partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
train | 001-5181 | ENG | GBR | ADMISSIBILITY | 2,000 | BULLIVANT v. THE UNITED KINGDOM | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza | The applicant is a British national, born in 1946 and detained in HM Prison Long Lartin, Evesham, Worcestershire. He is represented before the Court by Mrs Mary O’Neill, a business analyst, of Selly Park, Birmingham. A. The court proceedings On 3 December 1996, the applicant was convicted of robbing a Brinks Mat van of £498,000 and possession of firearms. On 4 December 1996, he was sentenced to 15 years’ imprisonment for the robbery with 3 consecutive years for possession of firearms, a total of 18 years’ imprisonment. He was represented under legal aid by solicitors and Counsel. During the trial, the applicant’s counsel was denied sight of two intelligence reports from the police and MI5 which were presented to the judge by the prosecution. Counsel for the applicant applied for sight of the reports. This was denied by the trial judge who stated that the named informants were contained therein and invoked Public Interest Immunity. During the jury deliberations, following consultation with defence counsel who proposed amendments to the written direction, the judge directed the jury that on the evidence it was possible to find that the applicant was the driver of the getaway car, rather than as originally submitted by the prosecution, driver of the car used in the robbery. Counsel did not apply for the introduction of a lesser charge of accessory after the fact. The jury convicted the applicant, rejecting his defence of duress which was raised at trial. The applicant appealed against conviction with leave from a single judge of the Court of Appeal. He claimed, firstly, that the judge introduced a new basis for convicting him (that he was driving a getaway car rather than the vehicle used in the robbery) at a late stage, namely during jury deliberations, which his counsel did not have a chance to address. Secondly, the judge’s directions as to knowledge and participation in the robbery were muddled and inadequate in that the directions may have left the jury with the impression that it was open to convict the applicant as a principal even if all he did was to assist those who had committed a robbery to avoid apprehension and had no part in the planning and execution of the robbery. In July 1998, the applicant made an out of time application to the Court of Appeal for leave to appeal. In December 1998, the Court of Appeal refused leave to appeal to the House of Lords. The applicant states he did not receive confirmation in writing of this decision until 14 May 1999. Conditions of imprisonment The applicant was held on remand for one year and moved to five prisons and for some months he was held in a segregation unit. He allegedly suffered a mental breakdown and received anti-depressant drugs. As a Category A prisoner, he states that he has no right to home leave, open prison or parole, he is checked every hour by a prison officer through the night shining a light into his cell and disturbing his sleep and prospective visitors are vetted by the Home Office. According to him, Category A prisoners would also be executed in the event of a nuclear strike on the United Kingdom. He complains that he received delayed medical treatment for a suspected heart condition. He was taken to a local hospital for an appointment but because the consultant was not there he was taken back to prison without seeing him due to the potential security risk. The visit was rescheduled and took place 5 months later. No heart problem was found. The applicant was advised by his solicitor that there was no prospect of obtaining legal aid to pursue a case relating to the delay in seeing a cardiologist. The applicant was transported to the Court of Appeal in February 1998 in an unheated van, locked in a metal cell in the rear of the van, wearing thin clothing with no food, water or toilet breaks for 8 hours. In October 1998, his complaint to the Prison Ombudsman was upheld who recommended the setting up of guidelines for the transfer of Category A prisoners. No proceedings were issued by the applicant against the Prison Service. The applicant states that the security classification of Category A prisoners should be reviewed annually. He has only had one review of his Category A status in April 1997 some 18 months since he was first held on remand and four months after his conviction. He has had no review since. The result of the review security category status was sent to the prison governor in a letter dated 30 June 1997 but the applicant says it was not communicated to him in writing until November 1997. It was decided that he should remain a Category A prisoner. On 8 January 1999, the applicant wrote to ask why he had only had one review and when his next review would take place but has not received a response nor pursued the matter further. B. Relevant domestic law and practice Disclosure of evidence to the Defence R. v. Ward [1993] 1 WLR 619. This case dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure. R v. Trevor Douglas K (1993) 97 Cr. App.R. 342. The Court of Appeal stated that that balancing exercise could only be performed by the trial judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. | 0 |
train | 001-90316 | ENG | MLT | ADMISSIBILITY | 2,008 | J. LAUTIER COMPANY LIMITED v. MALTA | 4 | Inadmissible | David Thór Björgvinsson;Geoffrey Valenzia;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, J. Lautier Company Limited, is a limited liability company registered in Malta. It was represented before the Court by Dr T. Comodini Cachia and Dr Pio Valletta, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. In 1995 the applicant company acquired a piece of land measuring 3,008 sq.m in Msida. The land is situated in an area where both commercial and residential properties are to be found. It adjoins on one side a public main road. However, the land in question is currently situated outside development zones and its development is subject to strict limitations. By a declaration published in the Government Gazette of 29 September 2003, under the Land Acquisition Public Purpose Ordinance (“LAPPO”), Chapter 88 of the Laws of Malta, it was stated that a portion of the land measuring approximately 486 sq.m was to be directly expropriated by the State by way of outright purchase. The declaration did not state the aim of the expropriation but only the sum offered as compensation, 47,600 Maltese Liras (MTL – approximately 114,240 euros (EUR)). According to the information provided by the applicant company on 19 September 2006, by that date the sum offered in compensation had not been deposited. Consequently, according to law (see relevant domestic law), it was prohibited from commencing proceedings before the Land Arbitration Board (“LAB”), the competent authority, to assess the amount of compensation payable. According to the Government and as evidenced by the documents submitted, the amount of compensation was deposited in an interest-bearing bank account on 3 October 2003, four days after the official declaration. By a letter of 8 October 2003 the applicant company was informed of the said acquisition. However, the applicant company did not take steps to prove its ownership or to withdraw the said compensation. In August 2007 the amount of compensation plus interest stood at MTL 51, 370 (approximately 119,660 euros (EUR)), an amount which the applicant could freely withdraw. This procedure is still open to the applicant company. On an unspecified date the applicant company instituted proceedings before the Civil Court (First Hall) asking it to declare that the expropriation was in violation of its rights under Article 1 of Protocol No. 1 to the Convention. It claimed that the expropriation had not been effected for a public purpose since the land was to be used for the building of stables for the commercial use of other private persons. Moreover, the applicant company had been made to suffer an excessive burden, since the land in question offered the only means of access to the rest of its land. Consequently, the expropriation had not been proportionate vis-a-vis the aims pursued. On 7 April 2005 the Civil Court rejected the applicant company’s claims. It held that the expropriation had been needed for a public purpose, namely the redevelopment of slum housing and the construction of a new system of flood relief. The fair balance principle had been maintained since construction for social housing was in the public interest and it had not been proved that an alternative area of land in the vicinity could be used. On an unspecified date the applicant company appealed, claiming that the project could have been restructured differently in order to limit the individual and excessive burden suffered by the applicant company and that the taking had been necessary solely for the benefit of third parties. By a judgment of 20 March 2006 the Constitutional Court rejected the applicant company’s appeal. It held that slum clearance was a social housing project which fell within the definition of public interest. The residents of the slum area kept animals for commercial purposes and it was thus understandable that the new redeveloped area would provide stables and that for public health reasons it had been subsequently decided to locate the stables on the periphery of the residential area. As indicated by the court of first instance, it had not been proved that there was other land which could have been used for this purpose. It was not correct to say that more land had been taken than was necessary, or that the land expropriated blocked access to the remainder of the land owned by the applicant company. Moreover, the applicant company would have received compensation for the land expropriated and the adequacy of the compensation had not been contested. Thus, it could not be said that the applicant company had been made to bear a disproportionate burden. The relevant sections of the Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), read as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Section 6 “No person shall require any proof of the public purpose referred to in articles 3 and 4 and in article 8(1) other than the declaration of the President of Malta.” Section 9 “ (1) Whenever the President of Malta declares that any land is required for a public purpose, the competent authority shall cause a copy of such declaration, ... to be published in the Government Gazette ...” Section 22 “(1) If the competent authority and the owner agree on the amount of compensation for any land, the Board, on the application of either of the parties, shall make an order putting the agreement into effect ... (3) Within fifteen working days from the publication of the President’s Declaration as referred to in sub-article (2) in the Gazette, the Government shall deposit in an interest-bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this sub-article prescribe) a sum equal to the amount of compensation offered in the President’s Declaration ... ... (6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance ... (7) Such application shall be filed with the Registry of the Board within twenty-one days from the date of notification of the judicial act by the competent authority... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance. ... (10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interest thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.” An agreement on the compensation could be reached at any time. Sections 13(1) and 22 of the Ordinance in issue provided that: Section 13 (1) “The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ...” The Board mentioned in Section 22 was the LAB. According to Section 25(e), it was competent to: “... assess the amount of compensation payable under any of the provisions of this ordinance and for that purpose to declare whether any area is a building site or agricultural or waste land.” For the purposes of compensation Section 27(1) (b), provided that: “the value of the land shall,... be taken to be the amount which the land if sold on the open market by a willing seller might be expected to realise.” | 0 |
train | 001-79141 | ENG | RUS | CHAMBER | 2,007 | CASE OF SITKOV v. RUSSIA | 2 | Violation of Art. 6-1 on account of the quashing of the judgment;Violation of P1-1 in respect of the same fact;Not necessary to examine the complaint about the length of the civil proceedings;Not necessary to examine the complaint about the alleged lack of domestic remedies in respect of the length complaint | Christos Rozakis | 5. The applicant was born in 1948 and lives in Moscow. 6. In 1996 the applicant took out insurance for his summer cottage. In May 1997 the cottage burnt down. The insurer, a private company (hereinafter referred as “the company”), paid only a part of the amount claimed by the applicant. The applicant brought an action against the company claiming the rest. On 5 December 1997 the Moscow Lefortovskiy District Court ordered the company to pay the applicant 86,621 Russian roubles (RUR). 7. On 18 December 1997, upon the applicant's request, the Lefortovskiy District Court ordered the seizure of the company's account in a private bank “Yunikbank”. As follows from the extract of that account, provided by the “Yunikbank”, on 29 December 1997 the company had RUR 14,991 on it. There is no indication, however, that the money on that account has ever been seized. 8. The judgment of the Lefortovskiy District Court was upheld by the Moscow City Court on 16 January 1998. Following that, the Lefortovskiy District Court issued an execution order against the company. On 26 January 1998 the execution order was sent to the bailiff. 9. On 28 January 1998 a bailiff initiated the enforcement proceedings. On 2 February 1998 the bailiff requested from the State Tax Office information about the accounts and assets of the company. The Tax Office informed the bailiff that by 1 October 1997 the company had declared RUR 350,000 in cash and RUR 12,274 on accounts in three private banks. According to the Tax Office, in the last fiscal report the company had also declared RUR 98,507,000 in capital assets, RUR 116,534,000 in intangible assets, and RUR 24,804,000 in receivable accounts. 10. On 11 February 1998 the bailiff visited the headquarters of the company indicated in the company's official documents, but no property belonging to the company was found at that address. On the same day the bailiff discontinued the enforcement proceedings on the ground that the defendant had no assets to seize. 11. The next day the applicant brought an action against the bailiff. He claimed that the bailiff had failed to take appropriate steps to find and seize the company's property. On 23 February 1998 the Lefortovskiy District Court ruled in the applicant's favour. The court found, in particular, that the bailiff had failed to withdraw the debt from the defendant's account in “Yunikbank”. The court also found that the bailiff had breached a number of procedural rules, in particular, as it had not informed the applicant about the initiation of the enforcement proceedings. The court ordered the enforcement of the judgment in the applicant's favour. 12. A new bailiff was appointed to deal with the applicant's case. However, he found no money on two of the defendant's accounts, including the one in “Yunikbank”. On 18 March 1998 the enforcement proceedings were discontinued. 13. The applicant challenged the discontinuation of the proceedings in court. On 18 May 1998 the Lefortovskiy District Court quashed the bailiff's decision and ordered the re-opening of the enforcement proceedings. The court found, in particular, that the bailiff had failed to establish the real whereabouts of the company and its property. On 24 June 1998 the Moscow City Court dismissed the Senior Bailiff's appeal against that decision. 14. On 16 November 1998 the bailiff again discontinued the enforcement proceedings in view of the absence of assets belonging to the defendant. The applicant did not appeal against this decision. 15. On 16 April 1998 the applicant brought an action for damages against the Ministry of Justice, which is responsible for the Bailiff's Office. On 10 March 1999 the Moscow Presnenskiy District Court recognised the liability of the Bailiff's Office for the non-execution of the judgment of 5 December 1997 as upheld on 16 January 1998. The court granted the applicant damages in the amount of RUR 86,621, i.e. the sum which he had initially claimed from the company. This judgment was not appealed against and became final on 20 March 1999. It was transmitted to the bailiffs for enforcement. 16. On 29 July 1999 the Moscow City Prosecutor lodged with the Moscow City Court an extraordinary appeal against the judgment of 10 March 1999. The Prosecutor also suspended the enforcement proceedings. On 16 September 1999 the Presidium of the Moscow City Court dismissed the appeal, upholding the judgment of 10 March 1999. 17. On 28 January 2000 the Deputy Prosecutor General lodged with the Supreme Court of Russia a new extraordinary appeal against the judgment of 10 March 1999. He alleged, inter alia, that the Moscow Presnenskiy District Court should have imposed responsibility for the alleged non-execution on the Treasury, not the Ministry of Justice. 18. On 29 February 2000 the Supreme Court of Russia granted the prosecutor's appeal and quashed the judgment of 10 March 1999, primarily on the ground that the first instance court had not established a causal link between the alleged negligence of the bailiffs and the damages allegedly incurred by the applicant. The case was remitted to the Moscow Presnenskiy District Court for a fresh examination. 19. The applicant indicated that following the quashing of the judgment of 10 March 1999 by the Supreme Court the hearings were repeatedly adjourned, mainly due to the defendant's failure to appear before the court. 20. On 3 April 2001 the Presnenskiy District Court dismissed the applicant's claim. The court found no liability of the Bailiff's Office for the non-execution of the judgment. On 20 July 2001 the Moscow City Court, acting as a court of appeal, quashed the judgment of 3 April 2001, remitting the case to the Presnenskiy District Court. 21. On 18 January 2002 the Presnenskiy District Court again refused the applicant's claim. It stated that the applicant was not deprived of his property as a result of the actions of the Bailiff's Office. Although the court acknowledged that the Bailiff's Office's actions prevented the applicant from recovering his money, it declared that the actions of the Bailiff's Office “only hindered compensation for damage”, but “did not cause damage”. 22. The applicant appealed against the judgment. On 5 March 2002 the Presnenskiy District Court rejected the appeal as the applicant had not paid court fees. The applicant appealed against the decision, claiming that he was exempted from paying the fees. On 22 May 2002 the Moscow City Court upheld the decision of 5 March 2002. However, on 19 September 2002 the Presidium of the Moscow City Court overruled that decision, stating that the applicant should have been exempted from paying the fees. 23. On 28 November 2002 the Moscow City Court examined the applicant's appeal. It upheld the judgment of the Presnenskiy District Court of 18 January 2002. The City Court reiterated that as a result of the bailiff's actions the applicant had not been deprived of his possession and the bailiff's actions were only a hindrance to a full compensation for damages caused by the insurance company. 24. Article 46 of the Russian Constitution provides that any acts or failure to act by State authorities may be appealed against to a court. Pursuant to the Law “On enforcement proceedings” of 1997, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility. 25. For relevant details concerning the supervisory review proceedings see the Ryabykh v. Russia judgment (no. 52854/99, 24 July 2003, §§ 31-40). | 1 |
train | 001-92721 | ENG | RUS | CHAMBER | 2,009 | CASE OF KHUMAYDOV AND KHUMAYDOV v. RUSSIA | 4 | No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 7. The applicants were born in 1961 and 1995 respectively and live in the village of Chervlennaya, Shelkovskoy District, in the Chechen Republic. 8. The first applicant was married to Ms Khava Aduyevna Magomadova, born in 1956. They are the parents of the second applicant. At the material time Khava Magomadova worked as a manager at Chervlennaya railway station. 9. The applicants’ family lived at 10 Karl Marx Street in Chervlennaya village. On the morning of 16 December 2002 the applicants’ neighbours noticed a white Gazel vehicle parked not far from the applicants’ house. 10. At 7.25 a.m. Ms B., Khava Magomadova’s colleague, saw two UAZ-469 vehicles parked near the special task force checkpoint located in the railway station and three armed men in camouflage uniforms climbing into them. Then the vehicles drove away towards Karl Marx Street. 11. At about 7.30 a.m. Khava Magomadova went to work. According to her neighbours, as soon as she left the house the white Gazel that had been parked near her house drove off. When Khava Magomadova turned from Karl Marx Street into Zavodskaya Street it followed her. 12. Mr D., a railway station employee, was behind Khava Magomadova on his way to work and saw her and the Gazel turning into Zavodskaya Street. A few moments later, when he reached Zavodskaya Street, he saw the Gazel swaying slightly and no trace of Khava Magomadova. 13. The applicants’ neighbour, Ms S.B., saw a blue and a khaki UAZ469 vehicle with aerials on their roofs moving along Zavodskaya Street towards Lenin Street. 14. Khava Magomadova has not been seen since then. 15. At about 7.40 a.m. on 16 December 2002 Khava Magomadova left her house. She has not been seen since then. 16. Khava Magomadova had not arrived at her office by 8 a.m. Her colleagues began to worry and went to her house. The first applicant told them that his wife had left for work. The colleagues and the first applicant followed Khava Magomadova’s footprints, visible on the fresh layer of snow. The footprints stopped at the crossroads of Frunze and Zavodskaya Streets, where Mr D. had seen the Gazel. 17. The first applicant went to the police station to report his wife’s disappearance. Police officers told him that they could not deal promptly with his complaint as they were having a weekly meeting. However, they assigned an investigator to deal with the matter. 18. Later the same day investigators visited the scene of the incident and photographed tyre prints. 19. The first applicant complained about his wife’s disappearance to various official bodies, including the Russian President, the Russian State Duma, the Chechen administration and the Chechen State Council. The majority of his complaints were forwarded to prosecutors’ offices at different levels. 20. On an unspecified date the State authorities refused to institute criminal proceedings related to Khava Magomadova’s disappearance. 21. On 12 February 2003 the prosecutor’s office of the Shelkovskoy District (“the district prosecutor’s office”) informed the first applicant that they had quashed the decision refusing to investigate his wife’s disappearance and instituted criminal proceedings under Article 126 § 1 of the Russian Criminal Code (“kidnapping”). The case file was assigned the number 52007. 22. On 12 April 2003 the district prosecutor’s office suspended the investigation in case no. 52007 for failure to identify those responsible. 23. On 18 April 2003 the first applicant complained about his wife’s kidnapping to the military prosecutor’s office of military unit no. 20111 (“the unit prosecutor’s office”). 24. On 25 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the unit prosecutor’s office. 25. On 30 April 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 26. On 16 May 2003 the unit prosecutor’s office informed the first applicant that they had no information either on Khava Magomadova’s whereabouts or on the implication of any military personnel in her kidnapping. 27. On 28 May 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 28. On 2 June 2003 the district prosecutor’s office resumed the investigation in case no. 52007. On 5 June 2003 they notified the first applicant accordingly and commented that investigative measures were being taken to solve the crime. They also noted that the law enforcement agencies of the Chechen Republic had not carried out any special operations for Khava Magomadova’s arrest and that her dead body had not been discovered. 