskiy District Court of Vladivostok dismissed the applicant’s civil action, finding as follows: “Under these circumstances, the court considers that it has been established in court that [the applicant] lived in the contested flat, which [fact] is corroborated by postcards addressed to Mr Filippov and [the applicant], a parcel delivery notice; however, [the applicant’s] residence was of a temporary nature. The court has established that Mr Filippov, while still alive, did not recognise [the applicant’s] tenancy right in respect of the contested flat; [the applicant] did not produce evidence showing that Mr Filippov had recognised her right to tenancy. Besides, it has been established that [the applicant] retained her tenancy right in respect of [her daughter’s flat] and that she had moved into the contested flat in breach of the procedure established by Article 54 § 1 of the RSFSR Housing Code... Furthermore, [the applicant’s] assertion about the presence of her personal effects (250 items) in the contested flat... is rebutted by the results of the inquiries carried out by the Sovietskiy District and Vladivostok City prosecutor’s offices, as well as the housing maintenance authority report of 4 September 1998. Under these circumstances, the court finds that [the applicant] has not acquired the tenancy right to [the contested flat]...” The court grounded its findings on the statements of Mr Filippov’s son and daughter-in-law; however, the court rejected a statement by the applicant’s daughter on the ground that she was an interested witness. It also determined that statements by five neighbours produced at the hearing were not sufficient to establish that the applicant and Mr Filippov had maintained a joint household. 22. The applicant appealed against the judgment. In her statement of the grounds of appeal of 17 August 1999 the applicant pointed to a very substantial body of evidence proving her residence in the flat (statements by witnesses, postcards, mail receipts, etc.). She alleged that her late partner’s son had conspired with his police superior to acquire the flat, which explained why they had managed to obtain in just two days the decisions of the City Council and of the housing maintenance authority, as well as the occupation certificate and residence registration stamp. She complained that she had been thrown out by force, contrary to the applicable provisions of the Housing Code. 23. On 6 October 1999 the Civil Section of the Primorskiy Regional Court upheld the decision of 9 August 1999. The Regional Court endorsed the arguments of the first instance court. 24. The applicant submitted several requests for supervisory review, all of which were turned down. 25. According to the applicant, the flat was privatised in 1999 and sold to a third party. 26. The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided: “The tenant’s family members shall include the tenant’s spouse, children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain a joint household.” “The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to the written consent of all adult members of his family... The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.” “Eviction from occupied living premises in state or public housing shall only be permissible on the grounds set out in the law. Eviction shall be ordered by a court...” | 1 |
dev | 001-69492 | ENG | FRA | ADMISSIBILITY | 2,004 | DELBOS AND OTHERS v. FRANCE | 1 | Inadmissible | null | The first applicant, Mr Dettmar Delbos, is a German national who was born in 1950 and lives in Munich. The second applicant, Mr Guy Goeffers, is a Belgian national who was born in 1946 and lives in St Petersburg. The third applicant, Mr Jan Willem Schipper, is a Netherlands national who was born in 1941 and lives in Breda. The applicants were represented before the Court by Mr D. Foussard, of the Conseil d’Etat and Court of Cassation Bar, and Mr P. Xavier-Bender, of the Paris Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is the production manager of Philip Morris GmbH, a company incorporated under German law. The second applicant is the production manager of Philip Morris Holland B.V., a company incorporated under Netherlands law. The third applicant is the managing director of Philip Morris Holland B.V. These two companies manufacture several brands of cigarettes and distribute them in France. In accordance with the legislation and regulations passed pursuant to Council Directive 89/622/EEC of the Council of the European Communities of 13 November 1989, they printed the words “Tobacco seriously damages health” on one side of the cigarette packets sold on the French market. However, the message was preceded by the phrase “According to Law no. 91-32”. On 16 September 1996 the National Anti-Smoking Committee (Comité national contre le tabagisme – “the CNCT”) brought proceedings against Philip Morris Holland B.V. and Philip Morris GmbH, and against the three applicants in their capacity as managers of the companies, in the Quimper Criminal Court. It accused them, inter alia, of breaching Article L. 355-27 of the Public Health Code and the Order of 26 April 1991 (see below) by printing that phrase on the cigarette packets. On 13 November 1997 the Criminal Court found the applicants guilty of the offence punishable under Article L. 355-31 of the Public Health Code. It sentenced them to a fine of 150,000 French francs (FRF) each and declared Philip Morris Holland B.V. and Philip Morris GmbH jointly and severally liable for payment. It also ordered the applicants and the two companies jointly and severally to pay FRF 400,000 in damages to the CNCT. The judgment states, inter alia, the following: “... The addition of the phrase ‘According to Law no. 91-32’ ... Under Article 4.3 of the Directive of the European Council of 13 November 1989, ‘member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author’. The French State has not opted to do so. It is clear [from Article L. 355-27 II and III of the Public Health Code, Article 9 of the Order of 26 April 1991 and Article 4.3 of the aforementioned directive] that there is an obligation to print health warnings aimed at informing consumers and, accordingly, complying with the formal requirements binding on cigarette manufacturers; that the possibility of adding an indication of the authority that is their author is in all cases reserved to member States of the EEC alone; and that on pain of breaching those provisions cigarette manufacturers must print at least the minimum statutory message, the wording of which is strictly defined by the legal provisions, and can only supplement it on condition that the addition reinforces the message. That is not the case regarding the phrase ‘According to Law no. 91-32’ which Philip Morris B.V. and Philip Morris GmbH have printed before the health warning on cigarette packets since that addition distorts the meaning of the message in question by weakening its import because it may suggest that the basis for alerting consumers to the harm done by tobacco is not medical but legal, whereas the harmfulness of tobacco has been proved by recognised scientific studies. Under the aforementioned provisions, the phrase in question is therefore unlawful. Despite having been warned by letters of 4 April 1993, 12 May 1993 and 2 April 1995 [from the CNCT] that the packets they were manufacturing and importing into France did not comply with the applicable regulations, the Philip Morris company managers refused to change the packaging even when injunction proceedings to that end were brought against them in the Quimper tribunal de grande instance in June 1995. The wilful and persistent violation of the applicable legal and regulatory provisions attest to the guilty intention of the defendants, who cannot validly rely on the fact that the additional phrase in question had been tolerated for twenty years in France since that tolerance did not create rights. Nor can they properly argue that it was compulsory in their country of origin since that fact does not alter their liability under French law. The three elements – statutory, material and intentional – of the offence constituted by the unlawful addition of the words ‘According to Law no. 91-32’ therefore appear to have been made out. ... Responsibility for the offence It is not disputed that at the material time Jan Willem Schipper was the managing director of Philip Morris Holland B.V., Guy Goeffers the manufacturing director of that company and Dettmar Delbos the production manager of Philip Morris GmbH ... ... it would appear that, having regard to their level of responsibility and their sphere of action, the three [applicants] (managing director and manufacturing directors) could not have been unaware of the particular sphere of application of the relevant French regulations and were under a duty to ensure that their manufacturing processes complied with those regulations. ...” In a judgment of 4 February 1999, the Rennes Court of Appeal modified the sentence imposed by the lower court – increasing it to a fine of FRF 300,000 against each applicant – and upheld the remainder of the judgment. The Court of Appeal indicated, in particular: “... Article L. 355-27 of the Public Health Code requires that both a general and a specific health warning be printed on cigarette packets in accordance with the terms of the implementing decree of 26 April 1991, which uses the terms ‘notice’ and ‘specific message’. These terms presuppose the transmission of information in writing. It is clear from those provisions that if the warning is worded in such a way that, for reasons of form or presentation, it no longer constitutes the ‘message’ or ‘notice’ required by the Code the law will have been breached. The phrase ‘According to Law no. 91-32’ indicates the authority that is the author of the warning elliptically, with a misleading definition and only a vague reference to the identity (references to legislation customarily being made by the date or sometimes by the date and number, but never the latter alone); the conclusion must therefore be drawn that the phrase ‘According to Law no. 91-32’ is not informative. An examination of the wording used shows that a distancing effect is created between the emitter of the message and the opinion of its author. That distancing effect can only be perceived by readers as a formally neutral position to which they do not have to adhere and which is open to criticism. It amounts to a form of implicit comment on a compulsory and unjustified measure, which absorbs and transforms the sense of the health message. These considerations show that the obligation to provide the statutory information is circumvented in such a way as to load the wording of the compulsory notice with an implicit but clear meaning that twists and distorts the sense and import of the statutory message. The conclusion that has to be drawn in these circumstances is that where the statutory message is combined with the words ‘According to Law no. 91-32’ it is emitted in conditions which breach Article L. 355-27 of the Public Health Code. [The applicants] cannot justify infringing the law on the basis of foreign practices or obedience to a European directive in a situation in which the directive was not binding on them and, moreover, they have respected neither the letter nor the spirit of it. The intentional element is sufficiently made out by the subtle nature of the enigmatic wording of the text added to the statutory message, which allows it both to avoid conveying any information and potentially to take refuge behind the legislative authority. ...” The applicants appealed on points of law against that judgment. Relying on, inter alia, Article 7 of the Convention, they argued in particular that in finding them guilty of a criminal offence, whereas Article L. 355-27 II of the Public Health Code and Article 9-1 of the Order of 26 April 1991 did not penalise an addition such as ‘According to Law no. 91-32’ before ‘Tobacco seriously damages health’, the lower courts had violated the principle that only the law can define a crime and prescribe a penalty and the principle that the criminal law must be strictly interpreted. They added that Article L. 355-31 of the Public Health Code was in any case imprecise and that the lower courts should therefore have refused to apply it. On 15 February 2000 the Criminal Division of the Court of Cassation dismissed the appeal on the following grounds: “... As stated in the Court of Appeal’s judgment, Dettmar Delbos, Guy Goeffers and Jan Willem Schipper, the respective managers of the companies of the Philip Morris group, were prosecuted for adding the words ‘According to Law no. 91-32’ before the health warning ‘Tobacco seriously damages health’ on cigarette packets marketed by the companies. In holding that the offence had been made out, the Court of Appeal found that by modifying the text of the general health warning required by the legal and regulatory provisions the defendants had distorted its meaning. Accordingly, the Court of Appeal justified its decision. As the optional provisions of Article 4.3 of Directive 89/622/EEC of 13 November 1989 were not transposed into domestic law, any alteration of the text of the health warning required by the provisions of Article L. 355-27 II of the Public Health Code amounts to an offence punishable under Article L. 355-31 of the Public Health Code. ...” On 13 November 1989 the Council of the European Communities adopted Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the member States concerning the labelling of tobacco products. Article 4 (as amended by Directive 92/41/EEC of 15 May 1992) was worded as follows: “1. All unit packets of tobacco products shall carry, on the most visible surface, the following general warning in the official language or languages of the country of final marketing: Tobacco seriously damages health. 2. With regard to cigarette packets, the other large surface of the packet shall carry, in the official language or languages of the country of final marketing, specific warnings alternating in accordance with the following rule: – each member State shall draw up a list of warnings taken exclusively from those listed in Annex 1, – the specific warnings selected shall be printed on the unit packets so as to guarantee the appearance of each warning on an equal quantity of unit packets, with a tolerance of around 5%. 2a. ... 3. Member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author. 4. On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet, excluding the indication of the authority provided for in paragraph 3. This percentage shall be increased to 6% for countries with two official languages and to 8% for countries with three official languages. The required warnings on the two largest surfaces of each cigarette packet: (a) shall be clear and legible; (b) shall be printed in bold letters; (c) shall be printed on a contrasting background; (d) shall not be printed in a place where they may be damaged when the package is opened; (e) shall not be printed on the transparent wrapper or any other external wrapping. ...” That directive was transposed into French law by Law no. 91-32 of 10 January 1991. The following Article was thus inserted into the Public Health Code: “... II. Every unit packet of tobacco or tobacco products shall carry, in accordance with the terms and conditions specified by order of the Minister of Health, the notice ‘Tobacco seriously damages health’. ... III bis. All unit packets of tobacco and tobacco products shall carry, in the manner determined by an order of the Minister of Health, a specific health message. ...” On the basis of those provisions, the Minister of Health issued an order on 26 April 1991 “determining the methods for analysing the nicotine and tar contents and the methods for verifying the accuracy of the notice on packaging and the manner in which the health messages and compulsory notices should feature on packets of tobacco and tobacco products”, Article 9 of which was worded as follows: “1. All unit packets of tobacco and tobacco products shall carry, on the most visible surface, the following general warning: ‘Tobacco seriously damages health’. 2. With regard to cigarette packets, the other large surface of the packet shall carry one of the following specific warnings: Smoking causes cancer; Smoking causes heart disease; Smoking when pregnant harms your baby; Smoking damages the health of those around you; Don’t smoke if you want to stay healthy. ... 4. On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet. The required warnings on the two largest surfaces of each cigarette packet (a) shall be clear and legible; (b) shall be printed in bold letters on a contrasting background; (c) shall not be printed in a place where they may be damaged when the package is opened; (d) shall not be printed on the transparent wrapper or any other external wrapping. ...” Under Article L. 355-31 of the Public Health Code, “anyone who commits a breach of the provisions [of Article] L. 355-27 shall be liable to a fine of between FRF 50,000 and FRF 500,000”. Article L. 355-32 authorised “associations that [had] been formally registered for at least five years at the material time and whose articles of association includ[ed] the fight against smoking [to] exercise the rights conferred on civil parties in respect of [the above-mentioned offence]”. | 0 |
dev | 001-114156 | ENG | NLD | ADMISSIBILITY | 2,012 | K. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr K, is an Afghan national who was born in 1953 and lives in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 3). He is represented before the Court by Ms H.E. Visscher, a lawyer practising in Dordrecht. 2. The Netherlands Government (“the Government”) are represented by their Deputy Agent, Ms L. Egmond of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant fled his native Afghanistan on 17 September 1998 and travelled to the Netherlands where he arrived on 14 October 1998 and applied for asylum. He was subsequently joined in the Netherlands by his spouse and four of their six children, the latter born between 1984 and 1989. On unspecified dates, the applicant’s spouse and four daughters were all granted Netherlands residence permits. 5. On 16 February 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the applicant’s asylum request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. The Minister based this decision on the applicant’s statements about his career from 1982 to 1992 as an officer in the Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”); the intelligence service during the former communist regime in Afghanistan in which he had last held the rank of colonel, and the general official country assessment report (algemeen ambtsbericht) on Afghanistan, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs. According to this official report, Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. Although this decision entailed that the applicant was no longer lawfully staying in the Netherlands and was obliged to leave the country, the Minister further decided that for the time being the applicant would not be expelled to Afghanistan as it could not be excluded that, if returned to Afghanistan, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention. 6. On 15 March 2004 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 24 January 2005, the Regional Court accepted the appeal and quashed the impugned decision. Although it agreed with the Minister’s decision and pertaining reasoning to hold Article 1F of the 1951 Refugee Convention against the applicant, it also held – referring to a ruling given on 2 June 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) and noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete. 7. On 8 August 2006, the Minister took a fresh decision on the applicant’s asylum request, holding that it could not be concluded from the applicant’s account – viewed against the background of the current political and social situation in Afghanistan – that there existed a real and foreseeable risk that the applicant, if returned to Afghanistan, would be subjected to treatment in breach of Article 3 of the Convention. The Minister decided again to hold Article 1F of the 1951 Refugee Convention against the applicant and, furthermore, decided to impose an exclusion order (ongewenstverklaring) on the applicant. As to the applicant’s reliance on his right to respect for his family life within the meaning of Article 8 of the Convention in the Netherlands with his spouse, their children and one grandchild born in the Netherlands in the meantime, the Minister found that the exclusion order entailed an interference with the applicant’s rights under this provision but that the general interest outweighed the applicant’s personal interests. 8. On 13 September 2006, the applicant filed an objection (bezwaar) with the Minister against the decision to impose an exclusion order. As this order was immediately enforceable and the objection did not have suspensive effect, he also filed a request with the Regional Court of The Hague for a provisional measure, i.e. an injunction on his expulsion pending the objection proceedings. On the same date, the applicant also filed an appeal with the Regional Court of The Hague against the decision to reject his asylum request. 9. On 28 June 2007, the Regional Court of The Hague sitting in Haarlem accepted the applicant’s appeal and quashed the impugned decision. It noted at the outset that, since no appeal had been filed against the judgment of 24 January 2005, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final, and that the subject of the present appeal was the question whether the applicant had established that he would run a real risk of being subjected to treatment prohibited by Article 3 of the Convention if returned to Afghanistan, and, if so, whether that risk constituted a sustained obstacle. Noting that, in contrast to the decision of 16 February 2004, it had been concluded in the impugned decision at issue that the applicant had not established the existence of a real risk of treatment in violation of Article 3 in case of his return to Afghanistan, the Regional Court found that this changed opinion had not been duly reasoned. Accordingly, it remitted the case to the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) for a fresh decision. 10. On 3 July 2007, apparently at the applicant’s request, the Afghan mission in the Netherlands issued a written statement, confirming that the applicant “is an Afghan national and has not committed any crime against humanity during his duty in Afghanistan”. 11. On 24 July 2007, the Deputy Minister filed an appeal against the judgment of 28 June 2007 with the Administrative Jurisdiction Division. On 19 December 2007, the Administrative Jurisdiction Division accepted this appeal, quashed the judgment of 28 June 2007 and declared inadmissible the applicant’s appeal of 13 September 2006 against the decision to reject his asylum request. Referring to a ruling it had given on 6 July 2006 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2006/347), the Administrative Jurisdiction Division found that the applicant did not have an interest in a determination of his appeal since as long as the exclusion order which had also been imposed on him remained in force, the appeal in issue could never lead to lawful stay. 12. On 3 March 2008, the provisional-measures judge (voorzieningen-rechter) of the Regional Court of The Hague sitting in Haarlem granted the applicant’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him. 13. On 16 January 2009, the Deputy Minister rejected the applicant’s objection of 13 September 2006. The Deputy Minister noted that the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that for that reason an exclusion order could be imposed. The Deputy Minister held that the statement of the Afghan mission in the Netherlands did not alter the decision, which had already become final, that Article 1F was applicable, as this statement did not provide any concrete elements to cast doubts on the correctness and completeness of the information contained in the official report of 29 February 2000. As regards Article 3 of the Convention, the Deputy Minister found that the applicant, noting his asylum account and his activities in Afghanistan, had established that he had well-founded fears for assuming that, if returned to Afghanistan in the present day situation, he would run a real risk to be subjected to treatment proscribed by this provision. However, this did not entail that the applicant was eligible for a residence title. This was dependent on the question whether this risk constituted a sustained obstacle. On this point, the Deputy Minister concluded that it had not been established that this was the case and that there was no reason to hold that withholding a residence permit from the applicant was disproportionate. As regards Article 8 of the Convention, the Deputy Minister reiterated that the decision to impose an exclusion order entailed an interference with the applicant’s right to respect for his family life but, taking into account the guiding principles set out in the Court’s judgment in the cases of Boultif v. Switzerland, (no. 54273/00, § 48, ECHR 2001IX) and Üner v. the Netherlands ([GC], no. 46410/99, § 58, ECHR 2006XII), considered – with extensive reasoning – that the interest of public safety and national security, as well as the prevention of crime and the protection of the rights and freedoms of others weighed more heavily than the applicant’s interest in an undisturbed family life. The Deputy Minister concluded that the interference was justified and not in breach of Article 8. 14. The applicant’s appeal against this decision was rejected on 29 April 2010 by the Regional Court of The Hague sitting in Middelburg. It agreed with the Deputy Minister that the decision taken on 16 February 2004 to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that the applicant had not demonstrated that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. As regard Article 8 of the Convention, it held: “It is not in dispute that the exclusion order entails interference in the appellant’s family life. In assessing whether such interference is justified, the guiding principles as set out in the ruling of the European Court of Human Rights of 2 August 2001, JV 2001/254 (Boultif v. Switzerland) and supplemented in the ruling of 18 October 2006, JV 2006/417 (Üner v. the Netherlands) must explicitly be taken into consideration. In weighing the general interest of the State against the appellant’s personal life not only the separate principles must be addressed but these must also be considered in their correlation. And it must also be examined whether the imposition of an exclusion order, having regard also to its consequences, is proportionate. There must be a fair balance between the interests involved. It is noted that the Deputy Minister, in reaching the decision, has taken into account the above principles, also referred to as “the Boultif criteria”. On appeal, the appellant has merely submitted that in the impugned decision the Deputy Minister has not made an assessment based on the guiding principles but only considered that the interest of public safety and national security ought to outweigh the appellant’s interest in an undisturbed family life. The Regional Court considers that, in his criticism of the extensive assessment by the Deputy Minister, the appellant has not sufficiently focussed on (parts of) that assessment. In the opinion of the Regional Court, the Deputy Minister could conclude that the exclusion order does not violate Article 8 of the Convention.” 15. The applicant’s subsequent appeal to the Administrative Jurisdiction Division was dismissed on 30 November 2010. It upheld the judgment of 29 April 2010. In so far as the applicant relied on Article 8 of the Convention, the Division held: “In the decision of 16 January 2009, the Deputy Minister has balanced the general interest – which is served by the protection of public safety as well as the prevention of crime and the protection of the rights and freedoms of others – against the alien’s personal interest in exercising his family life in the Netherlands with his wife and children and in this has attributed decisive weight to the general interest. In so doing, the Deputy Minister has had regard to the “guiding principles” formulated by the European Court of Human Rights in the judgment of ... Boultif v. Switzerland and the additional criteria cited in ... Üner v. the Netherlands. The Deputy Minister has attached substantial weight to the fact that Article 1F of the 1951 Refugee Convention has been held against the alien. The Deputy Minister has further taken into account that the alien has lived outside of the Netherlands for the greatest part of his life and can therefore be considered capable of independently fending for himself in another country. The Deputy Minister has further adopted the position that, although a considerable period of time has elapsed since the facts occurred for which the alien is being held responsible, in view of their gravity the interest of public order weighs more heavily. As regards the alien’s family members, the Deputy Minister has taken the view that, although at the time the decision was taken there was an objective obstacle to the family life at issue being exercised in Afghanistan, this did not alter the fact that it had not appeared that there was an objective obstacle to family life being exercised in another country. According to the Deputy Minister, it could be expected of the alien’s family members to follow him to another country. The Deputy Minister has found it to be of relevance that – at the time of the decision – three children of the alien had reached adulthood whereas it had not appeared that there existed “more than normal emotional ties” between them and the alien. Also, one of the children was – at the time of the decision – sixteen and thus, according to the Deputy Minister, did not require daily care by the parents. According to the Deputy Minister, it could also not be excluded that this child, in her parents’ company, could adjust in a country other than the Netherlands. The Deputy Minister has lastly considered that the family members could also maintain contact with the alien without the latter staying in the Netherlands. Having noted the decision of 16 January 2009, the Regional Court has correctly not accepted the alien’s argument that the Deputy Minister had given insufficient reasons for the finding that the exclusion order does not violate Article 8 of the Convention. The fact that the alien has not been criminally convicted does not mean that the holding against him of Article 1F of the 1951 Refugee Convention is an insufficient basis for interference with his right to respect for this family life. The grievance fails.” No further appeal lay against this ruling. 16. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. 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 Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act. 17. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia, - he or she is a refugee within the meaning of the 1951 Refugee Convention, or - he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. 18. If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which might have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000). 19. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings. 20. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security and/or that it is in the interests of the international relations of the Netherlands. An exclusion order entails a ban on residing in or visiting the Netherlands. 21. An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect. 22. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 7,600 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureursgeneraal) whether to prosecute or not. 23. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien. 24. The implementation as from 1 January 2012 of EU Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) has no consequences in respect of persons on whom an exclusion order has been imposed and which has obtained the force of res iudicata. Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban (inreisverbod) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings. 25. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences: - the alien is no longer lawfully residing in the Netherlands; - he/she is required to leave the Netherlands within four weeks; - officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands. 26. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking). 27. Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000 an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health of pose a risk for third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth) or the provision of legal assistance to the alien concerned. 28. In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings. 29. A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention. 30. In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. It did however underline the legislator’s apparent wish to limit the size of this group as much as possible. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin,, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete. 31. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but who, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no act aimed at effective removal will be undertaken, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to Article 3 in the country of origin or to proceed with removal to a third State willing to accept the person concerned. 32. Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional. 33. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” | 0 |