29. On 11 June 2003 the Main Military Prosecutor’s Office forwarded to the UGA prosecutor’s office the first applicant’s complaint about the disappearance of Khava Magomadova who “had been abducted by federal military servicemen in December 2002”. 30. On 19 June 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 52007 had been suspended and then resumed. 31. On 20 June 2003 the Department of the Federal Security Service of the Chechen Republic (“the Chechen FSB”) informed the first applicant that they had not arrested Khava Magomadova as there had been no legal grounds for it. 32. On 3 July 2003 the prosecutor’s office of the Chechen Republic informed the first applicant of the progress in the investigation in case no. 52007. They listed investigative measures taken, such as witnesses’ interviews and requests for information sent to law-enforcement agencies and to penitentiary institutions, and commented that those measures had been futile but that investigators continued to take requisite steps to solve the crime. 33. On 9 July 2003 the investigation in case no. 52007 was suspended. 34. On 14 July 2003 the Temporary Operational Group of the Russian Ministry of the Interior informed the first applicant that they had not carried out any special operations in relation to Khava Magomadova in the village of Chervlennaya between 16 and 22 December 2002. 35. On 14 and 24 July 2003 the unit prosecutor’s office informed the first applicant that they had no information on implication of the United Group Alignment servicemen in his wife’s kidnapping. 36. On 24 July 2003 the Ministry of the Interior of the Chechen Republic forwarded the first applicant’s complaint to the department of the interior of the Shelkovskoy District (“ROVD”). 37. On 5 August 2003 the UGA prosecutor’s office informed the first applicant that the inquiry carried out by the unit prosecutor’s office had been fruitless and advised that he request further information related to the search for his wife from the district prosecutor’s office. 38. On 11 August 2003 the ROVD informed the first applicant that they were taking measures to solve Khava Magomadova’s kidnapping. 39. On 15 August 2003 the Ministry of the Interior of the Chechen Republic informed the first applicant of measures taken to solve his wife’s kidnapping and noted that the investigation was under way. On 18 September 2003 the prosecutor’s office of the Chechen Republic sent a similar letter to the first applicant. 40. On 6 October 2003 the unit prosecutor’s office informed the first applicant that an inquiry into his wife’s disappearance had not established any involvement by military personnel. 41. On 10 October 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that Khava Magomadova’s whereabouts had not been established and that the district prosecutor’s office had been instructed to search for her more vigorously. On the same date the ROVD informed the first applicant that they were taking requisite measures to establish his wife’s whereabouts. 42. On 13 November 2003 the district prosecutor’s office informed the Chair of the State Council of the Chechen Republic that they had quashed the decision of 9 July 2003 and resumed the investigation in case no. 52007. 43. On 26 November 2003 the Russian Ministry of the Interior informed the first applicant that various law enforcement agencies were actively searching for his wife. 44. In reply to one of the first applicant’s recurrent complaints the UGA prosecutor’s office informed him on 2 December 2003 that they had no new information concerning Khava Magomadova’s kidnapping. 45. On 15 December 2003 the district prosecutor’s office informed the first applicant that they had quashed the decision of 9 June 2003 and resumed the investigation on 12 November 2003. 46. On 16 December 2003 and 23 January and 21 April 2004 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaints to the district prosecutor’s office. 47. On 14 January 2004 the investigation in case no. 52007 was suspended for failure to identify those responsible. 48. On 15 April 2004 the Shelkovskoy District Court of the Chechen Republic declared Khava Magomadova missing as from 16 December 2002. 49. On 26 May 2004 the Chechen FSB informed the first applicant that they had no information on Khava Magomadova’s whereabouts. 50. On 9 August 2004 the UGA prosecutor’s office forwarded the first applicant’s complaint to the unit prosecutor’s office. 51. On 24 August 2004 the district prosecutor’s office replied to the first applicant’s complaint that they had already carried out a thorough inquiry into the matters complained of. They also noted that, although the investigation had been suspended on 14 January 2004, measures were being taken to solve the crime. 52. On 7 October 2004 the first applicant requested the Russian Prosecutor General, the Chair of the National Public Commission and the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit to help him to find his wife. 53. On 20 December 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that investigative measures were being taken to establish Khava Magomadova’s whereabouts. 54. On 24 December 2004 the military commander of the Chechen Republic ordered that the military commander’s office of the Shelkovskoy District carry out an inquiry into Khava Magomadova’s disappearance. 55. On 25 February and 22 March 2005 the SRJI, acting on the first applicant’s behalf, requested information from the district prosecutor’s office on progress in the investigation in case no. 52007. 56. On 6 April 2005 the prosecutor’s office of military unit no. 20102 requested information on special operations carried out on 16 December 2002 from a number of State officials. 57. On 9 April 2005 the military commander of the Shelkovskiy District ordered the ROVD to take measures to establish Khava Magomadova’s whereabouts. 58. On 12 April 2005 the prosecutor’s office of military unit no. 20102 informed the first applicant that law enforcement agencies had not carried out any special operations in the Shelkovskiy District on 16 December 2002 and had not arrested Khava Magomadova. 59. On 2 June 2005 the ROVD informed the first applicant that measures were being taken to solve his wife’s kidnapping. 60. On 21 October 2005 the prosecutor’s office of the Chechen Republic replied to the SRJI’s letter of 4 October 2005 stating that the investigation of Khava Magomadova’s kidnapping was underway and that the first applicant had been granted victim status. 61. On 16 December 2002 the first applicant reported his wife’s disappearance to the department of the interior of the Shelkovskiy District (“ROVD”). 62. On the same day an investigator of the ROVD inspected the Magomadovs’ house and the surrounding area but found no items of interest. 63. On 25 December 2002 the investigator of the ROVD refused to institute criminal proceedings related to Khava Magomadova’s disappearance for lack of evidence of a crime. 64. On 12 February 2003 the district prosecutor’s office quashed the decision of 25 December 2002 and instituted an investigation into Khava Magomadova’s kidnapping under Article 126 § 1 of the Russian Criminal Code. The case file was assigned the number 52007. 65. On 19 February 2003 the first applicant was granted victim status and questioned. He stated that at about 7.40 a.m. on 16 December 2002 his wife had left for work. She had some work-related documents with her. At 9.30 a.m. Ms B. had come to his house searching for Khava Magomadova who had not arrived at work, although it took her only five minutes to walk there. The first applicant and Ms B. had gone to the railway station but his wife had not been there. The first applicant had reported Khava Magomadova’s disappearance to the police station. Later his neighbours had told him that they had seen a white Gazel vehicle with a twisted front number plate at the spot where Khava Magomadova had been last seen. Two men of dark complexion had been sitting inside the Gazel. Villagers had also seen a light-blue UAZ vehicle with a big aerial on its top parked near the railway station that had driven away with the Gazel and two other UAZ vehicles. The first applicant himself had not seen any of those vehicles. 66. On 19 February 2003 the district prosecutor’s office questioned two neighbours of the applicants, Ms L. and Ms G. They both stated that at about 7.30 a.m. on 16 December 2002 they had noticed a white Gazel vehicle parked near Ms L.’s house with two men inside it; Ms L. added that at some point she had heard the Gazel leaving. 67. On 5 March 2003 the district prosecutor’s office questioned Mr M. as a witness who stated that at 7.40 a.m. on 16 December 2002 he had seen Khava Magomadova turning into Zavodskaya Street. A few moments later he had turned into that street as well but had not seen the woman. A grey UAZ vehicle with a red cross on its back door had been parked near the railway station; its windows had been dirty so Mr M. had not seen who was inside it. The UAZ vehicle had driven off towards the centre of Chervlennaya village. 68. On 5 March 2003 Mr D. was questioned as a witness and submitted that at 7.35 a.m. he had spotted Khava Magomadova walking about 100 metres ahead of him. A new white Gazel vehicle had been parked some 50 metres from the applicants’ house; two men had been sitting in it, one of whom was wearing a military-style pea coat. At some point the Gazel had started moving and had turned right in the direction in which Khava Magomadova had gone. Mr D. had turned right as well but saw no-one on the street. The Gazel which had been stationary 2.5 metres from him had started moving. 69. In 2003 the district prosecutor’s office questioned Ms B., Ms G., Ms D., Ms M., Mr T. and Mr A., the applicants’ fellow villagers. They stated that Khava Magomadova had not been in conflict with anyone and that they had learned of her disappearance on 16 December 2002. 70. On 23 June and 29 November 2003 the first applicant was again questioned. He stated that he had learned from neighbours that the Gazel and UAZ vehicles had arrived from the town of Goryachevodsk. Some of his fellow villagers had told him that Khava Magomadova had been taken away by law-enforcement officers who had produced their badges, but those persons were unwilling to make official depositions out of fear for their lives and the first applicant could not name them. 71. On several occasions the investigators requested the Chechen FSB, military commanders of different districts of the Chechen Republic and district departments of the interior to carry out investigative measures related to Khava Magomadova’s disappearance and to submit information on whether any special operations had taken place in the village of Chervlennaya on 16 December 2002. According to the replies received, no such operations had been conducted and there was no information on Khava Magomadova’s arrest. 72. The investigators sent a request to a commander of the special unit of the Ministry of the Interior of Chuvashiya who, while on mission in the Chechen Republic, had been duty at the checkpoint over the Terek River on 16 December 2002. 73. On an unspecified date in March 2003 the commander of the special unit of the Ministry of the Interior of Chuvashiya informed the district prosecutor’s office that no Gazel vehicle had appeared in the registration log for vehicles passing checkpoint KPP-162 over the Terek River. 74. Police officers of the special unit of the Ministry of the Interior of Chuvashiya who had been on duty at checkpoint KPP-162 on 16 December 2002 were questioned as witnesses and stated that they had no information on Khava Magomadova’s disappearance or Gazel and UAZ vehicles. 75. The investigation into Khava Magomadova’s kidnapping remains pending. 76. Despite specific requests by the Court the Government refused to disclose the entire investigation file in case no. 52007. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. The Government provided copies of the following documents: the decision to open the investigation of 12 February 2003, the decision of 19 February 2003 to grant the first applicant victim status, transcripts of the first applicant’s interviews of 19 February, 23 June and 19 November 2003, transcripts of interviews of Ms L., Ms G., Mr M., Mr D., Ms B., Ms M. and Ms S.B., and the report of March 2003 by the commander of the special unit of the Ministry of the Interior of Chuvashiya. They requested the Court to treat the documents submitted as confidential pursuant to Rule 33 of the Rules of Court. 77. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 67-69, 10 May 2007. | 1 |
train | 001-80408 | ENG | UKR | CHAMBER | 2,007 | CASE OF KOVAL AND PATSYORA v. UKRAINE | 4 | Violation of Art. 6-1 | Peer Lorenzen;Zoryana Bortnovska | 5. Mrs Olga Mykolayivna Koval (the first applicant) was born in 1964. Mrs Alla Oleksandrivna Patsyora (the second applicant) was born in 1952. Both applicants are former teachers at a local school and live in the town of Rozdilna, the Odessa Region. 6. On 7 October 1999 the Rozdilna Court (Роздільнянський районний суд Одеської області) awarded the first and the second applicants, respectively, UAH 1,248 and UAH 2,485.28 against the Department for Education of the Rozdilna Municipal Council (hereafter “the Department”) for arrears in some payments additional to their salaries (see, in this respect, Kechko v. Ukraine, no. 63134/00, §§ 9-11, 8 November 2005). 7. On 18 October 1999 the court issued writs of execution, which were submitted to the Rozdilna District Bailiffs' Service (hereafter “the Bailiffs”). 8. In letters of 22 February 2001, the Bailiffs informed the applicants that the judgments in their favour had not been executed because the 1999 State Budget did not preview the expenditure for teachers' social benefits. In the 2000 State Budget teaching programmes were funded only 2.8% of actual needs. The 2001 State Budget likewise did not provide funds for this purpose. The State Administration further stated that such payments could only be made after the adoption of relevant legislation by Parliament. 9. On 2 April 2001 the Odessa Regional Department of Justice notified the first applicant that the judgment of 7 October 1999 could not be immediately enforced due to the Department's lack of property that could be attached. 10. On 30 July 2001 the Velykomykhaylivsky Court rejected the applicants' complaints against the alleged Bailiffs' inactivity. 11. On 14 May 2002 the Odessa Regional Court of Appeal, following the second applicant's appeal, upheld this decision. The applicant was present at this hearing. She did not appeal in cassation. 12. On 24 May 2002 the Velykomykhaylivsky Court left without consideration the first applicant's appeal against the decision of 30 July 2001 for failure to comply with the formalities as to its content and to pay the court fee and allowed her time until 26 June 2002 to rectify the mistakes. On 3 July 2002 the court returned the appeal without consideration for failure to rectify it. 13. On 29 December 2001 the first applicant was paid UAH 160. 14. On 14 August 2003 the Bailiffs returned the execution writs of 18 October 1999 to the applicants, stating that the judgments could not be enforced as the State Budget provided no funds for such payments. 15. The judgments of 7 October 1999 remain unenforced until present. 16. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and Kechko v. Ukraine (cited above, §§ 16-18). | 1 |
train | 001-57640 | ENG | GBR | CHAMBER | 1,990 | CASE OF McCALLUM v. THE UNITED KINGDOM | 2 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | null | 8. On 11 March 1980 Mr Michael Peter McCallum, who had previously been dealt with by the courts and served sentences of imprisonment on a number of occasions, was convicted by the High Court of Justiciary at Glasgow of assault and robbery. He was sentenced to six years’ imprisonment, to run from 26 November 1979. Following his conviction, he was initially allocated to Peterhead Prison. In July 1982 he was transferred to Barlinnie Prison, because of the serious disruptive effect which he was having on other prisoners. Whilst in custody he lost 509 days’ remission of sentence for a series of offences against prison discipline. He was released from prison on 18 April 1985. 9. During the course of his sentence, Mr McCallum spent two periods in the Segregation Unit at Inverness Prison (see paragraphs 13-20 below), the first from 22 November 1980 to 27 January 1981 and the second from 30 June to 15 October 1981. The second period exceeded the usual three months’ maximum in view of his particularly uncooperative attitude whilst he was there. Both transfers to the Unit followed periods of bad behaviour on the part of the applicant, involving notably assaults on and abuse of staff. In each case it was considered that the transfer could benefit both him and the general situation in Peterhead Prison. 10. During 1981 and 1982, the prison authorities imposed the following particular restrictions on the applicant’s correspondence. (a) Two letters from the applicant, one to his solicitor and one to a Member of Parliament and each dated 24 June 1981, were stopped in accordance with Standing Order Ic 1(3)(d) and Standing Order Ic 3(6)(a), respectively (prohibitions on complaints about prison treatment; see paragraph 22 (a) and (b) below). (b) A letter of 5 October 1981 from the applicant to the editor of the Daily Record, asking for a copy of an article in that newspaper concerning the applicant ("Cage Man Euro Court Plea") and enquiring if two previous letters had been received, was stopped. The prison authorities considered that the letter did not conform to Standing Orders, but there is no record of the grounds for this view. (c) A letter dated 18 December 1981 from the applicant to the Procurator Fiscal was stopped because it contained allegations of assault on other prisoners, who had not themselves complained through any internal or external channel. The letter was regarded as objectionable in terms of Standing Order Ic 1(3)(d); the authorities also considered that to allow letters complaining on behalf of other prisoners would be contrary to good order and discipline. Mr McCallum was allowed to write another letter containing allegations of assault concerning himself alone. (d) A letter dated 19 January 1982 from the applicant to Miss Hampson of Dundee University was stopped on the grounds that she was not a previous correspondent of his, nor a legal adviser for the purposes of his petition to the Commission (Standing Orders Ic 4(12) and Ic 3(10)(g)(i); see paragraph 22 (d) and (c) below). (e) Letters dated 20 and 23 February 1982 from the applicant to his representative Mr Godwin were delayed and eventually posted on 18 March 1982. The Government had agreed that Mr McCallum could, pursuant to Standing Order Ic 3(10)(g)(i), correspond with Mr Godwin in relation to his application to the Commission, on the understanding that Mr Godwin would abide by the Commission’s rules of confidentiality. Some particulars of the applicant’s complaints had appeared in the press and the Scottish Home and Health Department was unwilling to allow further letters without an assurance from Mr Godwin that he would comply with the rules in the future. After the Department had received such an assurance, the letters in question were posted. (f) Copies of letters written by Mr Godwin to the Prison Service Headquarters on 4 June 1982 and to the Secretary of State on 22 June 1982 were withheld from the applicant under Standing Order Ic 4(12)(b) (see paragraph 22 (d) below). The letters suggested that there had been a breakdown of discipline on the part of the staff at Peterhead Prison and predicted disturbances among prisoners; the second letter also implied that staff might have been responsible for causing a fire in the applicant’s cell. The prison Governor considered the letters objectionable on the grounds of good order and discipline, fearing in particular that prisoners might be encouraged to make the disturbances predicted if the letters came into their hands. 11. On 22 December 1982 the Visiting Committee of Barlinnie Prison imposed on the applicant a disciplinary award which included an absolute prohibition for 28 days on all correspondence, pursuant to Rule 74(2) of the Prison (Scotland) Rules 1952 (see paragraph 21 below). On 11 January 1983 the Secretary of State for Scotland, to whose attention the terms of this prohibition had been drawn, ruled that it was not to affect Mr McCallum’s correspondence relating to his application to the Commission or his correspondence with his Member of Parliament, the Procurator Fiscal or his legal adviser. 12. At the relevant time the prison system in Scotland was governed by the Prisons (Scotland) Act 1952 ("the 1952 Act"), sections 1 and 3 of which vested general control and superintendance over prisons in Scotland in the Secretary of State for Scotland. He was empowered, by section 9, to commit prisoners to such prison as might be appointed by rules made under the Act and to transfer prisoners from one prison to another and, by section 35(1), to "make [by statutory instrument] rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein". In exercise of his powers under section 35(1), the Secretary of State made the Prison (Scotland) Rules 1952 ("the Prison Rules"), which have been amended from time to time. He also, in supplement of the Prison Rules and by virtue of his general jurisdiction over prisons and of various powers conferred by the Prison Rules themselves, issues instructions to the Governors of prisons in the form of Standing Orders and administrative circulars. The 1952 Act and the Prison Rules apply to the Segregation Unit at Inverness Prison, as do most of the Standing Orders and administrative circulars. There are also administrative instructions particular to the Unit. 13. Rule 6 of the Prison Rules empowers the Secretary of State to "set aside particular prisons or parts of prisons for particular classes of prisoners or for particular purposes". The Segregation Unit at Inverness Prison was set up in 1966 to provide a secure place of segregation for those prisoners who, through their violent or subversive behaviour, seriously disrupt the establishments in which they are accommodated, who had not responded to the forms of treatment available there and who flagrantly refuse to cooperate in the normal prison routine. The Unit also offers a special level of protection for staff. Transfer to the Unit, which is not employed as a punishment, is intended to remove a threat to the good order and discipline of the transferring prison, to provide relief for staff there and to achieve an improvement in the prisoner’s attitude. 14. The Unit is used sparingly, prisoners being transferred there only when the facilities available elsewhere are considered ineffective. It is not used to capacity and has lain empty on a number of occasions. It was closed in 1972 but re-opened in 1979. Authority to transfer prisoners to the Unit is given personally by the Secretary of State for Scotland or another Scottish Office Minister, upon the recommendation of both the Governor of the transferring prison and the prison administration division of the Scottish Office and after consultation of the Standing Committee on Difficult Prisoners. Except in case of crisis or emergency, transfers are normally effected only after thorough consideration of the particular circumstances. No prisoner will be detained in the Unit longer than is considered necessary. No minimum period is prescribed; the maximum will not exceed three months, save in exceptional circumstances. 15. The progress of each prisoner detained in the Unit is constantly monitored by its staff, who report weekly to the prison administration division of the Scottish Office. Each case is also examined monthly by the Inverness Unit Review Board, which may make recommendations to the Secretary of State for the individual’s transfer out of the Unit. 16. The Unit comprises five single cells of 14 square metres in total area, to which prisoners are confined except for exercise periods, toileting, visits and authorised interviews. They are not permitted to associate with other prisoners. The area in which the prisoner is confined, measuring 3 metres by 2½ metres, is separated from the cell’s entrance lobby by a security grille, designed to protect staff. The area in question is larger than the minimum recommended for a single cell in a security prison. The lighting, heating and ventilation of cells in the Unit are comparable or superior to those in separate cell areas in other prisons and to those in many ordinary cells in other prisons. 17. Letters and visits are allowed on the basis normal in prisons in accordance with the Prison Rules and Standing Orders. Unit visits normally take place at weekends and can be extended up to two hours. 18. Library books and newspapers are provided on the normal prison basis, prisoners being free to purchase additional materials out of their own funds. Piped radio facilities are provided in each cell and notebooks are made available in accordance with Standing Orders. Prisoners already taking correspondence courses are encouraged to continue. 19. Meals are taken and paid work, when available, is carried out by Unit inmates in their cells. Exercise is provided for them for two half-hour periods daily, but not in association with other prisoners. 20. In addition to visits from friends and relatives, prisoners in the Unit are visited by the Governor and the Chief Officer of Inverness Prison daily, by the Prison chaplain and a psychiatrist weekly and by the Prison Medical Officer on request. 21. Rule 74 of the Prison Rules provides, inter alia: "(2) Every prisoner shall be allowed to write and to receive a letter on his admission, and shall thereafter be allowed to write and receive letters and to receive visits at intervals laid down by the Secretary of State. The intervals so prescribed may be extended as a punishment for misconduct, but shall not be extended so as to preclude a prisoner from writing and receiving a letter, and receiving a visit, every eight weeks. ... (4) Subject to the provisions of Rule 50(4) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable." 22. At the relevant time, these provisions were supplemented by various Standing Orders, of which the following were pertinent in the present case. (a) Standing Order Ic 1(3) dealt with the exercise of the Governor’s discretion under Rule 74(4) to stop "objectionable" letters. It stated: "All ordinary matter, including news of public events, should be passed. Comment by a prisoner on his own conviction and sentence is not objectionable if expressed in proper terms. Objectionable matter falls within narrow limits, viz.- ... (d) Complaints of prison treatment. These should be addressed to the Secretary of State or the Visiting Committee by petition. ... ..." (b) Standing Order Ic 3(6)(a) dealt with the conditions governing the contents of letters to Members of Parliament. It provided that such letters should be sent, after being read, "except where they include a complaint or request concerning prison treatment, including allegations against prison staff, which has not completed the prescribed procedure for remedying the grievance i.e. by petition to the Secretary of State or other appropriate official means". (c) Standing Order Ic 3(10) related to petitions by inmates to the Commission and included the following passage: "(g) If the question of legal advice arises it will be dealt with as under: (i) a prisoner may correspond with his legal adviser and with other persons in connection with the preparation of the petition to the Commission on the same basis as if he were an appellant. ..." (d) Standing Order Ic 4(12) provided, with certain savings, that prisoners would be allowed to correspond with "close relations" and normally also with "other relatives and existing friends". The Order also contained the following passages: "(b) ... Governors have discretion to forbid [letters in the second category] ... on the grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. (c) Governors have discretion to allow communication with other persons not personally known to the prisoner before he came into custody. ..." 23. In addition to a complaint to the Governor of the prison, a prisoner in Scotland who is aggrieved by his treatment has available to him various remedies. They fall into the following three categories: (a) internal channels of complaint, namely: (i) a petition to the Secretary of State for Scotland; (ii) a complaint to the Visiting Committee; (iii) a complaint to a Sheriff or Justice of the Peace; (iv) representations to the Inverness Unit Review Board; (v) representations to the Standing Committee on Difficult Prisoners; (b) an investigation by the Parliamentary Commissioner for Administration; (c) judicial remedies. Particulars concerning the remedies listed at (a) (i) and (ii) and (b) appear in the Court’s Boyle and Rice judgment of 27 April 1988, Series A no. 131, at pp. 17-19, paras. 36-39. An indication of those referred to at (a) (iii)-(v) is given at paragraph 26 of the Commission’s report in the present case. Judicial remedies are of the following two kinds. 24. A prisoner aggrieved by prison conditions may challenge them by the ordinary remedies of private law as an infringement of his civil rights. It was emphasised by the House of Lords in Raymond v. Honey ([1983] Appeal Cases 1 and [1982] 1 All England Law Reports 759) that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication". Thus, the general principle of Scots law that a person has a right not to be subjected, deliberately or negligently, to physical or mental harm remains applicable to a prisoner. For example, he can bring an action against the Secretary of State seeking declarator and damages in respect of an alleged assault by prison staff or in respect of harm to his physical or mental health allegedly suffered as a result of unduly rigorous or inhumane conditions (see, inter alia, Middleweek v. Chief Constable of Merseyside (1985), The Times Law Reports, 1 August 1985). The Government cited a number of authorities in support of the proposition that treatment of prisoners which is so inhuman or degrading that it cannot be regarded as having been authorised by Parliament will be unlawful and actionable as a civil wrong. In the context of correspondence, they stated that a restriction that infringed a right retained by a prisoner, such as his right of access to a legal adviser relating to possible civil proceedings, would be considered to be unlawful (R. v. Home Secretary, ex parte Anderson [1984] Queen’s Bench Division Reports 778). 25. The exercise by public authorities of statutory powers and duties is subject to judicial review. The grounds on which such review may be open are in substance the same in Scotland as in England and Wales (see Brown v. Hamilton District Council, 1983 Scottish Law Times 397, per Lord Fraser at 414). In particular, an exercise of discretionary power may be challenged on the grounds that the authority concerned has acted arbitrarily, in bad faith, unreasonably, for an improper purpose or otherwise outside its statutory powers (see, for example, the speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases 374 at 410 and [1984] 3 All England Law Reports 935 at 950-951, as quoted in the Weeks judgment of 2 March 1987, Series A no. 114, p. 18, para. 30). In Scotland, the supervisory jurisdiction over public authorities is exercised by the Court of Session, which can grant a wide range of remedies, including the annulment of any unlawful decision and the award of damages in appropriate conditions. A prisoner aggrieved by prison conditions can in principle bring an application to the supervisory jurisdiction to establish that the Secretary of State had failed to perform the duties incumbent on him or that his decision to institute or maintain those conditions was unreasonable. Thus in R. v. Home Secretary, ex parte McAvoy [1984] 1 Weekly Law Reports 1408 and Thomson v. Secretary of State for Scotland 1989 Scottish Law Times 343 applications for judicial review were brought by prisoners aggrieved by conditions in prisons to which they had been transferred. Likewise, a prisoner may challenge a restriction upon his correspondence as ultra vires in that it infringed his civil rights or as unreasonable, and such a challenge can be brought whether the restriction has been imposed by the Secretary of State (R. v. Home Secretary, ex parte Anderson, cited above), the prisoner Governor (Leech v. Deputy Governor of Parkhurst Prison [1988] Appeal Cases 533) or a Visiting Committee in the exercise of disciplinary powers (R. v. Board of Visitors of Hull Prison, ex parte St. Germain [1979] Queen’s Bench Division Reports 425). | 1 |
train | 001-76098 | ENG | AUT | CHAMBER | 2,006 | CASE OF ÖLLINGER v. AUSTRIA | 1 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens | 7. The applicant was born in 1951 and lives in Vienna. 8. On 30 October 1998 the applicant, who is a member of parliament for the Green Party, notified the Salzburg Federal Police Authority (Bundespolizeidirektion) under section 2 of the Assembly Act (Versammlungsgesetz) that on All Saints’ Day, 1 November 1998, from 9 a.m. until 1 p.m., he would be holding a meeting at the Salzburg municipal cemetery in front of the war memorial. He noted that the meeting would coincide with the gathering of Comradeship IV (Kameradschaft IV), which he considered to be unlawful. 9. The purpose of the meeting was to be to commemorate the Salzburg Jews killed by the SS during the Second World War. The applicant expected about six participants, who would carry commemorative messages in their hands and attached to their clothes. The applicant stated that no other means of expression (such as chanting or banners) which might offend piety or undermine public order would be used. 10. On 31 October 1998 the Salzburg Federal Police Authority, relying on section 6 of the Assembly Act and on Article 11 of the Convention, prohibited the meeting on the ground that it would endanger public order and security. 11. The authority noted that F.E., also a member of parliament for the Green Party, had informed the Salzburg Federal Police Authority of the allegedly illegal assembly of Comradeship IV in memory of the SS soldiers killed in the Second World War which was to be held at the same time and place, but had refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt that gathering. 12. The Salzburg Federal Police Authority noted that Comradeship IV was a registered association. Like a number of other organisations, it traditionally held a commemoration ceremony at the Salzburg municipal cemetery on All Saints’ Day. Such commemorations qualified as popular ceremonies within the meaning of section 5 of the Assembly Act and thus did not require authorisation. The disruption of this and other commemoration ceremonies was likely to offend the religious feelings of members of the public visiting the cemetery and would indisputably be regarded as disrespectful towards the dead soldiers of both world wars and thus as an unbearable provocation. Accordingly, there was a risk of protests by visitors to the cemetery which could degenerate into open conflict between them and those participating in the assembly. 13. The Salzburg Federal Police Authority ordered that any remedies used against its decision should not have suspensive effect. Accordingly, the demonstration could not take place. 14. On 17 August 1999 the Salzburg Public Security Authority (Sicherheitsdirektion) dismissed an appeal by the applicant. 15. It noted that Comradeship IV was a registered association whose members were mainly former members of the SS. For more than forty years they had commemorated SS soldiers killed in the Second World War by gathering on All Saints’ Day and laying a wreath in front of the war memorial at the Salzburg municipal cemetery. In the past few years, a number of organisations had organised protest campaigns with the aim of disrupting the Comradeship IV commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors to the cemetery and had required intervention by the police. 16. The Public Security Authority, referring to the submissions of F.E., found that the assembly planned by the applicant was also aimed at a confrontation with Comradeship IV and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the Comradeship IV commemoration ceremony. 17. On 13 December 2000 the Constitutional Court (Verfassungsgerichtshof) dismissed a complaint by the applicant alleging violations of his rights to freedom of assembly, freedom of expression, freedom of religion and non-discrimination. 18. The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to weigh the applicant’s interest in holding the meeting against the public interests enumerated in Article 11 § 2 of the Convention. It went on to say that the prohibition of the proposed meeting would not be justified if its sole purpose were to protect the Comradeship IV commemoration ceremony and expressed doubts as to the authorities’ assessment that the latter meeting was a popular ceremony within the meaning of section 5 of the Assembly Act and therefore did not require authorisation. Nevertheless, the prohibition of the meeting proposed by the applicant was justified for other reasons. 19. The authorities had also had regard to the fact that the gathering of Comradeship IV had in previous years been the target of activities aimed at disrupting it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention. The authorities had therefore correctly assumed that the prohibition of the assembly planned by the applicant was necessary to protect the general public against potential disturbances. 20. The Constitutional Court added further considerations in support of that conclusion. It observed that All Saints’ Day was an important religious holiday on which the population traditionally visited cemeteries in order to commemorate the dead. As a religious tradition, the commemoration of the dead was protected by Article 9 of the Convention, which contained a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others. Thus, the prohibition of the assembly in issue was necessary under Article 11 § 2 of the Convention for the protection of the rights and freedoms of others. It followed that it did not violate any other Convention right relied on by the applicant. 21. That decision was served on the applicant’s counsel on 5 February 2001. 22. The Assembly Act 1953 (Versammlungsgesetz) regulates the exercise of the right to freedom of assembly. Section 2(1) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing at least twenty-four hours in advance, indicating the purpose, place and time of the meeting. 23. Pursuant to section 5, certain gatherings such as public entertainment, popular ceremonies or religious processions do not fall within the scope of the Assembly Act. 24. Pursuant to section 6, the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security. | 1 |
train | 001-24038 | ENG | RUS | ADMISSIBILITY | 2,004 | GRISHCHENKO v. RUSSIA | 3 | Inadmissible | Christos Rozakis | The applicant, Ms Lyudmila Leonidovna Grishchenko, is a Russian national, who was born in 1959 and lives in Cherkessk in the Karachayevo-Cherkessia Republic. She is represented before the Court by Mr R. Sarkitov, a lawyer practising in Cherkessk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 June 1992 the applicant obtained a special-purpose settlement order (целевой расчетный чек). By its terms the Government undertook to give her a Russian-made VAZ passenger car within four months. As no cars were available, the applicant was placed on the waiting list under no. 177. She renewed her request on several occasions, but it could not be granted for want of cars. On 5 May 1998 the Convention entered into force in respect of Russia. In January 1999 the applicant was offered a Moskvich car or compensation of RUR 60,500. She turned the offer down because a Moskvich was cheaper than a VAZ and the compensation was inadequate. On 8 February 2000 the applicant brought a civil action against the Russian Government. She sought to be granted a VAZ car or to recover the market value thereof. On 26 February 2001 the Cherkesskiy District Court (Черкесский районный суд КЧР) allowed the applicant’s claim and awarded her RUR 77,206 (EUR 2,700) for the value of the car and RUR 3,000 (EUR 115) in court fees. Unhappy about the amount of the award, the applicant appealed against the judgment. She submitted, in particular, that the court assessed the value of the car on the basis of the amount agreed between the car manufacturer and the federal government, whereas the car price at her local dealership was at least RUR 20,000 higher. On 3 April 2001 the Supreme Court of the Karachayevo-Cherkessia Republic upheld the judgment of 26 February 2001. On 24 April 2001 the applicant obtained a writ of execution and forwarded it to the Ministry of Finance of the Russian Federation. According to the Government, on an unspecified date the writ was returned to the applicant as the debtor’s name was indicated incorrectly. On 27 February 2002 the applicant resubmitted the writ, together with copies of the necessary documents. On 28 March 2002 its receipt was acknowledged. On 23 May 2002 the Russian Treasury enforced the judgment and credited RUR 80,206 to the applicant’s bank account. The Federal Law “On State commodity bonds” (no. 86-FZ of 1 June 1995, ФЗ «О государственных долговых товарных обязательствах») provided that the State commodity bonds, including special-purpose settlement orders, were to be recognised as the State internal debt (section 1). They were to be enforced in accordance with the general principles of the Russian Civil Code (section 2). The relevant parts of section 3 read as follows: “The Government of the Russian Federation shall draft the State Programme for the redemption of the State internal debt... The Programme shall provide for the terms of redemption of State commodity bonds that would be convenient for citizens, including, of their choice: provision of goods indicated in... special-purpose bonds for the purchase of passenger cars...; redemption of State commodity bonds at consumer prices prevailing at the moment of the redemption...” On 2 June 2000, section 3 of the law was amended to read, in the relevant parts, as follows: “To establish that the repayment of the State internal debt of the Russian Federation under State commodity bonds... is carried out in 2001-2004 in accordance with the State Programme... To set, in the above-mentioned Programme, the following sequence and terms of redemption of State commodity bonds, depending on the type of the bond: ...in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1991 and 1992 – payment of monetary compensation equal to the value of the car described in the order, as determined in co-ordination with car manufacturers at the moment of redemption. The redemption period runs from 1 January 2001 to 31 December 2002.” According to the Protocol on co-ordination of market sale prices for VAZ cars signed by the Deputy Ministers of Industry, Finance and Economic Development and the executive director of the AvtoVAZ car plant, the price of a VAZ-2107 car was 77,206 Russian roubles during the period between 1 January and 31 March 2001. On 27 December 2000 the Government approved, by Resolution no. 1006, the State Programme for the redemption of the State internal debt of the Russian Federation arising from State commodity bonds in the period of 2001-2004. Paragraph 2 of the Programme set out that the State commodity bonds were to be redeemed by way of payment of pecuniary compensation. | 0 |
train | 001-72211 | ENG | UKR | CHAMBER | 2,006 | CASE OF YURTAYEV v. UKRAINE | 4 | Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award | null | 4. The applicant was born in 1961 and is currently serving a prison sentence at Penitentiary No. 8 in Makeyevka, the Donetsk region. 5. On 27 February 1998 the applicant, along with eight others, was arrested on suspicion of hooliganism and extortion. 6. On 2 March 1998 the applicant was charged with the above crimes and detained on remand. 7. By June 1998 the pre-trial investigation was completed and the applicant was given access to the case file. On 26 June 1998 he finished studying it. 8. On 17 July 1998 the investigator drafted the bill of indictment. On 3 August 1998, it was approved by the district prosecutor and referred to the Tsentralno-Gorodskoy District Court of Gorlovka (hereafter “the District Court”) for examination on the merits. The prosecution’s case was that the applicant and eight other suspects were members of a gang, involved in several counts of extortion and hooliganism (Articles 144 and 206 of the 1960 Criminal Code, respectively). 9. Between 2 September 1998 and 6 October 1998 the District Court held eight hearings. On the latter date it ordered an additional forensic assessment of the severity of the bodily harm suffered by K. (one of four victims). 10. On 3 December 1998 the trial judge resumed the hearing and, until 16 December 1998, conducted three more sittings. 11. On 30 December 1998 the applicant was acquitted of extortion but sentenced to two years’ imprisonment for inflicting bodily harm (Article 102 of the Code). The prosecution appealed, challenging the court’s reclassification of the imputed offences which led to the excessive mildness of the sentence. On 23 February 1999 the Donetsk Regional Court upheld the conviction. 12. On 24 February 1999 the Presidium of the Donetsk Regional Court, following the protest (an extraordinary appeal) of the Deputy President of the Donetsk Regional Court (hereafter “the Regional Court”), quashed these decisions and remitted the case for a fresh investigation. 13. By April 1999 the additional investigation was finalised and the applicant was given access to the case file. On 26 May 1999 the investigator filed a bill of indictment against the applicant and his co-accused, charging them with extortion. 14. On 22 June 1999 the new trial commenced before the District Court, sitting with another judge, and on 22 July 1999, following ten hearings, the District Court convicted the applicant and his co-defendants of inflicting bodily harm and unlawfully depriving another of liberty (Article 123 of the Code). The court further amnestied and released six of the convicts; however, the applicant and two others were left in custody. The prosecution challenged this decision relying on the same grounds as in its previous appeal (paragraph 11 above). 15. On 19 October 1999 the Regional Court returned the case file to the District Court on account of its failure to provide the defendants with an opportunity to study the court records, as required by the Code of Criminal Procedure. 16. On 22 November 1999 the District Court, having complied with that requirement, resubmitted the case to the Regional Court. On 30 November 1999 the latter quashed the decision of 22 June 1999 and remitted the case to the Kuybyshevsky District Court of Gorlovka (hereafter “the Kuybyshevsky Court”). 17. On 4 January 2000 the Kuybyshevsky Court recommenced the trial and scheduled the first hearing for 11 January 2000. However, this sitting did not take place due to the absence of the defendants who had been released in June 1999. The judge adjourned the trial pending the establishment of their whereabouts. 18. On 20 March 2000 the proceedings concerning the defaulting defendants were disjoined from the applicant’s case. The court fixed the next hearing for 3 April 2000, which subsequently was adjourned until 17 April 2000 due to the victim’s failure to appear. 19. Between 17 April 2000 and 15 June 2000, the Kuybyshevsky Court held twelve hearings. On 22 June 2000, at an in camera hearing, the court sentenced the applicant to nine years’ imprisonment following his conviction for extortion. The period of detention on remand was included in the sentence. In his appeal the applicant’s lawyer challenged the court’s assessment of facts and law; however, he did not raise the issue of the non-public examination of the case. 20. On 20 April 2001 the Regional Court ruled that the first instance court had failed to comply with certain procedural requirements regarding the defendants’ right to be duly notified about the conduct of the appeal proceedings. The court therefore decided to return the case file to the Kuybyshevsky Court for this purpose. 21. On an unspecified date, the case was referred anew to the Regional Court. 22. On 1 June 2001 the Regional Court upheld the decision of 22 June 2000 in substance but mitigated the prison regime applicable to the applicant. | 1 |