dev | 001-23704 | ENG | LVA | ADMISSIBILITY | 2,003 | GRIŠANKOVA AND GRIŠANKOVS v. LATVIA [Extracts] | 1 | Inadmissible | null | The applicants, born in 1959 and 1988 respectively, are a mother and her son. They are Latvian citizens of Russian origin, and live in Riga (Latvia). The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant has been studying at secondary school no. 30 in Riga since 1995. It is a state school, maintained by the Riga municipal council and providing both compulsory primary education (first to ninth year) and secondary education (tenth to twelfth year). The language of instruction in this school is Russian. On 29 October 1998, Parliament (Saeima) adopted an Education Act (see below). Section 9(1) of this Act provides that the language of instruction in state schools is the official language, namely Latvian. Section 9(3) of the transitional provisions of the Act establishes 1 September 2004 as the date on which pupils in the tenth year (i.e. the first year of secondary school) of state schools must begin using Latvian as the sole language of instruction. Section 50(3) of the afore-mentioned Act prohibits the employment as state school teachers of persons whose knowledge of Latvian is beneath the advanced level required by the regulations in force. The relevant Articles of the Latvian Constitution (Satversme) provide: Article 4 “The Latvian language is the official language in the Republic of Latvia ...”. Article 85 “In Latvia, there shall be a Constitutional Court [Satversmes tiesa], which, within the limits of its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid...” Article 112 “Everyone has the right to education. The State shall ensure that everyone may receive primary and secondary education without charge. Primary education shall be compulsory.” Article 114 “Persons belonging to ethnic minorities shall have the right to preserve and develop their language and their ethnic and cultural identity.” The relevant provisions of the Education Act of 29 October 1998 (Izglītības likums) are worded as follows: Section 9 “1. In educational establishments maintained by the State and local authorities, instruction shall be provided in the official language. 2o Instruction may be dispensed in another language: (1) in private educational establishments; (2) in establishments maintained by the State and local authorities which have introduced curricula for national minorities. In the context of these curricula, the Ministry of Education and Science shall decide which subjects must be taught in the official language; and (3) in the other educational establishments provided for by law. 3. In order to attain the primary or secondary standard of education, all pupils shall learn the official language and sit examinations to verify their knowledge of this language, in accordance with the procedures defined by the Ministry of Education and Science...” Section 50 “The following may not work as teachers: ... (3) in educational establishments maintained by the State or local authorities – persons not in possession of a document issued in accordance with the procedures determined by the Council of Ministers certifying that they have attained an advanced level in the official language, with the exception of teachers in higher educational establishments who are foreign nationals or stateless persons participating in educational programmes set up on the basis of an international agreement, and teachers employed by educational establishments set up by foreign States, or by departments attached to such establishments...” Transitional provisions “9. Section 9(1) and 9(2)(2) of the present Act shall enter into force in a phased manner: (1) 1 September 1999 – in higher educational establishments; (2) 1 September 1999 – schools maintained by the State or local authorities which provide instruction in another language shall begin to implement curricula for national minorities or to introduce instruction in the official language; 3) 1 September 2004 – [pupils in] the tenth year of general secondary schools maintained by the State or local authorities, and [pupils in] the first year of vocational education establishments maintained by the State or local authorities, shall commence their studies in the official language alone”. The relevant provisions of the Constitutional Court Act of 5 June 1996 (Satversmes tiesas likums) are worded as follows: Section 19-2 (added by the Law of 30 November 2000, in force since 1 July 2001) “1. Any person who considers that a legislative provision which is not in compliance with a provision having superior legal force has infringed his or her fundamental rights under the Constitution may lodge a constitutional appeal with the Constitutional Court [konstitucionālā sūdzība]. 2. A constitutional appeal may be lodged only after exhaustion of all the possibilities for securing protection of such rights through ordinary legal remedies (appeal to a higher authority, appeal or application to a court of general jurisdiction etc.) or where such remedies do not exist. 3. Where examination of a constitutional appeal is in the public interest or where legal protection of the rights in question via ordinary remedies does not enable the appellant to avoid substantial damage, the Constitutional Court may decide to examine the application even before all other domestic remedies have been exhausted. The institution of proceedings before the Constitutional Court shall preclude examination of the civil, criminal or administrative case by the court of general jurisdiction until such time as the Constitutional Court’s judgment has been delivered. 4. A constitutional appeal may be lodged within six months of the date on which the decision of the highest instance becomes final. 5. The submission of a constitutional appeal shall not suspend the execution of a judicial decision, except in cases where the Constitutional Court decides otherwise. 6. In addition to its substance, as required by Article 18 of the present Act, a constitutional appeal must contain submissions concerning: (1) the violation of the appellant’s fundamental constitutional rights; and (2) exhaustion of all other ordinary remedies or the fact that no such remedies exist. 7. The following information must be appended to a constitutional appeal: (1) the explanations and documentation required to establish the facts of the case; (2) documents certifying that, where they exist, all ordinary remedies have been exhausted.” Section 32 “1. The judgment of the Constitutional Court shall be final. It shall come into legal effect at the time of delivery. 2. The judgment of the Constitutional Court shall be binding on all State and municipal institutions and authorities, including the courts, and also on natural persons and legal entities. 3. Any legal provision or act which the Constitutional Court has found incompatible with the legal provision having superior legal force shall be considered invalid from the date of publication of the Constitutional Court’s judgment, unless the Constitutional Court rules otherwise ...” According to official statistics, the Constitutional Court delivered thirteen judgments during the period from 1 July 2001 to 1 December 2002 on the basis of constitutional appeals lodged by individuals. In nine of these thirteen cases, it ruled that the statutory provisions or legislation in issue were incompatible with those having superior legal force and declared them fully or partially void. | 0 |
dev | 001-95089 | ENG | RUS | CHAMBER | 2,009 | CASE OF GONCHAROVA AND OTHER “PRIVILEGED PENSIONERS” CASES v. RUSSIA | 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;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicants are pensioners who live in the Moscow Region. Before retirement they used to work in hazardous industry. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region’s district and town courts. 6. In March–November 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions. The courts based their finding on the Law on Labour Pensions. In May 2006–February 2007 these judgments became binding and were executed. 7. On the pension authority’s request, in October 2007–March 2008 the district and town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007. 8. The applicants’ cases were remitted for a rehearing and eventually dismissed. | 1 |
dev | 001-85767 | ENG | TUR | CHAMBER | 2,008 | CASE OF ALİ AND AYŞE DURAN v. TURKEY | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary and non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 4. The applicants were born in 1933 and 1945 respectively and live in Istanbul. They are the parents of Mr Bayram Duran, aged 26, who died in a police station in Istanbul on 16 October 1994, as a result of having been beaten by four police officers. 5. On 12 October 1994 a certain M.Y. filed a complaint with the police maintaining that a man had threatened his son and taken his money. 6. On 15 October 1994 M.Y. saw Bayram Duran on a bus and told the bus driver to go to the police station. Once in front of the police station, M.Y. asked the police officers to arrest Bayram Duran, maintaining that the latter was the person who had threatened his son. Subsequently, at around 11 a.m. Bayram Duran was arrested on suspicion of having committed robbery (gasp). 7. On 16 October 1994 at around 5 a.m. Bayram Duran was found dead at the Gazi police station. 8. On the same day, at 12.35 p.m. a “scene of incident and examination of the corpse” report was drafted and signed by the Gaziosmanpaşa public prosecutor, a medical expert, the director of the Gaziosmanpaşa police headquarters and four other persons. According to the report, there was no sign of ill-treatment or bullet wound on Bayram Duran’s body. The medical expert concluded that an autopsy was necessary to discover the cause of death. The report also contained details concerning the detention conditions, according to which the cell where Bayram Duran had been found dead had not been cleaned for around one week. There were several cigarette butts on the floor and spider webs on the walls. Furthermore, a sketch plan of the cell where Bayram Duran was found dead was drawn. 9. On the same day, the Gaziosmanpaşa public prosecutor took statements from the police officers who were on duty. The officers all contended that Bayram Duran had not been tortured or subjected to illtreatment while in custody and that they had found him dead in his cell when they had gone there to offer him a cup of tea. 10. On 17 October 1994 an autopsy was carried out on Bayram Duran’s body. In the autopsy report drafted on 14 December 1994 and signed by four doctors from the hospital at the Cerrahpaşa University, the cause of death was identified as cardiac failure. The forensic experts found a haemorrhage of 3 x 8 cm in the left scapular region. They nevertheless considered that the haemorrhage had not directly caused Bayram Duran’s death. 11. On 29 December 1994 the Gaziosmanpaşa public prosecutor issued a decision not to prosecute in respect of Bayram Duran’s death. Basing his decision on the autopsy report of 14 December 1994, the public prosecutor noted that the cause of death was not the haemorrhage. 12. On 21 February 1995 the first applicant, Ali Duran, filed an objection with the Beyoğlu Assize Court against the decision of 29 December 1994. He maintained that the content of the autopsy report was inadequate as, inter alia, it did not specify how the haemorrhage in Bayram Duran’s body could have been caused. He further contended that the public prosecutor had questioned only the police officers before rendering his decision. Ali Duran finally submitted that his son had been tortured to death and that the decision not to prosecute constituted a violation of his right to life. 13. On 30 May 1995 the Beyoğlu Assize Court requested the Gaziosmanpaşa Magistrates’ Court to hear evidence from the first applicant and a witness and to conduct an examination of the case. 14. On 15 September 1995 the Gaziosmanpaşa Magistrates’ Court heard evidence from the first applicant and two witnesses, H.K. and Ü.Y. The court then ordered the Forensic Medicine Institute to draft a report in order to determine whether the haemorrhage in Bayram Duran’s body could have been caused by illtreatment and whether there was a link between the haemorrhage and Bayram Duran’s death. 15. On 13 March 1996 a report was drafted and signed by six forensic medicine experts, including the director of the Forensic Medicine Institute. Having examined the autopsy report, the experts noted that Bayram Duran had suffered from a heart condition. They further considered that the haemorrhage had been caused by a direct trauma to the scapular region. The experts concluded that the stress caused by the trauma and the material conditions in which he had been detained had aggravated Bayram Duran’s heart condition and had given rise to a cardiac failure. 16. On 9 April 1996 the Beyoğlu Assize Court annulled the decision not to prosecute and decided to initiate criminal proceedings against the seven police officers who had signed the documents concerning Bayram Duran’s arrest on 15 October 1994. In its decision, the court noted that Bayram Duran’s death might have ocurred as a result of torture inflicted on him and it therefore considered that criminal proceedings should be initiated. 17. On 6 June 1996 the Eyüp public prosecutor filed a bill of indictment with the Eyüp Assize Court charging seven police officers with causing death unintentionally as a result of an act of violence, under Articles 452 § 2 and 251 of the former Criminal Code. 18. On 28 August 1996 the Eyüp Assize Court decided to transfer the case to the Denizli Assize Court on the ground of public security. 19. On 18 November 1996, upon the request of the Denizli Assize Court, the Silopi Assize Court heard evidence from one of the accused police officers, A.K., who denied the allegations against him. 20. On 26 November 1996, at the request of the Denizli Assize Court, the Istanbul Assize Court heard evidence from the persons who had alleged that Bayram Duran had committed robbery. 21. On 11 December 1996 the Istanbul Assize Court heard evidence from two of the accused police officers, H.A. and M.S., who denied the allegations against them and contended that Bayram Duran had died as a result of a heart attack. 22. On 20 December 1996 the Istanbul Assize Court heard evidence from the first applicant, H.K. and Ü.Y. The court postponed the hearing as a third witness was not present. 23. On 24 January 1997 the Istanbul Assize Court heard evidence from the third witness. 24. On 26 February 1997, at the second hearing before the Denizli Assize Court, the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non-pecuniary loss (müdahil). 25. On 26 March 1997 the Istanbul Assize Court heard evidence from one of the accused officers, A.Ç., who contended that he had not inflicted ill-treatment on Bayram Duran. 26. On the same day, at the request of the Denizli Assize Court, the Edirne Assize Court heard evidence from a doctor who had worked at a medical centre close to the Gazi police station at the time of the incident. The doctor maintained that he had been called to the police station by police officers in order to examine Bayram Duran, but that when he arrived there, Bayram Duran had already died. 27. Between 7 July 1997 and 10 May 1999 the Denizli Assize Court postponed hearings due to the absence of one of the accused, police chief A.Ş., whose statements had to be taken. 28. On 10 May 1999 the first-instance court ordered A.Ş.’s detention in his absence. 29. On 22 June 1999 the second applicant made a request to the Denizli Assize Court to join the proceedings as a civil party, seeking redress for her pecuniary and non-pecuniary loss. The first-instance court did not take a decision regarding the applicant’s request. 30. On 3 December 1999 A.Ş. made statements before the Denizli Assize Court and denied the allegation that Bayram Duran had died as a result of ill-treatment inflicted on him. A.Ş. maintained that Bayram Duran had been in custody on account of a simple accusation and that there had been no reason for inflicting ill-treatment on him. On the same day, the first-instance court reversed its order to detain A.Ş. 31. On 31 January and 6 April 2000, upon the request of the Denizli Assize Court, the Istanbul Assize Court and the Bakırköy Assize Court once again heard evidence from A.Ç., H.A. and M.S., who reiterated their previous statements. 32. On 6 September 2000 the Denizli Assize Court gave its judgment in the case. In the judgment, the assize court noted that M.S. had retired from public service and the other accused were serving as police officers. The Denizli Assize Court acquitted A.Ş., A.Ç. and H.A. of the charges against them, holding that there was insufficient evidence to convict them since they had left the police station at around 7 p.m. on 15 October 1994 and since the applicant had visited Bayram Duran a number of times up until 7 p.m. on 15 October 1994. The court considered that M.S., A.A., A.K. and İ.U., the officers who had been on duty between 7 p.m. on 15 October 1994 and 5 a.m. on 16 October 1994, had caused Bayram Duran’s death unintentionally by beating him, for reasons that could not be determined, and convicted them. Noting that the death had occurred as a result of the officers’ acts combined with a circumstance that had existed prior to the act which had not been known to the officers, namely Bayram Duran’s heart condition, the court sentenced M.S., A.A., A.K. and İ.U. to five years’ imprisonment pursuant to Articles 448 and 452 § 2 of the former Criminal Code. The court did not apply Article 243 of the former Criminal Code applicable at the time of the commission of the offence as it was unable to establish that the convicted officers had beaten Bayram Duran with a view to extracting a confession of guilt. In its judgment, the court noted that Bayram Duran had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma. Taking into account the fact that the actual offender who had caused the trauma to Bayram Duran’s head could not be identified, the assize court reduced the police officers’ prison sentences to two years and six months pursuant to Article 463 of the former Criminal Code. Having regard to the fact that the officers had committed an offence while on duty, the firstinstance court increased the sentence to three years and four months pursuant to Article 251 of the former Criminal Code. The assize court finally reduced the sentence to two years, nine months and ten days of imprisonment for each convict pursuant to Article 59 of the Criminal Code, having regard to the fact that some of the convicted police officers’ statements had been of help to the authorities during the investigation and the criminal proceedings in establishing. The first-instance court held that the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered should be reserved. 33. The first applicant, through the lawyer who had represented him during the proceedings before the assize court, and the convicted police officers appealed. 34. In his appeal, the first applicant’s lawyer submitted that the application of Article 452 of the former Criminal Code and the lack of severity of the prison sentences rendered the first-instance court’s judgment ineffective, and thus constituted a violation of the provisions of the United Nations Convention against Torture, the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 35. On 1 October 2001 the Court of Cassation quashed the judgment of 6 September 2000 on procedural grounds. The court held that the Denizli Assize Court had failed to take a decision in respect of the second applicant’s request to join the proceedings. The case file was then remitted to the Denizli Assize Court. 36. On 10 December 2001 the first-instance court decided to allow the second applicant’s request to join the proceedings as a civil party. 37. On 25 March 2002 the Denizli Assize Court heard evidence from the accused police officers, who denied the allegations against them. On the same day, the first-instance court once again convicted M.S., A.A., A.K. and İ.U. as charged and sentenced each of them to two years, nine months and ten days’ imprisonment and reserved the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered. 38. The applicants, through their lawyer, appealed. They alleged that their son had been killed as a result of torture inflicted on him and that the first-instance court had failed to interpret the facts of the case correctly. They contended that the police officers should have been convicted of homicide as a result of torture under Articles 243 and 450 § 3 of the former Criminal Code in accordance with Article 3 of the European Convention on Human Rights and the provisions of the United Nations Convention against Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The applicants finally claimed that the convicted officers should have been debarred from employment in public service. 39. On 10 June 2003 the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of 25 March 2002. 40. On 1 June 2005 the new Criminal Code (Law no. 5237) entered into force. 41. Subsequently, A.A., A.K. and İ.U. filed requests with the Denizli Assize Court asking that their convictions be revised in the light of the provisions of the new Criminal Code. They maintained that their acts should be considered as “inflicting minor injury”. They further submitted that they had been debarred from public service. A.A., A.K. and İ.U. finally noted that the execution of their prison sentences had been suspended pursuant to Law no. 4616, which governed conditional release, suspension of proceedings and execution of sentences in respect of offences committed before 23 April 1999. 42. On 24 November 2005 the Denizli Assize Court reviewed the sentences of A.A., A.K. and İ.U. and decided not to reverse its judgment of 25 March 2002. 43. A.A., A.K. and İ.U. appealed against the judgment of 24 November 2005. 44. According to the information in the case file based on the latest submissions by the parties, the case is still pending before the Court of Cassation. 45. The relevant provisions of the former Criminal Code, in force at the time of the death of the applicants’ son, read as follows: “Any ... public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life. Where such conduct causes death, the sentence incurred under Article 452 (...) shall be increased by between one third and one half.” “Any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years.” “Where death results from an act of violence inflicted without the intention to kill the victim, (...) a sentence of eight years’ imprisonment shall be imposed on the offender. If the death occurs as a result of the offender’s act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate, (...) a sentence of a minimum of five years of imprisonment shall be imposed on the offender.” “If a public official commits an offence while on duty ... the sentence stipulated for that offence shall be increased by between one third and one half.” “If the offence proscribed by Article 448 (...) is committed by two or more persons and if it is not established at the trial which one of those persons caused the death, the prison sentence to be imposed on any of the offenders is not more than two thirds and not less than half of the maximum prison sentence stipulated in the relevant provision of the Criminal Code (...)” “If a court considers that, besides the mitigating statutory excuses, there are mitigating circumstances in favour of reducing the sentence imposed on an offender, (...) the prison sentences shall be reduced by up to one sixth.” 46. According to Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five year period. Section 5 (a) of Law no. 4616 stipulated that execution of sentences in respect of the offence proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended. | 1 |