train | 001-118332 | ENG | POL | CHAMBER | 2,013 | CASE OF KURKOWSKI v. POLAND | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial;Trial within a reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1960 and lives in Gdańsk. 6. The applicant was a member of the management board of the Mostostal Gdańsk joint-stock company (“the company”), manufacturing ships and other industrial steel constructions. 7. On 28 November 2002 the Gdańsk District Prosecutor (Prokuratur Rejonowy) opened a criminal investigation into allegations that the company’s management board had intentionally acted to the detriment of the enterprise (celowe działanie na szkodę spółki). 8. On 4 December 2004 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody on reasonable suspicion that he had committed a series of offences related to the running of the company. The court also considered that keeping the applicant in detention was justified by the severity of the penalty which could be imposed if he were convicted and the risk that he might attempt to obstruct the proceedings, especially since the applicant’s and his co-accused’s testimonies had been contradictory. That decision was upheld by the Gdańsk Regional Court (Sąd Okręgowy) on 10 January 2005. 9. The applicant’s detention was subsequently extended by decisions of the Gdańsk District Court of 2 March, 1 June and 26 August 2005, which were upheld by the Gdańsk Regional Court on 30 March, 27 June and 19 September 2005 respectively. In their decisions, the domestic courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences, the complexity of the case which involved many individuals and the risk that the applicant would obstruct the proceedings, for example, by inducing witnesses to give false testimony. The domestic courts considered the latter argument particularly relevant in light of the fact that the penalty which the applicant faced was severe. In addition, the domestic courts invoked the difficulties in obtaining evidence, including from abroad, and the need to examine several hundred witnesses and many accounting, tax and auditing experts. On 1 June 2005 the case file already consisted of one hundred volumes. 10. The applicant’s pre-trial detention was further extended by decisions of the Gdańsk Regional Court of 22 December 2005, 23 May and 28 September 2006, which were upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 24 January and 13 June 2006 and a further decision of an unspecified date. 11. On 31 August 2005 and 2 February 2006 two motions for the applicant’s release were rejected. 12. In the meantime, on 18 August 2005 the prosecutor lodged a bill of indictment with the Gdansk District Court against the applicant and eleven other co-accused. The applicant was charged with eleven offences including appropriation of the company’s assets, causing damage to the company and acting to the detriment of the company’s creditors. The prosecutor requested to hear evidence from 30 witnesses and to have read out the testimonies of 552 other witnesses. 13. On 31 August 2005 the District Court requested the Gdansk Court of Appeal to transfer the case to the Gdansk Regional Court due to its complicated nature. On 6 September 2005 the case was remitted to the Gdańsk Regional Court. 14. The first hearing took place on 27 June 2006. 15. The applicant’s detention pending trial was further extended by the first-instance court on 28 September 2006. 16. On 26 October 2006 the Gdańsk Regional Court decided to lift the preventive measure and to release the applicant. The court considered that continuing the applicant’s detention was no longer necessary because two of the co-accused, who had initially been detained, had already made their statements and seven of the other co-accused had remained at liberty throughout the proceedings. For these reasons there was no need to keep the applicant in pre-trial detention. 17. It would appear that the criminal proceedings against the applicant are still pending. 18. On 7 December 2005 the applicant complained of the unreasonable length of the criminal proceedings against him to the Minister of Justice and to the President of the Gdańsk Regional Court. 19. By letters of 18 January and 14 February 2006 the respective authorities rejected the applicant’s complaint as ill-founded. The authorities considered that in the light of the complexity of the case the impugned proceedings had not been lengthy. 20. The applicant did not lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time. 21. The applicant was detained in Gdańsk Remand Centre from 4 December 2004 until 26 October 2006. During this time he was held in six different cells. The size of those cells varied between 6.74 m² and 17 m². The space per person ranged between 2.1 m² and 3.6 m². 22. Between 29 August and 1 September 2005 the applicant was detained in cell number 10, which measured 17 m² and was shared by eight detainees, including the applicant (2.1 m² per person). 23. Between 12 and 15 September 2005, the applicant was held in cell number 18, which measured 5.52 m² and was shared by two detainees, including the applicant (2.6 m² per person). 24. The cells were equipped with separate toilets. 25. The applicant stressed that the conditions of detention in the two person cell were inhuman. He submitted that in each cell there had been a bunk bed (200 cm x 100 cm). However the surface of the toilet had been included in the total surface and constituted part of the 3 m² per person. The design of the cells made it impossible for two prisoners to move around freely. 26. The applicant also claimed that the food served to all detainees was of poor quality and insufficient quantity. He had to buy additional food and despite that he had lost 20 kg during his detention. 27. The Government argued that the applicant had had access to clean sanitary facilities, running water and bathing facilities. The food served to him complied with the relevant standards of the Ministry of Justice. The applicant was afforded a one-hour walk per day. He could have his own television set or he could watch television in the prison’s social room. 28. The list of visits supplied by the Government shows that between 29 December 2004 and 6 July 2006 the applicant received 86 visits, of which 53 were meetings with his defence counsel and 1 meeting with a notary. The remaining 32 visits involved the applicant’s family (wife, daughter and mother). They lasted from 40 (on one occasion) to 120 minutes but on most occasions were 90 minutes long. 29. On 13 March 2006, the authorities rejected the applicant’s request to have an additional visit from his relatives. That decision did not contain any reasoning. 30. On three occasions (27 September 2005, 2 November 2005 and 11 January 2006) the applicant’s contacts with his family were restricted and he was separated from the visitors by a Perspex partition. 31. The applicant, without specifying any details, submitted that, during his pre-trial detention, his correspondence with his family had been monitored and withheld by the authorities. 32. He also submitted that his wife and children had been allowed to visit him in the remand centre only once a month. Most of the applicant’s requests to meet more often with his family had been rejected by the authorities. The applicant’s family members’ visits were short and without the possibility of direct contact. On several occasions he had had no direct contact with his family because he had been separated from them by a Perspex partition and they could communicate with him only by internal phone. 33. Lastly, he denied receiving a visit from a certain E.P. on 6 July 2006. 34. The Government submitted that between 29 December 2004 and 5 October 2006 most of the family visits took place at a table (przy stoliku) in the presence of a guard. Out of the thirty-two visits of the applicant’s wife, mother and youngest child, direct contact was granted on twenty-nine occasions. 35. The Government submitted that in addition to the visits listed above, the applicant received a visit from E.P. on 6 July 2006. 36. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out 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 May 2006). 37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08 (dec), §§ 25-54, 12 October 2010). 38. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 onehour long visit per month. 39. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”. 40. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. 41. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison. 42. A closed visit takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. 43. The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw). 44. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention. 45. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. 46. The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings, in particular the applicable provisions of 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”) are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; and Ratajczyk v. Poland, no. 11215/02 (dec.), ECHR 2005VIII; and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V. | 1 |
train | 001-4664 | ENG | AUT | ADMISSIBILITY | 1,999 | YAZICI v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a Turkish national, born in 1963 and living in Vienna. He is an interpreter and translator (Turkish/German) by profession. A. I. Procedure relating to the Vienna Civil Regional Court’s list of registered interpreters On 5 March 1993 the applicant applied to the President of the Vienna Civil Regional Court (Landesgericht für Zivilrechtssachen) to be entered on this court’s list of registered interpreters (allgemein beeidete Dolmetscher) for the Turkish language. On 26 March 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 4(1) of the Court Experts and Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher), dismissed this request on the ground that the applicant was entered on the Feldkirch Regional Court’s list of registered interpreters. The President noted that the decision of the President of the Feldkirch Regional Court dated 24 February 1993, namely to strike the applicant off that court’s list of registered interpreters, had not yet become final. On 19 May 1993 the applicant again applied with the President of the Vienna Civil Regional Court to be entered on this court’s list of registered interpreters for the Turkish language. On 24 May 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 2(2) of the Court Experts and Interpreters Act 1975, dismissed this request on the ground that there was no need for registered interpreters. On 29 July 1993 the Constitutional Court (Verfassungsgerichtshof) granted the applicant’s request for legal aid and counsel was appointed to represent the applicant for the purposes of complaint proceedings. Counsel filed the complaint with the Constitutional Court on 14 September 1993, alleging in particular discrimination and a violation of the freedom to practise a profession. In his observations of 5 November 1993, the President of the Vienna Civil Regional Court stated that the need for registered interpreters was known to the President keeping the lists concerned due to his regular contacts with the judges of the Regional Court and of the District Courts, and judges of other courts in the respective judicial district. Extensive inquiries were therefore not necessary. No suggestions for more registered interpreters had been made prior to the applicant’s application. Moreover, the keeping and updating of these lists required a considerable amount of administrative work which indicated that not all persons fulfilling the statutory conditions should be entered on the respective lists. The President also noted that a registered interpreter did not have any privileges compared to an unregistered interpreter, as any competent person could be called in concrete proceedings to act as an expert or interpreter. Any person speaking a foreign language could practise as an interpreter without registration, irrespective of whether he or she were appointed, on a case by case basis, by courts or administrative authorities, or were working as a free lance translator. Moreover, the question of registration did not affect the occupation as an employed translator. In his supplementary observations of 11 April 1994, the applicant submitted that the handling of applications for registrations in 1993 disclosed arbitrariness on the part of the President of the Vienna Civil Regional Court. He further maintained that registered interpreters were given preference upon appointment for court proceedings and that the lack of registration also had repercussions when otherwise practising as interpreter. On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint. It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly. To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court (Verwaltungsgerichtshof). At the applicant’s request, it also decided to refer the application to the Administrative Court. On 23 August 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz). The applicant’s amended submissions were received at the Administrative Court on 24 October 1994. He also applied for legal aid; his request was to no avail. On 25 November 1994 the Administrative Court rejected the applicant’s appeal. It observed that, in accordance with Article 130 § 1 of the Federal Constitution, its jurisdiction was limited to applications alleging that a final administrative decision (letztinstanzlicher Bescheid) had infringed the complainant’s rights. An administrative decision within the meaning of this provision presupposed that the handling of an administrative matter had involved a legal ruling. This had not been the case for the impugned letter of 24 May 1993 as, under section 4(2), in conjunction with section 14, of the Court Experts and Interpreters Act 1975, persons applying for entry on the list of registered interpreters had no right to registration. The refusal of registration could not, therefore, adversely affect the applicant’s legal status, nor had there been a decision on the applicant’s rights. Rather, the President had sent an informal reply (formlose Beantwortung) to the applicant’s application. This decision was served on 24 May 1995. II. Procedure concerning the Feldkirch Regional Court’s list of registered interpreters On 24 August 1993 the applicant, who had been struck off the Feldkirch Regional Court’s list of registered interpreters by the President’s decision of 8 February 1993 as Feldkirch was not his regular place of residence and practice, applied to be restored to the Feldkirch list. In his application, he mentioned that there was a need for registered interpreters for the Turkish language, as, on several occasions, he had been called to act as interpreter, registered interpreters not being available. On 1 March 1994 the President of the Feldkirch Regional Court dismissed the request. On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint of 6 April 1994. It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly. To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court. At the applicant’s request, it also decided to refer the application to the Administrative Court. On 25 October 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act. The applicant’s amended submissions were received at the Administrative Court on 12 January 1995. On 20 October 1995 the Administrative Court rejected the applicant’s appeal for the same reasons as stated in the above-mentioned decision of 25 November 1994. B. Relevant domestic law 1. Registered interpreters The qualifications of registered interpreters (allgemein beeidete gerichtliche Dolmetscher) are specified in the Court Experts and Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher, Bundesgesetzblatt für Österreich No. 137/1975). According to section 14 of this Act, the provisions regarding experts (sections 2 - 12) are also applicable to interpreters, with the exception of section 2(2)(1) b and f (requiring a minimum period of professional experience and Austrian nationality). Section 2 lays down the conditions for registration in the lists to be kept by the presidents of the courts of first instance (i.e. at the level of the regional courts - section 3). Section 2(2)(1) concerns the personal qualifications such as special knowledge (Sachkunde), full capacity to perform legal transactions (volle Geschäftsfähigkeit), physical and mental fitness (körperliche und geistige Eignung), trustworthiness (Vertrauenswürdigkeit), regular residence or place of professional activity (gewöhnlicher Aufenthalt oder Ort der beruflichen Tätigkeit) in the judicial district of the court where registration is sought, and financially sound circumstances. According to section 2(2), there must be a need for registered experts (interpreters). Section 4 governs the registration procedure. The possibility of registration is limited to one list. The candidate has to prove his or her qualifications and the president has to conduct all necessary inquiries and, if necessary, to question the candidate. According to the third sentence of section 4(2), the candidate has no right to be entered on the list. The oath taken in accordance with section 5(1) has the legal effect that the expert or interpreter, as long as he or she is registered, does not have to take any specific oath when acting in court (section 5(2)). The respective lists are regularly updated (every two years) and communicated to the president of the superior court of appeal and subsequently to the courts in the judicial district concerned (section 7). Sections 9 to 12 concern the expiration of registration and striking off the list. 2. Procedure before the Constitutional Court and the Administrative Court By Article 144 § 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. By Article 130 § 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Section 34 (1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides inter alia that applications upon which, on account of the Administrative Court's manifest lack of jurisdiction, it is not appropriate to adjudicate, shall be rejected, without further proceedings, by a decision taken in closed sitting. | 0 |
train | 001-87570 | ENG | POL | CHAMBER | 2,008 | CASE OF PRZEPALKOWSKI v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi | 6. The applicant was born in 1923 and lives in Warsaw. 7. He is the owner of a plot of land in Legionowo. Apparently, since 1990 construction works without the required permit have been carried out by the applicant’s neighbour, B.G., on his plot of land which adjoins the applicant’s property. 8. On 9 December 1993 B.G. requested the Mayor of Legionowo (Urząd Miejski w Legionowie) to grant him a building permit for a garage to be used for repairing lorries. 9. The Mayor of Legionowo found that the garage adjoining the applicant’s property had already been constructed without the required building permit and on 3 February 1994 ordered its demolition (przymusowa rozbiórka). 10. On 14 February 1994 B.G. lodged an appeal, submitting that he had already been granted a building permit which had subsequently been quashed. 11. On 29 June 1994 the Warsaw Regional Office (Urząd Wojewódzki) upheld the challenged decision. 12. On 18 July 1994 B.G. lodged an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny). 13. On 22 September 1994 the Supreme Administrative Court ordered that enforcement of the Warsaw Regional Office’s decision be stayed pending the examination of B.G.’s appeal. 14. On 8 February 1995 the applicant, as a party to the administrative proceedings, requested the Supreme Administrative Court to dismiss the appeal and to uphold the challenged decision. 15. On 22 January 1996 the Supreme Administrative Court other conditions of the surroundings. 16. On 10 February 1999 the Mayor of Legionowo (Prezydent Miasta Legionowa) imposed on B.G. an obligation to acquire a building permit by 30 June 1999. 17. On 25 February 1999 the applicant appealed against that decision and requested the Mazowsze Governor (Wojewoda Mazowiecki) to issue a demolition order. 18. On 23 August 1999 the Mazowsze Governor quashed the contested decision and remitted the case. 19. On 14 September 1999, following amendments to the provisions governing the powers of the administrative authorities, the President of Legionowo transferred the case to the Legionowo Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego). 20. On 26 May 2000 the Legionowo Local Inspector of Construction Supervision gave a decision ordering demolition of the garage, finding that it had been constructed illegally and contrary to the local zoning plan (plan zagospodarowania przestrzennego). 21. On 12 June 2000 B.G. appealed against that decision. 22. On 20 January 2001 the applicant complained to the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego) of inactivity on the part of the administration. He referred to his appeal of 12 June 2000 lodged against the decision of the Legionowo Local Inspector of Construction Supervision of 26 May 2000 and requested the acceleration of the proceedings. 23. On 3 April 2001 the applicant again complained to the Chief Inspector of Construction Supervision of inactivity on the part of the administration. He referred to his previous complaint and stated that he had been informed that his appeal would be examined in February. 24. On 27 April 2001 the Chief Inspector of Construction Supervision, finding the applicant’s complaint of inactivity well-founded, set a time-limit of 14 days for the Mazowsze Regional Inspector of Construction Supervision (Wojewódzki Inspektor Nadzoru Budowlanego) to examine the applicant’s appeal. 25. On 29 May 2001 the Mazowsze Regional Inspector of Construction Supervision quashed the contested decision and remitted the case to the first-instance authority. 26. On 2 January 2002 the Legionowo Local Inspector of Construction Supervision, as the authority of first instance, ordered B.G. to carry out works to bring the construction in line with the relevant provisions. 27. On 17 January 2002 the applicant appealed against that decision and requested a demolition order. 28. On 28 February 2003 the Mazowsze Regional Inspector of Construction Supervision upheld the challenged decision. 29. On 2 April 2003 the applicant appealed against that decision to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny). 30. On 11 October 2004 the Warsaw Regional Administrative Court quashed the challenged decision and the previous decision of the Legionowo Local Inspector of Construction Supervision. 31. On 12 September 2005 the Legionowo Local Inspector of Construction Supervision again ordered B.G. to carry out construction works within three months of the date of the decision and to obtain a building permit. 32. On 27 September 2005 the applicant appealed. 33. On 16 January 2006 the Mazowsze Regional Inspector of Construction Supervision upheld the contested decision. 34. On 15 February 2006 the applicant lodged an appeal with the Warsaw Regional Administrative Court, submitting that the construction works had been carried out illegally and demanding that a demolition order be issued. 35. On 10 July 2006 the Warsaw Regional Administrative Court dismissed the applicant’s appeal. 36. It appears that the applicant did not lodge a cassation appeal with the Supreme Administrative Court. “Everyone whose legal interests or obligations are involved in [administrative] proceedings, or who requests that [certain] steps be taken by [an administrative] authority with regard to his legal interests or obligations, is a party to the proceedings.” “Buildings or parts of buildings, which are being or have been erected in violation of the laws in force at the time of their erection, are subject to compulsory demolition ... if the administrative authority establishes that the building or relevant part: 1) ... 2) constitutes a danger ... to persons or property, or has an inadmissibly deleterious effect on the sanitary or functional conditions of the surroundings. ...” 38. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006. 39. 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 |
train | 001-97836 | ENG | DEU | ADMISSIBILITY | 2,010 | PETUHOVS v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Konstantins Petuhovs, is a Latvian national who was born in 1977 and lives in Berlin. He was represented before the Court by Mr A. Funck, a lawyer practising in Berlin. On 15 May 2008 the applicant, assisted by an interpreter, was questioned by the Berlin police in criminal investigation proceedings against him. On the same day he was brought before the investigating judge who issued an arrest warrant, charging the applicant with robbery and dangerous bodily injury. The warrant was translated and a copy was handed to the applicant. On 26 May 2008 the applicant and an accomplice were indicted for joint robbery and dangerous bodily injury. The account of the offence was essentially the same as in the arrest warrant with two exceptions: The arrest warrant mentioned that the victim was knocked down a the second time by the co-accused immediately following the first attack by the applicant, whereas the indictment alleged that the victim was able to take a few steps before being knocked down again. Furthermore, the arrest warrant only mentioned that a bag with a wallet was snatched from the victim, whereas the indictment talked about a blue bag with 25 euros. On 9 June 2008 the District Court appointed counsel for the applicant and assigned an interpreter for their conversations. Meetings between counsel and the applicant, assisted by an interpreter, were held on 6 June, 7 July, 13 August and 19 September 2008. After the proceedings against the applicant had been severed and the main proceedings opened, on 18 July 2008 the District Court submitted a decision to refer (Vorlagebeschluss) to the Regional Court, finding that the circumstances of the offence might amount to aggravated robbery, and in view of the then higher expectation of punishment might warrant the referral of the proceedings to the higher court. The Regional Court assumed the proceedings after the defence had submitted observations. At the trial on 24 September 2008 counsel for the defence applied for the proceedings to be stayed for the reason that the applicant had not received a translation of the indictment of 26 May 2008 which, according to counsel for the defence, was essential for him to prepare his defence. After deliberations the Regional Court rejected the application, arguing that the arrest warrant, which had been translated, was identical to the indictment and had thus informed the applicant in detail of the nature and cause of the accusation. Furthermore, it had to be assumed that counsel for the defence had discussed the nature and cause of the straightforward accusation with the applicant at one of their several meetings. The Regional Court held that under these circumstances an oral translation had to be considered sufficient. The trial then continued with the reading and the translation of the indictment. After hearing the applicant’s pleading to the charges and five witnesses the Regional Court found the applicant guilty of aggravated robbery and dangerous bodily injury. He was sentenced to 4 years’ imprisonment. The applicant’s appeal on points of law, based on the lack of a written translation of the indictment, was dismissed by the Federal Court of Justice on 22 April 2009 as ill-founded. On 19 June 2009 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint for examination. It held the complaint to be inadmissible arguing that the prior appeal on points of law had been inadmissible. | 0 |
train | 001-121067 | ENG | LVA | ADMISSIBILITY | 2,013 | ZUZANE v. LATVIA | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Ms Zoja Zuzane, is a Latvian national who was born in 1952 and lives in Skulte parish (Latvia). She is represented before the Court by Mr A. Zvejsalnieks, a lawyer practising in Rīga. The Latvian Government (“the Government”) are represented by their Agents, Mrs I. Reine and subsequently by Mrs K. Līce. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant acquired an oil press in 1995 for 5,000 Latvian lati (LVL) from a private individual, V.R. The applicant subsequently leased that press to two companies. 4. On 20 July 1997 the applicant concluded a sales agreement with a farm for LVL 6,000, which she received on condition that she would deliver the press by 22 August 1997. Meanwhile, on 10 August 1997 K.O., the chairman of a co-operative organisation, seized the press and took it to its premises. The applicant found out about the seizure on the next day and reported it to the police. 5. The applicant did not fulfil her contractual obligation to deliver the press and thus incurred a contractual penalty of LVL 12,000; she paid it on 26 August 1997. 6. On 12 April 1999 the press was returned to the applicant. 7. On 1 September 1997 criminal proceedings were instituted in relation to arbitrary seizure under section 195 of the former Criminal Code (patvarība). On 3 September 1997 the applicant was joined as a civil party (civilprasītājs) in the criminal proceedings. 8. On 30 March 1998 K.O. was charged with aggravated abuse of official authority (dienesta stāvokļa ļaunprātīga izmantošana) under section 162, paragraph 2 of the former Criminal Code. 9. On 1 June 1998 that charge was dropped and K.O. was charged with exceeding official authority (dienesta pilnvaru pārsniegšana) under section 162.1, paragraph 1 of the former Criminal Code. 10. On 23 July 1998 the case was sent to the Ogre District Court for adjudication. That court, in its first hearing on 27 August 1998, granted the request by defence counsel to send the case for additional investigation. 11. The criminal proceedings were terminated on several occasions, namely on 4 May 1999, 9 November 1999 and 10 August 2000, on grounds that no crime had been committed. All these decisions were subsequently quashed because V.R., whose testimony was crucial to establish the truth in the proceedings, had not been questioned. In fact, she did not co-operate and the police could not forcibly transport her; her whereabouts were not known. Finally, on an unspecified date before August 2000, V.R. submitted a written testimony. She refused to appear before the prosecutor in person. 12. On 30 January 2001 the last decision to terminate the criminal proceedings was quashed on grounds that witness V.R. had not been questioned contrary to previous instructions. The case was sent for additional investigation. 13. On 5 July 2001 another decision to terminate the criminal proceedings was adopted on grounds that no crime had been committed. 14. On 5 October 2001 a superior prosecutor quashed that decision because he saw arbitrariness in the actions of K.O. but brought no charges against him due to statute of limitations. Thus, the legal grounds for terminating the criminal proceedings were twofold: no elements of crime as concerns exceeding official authority and statute of limitations as concerns arbitrary seizure. 15. With a final decision of 5 November 2001, replying to the applicant’s complaint, another prosecutor upheld the decision to terminate the criminal proceedings. The prosecutor noted that the applicant had a right to seek damages in civil proceedings. 16. On 23 September 1997 the applicant lodged an application with the Ogre District Court to secure her eventual civil claim against K.O. On 26 September 1997 the court ordered an attachment on the respondent’s property (real estate, assets and money). On 8 September 2000, following an application lodged by K.O., this decision was revoked and an attachment on a land plot was ordered instead. 17. On 28 October 1997 the applicant lodged a civil claim against K.O. with the Ogre District Court for pecuniary damages in the amount of LVL 6,000. 18. On 6 February 1998 the civil proceedings were stayed, upon the applicant’s request, pending the outcome of criminal proceedings. 19. On 15 March 2002, on the applicant’s request, the Ogre District Court renewed the civil proceedings and scheduled a hearing. 20. On 20 May 2002 the Ogre District Court held a hearing. The applicant increased her claim of damages to LVL 66,264.93. The proceedings were adjourned upon the respondent’s request to add the criminal case-material. Another hearing was adjourned on 29 November 2002 at the request of the respondent. 21. On 6 December 2002 the Ogre District Court held a third hearing. The applicant maintained her claim of damages. The district court decided to forward the case to a higher court since it lacked competence to hear cases involving determination of claims above LVL 30,000. 22. On 31 March 2003 the Rīga Regional Court examined the case; the applicant retracted her increased claim of damages and maintained her claim only in the amount of LVL 6,000. The regional court upheld the applicant’s claim in full and ordered the respondent to pay LVL 6,000 in damages. 23. On 16 October 2003 the Civil Chamber of the Supreme Court, upon an appeal lodged by the respondent, upheld the ruling of the regional court and upheld the applicant’s claim. The Supreme Court in its ruling referred to the 5 October 2001 decision to terminate the criminal proceedings on grounds of statute of limitations as concerns actions of K.O., which the prosecutor had deemed arbitrary. The court found that there were no legal grounds to seize the press and thus K.O.’s actions were unlawful. Thus, he incurred liability for damage. 24. The ruling took effect on 16 October 2003; the parties did not lodge an appeal on points of law. A writ of execution was issued on the same date. 25. On 22 September 2000, following the decision to remove the attachment on the respondent’s property, a bailiff addressed the competent domestic register (Zemesgrāmata) to record that removal. At the same time, she did not proceed to register the newly ordered attachment – on the respondent’s land plot – with that register. 26. On 25 September 2000 K.O. registered a mortgage in favour of a bank on the land plot as collateral for a loan. Henceforth, the land plot could not be sold. 27. On 11 November 2003 the applicant submitted the writ of execution regarding the 16 October 2003 judgment to another bailiff. The respondent agreed to comply with the ruling voluntarily and to repay the debt until 20 December 2004. 28. On 27 February 2004 the Civil Chamber of the Supreme Court rejected K.O.’s application to pay damages in instalments by 31 March 2005. 29. By 26 November 2004 the applicant received the whole amount due in at least two separate instalments. 30. On 25 October 2004 criminal proceedings were instituted against the bailiff, who had failed to record the changes in the attachment of the respondent’s property, for having not executed her official duties. 31. On 1 December 2005 the criminal proceedings were terminated for lack of crime. The police concluded that the whole debt had been settled; the applicant’s argument that she had suffered substantive damage (a constitutive element of the crime) as a result of the bailiff’s actions was dismissed. 32. The former Code of Civil Procedure (Civilprocesa kodekss), in force until 1 March 1999, provided that a court was under an obligation to stay civil proceedings if it could not adjudicate a case until such time when another criminal case was to be determined. The civil proceedings were stayed until a decision was taken in the criminal proceedings (section 218, paragraph 4). 33. Under section 220 of the same code, a court had to renew the civil proceedings on the application by one of the parties or proprio motu. 34. Under section 632, paragraph 1 of the Law of Civil Procedure (Civilprocesa likums), in force since 1 March 1999, bailiff’s actions concerning enforcement can be appealed against by submitting an application to a district (city) court within a ten-day time-limit from the date on which a person has learned about the impugned actions. | 0 |
train | 001-70463 | ENG | TUR | CHAMBER | 2,005 | CASE OF TANRIKULU AND OTHERS v. TURKEY | 4 | No violation of Art. 5-1-c;Violation of Art. 5-3;Pecuniary damage - financial awards to two applicants, one claim dismissed;Non-pecuniary damage - financial awards to all applicants;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;Feyyaz Gölcüklü | 10. The applicants were born in 1966, 1973 and 1971 respectively and live in Diyarbakır. 11. The first and the third applicant are lawyers. The first and the second applicants were members of the Human Rights Association and the third applicant was the president of the HADEP Diyarbakır provincial headquarters at the time of the events. 12. Following information received by the gendarmes that there was a meeting related to the PKK in the provincial headquarters of the HADEP (Halkın Demokrasi Partisi-People’s Democracy Party) and the Diyarbakır branch of the Human Rights Association, the police officers at the Diyarbakır Security Directorate, after receiving authorisation from the Diyarbakır Governor’s Office and a search warrant from the judge at the State Security Court upon the request of the public prosecutor at that Court on 27 February 1995, conducted a search on the premises and arrested the applicants together with eleven other persons. 13. On 27 February 1995 the applicants were handed over to the gendarmes at the Diyarbakır Provincial Gendarmerie Command. 14. According to the report drafted by the gendarmerie on 28 February 1995, at the HADEP headquarters, the police seized eight ERNK (National Liberation Front of Kurdistan) and PKK flags, a PKK emblem, sixty-five books and nine VHS videotapes about the PKK, seven audio tapes and documents addressed to the Secretary General of the European Parliament. They also found a pistol on one of the suspects. 15. On 9 March 1995 the applicants were brought before the public prosecutor and the State Security Court. The latter ordered their remand in custody. 16. On 22 March 1995 the public prosecutor at the State Security Court filed an indictment with the latter accusing the applicants and the other suspects of having made propaganda on behalf of the PKK. He requested that the applicants and other detainees be convicted and sentenced for membership of an illegal organisation under Article 168 § 2 of the Criminal Code. 17. On 1 May 1995 the State Security Court, taking into account the charges and the evidence against the applicants, ordered their release pending trial. 18. On 8 April 1996 the State Security Court acquitted the applicants of all charges. It held that the materials found in the search could have been placed there by anyone and that apart from their statements in custody, which the applicants claimed to have given under duress, there was no evidence to convict them. 19. On 16 April 1997 the Court of Cassation upheld the aforementioned judgment. 20. On 26 November 1997 the first applicant filed a petition with the Diyarbakır Assize Court under Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. On 30 December 1997 the Diyarbakır Assize Court awarded the applicant an amount of compensation in respect of non-pecuniary damage to compensate the periods he spent in detention. This decision was upheld by the Court of Cassation on 29 September 1998. 21. The relevant domestic law and practice in force at the material time can be found in Elçi and Others v. Turkey (nos. 23145/93 and 25091/94, §§ 582-586, 13 November 2003) and Nuray Şen v. Turkey (no. 41478/98, §§ 13-16, 17 June 2003). | 1 |
train | 001-91158 | ENG | NLD | ADMISSIBILITY | 2,009 | POST v. THE NETHERLANDS | 2 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | The applicant, Ms Angelique Post, is a Dutch national who was born in 1983 and lives in Vlijmen. She was represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht. On an unspecified date in March 2007 the applicant was arrested, held in custody and subsequently in pre-trial detention (voorlopige hechtenis) on suspicion of murder. She was subsequently summoned to appear before the ‘sHertogenbosch Regional Court (rechtbank) in order to stand trial. The order for her pre-trial detention was duly prolonged, for the last time on 7 May 2007 when the ‘s-Hertogenbosch Regional Court sitting in chambers (raadkamer) extended by 60 days the order for the applicant’s further detention on remand (gevangenhouding). The applicant’s trial started on 4 July 2007 before the ‘s-Hertogenbosch Regional Court, which decided to adjourn the examination in court until 20 September 2007. On 25 September 2007, the Regional Court fully recommenced its examination as its composition had changed in the meantime. It further decided to adjourn for an unspecified period its examination in court of the applicant’s case. By letter of 24 October 2007, the Acting President of the ‘sHertogenbosch Regional Court informed the applicant that, due to a misunderstanding, one member of the threejudge section of the Regional Court having considered the applicant’s case on 25 September 2007 was a judge in training, assigned temporarily to the ‘s-Hertogenbosch Regional Court and who apparently had not yet been officially appointed and sworn in as a deputy judge (rechter-plaatsvervanger) before taking up her position in ‘s-Hertogenbosch. The applicant was further informed that a fresh hearing would be scheduled as soon as practically possible. On 25 October 2007, the applicant’s lawyer filed a request to lift the applicant’s pre-trial detention with immediate effect. On 30 October 2007, the ‘s-Hertogenbosch Regional Court sitting in chambers lifted the order for the applicant’s pre-trial detention and ordered her immediate release. It considered that, although it lacked competence to pronounce the nullity of the trial proceedings conducted on 25 September 2007 and could only determine the validity of the legal basis for the applicant’s ongoing pre-trial detention, it was rather obvious that the competent forum would pronounce that nullity. In this light, it concluded that article 66 § 2 of the Code of Criminal Procedure found no application and that the delay referred to in article 282 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) had expired. As this thus risked giving rise to uncertainty about the applicant’s legal position, the Regional Court – for the sake of clarity – lifted the order for the applicant’s pre-trial detention and ordered her immediate release. On 31 October 2007, the public prosecutor filed an appeal against the decision to lift the pre-trial order. On 6 November 2007, the ‘s-Hertogenbosch Court of Appeal (gerechtshof) accepted the prosecutor’s appeal, quashed the decision of 30 October 2007 and rejected a request filed during the hearing before the Court of Appeal to lift the applicant’s pre-trial detention. It rejected the applicant’s argument that, pursuant to article 282 of the CCP, her pre-trial detention should be regarded as having become unlawful on 4 October 2007 as the court hearing of 25 September 2007 was ipso iure null and void. The Court of Appeal considered that such ipso iure nullity would only arise if that hearing had been held before a non-judicial body, which was not the situation in the case at hand. The hearing of 25 September 2007 was one in a series of hearings before and decisions taken by the ‘s-Hertogenbosch Regional Court in the applicant’s case under the provisions of the CCP. This was not altered by the fact that the hearing of 25 September 2007 was flawed as one member of the threejudge section of the Regional Court did not have the status of judge. As the hearing of 25 September 2007 was not ipso iure null and void, it could not be concluded that the legal basis for the applicant’s pre-trial detention had become extinct three months after 4 July 2007. This legal basis remained article 66 § 2 of the CCP. The Court of Appeal acknowledged that the composition of the three-judge section at issue was very seriously flawed and that this raised the question whether this flaw had a bearing on the legal basis for the applicant’s pre-trial detention. After an examination of the statutory system concerning the rules on pre-trial detention, it concluded that there remained a legal basis for the applicant’s pre-trial detention, namely article 282 § 2 of the CCP, given that three months had not yet elapsed since 25 September 2007. It further decided, after having noted that it was intended to hold a fresh trial hearing on 7 November 2007 before the Regional Court, that the applicant’s interest in being released from pre-trial detention was outweighed by general interest considerations. No further appeal lay against this decision, of which the applicant was notified on 6 November 2007. A pre-trial detention order issued by the Regional Court remains in force until 60 days after the final judgment (einduitspraak) at that instance has been given (article 66 § 2 of the CCP”). For the purposes of limiting the application and duration of pre-trial detention, article 282 of the CCP regulates the duration of suspensions of trial proceedings. This provision reads in its relevant part: “1. If the defendant is being held in pre-trial detention, the following paragraphs shall apply [in relation to suspensions of trial proceedings]. 2. If the Regional Court suspends the examination in court (onderzoek op de terechtzitting) for a specific period, the period of suspension shall as a rule not exceed one month. However, if there are compelling grounds, it may set a longer period but in no case longer than three months. 3. If the Regional Court suspends examination in court sine die, it shall determine by analogous application of the second paragraph a maximum period within which the examination in court must be resumed....” An overview with further details of the relevant domestic law and practice in respect of pre-trial detention can be found in the Court’s decision on admissibility in the case of Close v. the Netherlands (no. 9298/02, 25 May 2004). | 0 |
train | 001-108754 | ENG | ROU | CHAMBER | 2,012 | CASE OF MIHAI TOMA v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 6. The applicant was born in 1948 and lives in Târgu-Jiu. 7. On 2 December 1995 the applicant was stopped by police for drinkdriving. The police informed him on the spot that his right to drive on the public roads was suspended for ninety days. The driving licence was not physically removed from the applicant’s possession. 8. On 13 February 1996 the applicant was stopped by police while driving a car and was committed to trial for the offence of driving on public roads while his driving licence was suspended under Article 36 § 2 of Decree no. 328/1966 on driving on public roads (“Decree no. 328/1966”). 9. In a decision of 5 June 1997 the Târgu-Jiu District Court convicted the applicant of that offence and imposed on him a criminal fine of 80,000 Romanian lei (ROL) and ordered him to pay ROL 40,000 in costs. It also informed the applicant that if he did not comply with the payment order the fine could be converted into a prison sentence (Article 63 of the Criminal Code). The decision became final, as the parties did not appeal against it. 10. On 15 December 2004 the applicant went to Gorj Road police station to ask for his old driving licence to be replaced with the new model, in accordance with the new requirements in the matter. On this occasion, the police withdrew his driving licence and informed him that it would be annulled, as the applicant had been stopped for drink-driving in 1995. 11. On the same day the police informed the applicant that under Article 101 § 1 (b) of Emergency Ordinance no. 195/2002 his driving licence had been annulled with effect from 9 December 2004. His objection to the annulment was dismissed by Gorj County Police on 25 January 2005. 12. On 10 March 2005 the applicant appealed before the Gorj County Court, seeking the revocation of the annulment order. 13. In a decision of 15 April 2005 the County Court (Administrative Law Section) allowed the action for the following reasons: “Indeed, in the judgment of 5 June 1997 of the Târgu-Jiu County Court ... the [applicant] was sentenced to pay a fine of ROL 80,000 ... and under Emergency Ordinance no. 195/2002, the driving licence stood to be annulled if the driver was convicted of a traffic offence ... Under Article 126 (c) of the Code of Criminal Procedure, the enforcement of the criminal fine becomes statute-barred after three years; therefore the annulment of the driving licence, being a subsidiary penalty (pedeapsa accesorie), becomes statutebarred at the same time as the main penalty. The time-limits are counted from the date when the events occurred, therefore ... the penalty is at present statute-barred.” 14. The Gorj County Police appealed, and in a final decision of 12 July 2005 the Craiova Court of Appeal (Administrative Law Section) reversed the judgment and dismissed the applicant’s initial action, giving the following grounds: “The annulment of the driving licence is not a subsidiary penalty, as the firstinstance court wrongly considered; it represents an administrative measure with distinct rules applicable to it that can only be imposed by the police. Decree no. 328/1966 and Emergency Ordinance no. 195/2002 do not provide a timelimit for the application of this measure; moreover, in the applicant’s case the measure is applied automatically, as he was criminally convicted for a traffic offence.” 15. Article 36 § 2 of Decree no. 328/1966 on driving on public roads criminalises the offence of driving on public roads with a suspended driving licence. The same Act provides that a driving licence may be annulled if its owner has been convicted of a criminal offence under the regulations on driving on public roads (Article 42 § 2). The annulment is decided by the Head of the County Police once the criminal decision is final (Articles 42 § 3 and 43). 16. Decree no. 328/1966 was abolished by Emergency Ordinance no. 195/2002, which entered into force on 1 February 2003, and which in its Article 101 § 1 (b) made the annulment of the driving licence automatic. This Act was amended on several occasions, but the relevant provision was in place on the date when the final decision was rendered in the case at hand. | 1 |