dev | 001-104515 | ENG | TUR | CHAMBER | 2,011 | CASE OF PEKER v. TURKEY (No. 2) | 3 | Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto | 5. The applicant was born in 1966 and lives in Istanbul. 6. On 19 December 2000 security operations were conducted in a number of prisons in Turkey, during which scores of detainees were killed and hundreds injured (for details of these operations, see İsmail Altun v. Turkey, no. 22932/02, 21 September 2010; Keser and Kömürcü v. Turkey, no. 5981/03, 23 June 2009; and Gülbahar and Others v. Turkey, no. 5264/03, 21 October 2008). 7. The operation in Gebze prison, where the applicant was serving a prison sentence, started in the early hours of the day. As the remaining facts of the case are disputed between the parties, they will be set out separately. 8. At around 5.00 a.m. on 19 December 2000 a large number of gendarmes went into the prison by the main entrance and started firing without giving any warning. At that moment the applicant was in the corridor just outside his dormitory. He was hit in the leg by a bullet fired by the gendarmes. A doctor friend of the applicant who was a remand prisoner in the same prison provided first aid to the applicant. 9. When the inmates set up barricades to protect themselves, the gendarmes threw in explosives containing various gases and smoke. They also continued firing. Heavy machinery was used to make large holes in the prison roof, through which the gendarmes poured boiling water and sprayed gases. 10. At around 7.00 p.m. the same day the applicant and the other injured inmates were taken into the courtyard of the prison. There the applicant was handcuffed and dragged through a 100-metre-long human corridor formed by the gendarmes. While this was being done the gendarmes kept hitting the applicant until he passed out. While the prison governor and other civilian authorities were checking the inmates' identity documents, a gendarme dragged the applicant into a corner and beat him up there. He was subsequently taken to Gebze State Hospital but was brought back to the prison four days later, before his treatment was complete. 11. The operation, named “Return to Life”, began at around 4.30 a.m. on 19 December 2000, when members of the security forces went into the prison through the main entrance. At that moment one of the inmates tried to close the door and told fellow inmates that the security forces were there. The inmates then locked and barricaded the second door of the main hall. The gendarmes heard a gunshot coming from the barricaded side where the inmates had gathered. 12. Despite a number of warnings given by the security forces, the inmates did not lift the barricades. The security forces overcame the inmates' resistance and went into the cells. Seven inmates who were on hunger strike at the time and a further six who had been injured during the operation were taken to Gebze State Hospital. The applicant was wounded by a bullet and was among those who were taken to the hospital. 13. The operation ended at around 9.00 p.m. the same day. Materials used by the inmates as weapons, namely wooden sticks and iron bars, were found in the dormitories and confiscated by the security forces. 14. The following information is disclosed by the documents submitted by the parties. 15. According to two reports drawn up by a prosecutor and gendarmerie personnel on 19 December 2000, the operation in the prison started at 4.30 a.m. the same day. The reason for the operation was to take a number of prisoners who were on hunger strike to a hospital. When the inmates refused to co-operate, force had to be used to remove them from the prison. According to these reports, a gunshot was heard from behind the barricades where the inmates were standing. 16. After the operation, a number of inmates who were on hunger strike were taken to hospital. Furthermore, the applicant and five other inmates who were injured in the operation were also taken to hospital. A doctor examined the applicant at Gebze hospital on 20 December 2000, noted a gunshot wound on his left foot and began treating it. 17. No firearms were found in the prison during the searches carried out in the immediate aftermath of the operation, or during the searches carried out on 12 January, 16 January, 18 January, 19 January, 23 March and 25 May 2001. 18. In an official complaint on 15 April 2001 the applicant asked the Gebze prosecutor to prosecute those responsible for the shooting and the ill-treatment. He alleged that the gendarmes had opened fire on the inmates. 19. On 16 May 2001 the Gebze prosecutor questioned the applicant about these complaints. The applicant maintained his complaints and informed the prosecutor that on his return from the hospital he had been beaten up again by the gendarmes. He added that according to information he had obtained subsequently, an officer named either “Abdullah” or “Abdurrahman” had shot him with his pistol. He also told the prosecutor that bullet marks were still visible in the ceiling of the prison. 20. An officer by the name of A.Y. who had taken part in the operation was questioned by the Gebze prosecutor on 17 July 2001. The officer told the prosecutor that he had heard a shot from the other side of the barricades, but added that he had not used his weapon during the operation. No bullets or spent bullet cases had been found after the operation. 21. In his indictment of 17 July 2001 the Gebze prosecutor indicted the applicant and over 200 of his fellow inmates. The inmates were accused of obstructing law-enforcement personnel in the execution of their duties and causing criminal damage. 22. During a search conducted at the prison on 29 August 2001 a pistol and seven bullets were found by the prison authorities. 23. On 6 December 2001 gendarme officer S.Y., who had been responsible for the security of the applicant's prison, was questioned by the Gebze prosecutor. Officer S.Y. informed the prosecutor that a total of three pistols had been found during searches conducted in the prison some months after the operation. It was possible that the applicant had been shot with one of those pistols by the inmates during the operation. Neither officer S.Y. nor any of the gendarmes under his command had fired shots during the operation. 24. Two more pistols and thirty-three bullets were found in the prison on 22 January 2002. 25. Three other gendarmerie personnel questioned by the prosecutor on 29 March 2002 stated that the gendarmes had not fired shots during the operation. They all considered that the applicant had probably been shot by his fellow inmates with one of the pistols found in the prison. 26. In a statement on 11 June 2002 the applicant repeated his allegations and gave the prosecutor the names of the four friends who had assisted him after he had been shot. In a large number of letters sent between 19 August 2002 and 21 February 2004 the Gebze prosecutor unsuccessfully requested the authorities to locate and question these four inmates. 27. On 24 February 2004 one of the above-mentioned four inmates was found and questioned by a prosecutor. He told the prosecutor that the gendarmes had opened fire on the inmates and that the applicant had been injured by a bullet fired by the gendarmes. Another inmate, questioned subsequently by the prosecutor, stated that he had not seen the applicant being shot. 28. In his letter of 27 May 2004 addressed to the Gebze governor the Gebze prosecutor requested permission to prosecute two gendarmerie officers allegedly responsible for the applicant's injury. The Gebze governor appointed a gendarmerie officer to investigate the allegations. 29. Two gendarmerie officers questioned by the investigator appointed by the Governor stated that they had not fired their weapons during the operation. One of them stated that a ballistic examination of their weapons would confirm the accuracy of their statements. 30. Having regard to the denials of the gendarmerie personnel, the investigating officer advised the governor on 19 October 2004 not to grant the authorisation sought by the prosecutor. 31. Acting on the investigator's advice the governor refused the request for authorisation on 21 October 2004. 32. On 15 June 2005 the Regional Administrative Court in Sakarya examined the objection lodged by the applicant against the governor's decision on 10 January 2005, and quashed the decision. It held that a judicial investigation should be carried out. 33. On 13 September 2005 the Gebze prosecutor wrote to the Gendarmerie Command in Gebze Prison and asked for the two officers to be sent to his office for further questioning. When the prosecutor received no responses to his letter, he repeated his request on 7 October 2005. On 15 November 2005 an officer informed the prosecutor that the two officers were no longer working at the prison. 34. On 18 November 2005 the prosecutor decided not to prosecute the two gendarmes alleged to have fired at the applicant. According to the prosecutor, there was insufficient evidence that the applicant had been injured by shots fired by the gendarmes. In his opinion the applicant had been shot with a bullet fired by inmates. 35. The applicant lodged an objection to the prosecutor's decision on 26 December 2005. He argued, inter alia, that the investigation had not been conducted in a timely manner or in an impartial and independent fashion. He also alleged that the prosecutor had failed to collect all available evidence, such as TV footage of the incident, statements by other eyewitnesses and medical reports. 36. The objection lodged by the applicant was dismissed by the Kartal Assize Court in Istanbul on 14 March 2006. The decision was communicated to the applicant on 21 April 2006. 37. On 12 March 2009 the case brought against the applicant and his fellow inmates (see paragraph 21 above), in so far as it concerned the offence of obstructing law-enforcement officials in the enforcement of their duties, was rejected as the period of limitation had already expired. 38. In the meantime, the applicant was released from the prison in 2004. | 1 |
dev | 001-57914 | ENG | FRA | CHAMBER | 1,995 | CASE OF ALLENET DE RIBEMONT v. FRANCE | 2 | Violation of Art. 6-2;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Lack of jurisdiction (injunction to State) | null | 7. Mr Patrick Allenet de Ribemont is a company secretary. He currently lives in Lamontjoie (Lot-et-Garonne). 8. On 24 December 1976 Mr Jean de Broglie, a Member of Parliament (département of Eure) and former minister, was murdered in front of the applicant’s home. He had just been visiting his financial adviser, Mr Pierre De Varga, who lived in the same building and with whom Mr Allenet de Ribemont was planning to become the joint owner of a Paris restaurant, "La Rôtisserie de la Reine Pédauque". The scheme was financed by means of a loan taken out by the victim. He had passed on the borrowed sum to the applicant, who was responsible for repaying the loan. 9. A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide. On 27 and 28 December 1976 the crime squad at Paris police headquarters arrested a number of people, including the victim’s financial adviser. On the 29th it arrested Mr Allenet de Ribemont. 10. On 29 December 1976, at a press conference on the subject of the French police budget for the coming years, the Minister of the Interior, Mr Michel Poniatowski, the Director of the Paris Criminal Investigation Department, Mr Jean Ducret, and the Head of the Crime Squad, Superintendent Pierre Ottavioli, referred to the inquiry that was under way. 11. Two French television channels reported this press conference in their news programmes. The transcript of the relevant extracts reads as follows: "TF1 NEWS Mr Roger Giquel, newsreader: ... Be that as it may, here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr Michel Poniatowski yesterday evening. Mr Poniatowski: The haul is complete. All thepeople involved are now under arrest after thearrest of Mr De Varga-Hirsch. It is a very simplestory. A bank loan guaranteed by Mr de Broglie wasto be repaid by Mr Varga-Hirsch and Mr de Ribemont. A journalist: Superintendent, who was the key figurein this case? De Varga? Mr Ottavioli: I think it must have been Mr De Varga. Mr Ducret: The instigator, Mr De Varga, and hisacolyte, Mr de Ribemont, were the instigators of themurder. The organiser was Detective Sergeant Simonéand the murderer was Mr Frèche. Mr Giquel: As you can see, those statements include a number of assertions. That is why the police are now being criticised by Ministry of Justice officials. Although Superintendent Ottavioli and Mr Ducret were careful to (end of recording). ANTENNE 2 NEWS Mr Daniel Bilalian, newsreader: ... This evening, therefore, the case has been cleared up. The motives and the murderer’s name are known. Mr Ducret: The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche. Mr Ottavioli: That is correct. I can ...[unintelligible] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim, Mr de Broglie, andMr Allenet de Ribemont and Mr Varga. Mr Poniatowski: It is a very simple story. A bankloan guaranteed by Mr de Broglie was to be repaid byMr Varga-Hirsch and Mr de Ribemont. A journalist: Superintendent, who was the key figurein this case? De Varga? Mr Ottavioli: I think it must have been Mr De Varga. Mr Jean-François Luciani, journalist: The loan was guaranteed by a life insurance policy for four hundred million old francs taken out by Jean de Broglie. In the event of his death, the sum insured was to be paid to Pierre De Varga-Hirsch and Allenet de Ribemont. The turning-point came last night when Guy Simoné, a police officer, was the first to crack. He admitted that he had organised the murder and had lent a gun to have the MP killed. He also hired the contract killer, Gérard Frèche, who was promised three million old francs and who in turn found two people to accompany him. The reasons for their downfall were, first, that Simoné’s name appeared in Jean de Broglie’s diary and, second, that they killed him in front of no. 2 rue des Dardanelles. That was not planned. The intention had apparently been to take him somewhere else, but Jean de Broglie perhaps refused to follow his killer. At all events, that was their first mistake. Varga and Ribemont apparently then refused to pay them. That led to the secret meetings in bars, the shadowing by the police and informers - we know the rest of the story - and their arrest. The second mistake was made by Simoné. Before contacting Frèche he approached another contract killer, who turned down the job but apparently talked to other people about it. To catch the killers, the police realistically based their investigation on two simple ideas. Firstly, the murder was committed in the rue des Dardanelles as Jean de Broglie was leaving De Varga’s home. There was necessarily a link between the killer and De Varga. Secondly, De Varga’s past did not count in his favour and the police regarded him as a rather dubious legal adviser. Those two simple ideas and over sixty investigators led to the discovery of the murderer. Mr Bilalian: The epilogue to the case coincided with a Cabinet meeting at which the question of public safety was discussed ..." 12. On 14 January 1977 Mr Allenet de Ribemont was charged with aiding and abetting intentional homicide and taken into custody. He was released on 1 March 1977 and a discharge order was issued on 21 March 1980. 13. On 23 March 1977 Mr Allenet de Ribemont submitted a claim to the Prime Minister based on Article 6 para. 2 (art. 6-2) of the Convention, inter alia. He sought compensation of ten million French francs (FRF) for the non-pecuniary and pecuniary damage he maintained he had sustained on account of the above-mentioned statements by the Minister of the Interior and senior police officials. 14. On 20 September 1977 the applicant applied to the Paris Administrative Court for review of the Prime Minister’s implicit refusal of his claim and renewed his claim for compensation. He filed pleadings on 12 October 1977. On 21 February 1978 the Minister of Justice did likewise. After notice had been served on them by the Administrative Court on 14 March 1978, the Minister of the Interior and the Prime Minister filed pleadings on 21 and 27 April 1978 respectively. Mr Allenet de Ribemont filed more pleadings on 29 March and 24 May 1978. Further pleadings still were filed on 29 March 1979 by the Minister of Culture, to whom the case file had been sent on 23 January 1979; on 6 June 1979 and 12 August 1980 by the Minister of the Interior; and on 14 May 1980 by the applicant. 15. After a hearing on 29 September 1980, the Paris Administrative Court delivered a judgment on 13 October 1980 in which the following reasons were given: "Mr Allenet, known as Allenet de Ribemont, has applied for an order that the State should pay compensation for the damage that the Minister of the Interior of the time allegedly caused him by naming him in statements made on 29 December 1976 during a press conference on the murder of Mr Jean de Broglie. Although the State may be liable in damages for the administrative acts of a member of the Government, statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts. It follows that the application is inadmissible. ..." 16. On 15 December 1980 the Conseil d’Etat registered a summary notice of appeal by Mr Allenet de Ribemont. After a warning on 19 May 1981, he filed his full pleadings on 1 July 1981. On 7 July these pleadings were sent to the Minister of the Interior, who submitted his observations on 13 April 1982. The applicant replied on 7 July 1982. 17. After a hearing on 11 May 1983 the Conseil d’Etat dismissed the appeal on 27 May 1983, on the following grounds: "Mr Allenet, known as de Ribemont, claimed compensation for the damage he allegedly sustained on account of statements made to the press on 29 December 1976 by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr Jean de Broglie. Statements made by the Minister of the Interior at the time of a police operation cannot be dissociated from that operation. Accordingly, it is not for the administrative courts to rule on any prejudicial consequences of such statements. It follows from the foregoing that, although the Paris Administrative Court was wrong to rule in the impugned judgment that the applicant’s claim related to an act performed ‘in the course of governmental duties’ and thus not susceptible to review by the administrative courts, Mr Allenet’s appeal against the dismissal of his claim in that judgment is unfounded." 18. Mr Allenet de Ribemont brought proceedings in the Paris tribunal de grande instance against the Prime Minister on 29 February 1984 and the Government Law Officer (agent judiciaire du Trésor) on 5 March 1984. On 25 September 1984 the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only, in his view, be brought in the administrative courts. After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time-barred, the Government Law Officer replied on 21 September 1984 and on 28 May 1985. 19. The applicant filed his submissions on 14 November 1984 and 5 April 1985. He requested the court to order two French television companies to hand over video recordings of the press conference of 29 December 1976 and produced press cuttings relating to it. 20. The court gave judgment on 8 January 1986 as follows: "Admissibility of the action brought against the Prime Minister Section 38 of the Act of 3 April 1955 provides that any action brought in the ordinary courts for a declaration that the State is owed or owes payment for reasons unconnected with taxation or with State property must, subject to exceptions provided for by law, be instituted by or against the Government Law Officer, failing which the proceedings shall be void. It follows that Patrick Allenet de Ribemont’s claim for reparation from the State for damage sustained on account of the statements attributed to the Minister of the Interior should have been lodged only against the Government Law Officer, who is the State’s sole representative before the courts, and not against the Prime Minister, who accordingly must not remain a party to the proceedings. Jurisdiction The Paris tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the Interior can be linked with a police operation and are not dissociable from that operation. The press conference of 29 December 1976, held by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad to inform the press of the results of the police inquiries following the murder of Jean de Broglie, may be considered indissociable from the police operation that was then under way. ... The statements complained of ... Anyone who complains of any statements, whether defamatory or merely negligent within the meaning of Article 1382 of the Civil Code, must prove that the impugned statements were actually made. It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced, so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle. In this respect, since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence, judgment must be given on the basis of the evidence in the case file. Patrick Allenet de Ribemont has produced press cuttings describing the press conference of 29 December 1976, some of which are dated the day after the conference or the days following ... The newspapers did not, however, report the statements allegedly made by the Minister of the Interior, as set out in the writ. However, in publications several years after the event, journalists attributed to the Minister of the Interior remarks about Patrick Allenet de Ribemont’s alleged role, and in Le Point of 6 August 1979, for instance, it is possible to read Michel Poniatowski’s statements, reported as follows: ‘Mr De Varga and Mr de Ribemont were the instigatorsof the murder. The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche’. But, however carefully the journalists reported the statements in issue, the press articles relied on by Patrick Allenet de Ribemont cannot be accepted as the sole evidence in view of the objection raised by the defendant on this point. It may further be observed, as a subsidiary point, that the publications at the time of the press conference in issue merely reported the remarks about Patrick Allenet de Ribemont’s involvement in Jean de Broglie’s murder allegedly made by Superintendent Ottavioli after the Minister of the Interior had spoken. Accordingly, since the plaintiff has brought proceedings against the State solely on account of the remarks attributed to the Minister of the Interior, the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in Article 11 of the Code of Criminal Procedure, is time-barred. ..." 21. Mr Allenet de Ribemont appealed to the Paris Court of Appeal on 19 February 1986, and the Government Law Officer cross-appealed on 19 March. 22. The applicant again requested that the videotapes should be handed over for showing. 23. On 7 May 1986 the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions, but without success. On 14 October 1986 he requested him to produce his documents by 30 October and to file any submissions by 14 November. On 19 November he sent a final notice before terminating the preparation of the case for trial. The Government Law Officer filed submissions on 28 November and the applicant on 9 December. On 21 December the parties were informed that the order certifying that the case was ready for hearing would be issued on 28 April 1987. 24. At the hearing of 17 June 1987 Mr Allenet de Ribemont requested an adjournment and, having duly been given leave by the court, filed further submissions on 8 July. 25. The Court of Appeal held another hearing on 16 September 1987 and gave judgment on 21 October 1987. It found against the applicant for the following reasons: "The preliminary objection of inadmissibility ... It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the State’s liability on the ground that the judicial system has malfunctioned, rather than a civil action for defamation and/or breach of the secrecy of judicial investigations. The merits According to the appellant, Mr Poniatowski had made the following statement: ‘Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche’. It was allegedly apparent from the series of statements made by Mr Poniatowski, or by Mr Ducret and Mr Ottavioli under his authority, that all those guilty had been arrested, the haul was complete and the case was solved. These three had allegedly maintained that the motive for the crime was a bank loan obtained by Mr de Broglie to enable Mr de Ribemont to acquire a controlling interest in the Rôtisserie de la Reine Pédauque company. However, as the court below rightly held, the press cuttings produced by Mr Allenet de Ribemont do not suffice to prove his allegations. Even supposing, however, that they had been proved, it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements. ... It has not been shown that the statements complained of, which were made during the judicial investigation, in themselves caused the alleged damage. In so far as this damage appears to be connected with the existence of criminal proceedings, it still cannot be held that the statements in issue affected the course of the case. In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed, it is unnecessary to consider the subsidiary application to have the recording produced. ..." 26. Mr Allenet de Ribemont lodged an appeal on points of law, which the Court of Cassation (Second Civil Division) heard on 4 November 1988 and dismissed on 30 November 1988 on the following grounds: "The judgment [of the Paris Court of Appeal] has been challenged because it dismissed Mr Patrick Tancrède Allenet de Ribemont’s appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations. It is argued, however, firstly, that the Court of Appeal distorted the meaning of those press cuttings, which proved conclusively that statements had been made by the Minister of the Interior and indicated their exact terms; secondly, that it infringed Article 1382 of the Civil Code by refusing to take into consideration the non-pecuniary damage sustained by Mr Patrick Tancrède Allenet de Ribemont; and, lastly, that it breached Article 13 (art. 13) of the European Convention on Human Rights by denying fair reparation to a man whose reputation had been injured in statements heard by millions of television viewers. However, the Court of Appeal held in that judgment, adopting the reasoning of the court below, that the cuttings from the newspapers published on the day after the conference and on the following days did not report the statements allegedly made by the Minister of the Interior, as set out in the writ, but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken, and that the remarks attributed to Mr Poniatowski, relating to Mr Patrick Tancrède Allenet de Ribemont’s alleged role as instigator, had been reported in a publication that appeared only several years after the event. It was in the exercise of its unfettered discretion to assess the evidence before it that the Court of Appeal ruled, without distorting the meaning of the press cuttings, that they did not suffice to prove Mr Patrick Tancrède Allenet de Ribemont’s allegations. In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law, which were subsidiary considerations - the Court of Appeal justified its decision in law. ..." | 1 |
dev | 001-80211 | ENG | FIN | CHAMBER | 2,007 | CASE OF JUHA NUUTINEN v. FINLAND | 3 | Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6 - Right to a fair trial);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Nicolas Bratza | 7. The applicant was born in 1950 and lives in Turku. 8. On 7 September 1995 the public prosecutor charged the applicant and the managing director of company X before the District Court (käräjäoikeus, tingsrätten) with two counts of aggravated tax fraud and two counts of tax fraud, as they had allegedly produced false invoices to the Turku County Tax Office (lääninverovirasto, länsskatteverket). They were also charged with an accounting offence (count 9), as they had allegedly entered false data in the accounts of X. The prosecutor claimed that the applicant was responsible for the offences together with the managing director as, even though he did not have an official status in the management of the company, he had in fact participated in its management. In the indictment dated 12 June 1995, count 1, for example, read as follows: On 23 November 1993 [the managing director] and [the applicant] together, [the former] as the managing director of [company X] and chairman of the board of directors and [the latter] as a person who was de facto responsible for the management of the company, submitted the company's application for a VAT refund in the amount of FIM 342,760 [some EUR 57,000] as regards November 1993 to the County Tax Office of Turku. The application stated that [company Y] had sold electrical relays to [company X] for FIM 1,900,000 [some EUR 319,000] and the latter company had sold the said products further to an Estonian company for FIM 1,680,000 [EUR 282,000]. The invoice relating to the sales transaction between [company X] and [company Y] was fabricated. By submitting such false information which affected the amount of taxes to the authorities for the purposes of taxation, [the managing director] and [the applicant] have attempted to evade taxes. Applicable law: Chapter 29, section 2 of the Penal Code” As a further example, count 2, which concerned the co-defendant H.A., read as follows: By preparing the invoice in the amount of FIM 1,900,000 referred to in count 1, and by handing it over to [the managing director] and [the applicant] to be attached to the application for a tax refund, [H.A.], on 23 November 1993, intentionally furthered the criminal act committed by [the managing director] and [the applicant]. Applicable law: Chapter 29, section 2 and Chapter 5, section 3 (1) of the Penal Code” 9. The applicant pleaded not guilty, arguing that he did not have such a status in company X and therefore could not be held responsible for the alleged offences. Furthermore, he argued that he had not been involved in compiling the documents and that the transactions concerned had not been forged. 10. On 8 February 1996 the District Court found that the business transactions referred to in the relevant invoices were not genuine, that the invoices were false and that the applicant had, together with the managing director, produced false information to the County Tax Office and entered false data in the accounts of X. The District Court referred to the evidence given by the co-accused and the witnesses, finding it proved, inter alia, that the applicant had actually acted in the company in such a position that he was to be held responsible for the offences together with the managing director. Thus, the District Court convicted them both as charged and sentenced them to a suspended term of one year's imprisonment. The co-defendant, H.A., was also convicted as charged. 11. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) against his conviction. He maintained that since he had not had any legal or de facto status in X, he had not produced any documents to the County Tax Office and he had not entered false data in X's accounts. Furthermore, the invoices had not been fabricated. He also claimed that the witness evidence was contradictory and that the District Court's assessment of it was erroneous. At the end of his writ of appeal, he stated: “... [C]onsidering that the conduct of [the applicant], on the whole, cannot be considered aggravated, he could not be found guilty of more than aiding and abetting a tax fraud if he were, against all reason, to be found guilty of any offence ...” 12. The public prosecutor did not submit any written response to the applicant's appeal. In its response to the applicant's appeal the County Tax Office did not refer to a reclassification of the offences as aiding and abetting. 