train | 001-95050 | ENG | TUR | ADMISSIBILITY | 2,009 | CAYTAS v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicants are all Turkish nationals. Their names, dates of birth, the names of their representatives and the dates on which they lodged their applications appear in the appendix. The facts of the cases, as submitted by the applicants, may be summarised as follows. On different dates the applicants registered with the Social Security Institution (Sosyal Sigortalar Kurumu, “the SSK”) or the Social Security Institution for the Self-Employed (Bağ-Kur). Subsequent to their registration, they all lodged actions seeking the correction of their dates of birth, which had initially been registered erroneously in their birth records. As a result, the applicants’ ages were increased by two to nine years by court decisions to reflect their biological ages. When they reached the minimum age limit for retirement on the basis of their rectified dates of birth, the applicants applied to the SSK or to Bağ-Kur for retirement pensions. Their requests were, however, rejected as they were not considered to have fulfilled the conditions set out in the relevant laws to receive such benefits (Section 120 of Law no. 506 and Section 66 of Law no. 1479). The applicants were informed that, for the purpose of determining eligibility for pension benefits, a person’s age was calculated on the basis of the date of birth declared at the time of registration with the social security institutions; subsequent amendments to the date of birth would thus not be taken into account. The applicants subsequently brought actions before labour courts seeking declaratory judgments (tespit davası) regarding their eligibility for retirement pensions in the light of their amended dates of birth. In all cases the labour courts dismissed the applicants’ requests on the same legal grounds as the decisions of the social security institutions. The Court of Cassation upheld these judgments. The details regarding these proceedings appear in the table below. Section 60 A of Law no. 506 provides: “In order for insured [persons] to benefit from the old-age insurance, a) Women must have reached the age of fifty-eight and men sixty and [they must have made contributions for] a minimum of 7,000 days, or b) Women must have reached the age of fifty-eight and men sixty and [they must have been] insured for twenty-five years and [have paid] a minimum of 4,500 days of premiums in respect of disability, old-age and death insurance.” Section 120 of Law no. 506 provides: “... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account. In the calculation of the income and monthly allowances ... [deriving] from ... oldage insurance, corrections of age made after the date on which [the person] commenced working subject to ... Law no. 506 or other social security institutions, shall not be taken into consideration.” Section 35 of Law no. 1479 provides: “In order for insured [persons] to benefit from old-age insurance, ... b) Women must have reached the age of fifty-eight and men sixty and they must have paid insurance premiums for twenty-five full years.” Section 66 of Law no. 1479 provides: “... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account.” | 0 |
train | 001-67150 | ENG | AUT | CHAMBER | 2,004 | CASE OF WODITSCHKA AND WILFLING v. AUSTRIA | 4 | Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The first applicant was born in 1979 and lives in Vienna. 5. On 19 July 2000 the Vienna Regional Court (Landesgericht für Strafsachen) convicted the first applicant under section 209 of the Criminal Code of having committed homosexual acts with an adolescent and sentenced him to a fine of ATS 4,500 (approximately EUR 330) with 75 days’ imprisonment in default. The sentence was suspended on probation. The Regional Court found that, in September 1999, the first applicant, who was then twenty years old, had had about ten homosexual contacts with a sixteen-year-old. In determining the sentence the court had regard to the applicant’s confession and his young age as a mitigating circumstance, as well as to the repetition of the offence as an aggravating circumstance. 6. On 13 November 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the first applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. 7. The second applicant was born in 1964 and lives in Traiskirchen. 8. On 7 August 2001 the Wiener Neustadt Regional Court ordered the second applicant’s detention on remand on suspicion of having committed homosexual acts with an adolescent contrary to section 209 of the Criminal Code. 9. On 24 August 2001 the Wiener Neustadt Regional Court convicted the second applicant under section 209 of the Criminal Code and sentenced him to fifteen months’ imprisonment, fourteen of which were suspended on probation. It found that, from March 2001 until his arrest, the second applicant had a homosexual relationship with a seventeen-year-old. In determining the sentence the court had regard to the applicant’s confession as a mitigating circumstance, as well as to the repetition of the offence and a previous conviction as aggravating circumstances. 10. On 7 September 2001 the second applicant was released from detention on remand. 11. On 23 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the second applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. Upon the Public Prosecutor’s appeal it changed the sentence to the effect that only ten out of fifteen months of imprisonment were suspended on probation. 12. Subsequently the second applicant was granted a stay of the execution of his sentence. On 7 July 2002 he requested a pardon and a further stay of execution pending the decision on his request for pardon. On 11 July 2002 the Wiener Neustadt Regional Court granted a further stay of execution. 13. On 23 September 2002 the Federal President, upon the second applicant’s request, granted him a remission of the remaining sentence. 14. Article 209 of the Criminal Code, in the version in force at the material time, read as follows: “A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.” 15. On 21 June 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. 16. On 10 July 2002 Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002. 17. The Court notes that the legal situation has remained unchanged since 9 January 2003, when it gave its L. and V. v. Austria judgment (nos. 39392/98 and 39829/98, ECHR 2003-I). For a more detailed description of the law, the Constitutional Court’s judgments concerning Article 209 of the Criminal Code and the parliamentary debate relating to the issue, it therefore refers to the said judgment (§§ 17-33). | 1 |
train | 001-59534 | ENG | GRC | CHAMBER | 2,001 | CASE OF AGOUDIMOS AND CEFALLONIAN SKY SHIPPING CO. v. GREECE | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award | András Baka | 8. The applicant company is incorporated under Greek law, has its seat in Piraeus and has gone into liquidation. The first applicant is one of the three liquidators. 9. On 22 December 1982 the ship Omega Kasos, registered in Piraeus and owned by K Shipping Co., was seized by the company’s creditors. The ship was put on compulsory sale by auction (αναγκαστικός πλειστηριασμός) on 6 February 1983. It was acquired by the first applicant at the price of GRD 4,002,000. On 15 February 1983 the first applicant sold the ship to the applicant company which in turn sold it to a foreign company. 10. On 17 February 1983 the applicant company asked the registrar of ships (νηολόγος) of Piraeus to remove the ship from his records since it had been acquired by a foreigner. The request was refused on the ground that the applicant company had failed to produce a certificate to the effect that debts owed in respect of the ship to the tax and social security authorities prior to the auction had been paid in full. 11. The applicant company challenged ex parte (εκούσια δικαιοδοσία) the registrar’s refusal before the single-member first instance civil court (Μονομελές Πρωτοδικείο) of Piraeus. On 6 April 1983 the court considered that the production of the certificate requested by the registrar was not necessary; according to the view followed by most courts, a person acquiring a ship put on compulsory sale by auction was not responsible for the previous owners’ debts to the State or the sailors’ social security fund (Ναυτικό Απομαχικό Ταμείο – hereinafter NAT). The registrar and NAT did not appeal against this decision. On 1 June 1983 Omega Kasos was removed from the records of the Piraeus registry for ships. 12. On 10 January 1984 NAT ordered the first applicant and the applicant company, in their capacity as previous owners of Omega Kasos, to pay USD 124,915, by way of social security contributions in respect of the period prior to the auction, plus interest. It also asked them to pay GRD 196,000 for the repatriation of the crew of Omega Kasos who had at one stage been left stranded in a foreign port by the previous ship-owners. 13. On 19 January 1984 the applicants challenged NAT’s order before the multi-member first instance civil court (Πολυμελές Πρωτοδικείο) of Piraeus relying, inter alia, on the decision of the single-member first instance civil court of 6 April 1983. 14. On 30 July 1984 the multi-member first instance civil court of Piraeus found against the applicants, relying on Articles 86 § 6 (a) and 88 § 5 of Presidential Decree no. 913/1978 as interpreted in decisions Nos. 127/1984 and 128/1984 of the Court of Cassation. The applicants appealed. 15. On 30 July 1986 the Court of Appeal (Εφετείο) of Piraeus upheld the appeal considering that the legislation that rendered all the previous owners of a ship responsible for debts to NAT did not cover owners who had acquired a ship put on compulsory sale by auction. The court of appeal relied on Articles 86 § 6 (a) and 88 of Presidential Decree no. 913/1978, as interpreted in its own decision No. 649/1981 and in decisions Nos. 8/1983 and 1118/1985 of the Court of Cassation. The court also mentioned a number of decisions that accepted a different interpretation, which it was not prepared to follow (decision No. 128/1984 of the Court of Cassation and its own decisions Nos. 370/1985 and 460/1985). 16. On 30 June 1987 Parliament enacted Law no. 1711/1987, entitled “Modification and completion of the legislation on NAT and other provisions”. Article 1 § 6 of that law interpreted in an authoritative manner (αυθεντική ερμηνεία) Article 88 § 5 of Presidential Decree no. 913/1978: According to Parliament’s interpretation, this provision also concerned owners who had acquired a ship put on compulsory sale by auction. 17. On 10 June 1988 NAT appealed against the decision of 30 July 1986 of the Court of Appeal of Piraeus to the Court of Cassation relying, inter alia, on Article 1 § 6 of Law no. 1711/1987. The applicants submitted that the 1987 law should not be taken into consideration, inter alia, in the light of the Court’s Stran Greek Refineries and Stran Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B). 18. On 22 April 1993 NAT obtained an order for the seizure of the first applicant’s real property. The first applicant did not appeal (ανακοπή) against this order. 19. On 16 April 1997 the Court of Cassation found in favour of NAT. The Court of Cassation reasoned as follows: a person acquiring a ship put on compulsory sale by auction was responsible under Article 86 § 6 (a) of Presidential Decree no. 913/1978 for the previous owners’ debts to NAT; this reading of the provision was also supported (in the words of the Court of Cassation “a further argument in favour of this interpretation can be drawn”) by Article 1 § 6 of Law no. 1711/1987 interpreting in an authoritative manner Article 88 § 5 of Presidential Decree no. 913/1978. The Court of Cassation sent the case back to the Court of Appeal. 20. The proceedings are still pending and the first applicant’s property remains under seizure. 21. Article 77 § 1 of the 1975 Constitution reads as follows: “The authentic interpretation of the laws shall rest with the legislative power.” 22. Presidential decree no. 913/1978 provides the following: “The following persons are jointly and severally liable, without having the right to require that the creditor should first try to execute against the principal debtor, for any contributions resulting from contracts with sailors on the crew list (ναυτολόγιο) or, in general, contributions assessed by a public authority in accordance with the relevant special procedures (βεβαιωμένες): a) all former ship-owners in respect of claims created before they transferred the ship’s ownership, as well as their successors; ...” “The transfer of the ownership of a ship cannot be validly recorded in the registry for ships (νηολόγιο) if unaccompanied by a certificate that the ship does not have any outstanding debts to NAT ... ” 23. The Court of Cassation in its decisions nos. 127/1984, 128/1984, 509/1985, 1145/1987 and 952/1994 considered that the legislation that rendered all the previous owners of a ship responsible for debts to NAT also covered owners who had acquired a ship put on compulsory sale by auction. The same line was followed by the multi-member first-instance civil court of Piraeus in decisions nos. 2796/1980 and 253/1985, the Court of Appeal of Piraeus in decisions nos. 301/1979, 370/1985 and 460/1985, the Court of Appeal of Athens in decision no. 4023/1978, and the Council of State (Συμβούλιο της Επικρατείας) in decision no. 2390/1996. 24. However, in its decisions nos. 8/1983 and 1118/1985 the Court of Cassation adopted the opposite view, which had also been taken by the Court of Appeal of Piraeus in decisions nos. 445/1981, 649/1981 and 915/1982. 25. Law no. 1711/1987 provides the following: “The true meaning of the term ‘transfer’ in Article 88 § 5 of Presidential Decree no. 913/21978 is such that it includes the ... compulsory sale by auction ...” “Monies paid to NAT by successful bidders at auctions for the compulsory sale of ships are returned ... only in cases in which, at the time of the publication of this law, a final judgment (αμετάκλητη δικαστική απόφαση) has been issued.” 26. It was indicated in the explanatory report (εισηγητική έκθεση νόμου) of Law no. 1711/1987 that “the purpose of the interpretative provisions of Article 1 was to settle the disputes, secure the collection of NAT’s resources and harmonise the fund’s legislation with the findings of the courts’ caselaw”. During the parliamentary debates, the Government’s Rapporteur expressed the view that Article 1 of the said law validated the courts’ caselaw on the matter (see the Official Minutes of Parliament - session of 18 May 1987, p. 5990). | 1 |
train | 001-97049 | ENG | MDA | CHAMBER | 2,010 | CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA (No. 2) | 3 | Violation of Art. 11;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The Christian Democratic People’s Party (“the CDPP”) is a political party in the Republic of Moldova which was represented in Parliament and was in opposition at the time of the events. 6. On 3 December 2003 the applicant party applied to the Chişinău Municipal Council for an authorisation to hold a protest demonstration in the Square of the Great National Assembly, in front of the Government’s building, on 25 January 2004. According to the application, the organisers intended to express views on the functioning of the democratic institutions in Moldova, the respect for human rights and the Moldo-Russian conflict in Transdniestria. 7. On 20 January 2004 the Chişinău Municipal Council rejected the applicant party’s request on the ground that “it had convincing evidence of the fact that during the meeting, there will be calls to a war of agression, ethnic hatred and public violence”. 8. The applicant party challenged the refusal in court and argued, inter alia, that the reasons relied upon by the Municipal Council were entirely baseless. 9. On 23 January 2004 the Chişinău Court of Appeal dismissed the applicant party’s action. The court found that the Municipal Council’s refusal to authorise the CDPP’s demonstration was justified because the leaflets disseminated by it contained such slogans as “Down with Voronin’s totalitarian regime” and “Down with Putin’s occupation regime”. According to the Court of Appeal, these slogans constituted a call to a violent overthrow of the constitutional regime and to hatred towards the Russian people. In this context, the court recalled that during a previous demonstration organised by the applicant party to protest against the presence of the Russian military in Transdniestria, the protesters burned a picture of the President of the Russian Federation and a Russian flag. 10. The applicant party appealed against the above decision arguing, inter alia, that the impugned slogans could not have reasonably been interpreted as a call to a violent overthrow of the Government or as a call to ethnic hatred and that the refusal to authorise the meeting constituted a breach of its rights guaranteed by Articles 10 and 11 of the Convention. 11. On 21 April 2004 the Supreme Court of Justice dismissed the applicant party’s appeal and confirmed the judgment of the Court of Appeal. 12. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: (1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property. Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds; c) incitement to discrimination, territorial separatism or public violence; d) acts that undermine the constitutional order. (1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings. (2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors’ offices, the courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the parliament building, the residence of the president of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies. (1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act. (2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to ensure and answer for the sound conduct of the assembly; (g) the services which the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.” (1) The prior notification shall be examined by the local government of the town or village at the latest 5 days before the date of the assembly. (2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation. (...) (6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society. (1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation... (1) The organiser of the assembly can challenge in the administrative courts the refusal of the local government.” | 1 |
train | 001-6021 | ENG | HRV | ADMISSIBILITY | 2,001 | RUDAN v. CROATIA | 4 | Inadmissible | Georg Ress | The applicants, Milić, Mileva and Mirko Rudan, are Croatian citizens, born in 1921, 1928 and 1955, respectively and living in Zagreb. They are represented before the Court by Mr Milutin Ostoić, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Krajković. The facts of the case, as submitted by the parties, may be summarised as follows. In 1986 the first applicant acquired a specially protected tenancy on a flat in Zagreb; the second and third applicants are his wife and son. They all lived together in the flat in question. On 24 August 1992, while the applicants were absent from Zagreb, three members of the Croatian Army broke the door and occupied the flat. On 25 August 1992 the third applicant instituted proceedings with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking reinstatement and interim measures so as to obtain the keys of the new lock for the flat’s main entrance and to evict the defendants from the flat. On 25 August 1992 the court ordered interim measures as requested by the third applicant. On 22 September the same court decided in accordance with the third applicant’s claims. In the meantime, on 26 August 1992, the Ministry of Defence (Ministarstvo Obrane Republike Hrvatske) granted temporary possession of the flat in question to A. (although that person was already deceased) and to his wife R. The first and third applicants challenged that decision and on 18 February 1993 the Administrative Court (Upravni sud Republike Hrvatske) quashed the Ministry’s decision on the merits. Meanwhile R. had occupied the flat. Upon the third applicant’s request the Municipal Court ordered R. to vacate the premises on 3 September 1992. As R. did not comply with the court’s order, the first and third applicants sought, and on 1 October 1992 obtained, a decision on the judicial enforcement of the court’s decision (rješenje o izvršenju). R. filed a motion to object that decision, but her motion was denied on 28 December 1999. In addition The Trnje Welfare Centre (Centar za socijalni rad Trnje), as well as the Ministry of Defence, filed motions for an order staying the execution, which were denied on 18 October 1993. Subsequent attempts to evict R. from the flat by the court’s officials remained unsuccessful due to the presence of armed persons dressed in Croatian Army uniforms, inside and around the flat, opposing the eviction. R. occupied the flat until April 1994 when she moved out without informing the applicants or the Zagreb Municipal Court, and at the same time Z., a member of the Croatian military police, moved in. Some days later the applicants’ possessions from the flat were removed by persons dressed in Croatian Army uniforms using military trucks. On 20 August 1994 the Ministry of Defence granted temporary possession of the flat to Z. The applicants did not appeal against that decision. On 6 September 1993 the Office of State Counsel (Javno pravobraniteljstvo) instituted proceedings against the first applicant in the Zagreb Municipal Court requesting the termination of his specially protected tenancy on the flat in question, alleging that he had not occupied the flat for over six months. The Court considered the first applicant’s address to be unknown and appointed a legal representative for him (staratelj za poseban slučaj). On 30 November 1993 the Municipal Court terminated the first applicant’s specially protected tenancy accepting the claim that he and his family had not occupied the flat for longer than six months without a justified reason. Thus, the first applicant lost all his rights regarding the flat in question. Upon the representative’s appeal the Zagreb County Court (Županijski sud u Gradu Zagrebu) on 9 August 1994 upheld the first instance decision confirming the reasoning of the Zagreb Municipal Court. The first applicant was not notified of those decisions, but only his legal representative, who was unknown to him. It appears that on 23 July 1996 an attorney, whom the applicants claim was unknown to them, filed an application to return the proceedings to the status quo ante (prijedlog za povrat u prijašnje stanje) with the Zagreb Municipal Court. On 6 February 1997 the first and second applicants filed an application for the re-opening of the proceedings (prijedlog za ponavljanje postupka) with the Zagreb Municipal Court, on the basis that the legal representative appointed in the proceedings concerning the termination of the first applicant’s specially protected tenancy was not aware of the facts that might have been decisive for the outcome of the proceedings such as the fact that the Administrative Court had quashed the Ministry of Defence decision to grant temporary possession of the flat to a third person. On 9 July 1997 the Zagreb Municipal Court rejected the application to return the proceedings to the status quo ante as having being lodged out of time. On 14 July 1997 the Municipal Court rejected the first and second applicants’ application for the re-opening of the proceedings for the same reason. It appears that on 19 July 1997 the first and the second applicants appealed against the decision concerning the re-opening of the proceedings. On 19 November 1997 the first and second applicants requested the speeding-up of the proceedings. On 2 February 1998 the case file was transferred to the Zagreb County Court it being the appellate court. On 29 April 1998 the first and second applicants again requested the speeding-up of the proceedings. On 12 May 1998 the Zagreb County Court remitted the case to the Zagreb Municipal Court, without deciding upon the applicants’ appeal. The County Court instructed the Municipal Court to hold a hearing so as to obtain information relevant for reaching the decision upon the first and second applicants’ appeal. On 27 June 1998 the first and second applicants requested for the third time the speeding-up of the proceedings. On 21 December 1998 the Zagreb Municipal Court held a hearing. At that hearing the first and third applicants gave their testimonies as to whether a legal representative who lodged the application to return the proceedings to the status quo ante was given a power of attorney by them. At the next hearing, which took place on 14 January 1999, the second applicant gave testimony in respect of the same question. On 14 January 1999 the Zagreb Municipal Court sent the case file to the Zagreb County Court. On 17 March 1999 the case was again remitted to the Zagreb Municipal Court in order to obtain its explanation in regard of the applicants’ objection to the written minutes of the hearing of 9 July 1997. Furthermore, the court of first instance was requested to enclose a copy of its decision of 14 July 1997 and a copy of the first and second applicants’ appeal against that decision. On 29 February 2000 the Zagreb County Court quashed the Zagreb Municipal Court’s decisions of 9 July and 14 July 1997 and remitted the case to the court of first instance. On 15 January 2001 the Zagreb Municipal Court dismissed the application to return the proceeding to the status quo ante as it had been submitted by a representative without a power of attorney. It also dismissed the first and second applicants’ application for the re-opening of the proceedings, again as having been lodged out of time. On 8 February 2001 the first and second applicants appealed against the Municipal Court’s decision concerning their request for the re-opening of the proceedings. It appears that the cases are presently pending before the Zagreb County Court. | 0 |
train | 001-73081 | ENG | POL | CHAMBER | 2,006 | CASE OF MALISIEWICZ-GĄSIOR v. POLAND | 3 | Violation of Art. 10;Non-pecuniary damage - financial award | Christos Rozakis | 7. The applicant was born in born in 1950. She is a choreographer and lives in Łódź, Poland. 8. On 10 June 1992 at 11 p.m. Mr Andrzej Kern, at that time the Deputy Speaker of the Sejm, made a formal notification of the commission of an offence (zawiadomienie o popełnieniu przestępstwa) to the Łódź Regional Prosecutor, E.S., alleging that the applicant and her husband had kidnapped his 17-year-old daughter, M.K. The applicant submitted that the allegation was false as M.K. had in fact run away from home and had only been accompanied by the applicant’s son who had been her boyfriend for a long time. M.K. had previously run away from home on several occasions because of conflicts with her parents. Prosecutor E.S., who – according to the applicant – was a friend of Mr Kern, immediately instructed the Łódź Deputy Regional Prosecutor E.C. to take charge of the case. 9. On the same day, i.e. 10 June 1992, the prosecutor E.C. signed a warrant authorising the search of the applicant’s flat. The warrant was intended to search the flat for M.K. and for drugs. On 11 June 1992 prosecutor E.C. signed an order allowing the tapping of the applicant’s telephone. 10. On 11 June 1992 at 1 a.m. the applicant’s husband went to his cottage situated in the suburbs of Łódź. He was arrested by police officers who then searched the cottage. Prosecutor E.S. and Mr Kern were present at the scene. Subsequently, the applicant’s husband was taken to the Łódź Regional Police Station, where he was detained overnight. 11. On 11 June 1992 at 4 a.m. police officers searched the applicant’s flat in her presence. However, they did not find either M.K. or drugs. The police officers advised the applicant that her husband had been detained and served her with a summons to report on the same day at 12 noon to the Regional Police Station for questioning. 12. In the morning of 11 June 1992 the applicant’s husband was taken handcuffed to the premises of the regional prosecution service. He was questioned by prosecutors E.S. and E.C.. Mr Kern was present during the questioning. The applicant’s husband was released after the questioning. 13. The applicant failed to report for questioning on 11 June 1992. She submitted to the police a letter explaining that she had to care for her daughter who was ill. Subsequently, the applicant failed to report for questioning on 15 and 17 June 1992. On 23 and 24 June 1992 police officers tried to serve a summons on the applicant, but could not find her at her place of residence. 14. On 25 June 1992 prosecutor E.C. charged the applicant with kidnapping and signed an arrest warrant for her. Prosecutor E.C. also charged the applicant’s son with kidnapping. 15. On 29 June 1992 the applicant was taken into custody. She was detained in the Łódź prison hospital, apparently in the psychiatric ward. 16. On 1 and 2 July 1992 the applicant was questioned by prosecutor E.C. She was also confronted with Mr Kern. 17. In the afternoon of 2 July 1992 the applicant was released from detention. 18. On 30 June 1992 the applicant applied for a transfer of her case to a prosecutor who worked outside the Łódź region. On 4 August 1992 the Ministry of Justice advised her that the application had been allowed and that her case had been taken over by the Poznań Regional Prosecutor R.G. 19. On 16 September 1992 prosecutor R.G. decided to discontinue the criminal proceedings against the applicant and her son. He considered that they had not kidnapped M.K. The prosecutor referred to the statement taken from M.K. who testified that it had been her decision to run away from home and that she had asked the applicant’s son to accompany her. 20. Mr Kern and his wife lodged appeals against the decision to discontinue the criminal proceedings against the applicant and her son, but on 15 February 1993 prosecutor B.M. of the Ministry of Justice dismissed them. The prosecutor considered that the allegations of kidnapping were groundless. 21. The case concerning the alleged kidnapping of M.K. received wide coverage in the media. 22. In 1993 the applicant stood as an independent candidate in the parliamentary elections. 23. On 22 August 1993 she published an article in the weekly newspaper “Angora”. The first half of the article, which was published in a section entitled “Preelection Pranks”, read as follows: “WHY? I am an independent candidate for the Senate, not connected to any ‘networks’, relations or obligations. The fact that I am described in the press and television as ‘a mother-in-law of M. K.’ probably shows that the authors cannot mention names since they use such a euphemism. It is not my achievement and it was not a result of my efforts that we have become a family with Mr Kern. It can be explained by my son and his wife, if it is important ... In order to explain the origin of the idea of standing in the elections to the Senate I have to go back to the events which took place a year ago. At that time, I learned at my cost what the abuse of power meant! The Deputy Speaker of the Sejm at that time, directed by emotions and personal animosities, made the persons responsible for respecting the law – the Regional Prosecutor and his Deputy, and even the Minister of Justice – breach the law because of ‘the solidarity of colleagues’. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for ‘drugs’, my telephone calls were tapped, a car damaged. After such compromising events, a politician of such a calibre in the West would have had to leave. But here he still felt good – and the Sejm decided not to dismiss him! I can imagine what sort of arrangements must have existed in the Sejm to make such a decision! I was so shocked by this that I was ready to go abroad as nothing could be changed. A turning point came when the President dissolved the Parliament. People started to telephone and write letters asking me to stand in the elections. They were saying that the events which had taken place a year ago showed that I could fight. I am convinced that I am not the only one touched by the breaches of the law committed by the representatives of ‘the new democracy’. However, the law is the same for everybody, regardless of whether somebody is in power or is ‘an ordinary man’. This fundamental rule of democracy must be respected!” 24. The second half of the article described the applicant’s ideas about working in the Senate. 25. On 5 September 1993 the applicant published in the same weekly the following article: “ABOUT ME The first years of my professional life were dedicated to art. As a dancer and a choreographer I worked with numerous theatres and cultural centres – both in Poland (among others the Łódź Grand Theatre), and abroad. I also worked as a pedagogue with children and young people. In 1981 I started to run a private business and presently I am a co-owner of a company ‘AVATAR’. I have two children: a 22year old son ... and a 6-year old daughter ..., my husband – Jan – is an actor. I did not belong to any political party. I did not participate actively in politics ... In the summer of 1992 events took place which changed my attitude to the world. The abuse of authority, which I experienced, has made it impossible for me to stand idly on the sideline and watch people who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. After all, precisely that was done to me by the former Deputy Speaker of the Sejm, the former Minister of Justice, the former Regional Prosecutor and his former deputy. It is not by chance that today for some malicious people it is not important that I am an independent candidate for the Senate but only that I can be called the mother-in-law of M. K. [in bold in original]. They are not interested in the fact that a year ago I was arrested groundlessly and imprisoned – purposely! – in a psychiatric cell, that my home was searched on the pretext of ‘looking for drugs’, that after my release I was followed, my telephone calls were tapped and my car damaged, causing me constant mental pressure! All this happened in a country in which a westernstyle democracy had just set in! Today the Vice Minister of Justice sees ‘clear pressure brought by the Deputy Speaker Kern on the Łódź prosecution service’, and there are criminal proceedings pending against its former employees. I am a strong person. I have endured... However, I do not want any other innocent person to suffer similar harassment. There must be justice and equality before the law – regardless of whether somebody is ‘the man in the street’ or the Deputy Speaker of the Sejm! I know that I can fight and win! I have remained independent! That is why I have decided to enter the political arena! [in bold in original].” 26. In election broadcasts on the Łódź local radio station on 6, 9 and 15 September 1993 the applicant made the following statement: “A turning-point came last year. You remember that story, it was well-known in the whole of Poland, although I did not cause it. At that time, I realised to my cost what the abuse of power meant. The Deputy Speaker of the Sejm at that time, directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for drugs, my telephone calls were tapped, a car damaged. All this because the daughter of Mister Deputy Speaker decided to spend holidays with my son without her daddy’s permission. Until then I had thought that such behaviour had been possible only in the Stalinist era.” 27. In election broadcasts on the Łódź local television station on 13 and 16 September 1993 the applicant made the following statement: “The abuse of authority, which I experienced, has made it impossible for me to stand on the sideline and idly watch people, who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. Precisely that was done to me by the former Deputy Speaker of the Sejm, the former Regional Prosecutor and his deputy. Today, there are criminal proceedings pending against them. I am a strong, enduring person, however I do not want any other innocent person to suffer similar harassment.” 28. On 27 September 1993 Mr Kern lodged with the Łódź District Court a private bill of indictment. He charged the applicant with seven counts of defamation (zniesławienie) under Article 178 § 2 of the Criminal Code. In particular, Mr Kern alleged that the applicant had published the above articles and had broadcast the above election statements “in order to debase in the public opinion the Deputy Speaker Andrzej Kern and to expose him to loss of the trust necessary to perform his public and political functions.” 29. The applicant was tried by the Skierniewice District Court between 22 May 1995 and 18 March 1996. On 19 March 1996 she was convicted for having made on television, radio and in the press, between 22 August and 16 September 1993, statements that “Mr Kern directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues” and that “today there are criminal proceedings pending against him”. The trial court considered that her publications and statements constituted a single continuous offence of defamation. By making the above statements, the applicant “defamed Andrzej Kern and made untrue allegations which could have debased the victim in the public opinion and exposed him to loss of the trust necessary to perform the functions of Deputy Speaker of the Sejm of the Republic of Poland and other public functions as well as to work as a lawyeradvocate”. 30. As regards the first statement that “Mr Kern directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues” the trial court considered that even though Mr Kern personally made a formal notification of the commission of an offence to the prosecutor E.C., nevertheless, the prosecutors E.S. and E.C. acted independently when they made their decisions concerning the applicant’s case. The court noted that it was the right of every citizen to lodge a request to prosecute somebody and, therefore, the applicant’s statement that it constituted “a breach of law for the private interest” had been untrue. The court then examined the merits of the applicant’s allegations that she had been “arrested, detained in a psychiatric cell, [her] flat was provocatively searched for drugs, telephone calls were tapped, a car damaged.” The District Court established that warrants given by the prosecutor to arrest her, search her flat and tap her telephone calls were given in accordance with the law, however, it acknowledged that the prosecutor should have considered other preventive measures then arrest in order to interrogate the applicant. In sum, the court found as unsubstantiated the allegation that Mr Kern suggested, ordered, or in other manner “made the prosecutor to give decision to detain the applicant on remand”. 31. With respect to the statement broadcast on 13 and 16 September 1993 the court observed that: “between 22 August and 16 September 1993 there were no criminal proceedings pending against Andrzej Kern. In fact, the criminal proceedings against him were initiated only on 22 December 1993. On that date he was charged with having committed against M. K. a crime described in Article 168 of the Criminal Code. The victim filed written information about that crime on 11 October 1993 ...” 32. The trial court concluded that there was no evidence that while the applicant made the statements in question she “had a belief based on a wellfounded basis that the allegations were true and that she was defending a socially justified interest”. 34. The applicant appealed to the Skierniewice Regional Court against her conviction. On 18 November 1997 the court gave a judgment in which it upheld her conviction but changed the sentence. The applicant’s prison term was lowered to one year suspended for three years. She was ordered to pay for the publication of the judgment in one national daily and the announcement containing her apologies in the weekly “Angora”. Moreover, the applicant was ordered to reimburse the private prosecutor PLN 480 for the costs of the appellate proceedings and to pay a PLN 90 fee to the State Treasury. 35. The appellate court considered that the trial court’s assessment of facts and legal reasoning were correct. The court stressed that in order to find that there was no office of defamation, all three conditions set out in Article 179 § 2 must be fulfilled jointly. It further stated: “...Turning to the instant case, it should be considered that even if [the applicant] proved that her statements directed against Mr Kern were true or that she had a belief based on a well-founded basis that the allegations were true, that in any event, would not justify the trial court to apply Article 179 § 2. The firstinstance court rightly found that the action of I. Malisiewicz-Gąsior directed against A. Kern was an element of her election campaign, aiming at ‘promoting’ ... her own person, in order to obtain a positive election result...Therefore, [the applicant] could not be said to have been defending a socially justified interest, as she had been trying to achieve her private objective...” 36. Nevertheless, the Regional Court found that the sentence imposed on the applicant by the trial court was too harsh. In this connection the court established as follows: “...The appellate court considers that, in deciding the severity of the criminal measures against the applicant, her particular psychological situation - since the beginning of all criminal proceedings against her - should have been taken into consideration. It is beyond doubt that she could have subjectively felt that the [prosecuting] authorities had been overactive, which was not without influence on her being able to control her emotions and on her motivations.” 37. The applicant could not afford to hire a lawyer to lodge a cassation appeal and therefore she applied to the Minister of Justice and the Ombudsman to lodge a cassation appeal against her conviction. On 15 December 1998 the Ombudsman allowed her application and filed with the Supreme Court a cassation appeal against the judgment of the Skierniewice Regional Court. 38. The Ombudsman submitted that the courts had failed to take into account evidence pointing to the fact that “the inadequacy of the actions of the police and the prosecution service in respect of herself and her family in the case concerning the kidnapping of M. K. could have led [the applicant] to the justified belief that her allegations concerning Mr Kern had been true and that she had been ‘defending a socially justified interest’”. In this connection, the Ombudsman stated in his appeal that: “Furthermore, the courts’ view that the defendant was not defending a socially justified interest because she was participating in her own election campaign and aiming in the first place to achieve her own private objective is not supported by the evidence which was collected and disclosed at the hearing. The participation in one’s own election campaign cannot be an obstacle to speaking on the subject of ensuring respect for the law by institutions and public personalities. What is more – an election campaign invariably constitutes a period of public statements on important social issues, which certainly include the respect for the law, especially by institutions and persons especially obliged to do so. It is therefore difficult to consider that it was the defendant’s intention to promote herself and not – by using the opportunity to speak publicly – pointing, on the basis of her own experience, to the danger of breaking the law by a public institution as a result of yielding to the pressure of public personalities.” 39. The Ombudsman further submitted that prosecutors E.S. and E.C. had broken the law. He relied on the files on the disciplinary proceedings taken against both prosecutors. 40. Finally, the Ombudsman challenged the courts’ assessment of part of the evidence. 41. On 1 December 2000 the Criminal Section of the Supreme Court dismissed the cassation appeal. Its reasoning ended with the following conclusion: “The irresistible conclusion is that the submissions made in the cassation appeal, formally of a procedural nature, concern in fact the allegation of an error in the assessment of facts taken as the basis for the decision and the assessment of evidence, which is not allowed in cassation proceedings. Cassation proceedings cannot be transformed into third-instance proceedings dedicated to further consideration of all aspects of the submissions made in the appeal, which have already been analysed by the appellate court. (...)” 42. In the meantime, on 24 August and 28 September 2000 the Skierniewice District Court held hearings on the enforcement of the applicant’s prison sentence as she had failed to apologise to Mr Kern. The applicant did not attend the hearings. 43. On 23 October 2000 the Skierniewice District Court decided not to enforce the suspended prison sentence imposed on the applicant. 44. Article 178 of the Criminal Code 1969 read as follows: “§ 1. Anyone who imputes to another person, a group of persons or an institution such behaviour or characteristics, which may debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine. § 2. Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person, a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 3 years. (...) § 4. The prosecution takes place under a private bill of indictment.” Pursuant to Article 179: “§ 2. There is no offence described in Article 178 § 1 if: 1) an allegation made publicly is true and the offender acts in the defence of a socially justified interest or has a belief based on a well-founded basis that he is defending such an interest, or 2) the offender makes an allegation publicly and has a belief based on a wellfounded basis that the allegation is true and that he is defending a socially justified interest. § 3. Non-existence of an offence resulting from the reasons described in §§ 1 and 2 does not exclude the offender’s liability for defamation because of the form in which an allegation was made or made public.” | 1 |