13. On 13 March 1997 the Court of Appeal held a hearing at which the parties and the witnesses were heard. It appears that there was no discussion as to whether the applicant's alleged conduct could be classified as aiding and abetting the above offences. 14. In its judgment of 28 August 1997 the Court of Appeal convicted the applicant of two counts of aiding and abetting an aggravated tax fraud and two counts of aiding and abetting a tax fraud and an accounting offence and sentenced him to a term of nine months' suspended imprisonment. The Court of Appeal reasoned inter alia: During the pre-trial investigation [the managing director] stated that [the applicant] had given instructions to [H.A.] as to the details to be included in the documents that were attached to the applications for a tax refund ... and had also otherwise taken care of matters and the business transactions of [company X]. [H.A.] stated during the pre-trial investigation that he had prepared documents to be attached to applications for a tax refund ... in accordance with [the applicant's] and [the managing director's] instructions. According to [H.A.], [the applicant] was in practice responsible for the operation of [company X]. Witness [V.M.] stated in the Court of Appeal that he had dealt with the invoice ... together with [the managing director] and [the applicant]. In the light of the statements given by [the managing director] and [H.A.] during the pre-trial investigation, and of the witness statement of [V.M.], which supports those statements, it has been established that [the applicant] participated in the planning of the offences referred to in the indictment and in the preparation of the documents needed for the commission of the offences. ... [the applicant] did not have such a position in [company X] as would have made it possible for him to commit, as a principal offender, the offences with which he was charged. When participating in the planning of the offences and in the preparation of the documents needed for the commission of the offences, however, he contributed to producing false information to the County Tax Office and [on count 9] to entering false data in the accounts. Thus he intentionally furthered the criminal acts of which [the managing director] has been found guilty.” 15. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), arguing that he had been convicted of offences differing from those with which he had been charged. He submitted that the public prosecutor had not even claimed that he had been involved in the planning of the offences and compiling the documents. During the proceedings the applicant had not been informed of the nature and cause of these accusations and was thus not given any opportunity to defend himself against them. Furthermore, the assessment of the evidence was unfair since the Court of Appeal had found the evidence sufficient even though the oral statements were contradictory. 16. On 18 June 1998 the Supreme Court refused leave to appeal. 17. Chapter 5, section 3(1) of the Penal Code, in force at the relevant time, provided that a person who, during or before the commission of an offence by someone else, intentionally furthers the act through advice, action or exhortation, shall be convicted of aiding and abetting the principal offence. The sentence imposed on the person who aids and abets shall be reduced to three quarters of the maximum penalty prescribed for the principal offence. 18. The present case was commenced and therefore also concluded under the then provisions on criminal procedure in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The rule according to which an accused might not be convicted of an offence other than the one with which he had been charged was not included in the legislation until the coming into force on 1 October 1997 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; Act no. 689/1997). The rule was however established through case-law and it was codified upon the enactment of the new Act. 19. Chapter 11, section 3, of the Criminal Procedure Act provides that the court may only pass a sentence for an act for which a punishment has been requested. The court is not bound by the heading or the reference to the applicable provision in the indictment. The court is however bound by the conduct described in the indictment. The prosecutor is under an obligation to define the alleged offence and the accused must be provided with an opportunity to defend himself or herself within the limits of the indictment. 20. According to the Government, the court may e.g. convict an accused of aiding and abetting a tax fraud even if the prosecutor has charged him or her with the principal offence, as long as the conduct described in the indictment is not altered. This is based on the principle of jura novit curia, i.e. on the principle that the court itself is responsible for the legal assessment of the criminal act in question without being bound by the views of the prosecutor or of the accused. This was contested by the applicant. 21. Chapter 30, section 3 (Act no. 104/1979), of the Code of Judicial Procedure reads in relevant part: “Leave to appeal may be granted only if it is important to bring the case before the Supreme Court for a decision with regard to the application of the law in other, similar cases or because of the uniformity of legal practice; if there is a special reason for this because of a procedural or other error that has been made in the case on the basis of which the judgment is to be reversed or annulled; or if there is another important reason for granting leave to appeal.” | 1 |
dev | 001-67816 | ENG | ROU | GRANDCHAMBER | 2,004 | CASE OF CUMPANA AND MAZARE v. ROMANIA | 1 | Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 15. The applicants, Mr Cumpănă and Mr Mazăre, were born in 1951 and 1968 respectively and live in Constanţa. 16. In decision no. 33 of 30 June 1992, Constanţa City Council, implementing government decision no. 147 of 26 March 1992, introduced a fine for drivers of illegally parked vehicles and entrusted the task of removing, towing away and impounding such vehicles to S.C. CBN, a company based in Constanţa. 17. By order no. 163 of 30 June 1992, the mayor of Constanţa authorised a private company, Vinalex, to perform the services of removing, towing away and impounding illegally parked vehicles. 18. A partnership contract was signed on 16 December 1992 by the city authorities and the company in question, the signatories on behalf of the authorities being the deputy mayor (hereinafter “D.M.”) and the council’s legal expert (“Mrs R.M.”). In a letter of 1 April 1994, the mayor of Constanţa requested Vinalex to cease its activities under the contract and informed it that it was considering terminating the contract. 19. On 12 April 1994 the applicants, who are journalists by profession, published an article in the local newspaper Telegraf, of which the second applicant was the editor, with the headline “Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam”. The names of the former deputy mayor and of the city council’s former legal expert, Mrs R.M., who had subsequently become a judge, were printed in full in the headline and in the article itself. 20. The article, which appeared under the byline of both applicants, was worded as follows: “In decision no. 33 of 30 June 1992 Constanţa City Council entrusted a commercial company, S.C. CBN S.r.l., with the task of impounding illegally parked vehicles or trailers ... It was the duty of the city authorities’ specialist departments to lay down the practical arrangements for implementing the council’s decision. But things did not turn out that way. Six months after decision no. 33 was adopted, the city authorities, knowingly breaching the provisions of Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex S.r.l., a company having no connection with the one initially chosen. It is worth noting, however, that the contract in question was signed by the deputy mayor, [D.M.], in place of the mayor, ... and by a certain [M.] instead of the legal expert [M.T.]. By what miracle did S.C. Vinalex enter into a partnership with the city authorities when, in decision no. 33 of 30 June 1992, the city council had authorised CBN S.r.l. to provide a straightforward service? What is striking is that there is no evidence that CBN agreed to give up the task of towing away illegally parked vehicles! ... The crook [D.M.] (the former deputy mayor, now a lawyer) granted Vinalex’s irresponsible employees the power to decide when a vehicle is illegally parked – in other words, to treat citizens and their property with contempt. What form did the fraud take? Sections 89 and 29 of Law no. 69/1991 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds’ majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist committees for their opinion ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership. Given that the city authorities had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and bribed subordinates, including [R.M.], or forced them to break the law. The Constanţa Audit Court detected this blatant fraud, which has generated considerable profits for the briber (S.C. Vinalex) ... The offending company [S.C. Vinalex] has never shown that it had adequate means to impound illegally parked vehicles. This explains why large numbers of privately owned vehicles have been damaged and, as a result, thousands of complaints have been made on the subject. Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] no longer had any right to interfere with citizens’ private property! It has nevertheless continued to tow vehicles away and illegally collect money ... It is incomprehensible how the police could have provided it with assistance for the past four months. Let us briefly consider the conduct of the council’s former legal expert, [R.M.], who is now a judge. Either she was ignorant of the law when she signed the contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (delivering justice on the basis of the same laws which she does not know), or she accepted bribes and may continue to do so in future! It is no surprise that the same judge should have been investigated by the Audit Court for a further illegal act, also committed while she was at the city council (as we reported at the time). Ironically, the Court’s president did not take any action against her on the ground that the sum received was not ... large enough. Apparently becoming aware that the matter was likely to be uncovered, the city authorities’ coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated on the following grounds: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract ...). In the same letter the city authorities informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at the level of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’ Facts are facts, and the documents in our possession speak for themselves of the illegal Vinalex scam.” 21. The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanţa City Council’s decision of 30 June 1992, and certain passages of Law no. 69/1991 concerning the responsibilities and powers of mayors, prefects and city and county councils. 22. The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other: “Hey, [R.] [diminutive form of Mrs R.M.’s first name], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America ...” “[D.] [diminutive form of the former deputy mayor’s first name], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world ...” 23. In June 1994 the Financial Control Department of the County Audit Court examined a report submitted on 26 May 1994 by several auditors who had conducted a review of Constanţa City Council’s budget for 1992 and had made the following findings: (a) The city council’s decision of 30 June 1992 to award S.C. CBN the contract for towing away illegally parked vehicles had not been justified by any bid submitted in writing by the company or by the company’s aims as set forth in its articles of association. (b) The city council had not given its opinion on the partnership contract signed between the city authorities and Vinalex, and no expert valuation of Vinalex’s assets had been carried out or submitted to the council for approval, contrary to the provisions of the Local Public Administration Act (Law no. 69/1991). (c) The distribution of the proceeds among the parties as agreed in the contract – 70% to Vinalex and 30% to the city council – had not corresponded to the partners’ respective contributions on the date on which the contract had been signed – 76.4% by the city council and 23.6% by Vinalex – resulting in a loss of income for the city council. The Financial Control Department considered it necessary to urge the mayor of Constanţa, as the official responsible for authorising appropriations, to “ensure compliance with the law” as regards the parties’ obligations under the contract and to be more efficient when entering into such partnerships with private entities in future. A formal decision to that effect was adopted on 8 June 1994 by the head of the department. 24. The applicants produced to the Court a report dated 17 March 1994 by the same Audit Court auditors, which likewise referred to the irregularities described in paragraph 23 above in the signing of the partnership contract between the city authorities and Vinalex, and indicated that the contract should be terminated. The applicants did not mention the existence of such a report during the criminal proceedings instituted against them following the publication of the impugned newspaper article. 25. On 14 April 1994, following the publication of the article, Mrs R.M. instituted proceedings against the applicants in the Constanţa Court of First Instance for insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. She complained, in particular, of the cartoon accompanying the article, which had depicted her as a “woman in a miniskirt, on the arm of a man with a bag full of money and with certain intimate parts of her body emphasised as a sign of derision”. She submitted that the article, the cartoon and the dialogue between the characters had led readers to believe that she had had intimate relations with D.M., and pointed out that she and the former deputy mayor were both married. 26. At a hearing on 13 May 1994, the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that they should be brought before the court on that date. 27. On 27 May 1994 the second applicant stated at the hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He explained that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the claimant’s reputation. In reply to a question from the court, he admitted having known that, by order of the mayor of Constanţa, Vinalex had been authorised to tow away illegally parked vehicles. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article in her favour provided that she could prove that what he had published was untrue. 28. On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the claimant was a judge it was impossible for them to find a member of the Constanţa Bar who would agree to represent them. 29. On an unspecified date the Constanţa Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of all of its members and that, in any event, the matter had not been referred to its executive. 30. On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present. 31. In an interlocutory decision of 21 July 1994, the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance. 32. On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995. 33. On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings on 25 January and 27 February 1995. The applicants did not comply with the summonses. 34. At the hearings on 27 February and 20 March 1995, representatives of Telegraf applied for an adjournment on behalf of the applicants, who were not present. The court allowed the application. 35. On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants. 36. At the hearing on 17 April 1995 in the morning, N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995. 37. At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered on the same day, the court found the applicants guilty of insult and defamation – offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to three months’ imprisonment for insult and seven months’ imprisonment for defamation, and ordered them both to serve the heavier sentence, namely seven months’ immediate imprisonment. As well as this main penalty, the court imposed the secondary penalty of disqualification from exercising all the civil rights referred to in Article 64 of the Criminal Code (see paragraph 58 below). It also prohibited the applicants from working as journalists for one year after serving their prison sentences, a security measure provided for in the first paragraph of Article 115 of the Criminal Code (see paragraph 59 below). Lastly, it ordered them to pay Mrs R.M. 25,000,000 Romanian lei (ROL) (equivalent to 2,033 euros at the exchange rate applicable at the material time) for non-pecuniary damage. 38. In stating its reasons for the judgment, the court observed, firstly: “The Court notes that the injured party has always been present, both in the Constanţa Court of First Instance and in the Lehliu-Gară Court of First Instance, whereas the defendants have generally been absent without justification, despite having been lawfully summoned. In support of her prior complaint, the injured party, Mrs [R.M.], sought leave to produce documentary evidence. Mrs [R.M.] submitted a copy of the 12 April 1994 edition of the local newspaper Telegraf, containing the article referred to in her complaint and the cartoon in which she was ridiculed. The Court notes that the defendants and the party liable to pay damages, despite being lawfully summoned, have not attended any hearings, and that only the injured party has been present. The Court notes that the defendants R. Mazăre and C. Cumpănă were informed of the charges against them and of the hearing dates, and that they were assisted by a lawyer of their choosing (who asked the Court first for an adjournment and subsequently for consideration of the case to be postponed until the second sitting, after 11.30 a.m.). The Court observes that the defendant R. Mazăre gave evidence to the Constanţa Court of First Instance at a public hearing on 27 May 1994, and notes the following from his testimony: the defendant considered that it was not compulsory to have studied at journalism college to work as a journalist; he refused to reply when asked whether he had had access to any other documents on which Constanţa City Council’s decision no. 33 had been based; he understood by ‘series of offences’ the fact of committing several offences; he understood by ‘a multiple breach of the criminal law’ the commission of several offences; he considered that the injured party, in signing the contract in her capacity as a legal expert at the city council, had infringed a number of the provisions of Law no. 69/1991; he pointed out that he could not give the precise legal classification of the offences committed by the injured party, as that did not come within his sphere of competence; he stated that he had said everything there had been to say about the injured party in the newspaper article; he submitted that cartoons were used everywhere and maintained that he had not (through the cartoon) damaged anybody’s reputation (specifically, that of the injured party). [The Court] notes that the defendant R. Mazăre stated that he assumed full responsibility for everything published in his newspaper, as its editor; ... that he stated that he was aware of the constitutional provisions on the right of journalists to impart information to the public; that he had read the government decision in its entirety but had not published it for lack of space; that he also stated that he had read the full text of the partnership contract entered into by the city authorities and signed by the injured party, Mrs [R.M.], but that he did not know whether the government decision had referred to partnership contracts; ... that the defendant had been aware that the Vinalex company had been authorised by order of the mayor of Constanţa to provide the service of towing away illegally parked vehicles, but that he had not thought it necessary to publish that information in the newspaper; and, lastly, that he stated: ‘In view of the seriousness of the offences committed, I do not think that it was necessary to discuss the matter with the injured party beforehand. Should any documents prove that my statements are unfounded, I am prepared to publish an article in the injured party’s favour.’ ” 39. With regard to the documentary evidence on which the injured party intended to rely in support of her allegations, the court observed: “Apart from the article published in Telegraf, the injured party, Mrs [R.M.], produced Constanţa City Council’s decision no. 33 – adopted in accordance with government decision no. 147 of 26 March 1992 – in which it was decided to tow away illegally parked vehicles; order no. 163 of 30 June 1992 by the mayor of Constanţa ... authorising the Vinalex company to remove, tow away and impound illegally parked vehicles (‘The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up’); government decision no. 147 of 26 March 1992, in which mayors were empowered to order the removal, towing away and impounding of illegally parked vehicles by duly authorised specialist companies; and order no. 369 of 1 July 1994 by the mayor of Constanţa, in which Vinalex was authorised to provide such services.” 40. With regard more particularly to the article and cartoon in issue, the court held: “... the article, by the defendants R. Mazăre and C. Cumpănă, was directed at the injured party, tarnishing her honour, dignity and public image and injuring her own self-esteem by means of the (written) accusations conveyed through signs and symbols targeted specifically at her. The Court considers that these acts took place, that they are punishable under the criminal law, and that they posed a danger to society, not so much because of their practical effect (physical distortion of outward reality) but above all because of the psycho-social consequences resulting from the provision of misleading or incorrect information to the public, giving rise to inaccurate judgments about facts and individuals, establishing a false scale of values in view of the role and public impact of the media, and causing psychological trauma to the injured party. In making its assessment, the Court has had regard to the particular status of the parties to the proceedings: the injured party, Mrs [R.M.], being a lawyer and a representative of the judiciary, and the defendants, Mr R. Mazăre and Mr C. Cumpănă, being representatives of the media. The Court notes that the defendant R. Mazăre, while realising the seriousness of the acts he had committed, irresponsibly stated that he had been ‘aware of the fact that Vinalex had been authorised by order of the mayor, but did not consider it necessary to publish that order (as well)’... The Court considers that publication of the article in the newspaper cannot have been justified by a ‘legitimate interest’ in that it was not based on actual facts and the provision of accurate information to the public. It concludes that the defendants ... ‘forgot’ the content of Article 30 § 6 of the Constitution: ‘Freedom of expression shall not be prejudicial to a person’s dignity, honour and private life or to the right to one’s own image’, and of Article 31 § 4 of the Constitution: ‘Public and private media shall be required to provide the public with accurate information.’ It follows from the written submissions filed by the injured party ... that it was always her wish that the criminal proceedings be terminated by a friendly settlement, provided that the defendants agreed to retract the allegations made in the article. The Court notes that the injured party is a public figure and that, following the publication of the article, her superiors and the authority above them asked her to explain herself regarding the trial, particularly in view of the fact that she was due to take the professional examination to obtain permanent status.” 41. On an unspecified date the applicants appealed against the first-instance judgment of 17 May 1995. 42. At a hearing on 2 November 1995, the Călăraşi County Court reserved judgment, having noted that the case was ready for decision and that the applicants had not appeared in court, despite having been duly summoned, and had not stated any grounds for their appeal. 43. In a judgment of 2 November 1995, the court, after examining all the aspects of the case against the applicants, as required by Article 3856 of the Code of Criminal Procedure, upheld the first-instance judgment, finding it to have been correct. The County Court’s judgment, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it. 44. On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the judgments of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments. (a) The courts’ legal classification of the facts had been incorrect. Pointing out that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of certain city council officials, he accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code. (b) The amount the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified. (c) Lastly, the requirements of the first paragraph of Article 115 of the Criminal Code, by which the courts could prohibit persons who had committed unlawful acts from practising a particular profession on account of their incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case, as there was no unequivocal proof that the applicants were incompetent to continue working as journalists or that their doing so entailed a potential danger. 45. In a final judgment of 9 July 1996, the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded, for the following reasons: “It has been established from the evidence adduced in the present case that on 12 April 1994 the accused, R. Mazăre and C. Cumpănă, published an article in the Constanţa newspaper Telegraf entitled ‘Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam’, in which it was asserted that in 1992, while she was employed as a legal expert at Constanţa City Council, the injured party, Mrs [R.M.], had been involved in fraudulent activities on the part of a commercial company, Vinalex. The Supreme Court further notes that, alongside the above-mentioned article, the accused published a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money on his back, and that this was likely to tarnish the injured party’s honour, dignity and public image. It follows that in publishing the article in Telegraf, the accused attributed specific acts to the injured party which, had their allegations been made out, would have rendered her criminally liable; the two lower courts were therefore correct in finding the accused guilty of defamation under Article 206 of the Criminal Code. The fact that the accused published alongside the above-mentioned article a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money, in such a way as to tarnish her honour and reputation, constitutes the offence of insult as defined in Article 205 of the Criminal Code ...” 46. With regard to the amount which the applicants had been ordered to pay in damages, the Supreme Court held: “... the requirement for the accused to pay 25,000,000 lei for non-pecuniary damage was justified, since it is beyond dispute that in publishing the article on 12 April 1994 in a mass-circulation newspaper, the accused seriously offended the dignity and honour of the injured party.” 47. The Supreme Court held, lastly, in relation to the alleged unlawfulness of the temporary prohibition on the applicants’ working as journalists: “... since the application of security measures in circumstances other than those provided for by law does not feature on the exhaustive list of cases in which the law permits the Procurator-General to apply to have a decision quashed, it cannot form a legal basis for quashing the judgments in issue.” 48. The applicants did not serve the prison sentence they had received in the judgment of 2 November 1995, since immediately after the judgment had been delivered the Procurator-General suspended its execution for eleven months by virtue of Article 412 of the Code of Criminal Procedure (see paragraph 61 in fine below). 49. In a letter of 30 September 1996, the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution until 27 November 1996. 50. On 22 November 1996 the applicants were granted a presidential pardon dispensing them from having to serve their prison sentence. By virtue of Article 71 of the Code of Criminal Procedure, the pardon also waived their secondary penalty of disqualification from exercising their civil rights (see paragraph 58 in fine below). 51. It appears from the first applicant’s employment record (cartea de muncă), of which he submitted a copy to the Court, that, following the Călăraşi County Court’s judgment of 2 November 1995: (a) he continued to work for Telegraf as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before; (b) while working for C., he was awarded a pay rise; (c) he ceased to work for C. on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as worded at the material time; (d) thereafter, he was not gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor. 52. Following the final and binding judgment of 2 November 1995, the second applicant continued to work as editor of Telegraf, as indicated in a letter he sent to the Court on 19 January 2000. 53. Between 1 September 1997 and 30 November 1999, while he was a member of the Romanian parliament, the sum of ROL 25,000,000 was deducted from his parliamentary allowance and transferred to Mrs R.M.’s bank account, pursuant to the Lehliu-Gară Court of First Instance’s judgment of 17 May 1995 (see paragraph 37 in fine above). 54. On an unspecified date after that judgment, he was elected mayor of Constanţa, a position he still holds. 55. At the material time the relevant provisions were worded as follows: “Anyone who tarnishes the reputation or honour of another through words, gestures or any other means shall be liable to imprisonment for between one month and two years or to a fine.” “Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to imprisonment for between three months and three years or to a fine.” 56. In Resolution no. 1123 of 24 April 1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe observed that Articles 205 and 206 of the Romanian Criminal Code were unacceptable and seriously compromised the exercise of fundamental freedoms, in particular the freedom of the press. The Assembly therefore called on the Romanian authorities to amend those provisions without delay. 57. Following a process of legislative reform, the New Romanian Criminal Code Act (Law no. 301 of 28 June 2004) provides that the offence of defamation is punishable solely by a fine (Article 225 of the New Criminal Code) and no longer classifies insult as a criminal offence. These legislative amendments will come into force on 29 June 2005. 58. The relevant provisions are worded as follows: “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to bodies of a public authority or to public elective office; (b) the right to occupy a position entailing the exercise of State authority; (c) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence; (d) parental rights; (e) the right to act as a child’s guardian or statutory representative.” “The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64. A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 59. The relevant provision is worded as follows: “Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or activity may be prohibited from performing those duties or practising that profession or activity. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid. ...” 60. The relevant provisions are worded as follows: “A pardon shall have the effect of waiving the execution of a sentence. ... A pardon shall have no effect on security measures or educational measures.” “A person sentenced to a term of imprisonment of less than one year shall be legally rehabilitated if he does not commit any further offences for three years.” 61. The relevant provisions are worded as follows: “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.” “An application to have a final conviction ... quashed may be made: I. ... ... 4. where the penalties imposed fell outside the limits prescribed by law; ... 7. where the offence was incorrectly classified in law ...” “Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.” | 1 |
dev | 001-97497 | ENG | RUS | ADMISSIBILITY | 2,010 | PYLNEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Viktor Aleksandrovich Pylnev, is a Russian national who was born in 1952 and lives in Voronezh. He is represented before the Court by Ms O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 April 1999 the Kaluga Regional Deputy Prosecutor opened a criminal investigation in respect of the applicant, who was at the time a member of the regional legislature, on suspicion of tax evasion. On 15 September 1999 the applicant was questioned by the investigator as a suspect and signed an undertaking not to leave town pending the investigation. At the time he resided in Maloyaroslavets in the Kaluga Region. On 20 September 1999 the applicant was indicted on the charge of tax evasion. On 21 September 1999 the investigator authorised the applicant's detention pending the investigation. In particular, the investigator noted: “Having regard to the gravity of the charge and the fact that [the applicant] does not have permanent employment and may abscond or put pressure on witnesses and conspire with other co-accused to obstruct the course of justice, [the investigator] decides to ... place [him] in custody...” It appears that the applicant left for Moscow on 22 September 1999. He did not notify the investigator of his departure. On the following day the applicant's name was put on the wanted persons' list. From 6 to 23 October 1999 the applicant underwent in-patient treatment in a cardiology centre in Ivanovo. From 26 October to 25 November 1999 the applicant was in Moscow, where he fell ill and received unspecified outpatient treatment. Upon his return to Maloyaroslavets he was arrested in his flat on 28 November 1999 and placed in custody. His lawyer appealed, asking the court to release the applicant. On 10 December 1999 the Kaluga District Court of the Kaluga Region confirmed the lawfulness of the applicant's arrest, noting that: “[The applicant] is charged with a serious offence which carries a custodial sentence of up to five years. Furthermore, [the applicant] earlier absconded and his name was put on the wanted persons' list”. On 8 February 2000 the applicant was charged with fraud and abuse of power. On 11 and 14 February 2000 the charges were dropped. On 28 February 2000 the applicant was indicted on charges of securities fraud, corrupt business practices and breach of trust. On 13 June 2000 the applicant was released on an undertaking not to leave town. On 30 June 2000 the applicant consulted a psychiatric hospital in Kaluga and agreed to undergo in-patient treatment there. He was diagnosed with an “organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change” (органическое расстройство смешанного генеза с церебрастеническими, психопатоподобными изменениями личности). He was released from hospital on 31 July 2000. From 20 October to 2 November 2000 the applicant underwent treatment in the same hospital. It appears that the applicant failed to inform the authorities of his departure from Maloyaroslavets and on 6 December 2000 the regional prosecutor revoked the applicant's undertaking not to leave town and ordered his detention pending investigation and trial. The prosecutor noted that the applicant, who “remained impenitent”, might obstruct the course of justice or abscond. On the same day the prosecutor transferred the applicant's case file to the Maloyaroslavets District Court of the Kaluga Region. On 7 December 2000 the applicant was placed in remand prison no. IZ-40/1 in Kaluga. On 3 January 2001 the Maloyaroslavets District Court of the Kaluga Region scheduled the opening of the trial for 12 January 2001. The applicant was to remain in custody. On 12 January 2001 the District Court dismissed an application by the applicant for release. On 9 February 2001 the Kaluga Regional Court upheld the decision of 12 January 2001 on appeal. The court noted that the applicant was charged with serious offences, which fact alone justified his pre-trial detention. On 31 January 2001 forensic psychiatrists examined the applicant and found him fit to stand trial. On 7 March 2001 the District Court ordered the applicant to undergo a comprehensive psychiatric examination. The applicant was transferred to remand prison no. 77/2 in Moscow on 19 May 2001. On 27 June 2001 he was placed in a forensic psychiatric hospital. On 24 July 2001 the medical panel established that the applicant did not suffer from any chronic mental disorder and ruled that he was fit to stand trial. On 9 August 2001 the applicant was transferred back to remand prison no. IZ-40/1 in Kaluga. On 28 August 2001 the District Court found the applicant guilty as charged and sentenced him to seven years' imprisonment. On 26 October 2001 the Kaluga Regional Court quashed the judgment of 28 August 2001 on appeal and referred the matter back for fresh consideration. On 16 November 2001 the applicant was released on an undertaking not to leave town. On an unspecified date he left for Obninsk, in the Kaluga Region, where he underwent in-patient treatment for ischaemia and an organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change in hospital no. 8 from 23 November 2001 to 23 January 2002. On 24 December 2001 the hospital informed the District Court that the applicant's condition did not entail an impediment to his participation in the trial. On 3 and 4 January 2002 the applicant failed to attend the hearings. According to the applicant, on 9 January 2002 the District Court had to adjourn the hearing owing to his poor health. In response to the applicant's complaints about his health, the court summoned an emergency response doctor, who examined the applicant and gave him pain relief. On 14 January 2002 the District Court granted a request by the applicant to adjourn the hearing until 21 January to allow him to hire a new lawyer to represent him. Later that day the applicant consulted a doctor. On 16 January 2002 the applicant was examined by a medical panel which recommended that he should avoid stressful situations for ten days. On 21, 23 and 25 January 2002 the District Court held hearings. It dismissed the applicant's request to stay the proceedings on account of his poor health condition. The court relied on the opinion of the doctors from hospital no. 8, where the applicant was undergoing in-patient treatment at the time. According to the applicant, he did not feel well after the hearings and had to seek medical assistance. On 23 January 2002 hospital no. 8 discharged the applicant, noting that his health condition was satisfactory. On 29 January 2002 the applicant allegedly lost his eyesight temporarily and asked the court to adjourn the hearing. The court called for an ambulance, which took the applicant to a hospital in Maloyaroslavets, where he stayed until 18 February 2002. He was diagnosed with cervical osteochondrosis and hernia of intervertebral discs, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension and underwent relevant treatment. Then he was transferred to another hospital in Kaluga on 18 February 2002. The court hearings on 21 and 26 February 2002 were adjourned. It appears that the applicant did not obtain the District Court's authorisation for his transfer to Kaluga. On 7 March 2002 the Kaluga Regional Department of Health and Pharmaceuticals recommended that the applicant be examined by neurology specialists in Moscow. The applicant's medical file was forwarded to Moscow City Hospital no. 19 affiliated to the Burdenko Neurosurgery Institute. On 18 March 2002 the applicant failed to attend the hearing and the judge ordered his detention pending trial. The court noted that the applicant had violated his undertaking not to leave town. The applicant was taken into custody in hospital and transferred to a temporary detention unit in Maloyaroslavets on 19 March 2002. He was held there until 21 March 2002. Every day the administration called for emergency response doctors to attend to the applicant. On 21 March 2002, upon the neurologist's recommendation, the applicant was transferred to a hospital in Maloyaroslavets. According to the applicant, he lost sensitivity in his legs and was constantly in pain in the spinal area. He felt giddy and had headaches and heart pain. His limbs were swollen. His speech was slow and he suffered from memory loss. On 19 March 2002 the medical professionals at the Burdenko Neurosurgery Institute examined the applicant's medical file and recommended that he receive spinal surgery “shortly”. On 26 March 2002 the applicant started wearing a neck brace. On the same day the policemen removed him from hospital and took him to the temporary detention unit in Maloyaroslavets. On 27 March 2002 the District Court adjourned the hearing in response to a complaint by the applicant about his medical condition. The applicant was examined by a general practitioner, who testified in court, recommending a comprehensive medical examination. On 28 March 2002 the District Court granted the prosecutor's request and commissioned an expert panel to examine the applicant in order to ascertain whether his health condition permitted him to participate in the proceedings. It appears that on 28 March 2002 the applicant arranged for a meeting with a group of medical professionals from Kaluga. However, the judge in charge of his case refused to authorise their access to the temporary detention unit where the applicant was being held at the time. According to the applicant's medical file, submitted by the Government, on 29 March 2002 he was transferred to the medical unit at remand prison no. IZ-40/1 in Kaluga. On 10 April 2002 the applicant was examined by a medical panel comprising specialists in neurosurgery, cardiology, neuropathology, neurology and general therapy. The experts concluded that the applicant could participate in the proceedings. They noted that he could move his feet and toes, but he refused to flex the knees, alleging that such movements caused extra pain in the spinal cord. The applicant was able to sit up and turn from side to side. They summed up their findings as follows: “[The applicant] suffers from cervical osteochondrosis and hernia of intervertebral disks, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension. The applicant's current condition allows him to participate in the criminal proceedings. [The Burdenko Scientific Research Institute, Department of Neurosurgery] and town hospital no. 19 ... recommended that [the applicant] undergo in-patient treatment and surgery shortly. The in-patient treatment and surgery in question have been recommended on account of the deterioration of the applicant's health.” On the same day Colonel K. of the Kaluga Regional Department for the Execution of Sentences asked the Main Department for the Execution of Sentences for the applicant to be transferred to the Burdenko Neurosurgery Institute in Moscow. In particular, he noted that the applicant's condition required specialist medical intervention, which was unavailable at the remand prison. On 15 April 2002 the District Court resumed the proceedings. Prior to the hearing, the applicant, who complained of a headache, heart pain, dizziness and shortness of breath, was examined by a general practitioner at the courthouse. The doctor noted that the applicant was suffering from an attack of angina pectoris and prescribed pain-relieving medication. The hearing was adjourned. The District Court subsequently held hearings on 16 to 19, 22 and 24 April 2002. Prior to each hearing, doctors examined the applicant and found him fit to participate in the proceedings. They noted, inter alia, that the applicant was lucid and responded appropriately to the questions asked. During the trial the applicant pleaded not guilty and chose not to testify. On 27 April 2002 the Maloyaroslavets District Court acquitted the applicant of breach of trust, found him guilty of securities fraud and tax evasion and sentenced him to five and a half years' imprisonment. The court also granted civil claims brought against the applicant with regard to the securities fraud. On 18 May 2002 the Main Department for the Execution of Sentences authorised the applicant's transfer to hospital no. 19, affiliated to the Burdenko Neurosurgery Institute. On 30 May 2002 the applicant was examined by a neurosurgeon and a neurologist, who confirmed the earlier diagnosis and recommended that the applicant be transferred to the Burdenko Neurosurgery Institute to determine the date of the surgery. On 25 June 2002 the Kaluga Regional Court upheld the applicant's conviction in substance on appeal. From 3 to 25 July 2002 the applicant underwent treatment at a regional hospital. On an unspecified date he was transferred to hospital no. 19 in Moscow. On 7 August 2002 the applicant had surgery. He was discharged from hospital on 9 September 2002. On 12 February 2004 the Lyublinskiy District Court of Moscow reclassified the applicant's conviction to bring it into compliance with the amendments of the Russian Criminal Code. The term of the sentence remained unchanged. On 1 April 2004 the Moscow City Court upheld the decision of 12 February 2004 on appeal. On 26 June 1999 the police conducted a search of the applicant's flat and seized 25,000 United States dollars. The applicant lodged a complaint with the Kaluga District Court, arguing that the money should be transferred to the tax authorities as payment of his tax arrears. On 18 August 2000 the court dismissed the applicant's complaint. On 2 October 2000 the Kaluga Regional Court upheld the judgment of 18 August 2000 on appeal. It appears that the money in question was admitted in evidence and deposited with the tax authorities pending criminal proceedings against the applicant. On 1 August 2002, in response to an inquiry initiated by the applicant's wife, the District Court ruled that the money seized in his flat and deposited with the tax authorities would be used to repay the pecuniary damage caused by his crimes. On 4 September 2002 the District Court refused to reinstate the time-limits for the applicant's appeal. On 1 November 2002 the Kaluga Regional Court quashed the decision of 4 September 2002 and discontinued the proceedings, noting that even though the applicant's wife was his representative, she was not authorised as a matter of law to initiate the inquiry. On 21 November 2002 the bailiff seized the money in the context of enforcement proceedings against the applicant. On 2 March 2004 the Maloyaroslavets District Court of the Kaluga Region dismissed the applicant's complaint about the seizure of his money by the bailiff. On 12 April 2004 the Kaluga Regional Court upheld the judgment of 2 March 2004 on appeal. The applicant submitted that from 28 to 30 November 1999 he was detained in an overcrowded cell at the temporary detention unit in Obninsk. From 30 November 1999 to 13 June 2000, from 7 December 2000 to 19 May 2001 and from 10 August to 16 November 2001 the applicant was detained in remand prison no. IZ-40/1 in Kaluga. According to the applicant, all the cells in the prison were overcrowded. The number of beds was insufficient and the inmates had to take turns to sleep. From 19 May to 9 August 2001 the applicant was held in remand prison no. 77/2 in Moscow. According to the applicant, during the period in question he was detained in severely overcrowded cells. The cells were infested with cockroaches. The windows were covered with metal shutters which prevented access to fresh air. The light, which was constantly on, was not sufficient to permit reading. His relatives were not allowed to send him books or periodicals. Nor were they available from the prison library. The food was of low quality. On frequent occasions the inmates received no more than two meals per day. The daily walk lasted no longer than half an hour. From 19 to 21 March and from 26 to 31 March 2002 the applicant was detained in the temporary detention facility in Maloyaroslavets. The applicant was kept in a basement in a cell without windows or the possibility of access to fresh air. He was not provided with bed sheets or toiletries. There was no toilet in the cell. According to the applicant, he was unable to walk at the time. The guards did not have stretchers and had to carry him from the van to the courtroom holding him by the arms and legs. From 1 April to 3 July 2002 the applicant was detained in the medical unit of remand prison no. IZ-40/1 in Kaluga. According to the Government, the applicant was detained in “ward no. 6”, which measured 24.9 square metres. It had eight sleeping places and six inmates, including the applicant, were detained there. According to the applicant, he had an individual sleeping place. He provided no further details as to the conditions of his detention during the period in question. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “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. ... 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. ... 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.” | 0 |
dev | 001-68767 | ENG | GBR | ADMISSIBILITY | 2,005 | FAIRFIELD AND OTHERS v. THE UNITED KINGDOM | 1 | Inadmissible | null | The applicants, Ms Rosemary Fairfield, daughter of Mr Harry Hammond, Mr Andrew Tredea and Mr Geoffrey Cox, executors of Mr Hammond's estate, are United Kingdom nationals, who were born in 1959, 1959 and 1956 and live in Fordingbridge, Birmingham and Poole respectively. They were represented before the Court by Mr P. Conrathe, a solicitor practising in Croydon. The facts of the case, as submitted by the applicants, may be summarised as follows. Mr Harry Hammond, born in 1932, was an evangelical Christian who had been preaching for twenty years. His religious beliefs were deeply held and he had a desire to convert others to his way of thinking. During the summer of 2001, Mr Hammond had a large double-sided sign made, bearing the words “Stop Immorality”, “Stop Homosexuality” and “Stop Lesbianism”. The sign, attached to a pole, also bore in each corner the words “Jesus is Lord”. Prior to 13 October 2001 Harry Hammond had on at least one occasion preached in public while displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface or destroy the sign. On the afternoon of Saturday, 13 October 2001, Harry Hammond travelled by bus into Bournemouth. He covered the sign with a plastic bin liner for the trip as he believed, in light of previous reactions, that it might provoke a disturbance if displayed inside the bus. He then took up position in The Square, a pedestrian area of the town centre, and began preaching, holding up the sign. A group of thirty to forty people gathered around him, arguing and shouting. Some were angry, others aggressive or distressed; some threw soil at him. At one point, someone tried to snatch the sign away from him and it struck someone on the head. A struggle ensued during which Harry Hammond fell to the ground. He got up and continued preaching, holding up the sign. At this point, someone poured water over his head. Two police constables, Ms Gandy and Mr Elliott, arrived at the scene. PC Gandy found the crowd to be angry, agitated and insulted. She asked Harry Hammond to put away the sign and leave. He refused. He declared that he was aware that people found the sign insulting as he had had a similar reaction previously. PC Elliott was of the opinion that it was not necessary for the police to take any action. PC Gandy took the view that he was provoking violence and arrested him for breach of the peace. On 4 December 2001 Harry Hammond was charged with an offence under the Public Order Act 1986, in that he had displayed a sign which was threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress, contrary to section 5(1) of the Act. The case was heard before magistrates on 23 and 24 April 2002. On 24 April 2002 the magistrates convicted Harry Hammond, finding that he had known that insult, distress and disturbance were likely to be caused but had refused to put away the sign or leave when requested. He was fined 300 pounds sterling, with prosecution costs. The sign was confiscated. Mr Hammond appealed to the High Court by way of case stated. In their statement of case dated 9 July 2002, amended on 7 January 2004, the magistrates declared that they had considered his Convention rights but found that there had been a pressing social need to restrict his freedom of expression to prevent disorder. They gave the following reasons. (a) The words displayed on the sign were in fact insulting and caused distress to persons who were present. (b) The appellant was aware that the words on the sign were insulting; he admitted this to PC Gandy. His awareness was also demonstrated by his covering the sign with a black plastic bin liner while travelling on the bus and acknowledging that he had received a similar reaction in the past. (c) The restriction on the appellant's right to freedom of expression had the legitimate aim of preventing disorder in view of the reaction of people in the crowd to the sign. (d) There was a pressing social need for the restriction and the restriction corresponded to that need. The words on the appellant's sign were directed specifically towards the homosexual and lesbian communities, implying that they were immoral and there was a need to show tolerance towards all sections of society. The sign was displayed in the town centre on a Saturday afternoon, provoking hostility from members of the public. (e) The interference with the appellant's right to freedom of expression by prosecuting him was a proportionate response in view of the fact that his behaviour went beyond legitimate protest, was provoking violence and interfered with the rights of others. (f) Although the appellant knew that insult, distress and disturbance were likely to be caused by using the placard, having received a similar reaction in the past, he refused to put away the sign or leave at PC Gandy's request. On 16 August 2002 Harry Hammond died. The executors of his estate were granted permission on 10 November 2002 to continue the appeal. After a hearing on 13 January 2004, the Divisional Court dismissed the appeal. Lord Justice May held, inter alia: “... The essential grounds of appeal ... are firstly that the justices were wrong and misdirected themselves in finding that the words on the sign were insulting and secondly, that a proper reading of Articles 9 and 10 of the Convention should have led to the conclusion that the appellant should have been acquitted of this offence. The precise intellectual route by means of which that, it is submitted, should be achieved can, in my judgment, be addressed by reference to the question of reasonableness. ... ... It is submitted that no reasonable tribunal of fact could conclude that the words on the sign went beyond legitimate expression and that they were something more than an affront or disrespectful is not sustained. There is no element of stereotyping, no element of gratuitous or gross abuse. ... ... I have not found this question easy because it is certainly correct that the words on the sign are short and, so far as they go, are not expressed in intemperate language. ... but I come to the clear conclusion that it was open to the magistrates to reach the conclusion they did, not least because the words appear to relate homosexuality and lesbianism with immorality. The justices themselves take this into consideration when they say that the words on the appellant's sign were directed specifically towards the homosexual and lesbian community, implying that they were immoral. Accordingly, not without hesitation, I have reached the conclusion that it was open to the justices to reach the conclusion ... that these words on the sign were, in fact, insulting. I have also considered whether in light of Article 10, in particular but also taking account of Article 9 of the Convention, the justices should have concluded that Mr Hammond had established that his conduct was reasonable. He was, after all, according to his understanding, exercising his right of freedom of expression of views which may or may not have been acceptable to those who were passing by but, nevertheless, one had to bear in mind the cardinal importance of freedom of expression in a society such as ours. Nevertheless, I have concluded that the justices in their reasons have not only considered the questions which they were obliged to consider ... and have reached a conclusion that it was open to them to reach, for the reasons they gave, that the appellant's conduct was not reasonable.” The Divisional Court refused to certify that a point of law of public importance arose to be considered by the House of Lords. Its decision was therefore final. The relevant parts of section 5 of the Public Order Act 1986 provide: “(1) A person is guilty of an offence if he – ... (b) displays any writing or sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. ... (3) It is a defence for the accused to prove – ... (c) that his conduct was reasonable.” Section 6 is relevant as regards the mental element. Section 6(4) provides: “A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may) he intends his behaviour to be or is aware that it may be disorderly.” | 0 |
dev | 001-88736 | ENG | HUN | CHAMBER | 2,008 | CASE OF FONYODI v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1950 and lives in Budapest. 5. In the context of complications suffered from plastic surgery, on 13 February 1992 the applicant brought an action in compensation against a hospital. 6. After having held several hearings and obtained the opinion of an expert, on 11 October 1994 the Pest Central District Court gave an interim judgment, accepting the applicant’s entitlement to compensation. On appeal, on 7 November 1995 the Budapest Regional Court upheld this decision. 7. Subsequently the proceedings continued before the District Court. In January 1996 the applicant extended her claims. After having held several hearings and obtained an expert opinion, on 27 January 2000 the District Court partly found for the applicant. On 24 January 2001 the Regional Court amended this decision. 8. On 25 June 2003 the Supreme Court quashed these decisions and remitted the case to the first-instance court. 9. After several hearings in the resumed first-instance proceedings, on 31 October 2006 the District Court ordered the respondent to pay the applicant 1.9 million Hungarian forints (HUF) in compensation plus accrued interest, together with a monthly allowance in arrears and pro futuro. 10. On 19 February 2008 the Regional Court upheld this judgment. 11. On 6 May 2008 the first-instance judgment was rectified. | 1 |
dev | 001-58131 | ENG | FRA | CHAMBER | 1,998 | CASE OF HUBER v. FRANCE | 3 | Art. 6 inapplicable | R. Pekkanen | 6. As a secondary-school teacher of classics who has passed the agrégation (the highest competitive examination for teachers), Mr Huber has been a civil servant in the State education service since 1978. While working at the Paul Eluard Lower Secondary School at Evry (département of Essonne), he was sent on compulsory leave for a month from 7 November 1988 by a decision of the schools inspector for Essonne on 4 November 1988. The decision was based on Article 4 of the decree of 29 July 1921, which provides: “Where the schools inspector … considers, in the light of a medical certificate or a report by a civil servant’s superiors, that on account of the civil servant’s physical or mental state, the children are exposed to immediate danger, he may send the civil servant concerned on compulsory leave for one month on full salary.” 7. On 6 December 1988 the same inspector decided to suspend payment of the applicant’s salary from 7 December 1988. 8. On 6 February 1989 Mr Huber applied to the Versailles Administrative Court to quash the decisions of 4 November 1988 and 6 December 1988 and sought a stay of execution of the latter decision. 9. By three decisions of 5 October 1989 the applicant was sent on extended sick-leave from 7 November 1988 to 6 May 1989 and then from 7 May 1989 to 6 November 1989 and on extended leave of absence from 7 November 1989 to 6 May 1990. On 8 December 1989 Mr Huber applied to the same court to quash those three decisions. 10. The hearing took place on 18 December 1990. In a judgment of the same date the Versailles Administrative Court joined the three applications, quashed the decision of 4 November 1988 and the one of 6 December 1988 suspending payment of the applicant’s salary, decided that there was no longer any need to rule on the application for a stay and dismissed the application to have the decisions of 5 October 1989 quashed. The judgment read as follows: “… As to the compulsory leave … Mr Huber maintained that the headmaster’s report on which the decision complained of was based had been drawn up on 30 September 1988, whereas the decision whereby he was sent on compulsory leave had not been issued until 4 November 1988. Serious incidents occurred on account of the teacher’s lack of authority. While the headmaster said that Mr Huber’s behaviour had jeopardised pupils’ safety, he did not, however, establish that he had taken the measures, including disciplinary measures, that were within his powers and which would have prevented the situation from becoming critical. Nor does it appear from the report produced that the facts were such as to justify applying Article 4 of the decree [of 29 July 1921], which only applies in very specific circumstances that justify describing the danger to which the children are exposed as immediate… As to the suspension of payment of salary Although Article 39 of the decree [no. 86-442] of 14 March 1986 authorises the administrative authorities to stop paying the salary of a civil servant on extended sick-leave or extended leave of absence who refuses to undergo the treatment and examinations his state dictates, it could not be applied to Mr Huber, who at the time when the impugned decision suspending payment of his salary was taken was not on extended sick-leave or extended leave of absence…” 11. The applicant appealed to the Conseil d’Etat on 31 January 1991. He sought to have the judgment of 18 December 1990 quashed in so far as the Administrative Court had held that it was unnecessary to rule on the application for a stay of execution and had dismissed the application to quash the decisions of 5 October 1989. According to the Government, the Ministry of Education filed observations on 10 April 1992, to which Mr Huber replied on 23 April 1992. The applicant had produced new documents on 15 and 25 January, 18 February, 4 March and 14 June 1993 and on 17 January 1994. On 1 February 1994 the case had been assigned to the Eighth Section of the Judicial Division of the Conseil d’Etat, on 14 October 1994 a reporting judge had been appointed and on 14 November 1994 a preparatory sitting had been held. 12. On 30 November 1994 the Conseil d’Etat held a hearing, and on 21 December 1994 it delivered a judgment in which it dismissed the appeal. 13. By a decision of 12 July 1990 the applicant was transferred to the Marcel Pagnol Upper Secondary School at Athis-Mons (Essonne) but he could not take up his duties until the appropriate medical board had ruled on his case. In a letter of 9 August 1991 to the Minister of Education he asked the Minister to “rule on his administrative position” in respect of the period after 6 May 1990 and sought payment of an advance on his salary. 14. On 19 August 1991 the applicant lodged two applications with the Paris Administrative Court. In one of these he sought to have quashed the implicit refusal of his request for a review of his administrative position and for an advance on his salary, submitting that it was not normal for him to be on unpaid leave and that the medical board had not ruled on his case, thereby preventing him from taking up his duties at the Marcel Pagnol Upper Secondary School at Athis-Mons. In the other application he sought a stay of execution of that implicit refusal, relying on his financial difficulties. 15. On 7 October 1991 the President of the Paris Administrative Court, taking the view that, according to Article R. 56 of the Administrative Courts and Administrative Courts of Appeal Code, the Paris Administrative Court had no jurisdiction to hear the foregoing applications, ordered under Article R. 82 of the same code that the files should be sent to the President of the Judicial Division of the Conseil d’Etat. 16. In an order of 4 December 1991 the President of the Judicial Division of the Conseil d’Etat designated the Versailles Administrative Court as the court that would hear the applications in question. The latter were registered in that court’s registry on 27 January 1992. 17. On 20 January 1993 the Director of Education for Versailles filed a pleading to which were appended two decisions of 6 January 1993 designed to resolve Mr Huber’s position. In the first decision the applicant’s extended leave of absence was prolonged from 7 May 1990 to 6 November 1992, and in the second he was reinstated in his post at Paul Eluard Lower Secondary School at Evry. 18. In his pleading in reply registered on 27 January 1993 the applicant said that he had lodged a preliminary administrative appeal against the second of those decisions (he was seeking reinstatement in the post at Marcel Pagnol Upper Secondary School at Athis-Mons, where he had last been posted). In a further pleading registered on 22 February 1993 the applicant “confirm[ed]” that he was seeking to have both the aforementioned decisions quashed. 19. In a judgment of 14 December 1993 the Versailles Administrative Court joined all the applications, dismissed that seeking to have the decisions of 6 January 1993 quashed and decided that it was unnecessary to rule on those seeking to have quashed the implicit refusal of Mr Huber’s request for a review of his position and a stay of execution of that refusal. 20. On 6 January 1994 the applicant appealed to the Conseil d’Etat against the judgment of 14 December 1993. 21. On 21 December 1994 the Conseil d’Etat decided to transfer the appeal to the Paris Administrative Court of Appeal. The decision read as follows: “By Article 2 of the decree [no. 92-245] of 17 March 1992, ‘From 1 January 1994 the Administrative Courts of Appeal shall have jurisdiction to rule on appeals against judgments of the Administrative Courts on applications for judicial review of individual decisions taken in respect of civil and public servants.’ Mr Huber’s … application, registered on 6 January 1994, whereby he is appealing against a judgment on an application for judicial review of decisions concerning his career as an agrégation-qualified secondary-school teacher, therefore falls within the jurisdiction of the Paris Administrative Court of Appeal. Admittedly, Mr Huber maintained that the Conseil d’Etat had jurisdiction to hear his application in view of the link between it and [the] application … made by him on 31 January 1991 [see paragraph 11 above] and Article R. 73 of the Administrative Courts and Administrative Courts of Appeal Code provides: ‘Where the Conseil d’Etat has before it a submission which it has jurisdiction to hear as the appellate court, it shall also have jurisdiction to entertain related submissions which would normally fall within the jurisdiction of an Administrative Court of Appeal.’ There is, however, no link between the present application and the submissions in the application [made on 31 January 1991]. …” 22. The Conseil d’Etat’s decision of 21 December 1994 was registered in the Paris Administrative Court of Appeal’s registry on 8 June 1995. 23. The hearing took place on 5 November 1996, and in a judgment of 19 November 1996 the Administrative Court of Appeal dismissed the applicant’s appeal on the following grounds: “… by means of two decisions of 6 January 1993 the Director of Education for Versailles prolonged the applicant’s extended leave of absence on full salary from 7 May 1990 to 6 November 1992 and reinstated him in his duties at the Paul Eluard Lower Secondary School at Evry with effect from 7 November 1992. Mr Huber’s applications seeking to have quashed and stayed the authorities’ implicit refusal to give a ruling on his position thus became devoid of purpose on 14 December 1993, the date of the judgment appealed against. The fact that he had not been assigned to any duties at the beginning of the new school year in 1994 and had not received any salary since May 1994 has no bearing in this connection…” 24. On 25 November 1996 Mr Huber appealed on points of law to the Conseil d’Etat against the Administrative Court of Appeal’s judgment of 19 November 1996. The case is still pending. 25. A civil servant in post is entitled, inter alia, to extended sick-leave for a maximum period of three years where it is established that he is suffering from an illness that makes it impossible for him to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant remains on full salary for one year and on half salary for the next two years. He also retains his entitlement to the full supplementary family allowance and the full residence allowance (section 34(3) of Law no. 84-16 of 11 January 1984 making provisions governing the civil service). He is also entitled to extended leave of absence for three years on full salary and thereafter for two years on half salary if he is suffering from tuberculosis, mental illness, cancer or poliomyelitis. He retains his entitlement to the full supplementary family allowance and the full residence allowance. If the illness has been contracted in the course of his duties, the aforementioned periods are increased to five years and three years respectively. Extended leave of absence is normally granted only at the end of the full-salary period of extended sick-leave (section 34(4) of the Law). Extended sick-leave and extended leave of absence are granted after a medical examination and authorisation from the appropriate medical board (Article 35 of Decree no. 86-442 of 14 March 1986 on the appointment of civilian and military medical boards, physical-fitness requirements for admission to posts in the public service and rules on sick-leave for civil servants). 26. Where a departmental head considers, in the light of a medical certificate or a report by a superior, that a civil servant’s state of health might justify his being sent on extended sick-leave or extended leave of absence, he may take steps in order to have the person concerned undergo a medical examination (Article 34 of the decree). 27. A person on extended sick-leave or extended leave of absence may not resume his duties at the end of or during that leave unless he is declared fit after a medical examination by an approved specialist and with the agreement of the appropriate medical board (Article 41 of the decree). 28. Articles R. 56 and R. 82 of the Administrative Courts and Administrative Courts of Appeal Code provide: Article R. 56 “Jurisdiction to hear all individual disputes, including those over pecuniary matters, which affect civil servants or employees of the State and of other public entities or authorities … shall be vested in the Administrative Court within whose territorial jurisdiction the place of work of the civil servant or employee affected by the impugned decision is situated. If the decision in question concerns an appointment or entails a change of posting, jurisdiction shall be determined by the location of the new posting. If the decision in question concerns a dismissal, a retirement or any other measure entailing termination of service, or if it concerns a former civil servant or employee, or a civil servant or employee without a posting on the date when the impugned decision was taken, jurisdiction shall be determined by the location of the civil servant’s last posting. …” Article R. 82 “Where an Administrative Court of Appeal or Administrative Court is seised of a case which it considers to be within the jurisdiction of an administrative court other than the Conseil d’Etat, its president shall without delay forward the file to the President of the Judicial Division of the Conseil d’Etat, who shall settle the issue of jurisdiction and assign the case to be tried in whole or in part by the court that he shall declare to have jurisdiction.” | 0 |
dev | 001-22288 | ENG | NLD | ADMISSIBILITY | 2,002 | GREUTER v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Petronella Greuter, is a Dutch national, born in 1964 and living in Amsterdam. She is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant’s partner, Mr P., was killed on 23 March 1997 in Beverwijk during a fight between supporters of the Amsterdam soccer club Ajax and supporters of the Rotterdam soccer club Feijenoord. Following an investigation by the regional police Haarlem–Kennemerland of the killing of Mr P., a number of suspects were arrested. Shortly afterwards, the regional police Amsterdam-Amstelland opened an investigation into whether and to what extent Ajax supporters formed part of a criminal organisation specifically involved in (the organisation of) fights and/or street vandalism and violence. In this context, the Amsterdam public prosecutor (officier van justitie) opened a preliminary judicial investigation (gerechtelijk vooronderzoek) against NN (nomen nescio; i.e. against a person or persons unknown). In the course of this preliminary judicial investigation and upon the request of the public prosecutor, the investigating judge (rechtercommissaris) authorised the tapping of a telephone line, the number for which was registered in the applicant’s name. It was tapped between 28 March and 11 April 1997. In addition, the investigating judge authorised that a print-out be obtained of all telephone communications having taken place on this line between 1 January 1997 and 1 May 1997. At no point did any suspicions arise that the applicant herself had been involved in any criminal activities. The lawyer who was acting on the applicant’s behalf in the criminal proceedings against the suspected perpetrators of the killing of Mr P., and who also acted as defence counsel in criminal proceedings against a soccer supporter called W., learned of the existence of the tapping of the applicant’s telephone, as it was mentioned in W.’s case-file. With W.’s permission, the lawyer informed the applicant of the tapping of her telephone. In a letter of 9 October 1997, the applicant’s lawyer put the following questions to the public prosecutor: “a. Is it correct that the above telephone number has been tapped under your responsibility? b. If so, during which period has this taken place? c. Can you tell me when you informed my client of this, i.e. that her telephone was tapped during a certain period? d. In case this has not taken place so far, when would you have intended to do so and, if so, mentioning what grounds? e. What were the reasons for the “tapping” and of what criminal offence was she suspected? f. Is she still suspected of having committed that criminal offence? g. Would you kindly provide me, on behalf of <the applicant>, with a copy of all conversations that were recorded and listened to, in particular all the formal records of interception (processen–verbaal van opname).” In his reply of 15 October 1997, the public prosecutor informed the applicant’s lawyer as follows: “In answer to a number of your questions I could refer you to the formal record that is already in your possession in your capacity as the lawyer of the suspect W. On page 26 of that record it is set out that and why the telephone of your client <the applicant> has been tapped. I will nevertheless reply to your questions point by point. a. Yes. b. From 28 March 1997 to 11 April 1997. c. I have not informed her of this. d. I did not have the intention to inform her of this, since the tapping took place in the context of a preliminary judicial investigation against NN. e. Your client was the partner of Mr P., who was killed during the clash between Ajax and Feijenoord supporters in Beverwijk and who was formerly a barkeeper in the café U., that was owned by your client and where, according to the information of the Criminal Intelligence Service (Criminele Inlichtingen Dienst; “CID”), the hard core group of Ajax supporters gathered. On this ground it was considered plausible that as yet unknown members of the hard core group, who were involved in acts of violence, could have contacts via the telephone number at issue. Your client was not suspected of a criminal offence in this connection. f. See the last sentence under e. g. No. The tapping has – as said – not taken place in the context of criminal proceedings against your client. A number of intercepted telephone conversations have been added to the note requesting authorisation to conduct a house search in connection with one of the suspects. In consultation with the investigating judge, it has been decided to grant you access to those conversations.” In his letter of 17 October 1997 to the public prosecutor, the applicant’s lawyer pointed out, inter alia, that the applicant had sold café U. nearly three years ago and that it would have been understandable had the café’s telephone been tapped, but the fact that the applicant’s private telephone line had been tapped was incomprehensible. The lawyer requested the information which had led to the telephone tapping, and a copy of the memoranda and other evidentiary items indicating that the applicant’s telephone line would be used by members of the hard core group, and that these persons maintained contacts via this telephone. In his reply of 23 October 1997, the public prosecutor stated inter alia: “... My answer is possibly understandable ... when you see the situation as a whole and not only for a part thereof. Let me, in spite of this, formulate it differently: your client was the owner of a café where the group of Ajax hard core supporters met regularly. The suspicion that members of this hard core group would maintain contacts via the private telephone line of your client is not so incomprehensible when account is taken of the fact that your client’s partner, Mr P., apparently belonged to that group since he went along to the planned violent clash between the hard core of Ajax supporters and the hard core of Feijenoord supporters, during which clash he was killed. In any event, the investigating judge considered this sufficient to issue an authorisation for tapping the telephone number concerned. Since your client is not a suspect in this case, I will not add the ‘memoranda and other evidentiary items’ requested by you.” On 27 October 1997, the applicant’s lawyer transmitted a copy of the letter of 23 October 1997 to the investigating judge, requesting a copy of the documents he had asked for in his letter of 17 October 1997. Despite a reminder sent on 13 January 1998, it remained unanswered. Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering; the “CCP”). Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police. The above rules initially only covered communications by telephone. As from 1 March 1993, when the Act on Computer Criminality (Wet op de Computercriminaliteit) entered into force, they also covered communications by fax and e-mail. On 1 February 2000, when the Act of 27 May 1999 on amendments of the CCP in relation to special methods of criminal investigation entered into force, the provisions of Article 125f-h of the CCP were replaced by Articles 126m and 126n of the CCP. Pursuant to Article 125g of the CCP, as in force at the material time, the tapping of communications can only be effected in regard to offences for which detention on remand (voorlopige hechtenis) may be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 CCP). The tapping can only concern communications in which a suspect is likely to participate, and it can only be ordered where the investigation urgently requires it. It must be authorised by the investigating judge. Furthermore, a record (proces-verbaal) of the tapping must be prepared within 24 hours. Under Article 125h of the CCP, as in force at the relevant time, records without importance for the investigation must be destroyed as soon as possible by order of the investigating judge. As to the destruction of information obtained via the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia, the Court’s findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A&B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request. Where no suspect can be identified immediately and in order to obtain a tapping authorisation from the investigating judge, a preliminary judicial investigation against a person or persons unknown (“NN”) may be opened. As soon as the name(s) of the suspected perpetrator(s) can be established, the preliminary judicial investigation is to be put in the name of the suspect(s) concerned (Article 181 § 1 of the CCP). By subsequently availing him or herself of the right to be granted access to the case-file (Article 30 § 1 of the CCP), a suspect can become aware of the fact that communications have been tapped during the investigation. Until 1 February 2000, the Code of Criminal Procedure itself contained no provision on the period during which tapping of telecommunications may be carried out. However, pursuant to the Guidelines on the Interception of Telephone Conversations, a period of not more than four weeks was set. Prolongations could also not exceed four weeks. After two weeks the responsible police officer was required to submit an interim report to the public prosecutor and the investigating judge. The provisions of Articles 126m and 126n of the Criminal Code, as in force as from 1 February 2000, incorporated these four-week rules. | 0 |
dev | 001-79548 | ENG | GBR | ADMISSIBILITY | 2,007 | DOYLE v. THE UNITED KINGDOM | 3 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Colin Doyle, is a British national who was born in 1947 and lives in Brussels. The applicant moved to Belgium in 1983 where he has resided ever since. On 13 June 2006, he enquired about registering on the electoral role in the United Kingdom. On 11 July 2006 the Department for Constitutional Affairs (DCA) stated that on the basis of the Representation of the People Act 2002 only nationals resident overseas for less than 15 years could register to vote in United Kingdom general and European elections. It was pointed out that he could be reinstated on the electoral role if he returned to live in the United Kingdom and that he was entitled to vote in the European elections in Belgium as a citizen of the European Union. It was also drawn to his attention that eligibility to vote in other countries generally depended on domestic law but that nationality was generally a requirement: he could therefore apply for Belgian nationality, or dual nationality if he did not wish to lose his British nationality. By way of general information, custom and practice was said to differ in European Union States, Danish citizens overseas losing the right to vote after 8-10 years and no overseas Irish citizen being allowed to vote at all. The Representation of the People Act 1985 provided for the first time for United Kingdom citizens living overseas to be able to register to vote in general and European Parliamentary elections in the United Kingdom. The applicable time-limit was five years, which was extended to 20 years by the Representation of People Act 1989 (entry into force 1990). The Representation of the People Act 2002, after debate in both Houses of Parliament, considered however that 15 years was a more appropriate period and the legislation was amended as from 1 April 2002). | 0 |
dev | 001-101947 | ENG | POL | CHAMBER | 2,010 | CASE OF CICHOCKI v. POLAND | 4 | Violation of Art. 6-1 | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 4. The applicant was born in 1928 and lives in Brwinów. 5. On 15 June 1994 the applicant filed an application for the distribution of an inheritance left by his grandmother. 6. On numerous occasions the proceedings were suspended, mostly due to the successive deaths of the parties. The proceedings were: suspended on 30 November 1995; resumed on an unknown date in 1999; suspended on 25 January 2000; resumed on an unknown date in 2000 or 2001; suspended on 6 June 2001; resumed on 25 October 2004; suspended on 18 January 2005; resumed on 24 April 2006; suspended on 5 July 2006; resumed on 27 August 2007; suspended on 7 December 2007 but immediately resumed; suspended on 15 February 2008. 7. The proceedings are still pending before the court of first instance. 8. On 10 April 2009 the applicant lodged a complaint with the Warsaw Regional Court 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 2004 Act”). He sought a finding that the length of the proceedings was excessive and compensation. 9. On 7 May 2009 the Warsaw Regional Court dismissed the applicant's complaint. In its assessment of the length of the proceedings, the Regional Court did not take into account the period before the entry into force of the 2004 Act. It then went on to analyse in detail the course of the proceedings, finding that the District Court had conducted them in a correct and timely manner. It further concluded that the long duration of the proceedings had resulted from numerous requests and motions filed by the parties as well as from the successive deaths of the parties. This obliged the District Court to suspend the proceedings each time. The Regional Court finally pointed out that it was incumbent on the parties and not on the court to determine the identity of the heirs of the deceased parties in order for the proceedings to be continued. 10. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
dev | 001-60516 | ENG | TUR | CHAMBER | 2,002 | CASE OF FILIZ AND KALKAN v. TURKEY | 2 | Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 9. On 28 July 1996 police officers from the anti-terrorist branch of the İzmir Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PRK-Rızgari. 10. On 5 August 1996 the İzmir State Security Court ordered the applicants' detention on remand. 11. On 28 August 1996 the Chief Public Prosecutor filed an indictment with the İzmir State Security Court charging the applicants with membership of the PRK-Rızgari and undertaking actions against the indivisible integrity of the state. The charges were brought under Articles 125 and 168 of the Criminal Code. 12. In a judgment dated 14 August 1997 the İzmir State Security Court acquitted Ms Melahat Filiz of the charges, holding that there was insufficient evidence to convict her. The court found Mr Nadir Kalkan guilty of the offences under Articles 125 and 168 and sentenced him to capital punishment. 13. On 19 September 1997 Mr Kalkan lodged an appeal with the Court of Cassation. The applicant did not submit any information concerning the outcome of the criminal proceedings against him. 14. Article 19 of the Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency... ... 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. Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.” 15. Article 168 of the Criminal Code provides: “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.” 16. Article 125 of the Criminal Code provides: “It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State's independence or removing part of the national territory from the State's control.” 17. Under Articles 3 and 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offences defined in Articles 125 and 168 of the Criminal Code are classified as “terrorist” acts. Pursuant to Article 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in Articles 3 and 4 of the Act are increased by one half. 18. Under Article 9 of Law no. 3842 on procedure in the state security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code. 19. At the material time, Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of state security courts, any arrested person had to be brought before a judge within 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days. | 1 |
dev | 001-61229 | ENG | ITA | CHAMBER | 2,003 | CASE OF CRAXI v. ITALY (No. 2) | 3 | Violation of Art. 8 with regard to release of transcripts into the public domain;Violation of Art. 8 with regard to reading out of transcripts at trial;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 10. The applicant, an Italian national born in 1934, was the general secretary of the Italian Socialist Party (PSI) from 1976 to 1993. From 1983 to 1987 he was Prime Minister of Italy. As of April 1994 (according to the applicant) or May 1994 (according to the Italian authorities), he lived in Hammamet (Tunisia). 11. The proceedings to which this application relates were part of the criminal proceedings brought by the Milan Public Prosecutor's Office during the so-called “clean hands” (mani pulite) campaign. 12. Between January and October 1993, the Milan Public Prosecutor issued twenty-six notices of prosecution (avvisi di garanzia) in respect of the applicant, in particular for corruption, dishonest receipt of money by a public officer, concealment of dishonest gain and offences against the legislation on the financing of political parties. 13. On 10 May, 10 September 1993 and 7 May 1994 the Rome Public Prosecutor also issued notices of prosecution in respect of the applicant for dishonest receipt of money by a public officer, offences against the legislation on the financing of political parties, corruption and misuse of public office. 14. The prosecutions against the applicant and other figures in politics, business and public institutions received attention from the media. 15. Amongst the cases against the applicant was that of Metropolitana Milanese, which concerned payments of large sums of money made between 1983 and 1992 by a number of firms to the representatives of political parties and the influence the latter exerted on the board of directors of the Metropolitana Milanese company with a view to awarding contracts to those firms in connection with works on the Milan underground system. 16. On 8 June 1994 the investigating judge committed the applicant and twenty-nine co-defendants for trial before the Milan District Court. The applicant was charged, in particular, with interference with freedom of contract and corruption. 17. The first trial hearing took place on 20 September 1994. The applicant was not present and the District Court accordingly declared him absent (contumace). Some of the accused requested and obtained a plea bargain, while the position of some other accused persons was separated from that of the applicant. The trial before the Milan District Court thus continued only against the applicant and five co-defendants. The Metropolitana Milanese company joined the proceedings as a civil party. 18. In a decision of 7 July 1995 the Milan District Court remanded the applicant in custody. On 12 July 1995 counsel for the applicant informed the Milan District Court that he had learned of that decision through the press and asked for a copy of it. On 20 July 1995 the Milan District Court declared the applicant to be latitante, that is, to be deliberately evading the court's jurisdiction. 19. The applicant appealed against the decision of 7 July 1995. In an order of 25 September 1995, the Milan District Court dismissed the applicant's appeal. The court held that once the preliminary investigation was completed it was for the trial court to consider whether there were substantial indications of guilt and whether in particular there was still a danger that the applicant would abscond. In this respect the court noted that since 5 May 1994 it had been impossible to find the applicant in Italy and that in the various proceedings brought against him a number of coercive measures had been ordered that could not be enforced. Moreover, in judgments of 29 July 1994 and 7 December 1994 the applicant had been sentenced to terms of imprisonment. In the District Court's view, the applicant's lengthy stay abroad demonstrated his determination to evade the coercive measures ordered against him in 1994. 20. On 17 and 19 July 1995 the Public Prosecutor sought an order for the interception of the applicant's telephone calls between Italy and his home in Hammamet. The interceptions were aimed at gathering information with a view to arresting the applicant. 21. In a decision of 21 July 1995 the Milan District Court allowed those applications with a view to facilitating the arrest of the applicant. The court noted that the interceptions had a legal basis and were essential to supervise the applicant's movements and his personal and international relations which had allowed him to continue absconding. The interceptions, carried out by a specialist branch of the Italian police, began on 20 July 1995 and were concluded on 30 September 1995. 22. At the same time, the Public Prosecutor sought an order for the interception of the applicant's telephone calls between Italy and his home in Hammamet in the context of a set of criminal proceedings for defamation which were pending against the applicant. The Milan investigating judge allowed the interceptions with a view to gathering evidence against the applicant and to identifying the accomplices. The interceptions, carried out by a specialist branch of the Italian police, began on 1 August 1995. The prosecution applied for four extensions of the duration of the interceptions, which were allowed by the investigating judge on 4 and 12 August, and on 1 and 14 September 1995. A request for a further extension was refused on 30 September 1995. The interceptions were thus concluded on 3 October 1995. 23. At the hearing on 29 September 1995 in the case of Metropolitana Milanese, the Public Prosecutor in charge of the applicant's case, Mr Paolo Ielo, filed the transcripts of the telephone interceptions with the registry and asked that they be admitted as evidence against the applicant. The prosecution argued that they were necessary to assess the applicant's personality in order to determine the sentence if he were convicted, and that they could support the prosecution's allegation that the applicant intended to continue to abscond. The prosecution subsequently read out in court certain extracts of interceptions with a view to proving: a) that the applicant could leave Hammamet; b) that the applicant had started or influenced two virulent press campaigns against a magistrate of the Milan District Court and against an Italian political party; c) that the applicant was collecting information concerning certain politicians and magistrates, with a view to damaging their reputation; d) that the applicant continued to show aggressiveness towards the magistrates who were investigating him. The Public Prosecutor compared the applicant's conduct to that of a “certified criminal” (criminale matricolato) who attacked all those who had done their job and had tried to do it well. The Public Prosecutor declared that the transcripts of the telephone conversations were at the disposal of the District Court and of the defendants. 24. The transcript of the speech given by Mr Ielo at the hearing of 29 September 1995 reads as follows: “I am submitting these further pleas under Article 507. I have already explained why I intend to submit these documents, which consist, firstly, of assessments of Craxi's criminal potential, within the meaning of Article 133, with reference in particular to his conduct after the offence was committed, and, secondly, of assessments as to whether the measure affecting his personal freedom should be maintained for the reasons for which it was decided on, and whether it should be extended for other reasons. I shall try to be extremely brief, although what I have to say will take a little time. I have tried to divide the documents submitted according to subject-matter, and have put together the telephone transcripts - the documents include the measures authorising the telephone tapping and the confiscation orders, which were moreover confirmed by the tribunale della libertà [the court responsible for deciding on the justification for measures restricting personal freedom or property rights]. The first set consists of telephone transcripts and clearly shows that Craxi can move about in Hammamet. This seems self-evident, yet Craxi is someone who, during the proceedings - all the proceedings taking place in Milan - said he had a legitimate reason for not attending and sent doctors' certificates. First he complained that the trials were not taking place, and now that the trials are taking place he wants them postponed on the grounds that he has a legitimate reason for being unable to attend. It is absolutely clear from these telephone transcripts that Craxi is someone who is able to move from the address of the subscription to the telephone line on which he receives calls. Why is this important? The reason is clear: Craxi is such a liar that he continues to lie even before the courts, saying things that are untrue and belied by documentary evidence. The second point concerns Craxi as a danger to the community, in particular his capacity to operate in the current situation, and become involved in the processes whereby public opinion is shaped and in other processes, which I shall discuss. In my opinion, two operations are particularly important - two press campaigns which were co-ordinated ... or at any rate two press campaigns in which Craxi clearly played an important role. The first is a recent one: I am referring to the telephone calls on 14 September 1995 - I apologise for the vulgarity, but I am reporting the speech of others and am not responsible. Subscriber Craxi, talking to Luca Iosi, says, 'the son of the hero' - the reference to Di Pietro is clear. An incomprehensible sentence 'He contributes to the tune of 2,400,000 a year, no less, when it all comes out.' Luca Iosi says, 'Now we take the wraps off the case and then we shoot him in the balls.' A week later the front page news is: 'Di Pietro too, has a house in the centre for 240,000.' The second press campaign was co-ordinated directly from Hammamet. It is the press campaign that was waged in Italia Settimanale, whose editor is Alessandro Caprettini. What happened? In a nutshell, Craxi sent Alessandro Caprettini a file on the [Northern] League, concerning alleged arms dealings by the League, and Alessandro Caprettini willingly received and published it. What is particularly important is that, in my opinion, the file came from Craxi himself: it was found on Craxi's computer or, rather, on the computer in Craxi's office in via Boezio in Rome and, in particular, was referred to in the conversation between Caprettini and Craxi, in two respects. Firstly, the subscriber - when I say subscriber, I mean Craxi - says, word for word, 'In any case we can do more with them - we can investigate but we can also raise questions.' What he means is that they can be used to raise questions about the Northern League, an Italian political party receiving special attention from a fugitive from justice, who agrees with the editor of a weekly to launch a campaign of this type. The second important thing is: 'Of course I publish the article, and then I go to a prosecutor who is a friend of mine and say, “Hey, look into this affair, will you?” - but this is the sort of thing one does nothing about'. Further evidence that Craxi is a liar comes from an article in the Indipendente, which published the news that Craxi had denied being the author of the material sent to Italia Settimanale. I am producing this evidence to make it clear that when we talk of Craxi it is not like shooting at the Red Cross: we are talking of someone who is fully active and has a great capacity to influence the media. In this connection, there is a set of telephone transcripts which show that Craxi was in constant contact with journalists in a wide variety of areas. Let us now move on to the last three points which, I believe, deserve a minimum of attention. There is documentary proof, and proof from the telephone transcripts, that Craxi is mounting dossiers in Hammamet against some political activists. I am referring - with particular regard to the evidence that has been found - to dossiers against D'Alema. He is engaging in “dossierism” ... The President: What does the neologism mean? Compiling information or a dossier? The Public Prosecutor: Compiling information in order to attack someone's reputation. This is an activity that was also to be pursued against judges, including myself, but we shall discuss that later. I said “dossierism”, which consists in compiling information that can damage people's reputation. This is documented by the telephone transcripts. One alarming aspect, in my view, is that it provides further evidence of Bettino Craxi's criminal potential. I am talking about compiling dossiers of information designed to damage the reputation of certain eminent people, and I am thinking of D'Alema, Prodi and Del Turco, about whom I shall talk in connection with a specific note that was found in Craxi's office. The dossiers were mounted with a certain Tina Soncini Massari from Bologna, who is an old friend of Craxi's - by friend I mean someone with whom he had relations which were, I imagine, of a political nature - to the extent that Tina Soncini Massari appears on a list of presents that Craxi gave. She is a leading supporter of Gelli, and is known to the judicial authorities for having arranged to put the Bologna judicial authorities off the track when they were investigating the massacres, by bribing witnesses. In this connection, I can produce evidence that identifies Tina Soncini Massari: the order from the Bologna investigating judge, Dr Grassi if I am not mistaken, which shows that the most recent contact between Gelli and Tina Soncini Massari dates back to 1993, and which makes it clear that she attempted to put the investigators off track and bribed witnesses in the course of the proceedings. These are the sort of people Bettino Craxi, a fugitive from justice who is the subject of pre-trial detention orders, uses in order to hinder investigations. You will be able to see for yourselves what these documents contain, and I shall not dwell on them. What is significant is another note on Del Turco also found in Craxi's office. I shall read you out the beginning so you can understand what all this is about. The Italian Socialist Party administration has always helped to support the Socialist current of the CGIL [Federation of Italian Trade Unions]. Del Turco took over from Marianetti, and the flow of money never stopped. 'On average, Del Turco received 20 to 30 million a month from Balzamo. On the occasion of every election or conference, there were extraordinary payments for instance, and so it went on', and the note continues with information about the politician. There are also telephone transcripts of statements by Bitetto in which he appears to be talking about D'Alema ... These are statements that have been filed and can be seen by anyone: it is clear to all why they are important from a criminal point of view. Then there are documents that show that Bettino Craxi has, or at any rate had, relations with important members of the Italian institutions. I am referring in particular to the telephone transcript of 2 September 1995, during which the subscriber, Craxi, talks to Margherita - she is not identified, who says: 'Alberto told me that he attended a meeting between Arafat and Silvio, and they spent ten minutes talking about you alone. Arafat came to Tunisia to see you and told Silvio Berlusconi to tell you that he too would be happy to have you as his guest in Palestine.' Again in connection with the capacity for communication of the accused, Bettino Craxi, who I repeat is a fugitive from justice and the subject of an arrest warrant for corruption with aggravating circumstances, there is a letter which the State Under-Secretary to the Prime Minister's office sent to Craxi's secretary on 25 June, in which the State Under-Secretary to the Prime Minister's office writes: “Dear Serenella, what you feared has happened, although both Giachieri and Carbonoli promise their good offices and will put things right'. Basically, this concerns a recommendation addressed to the State Under-Secretary, who hastens to reply, saying ... Serenella is Serenella Carloni. And let it be clear that Serenella Carloni is nobody in her own right, and yet as Bettino Craxi's secretary she was still able, on 22 June 1995, to make recommendations concerning the allocation of service areas in Perugia. The last point on which I intend to dwell is the constant attacks by Bettino Craxi on those who investigated him. The right to defend oneself is sacred and culminates in a fair trial, but when it is exercised by attacking those involved in the proceedings, those who carried out the investigations, it is, in my view, proof of a very highly developed potential for crime. A note found in Craxi's office - Craxi's own office - you may, if you wish, in this connection hear Simonetta Carloni, who, I repeat, confirmed this - contained, among other pleasantries, a very precise reference in time in the form of Dell'Utri's release from prison - it is dated after Dell'Utri's release. Among the pleasantries, the note says: 'The Di Pietro case must become an exemplary case: we must get to the bottom of things because all the conditions are right. The usual logic of hitting one person in order to teach a hundred others a lesson. Forza Italia must regain its independence and this means it must not be subjected to the requirements of allies and exposed to dangers and uncertainty. There are key targets, particularly the Milan Pool [a group of Milan public prosecutors waging war on corruption]. We need to have the courage to call for its arrest before they do. We need to denounce the damage caused by the revolt. We must begin by using people as examples and waging war. We need to use parliamentary force in every way possible. This includes calling for enquiries with a lot of publicity and denouncing abuses of authority - by Craxi. There is the seizure of the parliamentary question from Maiolo, faxed by the Forza Italia parliamentary group ... Luca Mantovani, who sent it for information to Bettino Craxi two days later with a covering letter which says: 'I would point out, inter alia, that Maiolo has in the last few hours been collecting more documentation with a view to asking further questions in the near future about the management of the Milan Public Prosecutor's Office.' There are telephone transcripts in which we read: 'We need to bombard them in the press'. There are also attacks connected with what was published in Il Mattino. There is something for everyone - not just for the Milan Public Prosecutor's Office. There are attacks on other colleagues and references to other colleagues. A woman talking to Craxi says, 'He's bewildered too' and says that the person in question was used by the Milan group as a killer; she says she has heard from Biondi that the person coming down to speak is virtually in the service of Caselli. I will spare you all the rest because you can read it for yourself. I shall just read you one extract, partly because it concerns me and partly because it concerns these proceedings. 'So why doesn't someone else come?', with reference to Salamone, who is clearly involved ... he knows the truth of the matter. 'I think Milan stopped him.' 'I am about' - here it is the subscriber, Bettino Craxi, speaking - 'to denounce this Ielo. Both Borelli's statements against Mancuso and the statements by Ielo come under Article 289 [of the Criminal Code]'. He is speaking to a certain Salvatore, who has not yet been identified, but I hope very soon to identify him, who repeats, 'Yes, but he's dealing with it.' Craxi replies, 'He has nothing to do with this.' The person to whom he is speaking says, 'No, of course not. The minister's dealing with it.' The President: The public prosecutor is requested to bring the charges without making allusions or taking stands, or making comments of a personal nature. The public prosecutor: President, the charge is based on the premise that these telephone transcripts show, within the meaning of Article 133, behaviour - and this is where the accused, Bettino Craxi, has committed an offence - worthy of a certified criminal - it is the behaviour of someone who attacks all those who have simply done their job, because that is what they are paid to do and that is what they have chosen to do, and have sought to do it properly, but he doesn't care, he has to attack them and ... President: We have understood why the public prosecutor has asked for these documents to be produced. Public Prosecutor: The evidence submitted has been greatly summarised, President, because there is further material and I am at the disposal of defence counsel and the court. Ah, wait a minute - there are all the measures authorising the requests for telephone tapping and seizures; they are all appended. The President: Appended to the individual sets of evidence ... these pleas from the public prosecutor ... Let us begin to hear Craxi's defence counsel, who is the person most directly concerned, and then if the others want to intervene ...” 25. The applicant's lawyer requested to be granted access to the decisions authorising the interceptions and to all the documents to which the Public Prosecutor had made reference. He declared that he would have commented on them at a later stage, observing, anyway, that some of the facts imputed to his client could not be described as aggressive behaviours, being rather simple statements of the truth. 26. The District Court reserved its decision on the prosecution's request of admittance of evidence until the hearing of 19 October 1995. The transcripts of the telephone conversations intercepted on the applicant's line were made available to the parties immediately after the hearing of 29 September 1995. Mr Guiso, the applicant's lawyer, was provided with the file including all the transcripts and afforded the possibility of making written submissions. 27. Respectively on 2 and 9 October 1995, the two applicant's counsels (Mr Lo Giudice and Mr Guiso) were informed that the telephone interceptions had been filed with the Public Prosecutor's Office's registry. The applicant's counsels subsequently objected to the admission of the interceptions as evidence. In particular, they argued that contrary to Article 268 of the Code of Criminal Procedure (hereinafter, the “CPP”) the District Court had failed to hold a specific sitting before the trial hearing in the presence of both the defence counsels and of the prosecution in order to select those interceptions that were significant and exclude those considered illegal. Further, the prosecution had failed to apply for an extension of the fifteen-days duration of the telephone tapping, so that those interceptions which had been carried out after the first fifteen days were illegal and could not be used. 28. The content and the name of the interlocutors of certain telephone conversations were subsequently published in the press. 29. In particular, "L'Unità" of 30 September 1995 published an article entitled “Dossier and conspiracies against Di Pietro [one of the magistrates of the clean hands team]". It stated that the interceptions made on the applicant's phone showed that he was preparing a defamatory campaign against some political men with the help of a "lady from Bologna", who was a member of an illegal association of free-masons. Moreover, in one of the interceptions Mrs Margherita Boniver (an Italian politician) had told Craxi that Mr Berlusconi (the current Prime Minister of Italy) had had a conversation with Mr Arafat about him and that Arafat would have "invited" Craxi. In another telephone call, the son of one of the applicant's lawyers had said that "the Minister" would have commenced proceedings against Mr Paolo Ielo. 30. On the same day, as well as on 1 and 2 October 1995, L'Unità also published the following extracts from some of the intercepted phone calls. Conversation on 26 July 1995 with a certain Luca: Craxi (speaking with Luca): “This Salamone [the Public Prosecutor of Brescia] is another one who wants to make a show of himself, I am going to see whether there are elements to introduce a criminal complaint against him.” Conversation on 28 July with an unknown woman: Woman: “I'm in a telephone box in Rome. I saw that friend of yours from the Senate.” Craxi: “Why has this big friend of mine failed to say one single word?” Woman: “He leaves the comments to you. He is lost and says that this person had been used by the Milan group as a killer. He says that he knew from Biondi that the one who spoke is in practice a servant of Caselli [a well-known Italian magistrate].” Craxi: “Ah, yes?” Woman: “Concerning the story of the brother.” Conversation on 3 August 1995 with an unidentified friend: Craxi: “They should go and see. It should be established whether a magistrate can buy a Mercedes at a very favorable price. May he borrow money from a friend in order to pay his gambling debts? So all this is legitimate, it can be done. Let's put it in the law: magistrates may borrow money without paying legal interests.” Conversation on 14 August 1995 with an unknown man: man: “Next week I will provide you with all the things you asked me on kronos [a press agency], the most important thing [is] that, at least until one month and a half ago, I do not know if now he has been revoked, Prodi was a counsellor of its biggest company.” Craxi: “Ah, ah, ah, very well, give me all the data, please.” man: “Counsellor of its biggest company, one of the five members of the directing body was Prodi, so ...” Craxi: “Super, then I would like to have the material concerning that other thing ...” Conversation on 25 August 1995 with Mr Filippo Facci [a journalist]: Craxi: “... There are some pillars in Tangentopoli [term used by the press to design the corruption system disclosed by the clean hands inquiry] that stayed outside, they should be all those who stayed inside, then we can find the solution, but no kidding, I am not getting upset because of the apartment of D'Alema [an Italian politician who had subsequently been the Prime Minister of Italy] ... ” Facci: “Sorry, the phone fell while I was taking the book, pages 192 and 193, where it speaks about Giovannini ...” Craxi: “There is a tale, not really about that thing which will make a little scandal, but it will be a regular contract on which it was not possible to lay ... lies are others and this one Giovannini is another Greganti, close to D'Alema, fuck him. The Public Prosecutor's Office in Rome opened an inquiry for calumny, but the day of reckoning will come, son of ...” Conversation on 2 September 1995 with a certain Valterino: Craxi: “What is going on with the inquiry of Salamone? Now it does not concern Di Pietro, but myself?” Valterino: “These are saying that they brought papers against you.” Craxi: “What papers?” Valterino: “The papers concerning the search.” Craxi: “The papers concerning the search have nothing to do with Di Pietro.” Conversation on 2 September 1995 with lawyer Guiso: Guiso: “Di Pietro is in Cernobbio. Today Il corriere della sera says that he is nobody, and he had been recommended - and this is very important - by an agent of the branch of the American police investigating on financial matters. He is substantially accompanied by him, please consider that he had been three months in America and appears in Cernobbio, he should speak this morning on the subject “foreign politic, ethic and finance.” Craxi: “It's crazy, but it is the subject of the Mac Namara Foundation.” Guiso: “[This] shows that he was linked to America, not at all the uncertain future he had declared when he abandoned his post. Then, a journalist gave me a book with plenty of information. I cannot send it to you by fax as the characters are very small.” Craxi: “Send it to me to that address by DHL. To that address you know.” Conversation on 5 September 1995 with a journalist of “Il Messaggero”: Journalist: “Did you hear about the new Italian politicians?” Craxi: “Who are they?” Journalist: “Di Pietro.” Craxi: “A little adventurous trafficker (avventuriero trafficante).” Conversation on 6 September on Craxi's line in Hammamet. Mrs. Tina Soncini speaks with a certain Michele: Soncini: “I have interesting news to give him.” Michele: “He says you can send a fax.” Soncini: “I will send it tomorrow with some references to Bologna.” Michele: “Let's use a code, a slightly modified code, we know of what kind of persons we are speaking about.” Soncini: “I will send some telephone numbers ... I had been told that the mother is a very worldly-minded person.” Michele: “Newly rich, all this is useful for us, maybe also apartments ...” Conversation on 6 September 1995 with a certain Simona: Craxi: “The problem was to build up the physiognomy of the personage ... In sum, this is the clue, it seems he had made a number of things on which he was wrong.” Simona: “It is an enormous thing, there are ten documents per day.” Craxi: “The trials he made, I know about something, we should look at them, people say that the tribunal shut the door in his face, they speak about the preparation of some books by certain friends, ask to send them the list of the members of the publishing house.” Conversation on 11 September 1995 with Mr De Jorio, a journalist: Craxi: “You should speak with somebody who will come and speak to me. The problem ... is to have the hands free and to have information.” De Jorio: “We have some.” Craxi: “What is a newspaper like this doing, scandal and satire, isn't it?” De Jorio: “We were the sole newspaper is Italy which published documents on red gladio [a secret organization that the communist party was suspected to have built in order to achieve its aims during the cold war] ... judges have discontinued the proceedings on this matter.” Craxi: “It is not the only matter on which they discontinued proceedings, there is a systematic tendency to discontinue proceedings concerning the communist party.” De Jorio: “Do you know what we have discovered? That apart from Pio La Torre, also the gangster Felice Cavallero Pollini was a member of gladio and had been trained abroad ... also the one of the gold of Dongo.” Craxi: “There are many things. They believe they have solved the problem with the scapegoat, they are under an illusion, they should have killed me, but as they did not succeed in this ... they tried twice, once the American intelligence, once the English one.” De Jorio: “Mr. President, be careful, I know that here in Italy they want to organize [something], to come [over there] and take you, it seems they are offering 60 million [lire, which is approximately 30 987 euros] per person, within the intelligence, in order to take you and to bring you elsewhere.” Craxi: “All right, all right, try to do so.” De Jorio: “I am telling you this because a person I trust during his last meeting with me ... I know that a group Z has been constituted, kept in the shade of a free-masons organisation constituted by approximately 600 magistrates, and the head of this group would be Scalfaro [the President of the Italian Republic at the relevant time].” Craxi: “I heard about this thing, but I do not believe it, I am not convinced.” Conversation on 12 September 1995 with an unidentified journalist: journalist: “Will Salamone come [to see you in Hammamet]?” Craxi: “I have no idea. I am here, everybody knows where I can be found.” Conversation on 12 September 1995 with an unknown journalist: Journalist: “I will state that you said: “I have friends not only in the Arabic world and I think that in a European capital a center such as the Wiesenthal center will be built, [and this center] will investigate the judicial clans and all those who in these past three years had acted unfairly against me and against many other people.” Craxi: “No, that is not good. First of all it is not only against me, it is not the judicial clans, but all the clans including the judicial ones ... [a center which] looks after and will look for the truth ... So much truth which still has to come out.” Journalist: “Then I ask you the thing on Di Pietro and then you will answer “I'm writing a book which will be entitled “Mimì an Italian miracle.” Craxi: “No, I want to write, I want to write a little book, not a book ... It's too important.” Conversation on 21 September 1995 with Mr Pierangelo Maurizio, a journalist: Maurizio: “Now I'm working for “Il tempo”, and the television show of Gianfranco about Cinquestelle has started again ... I saw that thing about Enel [the Italian electric energy producing company].” Craxi: “This story on today's “Il giornale” is the end of the world, do you know whom the political personality I am referring to is?” Maurizio: “No, frankly not.” Craxi: “It's D'Alema, there is a statement [made by] Bitetto [a director of Enel who was accused of corruption and made statements calling into question the criminal liability of Craxi and other politicians].” Maurizio: “... about which you speak in your books.” Craxi: “I wasn't aware, there is a statement [made by] Bitetto exposing that years ago, but there is a continuity in the criminal offence, he took part in a meeting in Bari or Brindisi in which were present D'Alema, the regional secretary of PSI and others, where he, as a representative of Enel ... discussed the contracts for public works in Brindisi.” Maurizio “What about this statement?” Craxi: “I have it, I will forward it to you.” Maurizio: “Maybe, I will call you tomorrow.” Craxi: “Now a number of things will come out on that young man.” Maurizio: “They are getting a different turn ... all the things about D'Alema.” Craxi: “Those things from Venice are the less [important], there are other things ... I would like to be personally informed. I would like to have a fax number where I can send things to you.” Conversation on 23 September 1995 with a certain Rosario: Rosario: “The fax is broken, I would have liked to send you some extracts from yesterday's and today's newspapers concerning that little dog named Lulù [probably, the former Milan magistrate Antonio Di Pietro] and his son. Did you see them?” Craxi: “Yes, yes, thanks.” Conversation on 23 September 1995 with Roberto “Bobo” Craxi, the applicant's son: Bobo: “The thing will come out next Monday.” Craxi: “Not the next one.” Bobo: “Not the next one, also because next [Monday] there is the Andreotti case. It will come out Monday, it's 25 pages and they will anticipate it.” Craxi: “all right, it will be a hot week and they will be afraid.” Conversation on 23 September 1995 with Mrs Pia Luisa Bianco, a journalist: Bianco (speaking with Craxi): “The thing has already been paged up. I will forward it to you in advance ... we will put a big emphasis on it, we already have an agreement with Il corriere della sera in the sense that they will make big titles, don't worry because it is very well managed, you will see, it will have a big impact.” Conversation on 24 September 1995 with Mrs. Tina Soncini: Soncini: “Apart from these documents, I have a channel to acquire more detailed information, but I need that you organize an appointment.” Conversation on 25 September 1995 with a certain Luca: Craxi: “They should be attacked frontally, without fear, to Mancuso they are doing ... This Ielo is behaving like a pure mafioso, an arrogance from the power.” Luca: “There is no other alternative but screaming it in their face, we will do it, we will do it. Here everything is all right except for that little asshole of Intini [an Italian politician].” Conversation on 25 September 1995 with a certain Salvatore [probably Mr Salvatore Lo Giudice, the son of one of the lawyers officially representing Craxi in the Metropolitana Milanese trial. Mr Salvatore Lo Guidice, who is also a lawyer, acted as his father's substitute during some hearings]: Salvatore: “Yes, he will think about it.” Craxi: “He has nothing to do with this.” Salvatore: “No, sure he has, the ministry will think about this.” Craxi: “Because it's 289 [Article of the Criminal Code punishing the attempt to impede the functioning of the Constitutional organs].” Salvatore: “This is something up to him.” Craxi: “To introduce a claim calmly is one thing, but one cannot make all the comments and the political polemics, the speculation made by Ielo is a defamatory one.” Salvatore: “But now the serious point is to give him a hand. It is essential to break them on this Venice thing which is the only one they are afraid of, so as he has a number of suspicions, he needs it as he needs bread.” Craxi: “I am completely unaware of that story.” Salvatore: “I have a lot of material.” Craxi: “I will immediately deal with this matter, tomorrow I will send faxes and then I will keep [you] informed.” Salvatore; “Then, it is important to ask for the availability of the State.” Craxi: “Is it enough that it arrives immediately, then you will call when it leaves.” Salvatore: “We are doing everything very quickly, then I will go directly to Rome. In any case this one with whom we are working together can be trusted, then the serious thing is that he is using the same elements of Milan, therefore it would be a big mess if it comes out that with the same elements Milan failed to proceed, there are many ideas to be used.” Conversation on an unspecified date with a certain Mr. Paolo Farina: Craxi: “That one is an idiot, a first-class idiot.” Farina: “He was replaced by ...” Craxi: “He was replaced because he was incompetent.” Farina: “He was replaced by Andò.” Craxi: “He was incompetent.” Farina: “He tried to suggest that his replacement ...” Craxi: “Of course not ...” Farina: “They presented themselves as supporters of An [Alleanza nazionale, an Italian political party].” Craxi: “Precisely ... but that one is an idiot, an unpretentious personage, I do not know how he could have arrived there.” L'Unità also reported that in another conversation with an unknown person, Craxi had showed his appreciation for a recital with Pavarotti transmitted by the Italian television; when he had learned that his friend had not seen it, he had said: “Phone Rossella [the director of a news bulletin] and make them send the cassette to you.” 31. “Il Giorno” of 30 September 1995 published an article entitled “The attempts to create false evidence by the friend of the head of P2 [an illegal free masons association]”. It made reference to a telephone conversation that the applicant had had on 24 September with Mrs Tina Soncini, in which the discussion concerned “documents made ad hoc” in order to be sent to an editorial company. The article reported the links allegedly existing between Mrs Soncini and Mr Licio Gelli, head of the P2. 32. “La Repubblica” of 30 September 1995 published an article entitled “We will ask for the arrest of the [clean hands] Pool”. As far as it concerned the telephone interceptions, the article indicated the names of some journalists who had spoken with the applicant on the phone, and the content of the telephone conversation with Mrs Boniver reported by L'Unità. La Repubblica moreover reported the content of a phone call that the applicant had had with Mr Luca Iosi, his “speaker in Italy”, on 14 September 1995. The conversation at issue was interpreted as an attempt to attack Mr Di Pietro in relation to an apartment rented to his son. Its content was the following. Iosi: “The son of the hero contributes each year for 2 400 000 lire [approximately 1 239 euros].” Craxi: “So much... When will this thing come out?” Iosi: “Now we will make the case grow and then we will shoot them right in the balls [Italian expression which means to attack someone hardly], 200 000 lire [approximately 103 euros] in spite of the rent rates and formally in his own name only in order to put his son in it.” 33. La Repubblica also reported the content of some telephone conversations the applicant had had with Mrs Tina Soncini, with a certain Anna, with Mr Alessandro Caprettini (the director of an Italian newspaper), with Mrs Alda D'Eusanio and Mr Enrico Mentana (two journalists), and with a certain Ugo. Their content is the following. Conversation on 21 July 1995: Craxi: “Enrico, in this moment you are not helping me.” Mentana: “You mean, honouring the truth.” Craxi: “By reporting the things I am saying, for the Holy Virgin's sake, nothing more ... The boys from Giovine Italia [a political organisation] did something this morning.” Mentana: “I'm not aware of this.” Craxi: “Think about it, nobody was there, there were no televisions, now you should report this news, report this news at least, they were one hundred, they are good, I have sent a memorial of historical nature, something about the Giovine Italia of Mazzini [an Italian patriot] ... if you continue, you will see the little surprise.” Conversation on 24 July 1995: Craxi: “I should come as I came many times in Italy with moustaches: in fact I was coming with a wig and false moustaches ... Idiots.” D'Eusanio: “This is the moment to do something about the procedural guaranties, about the magistrates, about the pentiti, Contrada, Tortora [persons accused by pentiti in mafia trials], if you are not taking advantage from these occasions, there would be nothing you could do.” Craxi: “Let's say the truth, there are some gangs organising a push-off, real gangs.” D'Eusanio: “Bettino [nick-name of Craxi], there are idiots, inefficient persons, cowards.” Craxi: “no, no, they reached an agreement, and lack of courage is inside the information, as all this wouldn't happen if there weren't a number of cowards in the newspapers and the televisions.” D'Eusanio: “My director is a person who believes in nothing, therefore he is keen on his position and there is somebody protecting him and his friends [to continue] believing in nothing.” Conversation on 3 August 1995: Caprettini: “I believe, the funny thing is the following, you know what I am going to do, I will of course publish this thing, then I will address myself to a magistrate friend and then I'll tell him: let's investigate on this matter, so we'll keep the problem alive.” Conversation on 29 August 1995: Craxi (speaking with Ugo): “I can't understand what is going on in Italy, if we are going to the elections immediately or not; in the affirmative, there is nothing to do; in the negative, in eight months time we will sort out a socialist list, we will put a nice pink carnation [the symbol of the PSI] on it. I will make the socialist list being made, no kidding. This situation cannot be accepted anymore.” Conversation on 20 September 1995: Soncini: “I had information about this, it is hearsay, the father of D'Alema in 1941 was the Secretary of the Guf [University fascist group] of Ravenna, it is for sure.” Craxi: “I would like to have a more precise ..” Soncini: “I can provide you with the whole story, because after having caused the death of three hundred people, he told it to a journalist.” Craxi: “And then we will deal also with the betrayer.” Conversation on 25 September 1995: Craxi: “Send me a text.” Anna: “it is very important, I will send it to you and you will forward it to the Public Prosecutor of Venice, Mr Nordio ... Now the important point is to give them a hand, to attack them on this Venice thing which is the only one they fear ... this person who is working with us is somebody I trust, then the serious thing is that he is using the same elements of Milan, which will prove that with the same elements Milan failed to proceed.” 34. La Repubblica also reported the following telephone conversation current on 10 August 1995 between Anna Craxi, the applicant's wife, and Mrs Veronica Berlusconi, the wife of the actual Prime Minister of Italy. Veronica Berlusconi: “Anna, how are you?” Anna Craxi: “And how do you do, everything all right?” Veronica Berlusconi: “Everything all right, we arrived in Sardinia two days ago. The trip was extremely tiring ...” 35. La Repubblica noted that “the day on which Lady Veronica made her polite phone call to her friend, the husband of the latter had already been declared latitante [which means deliberately evading justice] by the Milan District Court”. 36. Il corriere della sera of 1 October 1995 published the content of a telephone conversation that the applicant had with a certain Salvatore, afterwards identified as Mr Salvatore Lo Giudice. The text is the following. Salvatore: “We should say we are ready to be heard. Because this is an interesting situation. I had a number of contacts with this magistrate.” Craxi: “All right. In the meanwhile I do not even know what these things are.” Salvatore: “It's obvious, but he knows that it is not absolutely irrelevant.” Craxi: “In view of a speech of a general nature.” Salvatore: “Correct. He knows that [this] has nothing to do with that other story; it's only stuff he inserted in order to come and hear you.” Craxi: “Send me a text.” Salvatore: “It's very important. I'll send it and you will forward it to Mr Nordio, Public Prosecutor attached to the Venice District Court. Do you have that note?” Craxi: “I did not even read it.” Salvatore: “Look at it, because it is a serious thing. There won't be any problem with Tunisia.” Craxi: “Here they are a little bit upset with Italy, in general. I will intervene.” Salvatore: “In this way, we will create a great problem for them, as this [person] told me very interesting things. For instance, he has consulted Digos [a branch of the Italian police], and you are in the list of latitanti. So a big contrast will be created, which would help us a lot.” Craxi: “Why?” Salvatore: “Because then we will be able to prove that the order declaring you latitante was arbitrary. So, if we can bring him [seeing you] it would be difficult for them to justify the fact that you are evading justice.” Craxi: “So the other one is not going to come?” Salvatore: “He has been blocked in Milan.” Craxi: “I do not believe it.” Salvatore: “Yes, I know it for sure, he told me. This one, on the contrary, is ready to do seas and mountains [Italian expression which means everything is necessary in order to achieve one's aims].” Salvatore: “Then at the Ministry there is an agreement, it would be ...” 37. On the same day Il corriere della sera published an interview with Mr Salvatore Lo Giudice, who explained that the telephone call at issue did not concern a “conspiracy” organised by the applicant, and a letter of Mrs Belusconi, challenging the opportunity of putting in the file the conversation she had had with the applicant's wife. Articles appeared in Il Corriere della sera and in other newspapers concerning interviews and declarations made by Mr Nordio, Public Prosecutor attached to the Venice District Court, who criticised the release into the public domain of the telephone interceptions and declared that he had never followed irregular procedures in order to serve the interests of the applicant. The latter was at freedom to believe that he could have taken advantage from the legitimate and impartial investigations that Mr Nordio was making. Other declarations made by the persons who spoke with the applicant on the phone were published by the press, as well as the replies of the applicant to the speech made by Mr Paolo Ielo on 29 September 1995. The applicant stated, in particular, that the Public Prosecutor at issue was a “certified liar” (bugiardo matricolato) and had used a “Stalinist” language. 38. In the following days, La Repubblica, L'Unità and Il Corriere della sera published articles which referred to the above mentioned telephone conversations and to the speech made by Mr Paolo Ielo at the hearing of 29 September 1995. They included attempts to interpret the precise meaning of the conversations. Some of the newspapers commented that the transcripts of the telephone conversations showed, together with other elements, that the applicant was trying to use his influence and his relationships to organise a defamatory campaign against his political adversaries and against the magistrates who were investigating on him. It was moreover discussed in the press whether the applicant had the power to influence the political line of the party Forza Italia, with some members of which he had, apparently, kept close contacts. La Repubblica of 2 October 1995 published an article written on 18 September 1995 by the applicant himself and containing considerations of a political nature. 39. Mr Paolo Ielo granted the press a number of interviews on the matter; he declared he regretted having compared the applicant to a “certified criminal”, but that it was his duty to control the telephone conversations of a person who was deliberately evading a court order. Even if the telephone interceptions did not disclose any criminally relevant behaviour, they should be taken into account in order to assess the applicant's personality and to fix the penalty that the Public Prosecutor could have demanded at the outset of the court proceedings. 40. At the hearing of 19 October 1995 the Milan District Court asked the parties to clarify who had disclosed to the press the content of the telephone interceptions before the competent judicial authority had had the opportunity of pronouncing itself on their admissibility. Mr Ielo pointed out that immediately after the hearing of 29 September 1995, the file containing all the telephone interceptions had been forwarded to Mr Guiso, the applicant's lawyer; the file had been returned to the Public Prosecutor Office only the following Monday, when part of the transcripts had already been released into the public domain. Mr Ielo concluded that the Public Prosecutor could not be held responsible for the divulging of these acts. The representative of the civil party declared that he had nothing to say on this point: he had not copied the transcripts and he had not given them to third persons. Mr Guiso confirmed the version given by Mr Ielo. He indicated that he had copied the file which had been forwarded to him, but that this was done in a particularly secret manner, in order to protect the applicant's interests and to avoid any divulging which could be prejudicial for him. Some journalists had requested to be granted access to the transcripts, but Mr Guiso had categorically refused. Mr Giuso underlined that, as prescribed by the law, the file with the transcripts had been made available to all the parties of the trial, and not only to the applicant's defence lawyers. Mr Guiso concluded that the divulging of the transcripts was clearly due to the action of third persons. He was not interested in that, the only point he wanted to raise being why the telephone interceptions had been presented at the public hearing. The lawyers of the other accused persons declared that they were not responsible for the disclosure. 41. In an order of 19 October 1995, the Milan District Court found that contrary to the applicant's allegations (see paragraph 27 above), the failure to hold a specific hearing prior to the trial in order to select the intercepted telephone conversations did not amount to a violation of the relevant provisions of Italian law. The District Court first observed that according to Article 271 of the CPP and to the Court of Cassation's case law, failure to respect the formalities indicated in Article 268 §§ 4 and 6 of the CPP did not prevent the use of the interceptions. It moreover noted that according to Article 295 § 3 of the CPP, the said Article 268, which concerned wire-tapings made during the preliminary investigations, could apply to the trial phase only “if possible”. In the present case, the selection of the material had been made in the presence of the parties and in its “natural” place, which was the trial hearing. The District Court however decided not to make use of the information yielded by the telephone interceptions made between 20 July and 3 August 1995, in that they were relevant but not “absolutely necessary” within the meaning of Article 507 of the CCP in order to assess the applicant's personality. The District Court further held that the interceptions made after 3 August 1995 could not be used as evidence, as no application had been made by the prosecutor for an extension of the duration of interception, nor could such authorisation be considered as having been implicitly granted for as long as the applicant would be absconding. 42. In a judgment of 16 April 1996, the Milan District Court convicted the applicant to a penalty of eight years and three months' imprisonment and to a fine of 150 million Italian lire (approximately 77,468 euros). This sentence was confirmed on appeal on 5 June 1997. However, the appeal judgment was quashed by the Court of Cassation and the case was re-heard by the Milan Court of Appeal, which, on 24 July 1998, reduced the penalty imposed on the applicant to four years and six months' imprisonment. This decision became final on 20 April 1999. 43. The applicant complained about the unfairness of the Metropolitana Milanese criminal proceedings in the ambit of application no 63226/00, introduced on 15 October 1999. In a decision of 14 June 2001, the Court declared this application inadmissible. 44. Article 430 § 1 of the CPP allows the Public Prosecutor to accomplish, even after the committal for trial, further investigation acts (attività integrativa di indagine) with a view to presenting requests to the trial judge. All the documents concerning these acts are immediately filed with the Public Prosecutor's registry. Counsels for the defendants and for the civil party are granted access to the acts at issue and may obtain a copy of them. Article 268 of the CCP states that the Public Prosecutor should file in its registry the transcripts of any telephone conversation which has been wire-tapped. Counsels for the defendants and for the civil party are granted access to these transcripts and may obtain a copy of them. 45. Article 114 § 1 of the CCP prohibits the partial or total publication of any act or document to which the secrecy rule applies. According to Article 329 of the CCP, this rule of secrecy covers all the acts made by the Public Prosecutor or the police during the investigations, but ceases to apply at the end of the preliminary investigations. Once the trial has commenced, the prohibition to publish covers all the acts included in the Public Prosecutor's file (fascicolo del pubblico ministero) until the delivery of the appeal judgment (see Article 114 § 3 of the CCP). The acts not covered by the secrecy rule can always be published (see Article 114 § 7 of the CCP). 46. According to Article 268 § 6 of the CPP, the representatives of the parties are informed that, within a determined time-limit, they may examine the transcripts of the interceptions and hear their content. Once this time-limit has expired, the judge should order the inclusion into the file of all the conversations which are not manifestly irrelevant. He should proceed, even ex officio, to the exclusion (stralcio) of the material whose use is prohibited. The Public Prosecutor and the defence lawyers have the right to take part to the exclusion procedure and are informed about it at least twenty-four hours in advance (Il pubblico ministero e i difensori hanno diritto di partecipare allo stralcio e sono avvisati almeno ventiquattro ore prima). According to Article 271 of the CPP, the results of the telephone interceptions cannot be used if they have been done in cases non permitted by law or if the prescriptions of Articles 267 and 268 §§ 1 and 3 have not been respected. Article 295 § 3 of the CPP stipulates that in order to facilitate the researches of a person who is deliberately evading the court's jurisdiction, the Public prosecutor or the judge may order telephone interceptions. In this case, the provisions of Article 268 should apply “if possible” (ove possibile). | 1 |
dev | 001-5525 | ENG | TUR | ADMISSIBILITY | 2,000 | IPEK v. TURKEY | 3 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Turkish national, born in 1943 and living in Vakfıkebir, Turkey. He is represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant claims that he was called to the Kürtün gendarme station on 24 October 1991 on suspicion of killing Hasan Bal on 18 July 1991 in a fight. He contends that he was immediately detained and during the first twenty-four hours he was not given anything to eat. He states that he was blindfolded. The period of his detention was extended by the Torul public prosecutor for fifteen days at the request of Halil Uluyurt, the captain of the Kürtün gendarme regiment. The applicant claims that he was beaten and tortured during his detention. On 1 November 1991 the Torul Peace Court ordered the applicant’s formal arrest. The applicant’s wife, Halime İpek, applied to the Torul Public Prosecutor’s Office on 12 November 1991 claiming that her husband had been tortured by gendarmes while in custody. The public prosecutor conducted a preliminary investigation. He took statements from Captain Halil Uluyurt as well as 19 other witnesses. On 31 December 1992 the public prosecutor issued a decision of non-prosecution. The applicant’s wife challenged the decision before the Bayburt Assize Court. On 12 February 1993 the Bayburt Assize Court accepted her submissions and annulled the non-prosecution decision. On 31 March 1993 the Torul public prosecutor instituted criminal proceedings before the Torul Criminal Court of First Instance charging Captain Halil Uluyurt and gendarme officers Ahmet Temur, Hasan Çelik and Mahmut Özmen of offences under Article 245 of the Turkish Penal Code. On 13 May 1993 the Torul Criminal Court of First Instance issued a non-jurisdiction decision and separated the proceedings against Captain Halil Uluyurt from those brought against the other co-accused on the ground inter alia that the charges were more appropriately dealt with under Article 243 of the Penal Code. The Torul Criminal Court of First Instance sent Captain Halil Uluyurt’s file to the Gümüşhane public prosecutor’s office to obtain the necessary authorisation to prosecute him. Authorisation was given by the General Directorate of Criminal Affairs of the Ministry of Justice and the Gümüşhane public prosecutor subsequently instituted criminal proceedings against Captain Halil Uluyurt before Gümüşhane Assize Court on 30 December 1993. On 10 February 1994 the court joined the cases of Captain Halil Uluyurt and the other three accused. The applicant joined the case as an intervening third party. The court had before it two medical reports. According to the first report dated 25 October 1991 no marks of violence had been found on the applicant’s person. However, the second medical report dated 1 November 1991 stated that the following marks were found on his body: an oedema about 4-5 cm in diameter on his right hand, a graze on his left leg of about 1 by 1 cm and a discolouring under his right eye. The medical reports were sent for examination to the Forensic Medicine Institute which concluded that the applicant’s health was not at risk. The applicant was given three days’ sick leave from work. The report of the Forensic Medicine Institute also mentioned that the applicant’s injuries could have been caused by blows. Although the witnesses called on behalf of the applicant stated before the court that they did not see him being beaten, they affirmed that they observed that he had some violet-coloured bruises on his face and body when he was brought before the substitute judge. The witnesses further maintained that the applicant told them that the commander of the gendarme station had tortured him during interrogation. In a judgment dated 2 May 1996, the Gümüşhane Assize Court found Captain Halil Uluyurt guilty of an offence under Article 243 of Criminal Code since he had tried to extract incriminating statements from the applicant. The court accepted that the applicant was subjected to ill treatment and to inhuman and degrading treatment in custody. The court relied on the statements of the witnesses, medical reports and the interrogation record signed by Captain Halil Uluyurt which indicated that he had questioned the applicant. The court sentenced Captain Halil Uluyurt to ten-months’ imprisonment and debarred him from duty for a period of two months and fifteen days. The court suspended the prison sentence since it considered that the accused would not commit any similar offences in the future. The court acquitted the other three accused on account of lack of evidence. Captain Halil Uluyurt appealed against conviction. On 7 May 1997 the Court of Cassation dismissed his appeal and sent its judgment to the Gümüşhane Assize Court on 5 June 1997 where it was deposited with the Registry. The applicant maintains that he was notified of this decision on 26 December 1997 when he went to the court to obtain a copy. | 0 |
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