train | 001-92246 | ENG | NOR | CHAMBER | 2,009 | CASE OF EGELAND AND HANSEID v. NORWAY | 3 | No violation of Art. 10 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicants were born in 1951 and 1943, respectively. The first applicant lives in Bekkestua, near Oslo, and the second applicant lives in Oslo. At the material time, the first applicant was the Editor in Chief of Dagbladet and the second applicant was the Editor in Chief of Aftenposten, two major national newspapers in Norway. 6. The present case has its background in the same case-complex as a previous application, P4 Radio Hele Norge ASA v. Norway ((dec.), no. 76682/01, ECHR 2003VI). Like the latter, it concerns a complaint under Article 10 of the Convention about restrictions on media coverage of a major criminal trial, in this case concerning charges against four persons of triple murder, the so-called Orderud case, which took place before the Nes District Court (herredsrett) from 18 April to 15 June 2001. This was probably the most spectacular and media-focused criminal case in Norwegian history. The trial involved a son (A) and his wife (B), the wife’s half-sister (C) and a friend of the latter (D), who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner. 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 pictures were transmitted live and shown on a television screen. On 6 May 2003 a Chamber of the former Third Section declared inadmissible as being manifestly ill-founded P4’s complaint that a refusal by the District Court, under section 131A of the Administration of Courts Act 1915 (domstolloven- hereinafter “the 1995 Act”), to grant its application for radio broadcasting directly from the court hearing room violated Article 10 of the Convention. 7. The case under consideration concerns restrictions on the publication by the press of photographs taken of B without her consent outside the court house while leaving, shortly after having attended the District Court’s delivery of its judgment of 22 June 2001, convicting A, B and C of the charges and sentencing each of them to 21 years’ imprisonment and sentencing D to 2½ years’ imprisonment. 8. The delivery of the District Court’s judgment was broadcast live on TV by two leading national broadcasting companies, the NRK and the TV2. The broadcast did not contain any pictures of B. 9. In the proceedings summarised here below, the Supreme Court (in paragraph 12 of its judgment), relying on the District Court findings, described the circumstances in which the photographing of B had taken place as follows: "The District Court has established as a fact that during the reading out of the judgment B realised that she would be found guilty, and that she suffered a physical reaction in the form of nausea. Because of this she went to the toilet, together with one of her defence counsels, Ms Y, Advokat. Thereafter she entered a side room, where she cried and was in deep despair. Shortly afterwards she was notified that she had been rearrested, to be remanded in custody. The rumour had spread, and a large number of photojournalists were waiting outside the community hall. B left the building 20-30 minutes after the judgment had been pronounced, together with defence counsel, Ms Y, accompanied by a plain-clothes police officer who walked a few metres behind them. On the way to the unmarked police car, which was parked 20-30 metres from the exit, she was photographed a number of times...” 10. On 22 June 2001 Dagbladet published and extra edition featuring a photograph covering two thirds of a page, showing B, holding a handkerchief to her face, and her lawyer Y, taken in a side angle from behind. The picture was part of an article, entitled “The farm dispute led to homicide”. An article underneath was entitled “Tense atmosphere before verdict”. The caption stated “Arrested: [B] was this morning sentenced to 21 years of prison. Here, while crying, she is guided out of the premises by her lawyer [Y]”. 11. On 23 June 2001 Dagbladet published a smaller photograph showing B seated inside an unmarked police car. The picture is part of an article entitled “Broken”, with an accompanying text: “The heavy trip, [B] is lead out of the [court house] and taken to Lillestrøm police station.” 12. On 23 June 2001 Aftenposten published a photograph covering one fifth of a page, showing B crying outside the court house, taken from the front holding a handkerchief, while her lawyer Y walks next to her and makes a deprecating gesture toward the photographer. A person walks behind, identified as a plain clothes police officer. Underneath the caption states: “21 years. [B] has realised it now – that freedom will not be the outcome. She is supported on the way out by defence counsel Y.” The picture appeared next to an article entitled “Firm, clear – and appealed”, commenting on the judgment. Below on the same page featured another article entitled: “The words are merciless- they fall like needles against the dense silence. Twisting around”. This photograph had been purchased and published by a number of newspapers throughout the country. 13. In the above-mentioned issues Dagbladet and Aftenposten reported on the District Court’s judgment and on the arrest. The prospects of arrests in the event of conviction had been an issue of discussion in the above newspapers during the weeks before. 14. B had not given her consent for photographs to be taken of her; on the contrary her lawyer Y attempted to prevent it. The authorisation to broadcast the delivery of the judgment had only concerned the reading out of the judgment as such. 15. On 6 July 2001 B’s defence lawyer, F.S., reported the applicants and three of the photographers to the police for violation of section 131A of the 1915 Act, which led to charges being brought against them. 16. On 15 October 2003 the Nedre Romerike District Court acquitted the defendants of the charges, giving inter alia the following reasons: “The District Court underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited, as is the publication of such images, but that the prohibition will not apply where entirely special considerations so indicate. In the assessment of the District Court such entirely special and weighty considerations are present in this case. In this regard the District Court notes that [B] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband. As has already been noted, this crime, the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public. A further point for the Court is that [B]’s identity had since long been revealed. Photographs of her had appeared in all the country’s newspapers numerous times during the course of the investigation and in connection with the trial hearing before Nes District Court. During the period prior to the trial in the District Court, [B] had rarely consented to being photographed. Nevertheless, the press took a number of photographs of her without her knowledge. However, the situation was different during the almost eight week long trial. According to the information provided, [B] and her husband had consented to being photographed once per week during the trial. The photographs taken during these photo sessions appeared almost daily in the country’s biggest newspapers and on various television channels. The issue of protection against identification through photographs was accordingly not an argument in this case. ... ... A key consideration underlying the prohibition against the taking of photographs in section 131A is to protect the accused or convicted person against portrayal in situations in which their self-control is reduced. In this case [B] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock. On the other hand, the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until 25-30 minutes after the end of the court hearing at which the judgment was delivered. In the meantime she had had the opportunity to compose herself in a side room to the hearing room, in the presence of her two defence counsel and members of her family. In the assessment of the District Court it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to Article 10 § 2 of the ... Convention ... . However, the court views this in the context of the fact that an arrest situation must be said to have existed at the time. [A], [B] and [C] were all arrested by the police during the minutes following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel. Two of the photographs that formed the basis for the penalty charge notices in this case depict [B] as she crosses the 20 - 30 metres between the court premises and the police car that would take her to the police station in Lillestrøm. The third photograph depicts her seated inside the unmarked police vehicle. It is clear that the issue of arrest had been discussed in a number of mass media during the days preceding the pronouncement of judgment. There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before the High Court that most people expected would come, whatever the outcome in the District Court. As noted earlier, the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation. This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that three of the convicted persons had been rearrested. Based on the information on the case presented before the District Court it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested. An arrest of this nature must be regarded as a new situation in terms of fact and law. This was an event that was awaited with considerable interest by the media and the general public. Interestingly, in the wake of the arrest, there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not. The District Court regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images. In the assessment of the District Court the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises. Aftenposten’s feature on 23 June 2001 states on the front page, on which [B] is shown being escorted into the prison building, that an arrest took place immediately after judgment had been pronounced. The arrest is also described in detail in the extra edition of Dagbladet on 22 June 2001. The Court’s assessment of the photographs concerned by the penalty charge notices [foreleggene] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest. As a general rule there is no prohibition against taking photographs of arrest situations. Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain-clothes officers and unmarked police vehicles, the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion. The three defendants who, prior to the trial before Nes District Court, had been at liberty for over a year were immediately arrested and subsequently remanded in custody. As a result of subsequent developments in the case, these three have not been out of prison since their arrest on 22 June 2001. The District Court accordingly finds having assessed the circumstances as a whole, that entirely special considerations are present such that the prohibition against the taking of photographs in section 131A of the 1915 Act cannot entail criminal liability for the journalists and editors charged in this case. All five defendants will accordingly be acquitted.” 17. The Public Prosecutor appealed against the applicants’ acquittal (not that of the photographers) directly to the Supreme Court. 18. By a judgment of 23 March 2004 the Supreme Court convicted the applicants of having published the impugned photographs in violation of sections 131A and 198 (3) of the 1915 Act and sentenced each of them to pay NOK 10,000 in fines, failing which the fines were to be converted into 15 days’ imprisonment. The Supreme Court rejected a claim by B for compensation of non-pecuniary damage. Its reasoning, stated by Mrs Justice Stabel and joined in the main by the other members of the formation, included the following: “(13) The District Court held that B had not given her consent to being photographed. On the contrary, Y made active attempts on her behalf to prevent the taking of photographs. I find in addition that the consent that the District Court gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment. It is in any event clear that the authority of the Court to grant an exemption from the prohibition against the taking of photographs in section 131A(2) of the 1915 Act applies only during the trial itself. This provision will accordingly not apply in our case. (14) The question in this case is whether it constituted a breach of section 131A of the 1915 Act and thus a criminal offence pursuant to its section 198 (3) to publish photographs of a weeping B, distraught and dissolved in tears, leaving the court premises having been convicted of aiding and abetting in a triple homicide. If this question were to be answered in the affirmative, a further question would arise as to whether the enforcement of the prohibition would be contrary to ... Article 10 of the Convention, cf. section 3 of the Human Rights Act. ... (15) It is the second sentence [of section 131A(1)] that is of interest in our case. ... (16) The question is: What restrictions will follow from the phrase ‘on his or her way to, or from, the hearing’. I agree with the District Court that the restrictions on the taking of photographs will apply only ‘in the immediate vicinity of the court premises, i.e. normally up to the car parking area, and that the special protection that follows from section 131A will not apply after the accused has driven away from the court premises’. The District Court concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle. I agree with this. I also agree with the District Court that the fact that she was under arrest at the time does not render the provision inapplicable. (17) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section 131A .... I must therefore examine whether ... Article 10 of the Convention would nevertheless lead to a different outcome. (18) On the subject of the general balancing of interests I refer to the discussion in Supreme Court’s judgment in the Valebrokk case (2003)... . The Supreme Court held by three votes to two that the filming by TV2 of one of the convicted persons following the pronouncement of judgment in the Baneheia case did not constitute a punishable offence. The majority found, with the support of the minority, that the general rule must be that the taking of photographs in the courtroom was prohibited, including after the court had adjourned, but that this restriction would not apply ‘where entirely special considerations suggest that the taking and publishing of photographs must be permitted’. (19) The majority held that the purpose of the prohibition was to protect the ‘reputation or rights’ of the accused or convicted person, and that accordingly the Act pursued a legitimate aim. Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to Article 10 § 1, it ought to be considered whether the interference nevertheless was necessary in a democratic society according to Article 10 § 2. The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom, both during the hearing itself and in immediate connection with the hearings. The majority noted that most countries had prohibitions against the taking of photographs, although the scope and wording varies. By way of conclusion, paragraph 62 noted that: ‘The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned, and a prohibition against the publication of the photographs, although the prohibition will not apply if warranted by entirely special considerations. The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs. It is of course true that a rule with certain limitations will be less absolute. Even so, a rule of this nature will not give the news media a ‘free hand’ to take and publish photographs when deemed expedient. The prohibition against the taking of photographs is supported by weighty and genuine considerations, not least in the situation immediately after the pronouncement of a judgment. Accordingly, in such a situation, strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display.’ (20) The view that the prohibition against the taking of photographs does not violate Article 10 would appear to be supported by the inadmissibility decision of 6 May 2003 rendered by the European Court in P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003VI. ... (21) The European Court found the application to be ’manifestly ill-founded’. The Court held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in Article 10 § 1. Nevertheless, the Court held that there was no common ground in the legal systems of the Contracting States with regard to radio and television transmission from court proceedings. The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways. Moreover ... the Court held: ‘Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. ...’ (22) The Court also held that the national authorities, particularly the courts, were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the ’fair administration of justice’. By way of conclusion the Court noted that on this point the Contracting States must enjoy a ’wide margin of appreciation’. Thus the general rule provided for in section 131A of the Administration of Courts Act, which applies equally to broadcasting and the taking of photographs, was not found to be problematic in relation to Article 10 of the Convention. (23) ...It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing ‘fair administration of justice’ is relatively broad. (24) The opinions expressed in this decision must also have a bearing in relation to section 131A(1), second sentence, of the 1915 Act. The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by the Director General of Public Prosecutions: -Protection against identification through the taking of photographs. - Protection against portrayal in photographs in situations in which the subject’s control is reduced. - The safeguarding of one of the fundamental requirements for due process of law, namely that it should inspire trust and show consideration towards the persons involved. An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden. - The need to protect the dignity and reputation of the courts. Since in general it is the courts that require the presence of the accused, which of itself may be burdensome, it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment. A failure to do so will affect not only the accused person him or herself, but also the court, which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court premises. (25) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process. Although the need to safeguard the openness of proceedings, including satisfactory opportunities for an active and alert press, is a central consideration, this means that a balancing of interests must be conducted. The legislators conducted this balancing of interests with the introduction of section 131A of the 1915 Act, and the penal provision in section 19(3), in connection with the enactment of the Criminal Procedure Act of 22 May 1981 nr. 25. It is apparent from the legislative history that the background to this was that the existing legislation, including the Photography Act of 1960, was not found to afford the accused and convicted persons sufficient protection against being treated as ‘fair game’ by the press, particularly in cases of major interest to the public. (26) I should add that the provision has not been regarded as a problem in relation to Article 10 of the Convention. Doubt on this point has mainly attached to other aspects of the new Article 390C of the Criminal Code, which was enacted with the legislative change of 4 June 1999 nr. 37, but which has not yet entered into force. This provision entails an extension of the prohibition against the taking of photographs, inter alia in relation to suspected persons in the custody of the police. Given the position of our case, I will not discuss this in further detail. (27) Accordingly I will now move on to consider whether in our case there exist entirely special considerations, see the Valebrokk ruling, according to which the prohibition against the taking of photographs must yield to the freedom of expression. In paragraph 63 of the judgment in that case (HR-2003-00037a-A63) the majority attached weight to the fact that the case - the harrowing child killings in Baneheia - had attracted extensive public interest and that the identity of the convicted person was known. It was also noted that the photographs might reveal something significant - in a negative sense - about his personality. The decisive point, however, which was discussed in paragraph 64, was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel. This was viewed as information which the public had a right to receive in such a case. (28) Applied to our case it is clear that the Orderud case, too, was horrifying and was the subject of enormous public interest. Moreover, B’s identity was already widely known when the photographs were taken. However, the photographs of B were in my view of an entirely different nature. The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances. She was in a situation in which she had reduced control, in immediate connection with her conviction by the District Court - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect. The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them. (29) The decisive point as regards the District Court’s acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law. According to the District Court the arrest was an event that it was legitimate for the mass media to cover, including with the aid of photographs. In my view there are no grounds for maintaining that the arrest meant that ‘entirely special considerations’ applied. An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the Orderud case, in which the accused persons had been at liberty throughout the trial. Moreover, I cannot conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation. As long as the photographs do not show something entirely special, for example relating to the procedures of the police during the arrest itself, the protection must in my view remain the same. (30) [The applicants’] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case, gave the media a right and a duty to inform, even if this was contrary to the interests of the convicted persons. Moreover, in today’s media-based society this information would not be complete without photographs, which suggested that the scope of the prohibition against the taking of photographs should be limited. In my view the protection afforded to the convicted person pursuant to section 131A of the 1915 Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes. In practice, persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified. Nevertheless, the other considerations justifying the prohibition against the taking of photographs will be present, frequently to a greater degree than in the case of other convicted persons. (31) ... (32) I have accordingly concluded that the District Court’s acquittal is not based on a correct application of the law. The case has been sufficiently elucidated for the Supreme Court to render a new judgment, cf. Section 345 second paragraph of the Criminal Procedure Act. The Defendants have not objected to this. I find that [the applicants] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution, a fine of NOK 10,000, in the alternative a prison sentence of 15 days, is appropriate for both parties. (33) I will conclude by considering the criminal injuries compensation claim. (34) B has filed a claim for damages for non-pecuniary loss, not to exceed NOK 50,000, from each of the accused. She submits that given their convictions for breaches of sections 131A and 198(3) of the 1915 Act, the preconditions for awarding damages pursuant to section 3-6(1), last sentence, of the Damage Compensation Act will also have been met. I agree that this may frequently be the case. However, I will not consider this further since this involves a ‘may’ provision and I do not find that there are sufficient grounds to award economic compensation in this case. (35) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment. Moreover it is clear from B’s testimony that she was not even aware that the photographs had been taken. The violation lies solely in the publication of the photographs, which were not particularly conspicuous in relation to what had been published about her otherwise. This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process. Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages.” 19. 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.” 20. Section 198(3) provided that the taking of photos or recordings made in breach of section 131A is punishable by the imposition of fines. 21. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies) contains the following principle of particular interest to the present case: “Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” | 0 |
train | 001-58417 | ENG | PRT | CHAMBER | 2,000 | CASE OF ALMEIDA GARRETT, MASCARENHAS FALCAO AND OTHERS v. PORTUGAL | 1 | Preliminary objection dismissed (Article 35-3-a - Ratione temporis);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | A. De Sousa Inês;Elisabeth Palm;Gaukur Jörundsson | 7. The six applicants, who are Portuguese nationals, were born respectively in 1926, 1932, 1939, 1919, 1935 and 1930. They all live in Lisbon, except for the last two applicants, who live at Constância. All owned land that had been expropriated and nationalised as part of the agrarian-reform policy in Portugal. 8. In 1975 Mr Almeida Garrett was the owner of three plots of agricultural land with a total surface area of approximately 2,145 hectares. 9. Under the agrarian-reform policy, two of the plots were nationalised by Legislative Decree no. 407-A/75 of 30 July 1975. The third plot had been expropriated by Ministerial Decree no. 52/76 of 29 January 1976 issued by the Minister of Agriculture, which was published under Legislative Decree no. 406-A/75 of 29 July 1975. The aforementioned legislative decrees provided that the owner could, subject to satisfying certain conditions, exercise his right to a “reserved share” (direito de “reserva”) over part of the land to carry on agricultural activities. They also provided for the payment of compensation, for which the amount, the time-limit and the terms of payment had yet to be determined. In accordance with the relevant legislation, the provisional compensation to which the applicant was entitled was assessed in March 1983 at 16,204,266 Portuguese escudos (PTE). On 16 September 1991 that sum was made available to the applicant in the form of government securities. The applicant exercised his right to a reserved share in the plots of land concerned on several occasions such that by 30 September 1990 at the latest, he was already in possession of part of the land. However, another part of the land, measuring 1,176 hectares, was not returned to him. 10. On 30 December 1992 the applicant brought an action in damages against the State before the ordinary courts (Seventeenth Civil Division of the Lisbon Court of First Instance) because of its failure to pay the final compensation following the expropriation. He alleged that in view of the length of time he had been kept waiting for payment of the final compensation since the expropriation, the general law on expropriations should have been applied (not the law relating to the agrarian reform). He therefore sought payment of compensation that took into account the period that had elapsed since the expropriation. 11. In a decision of 14 January 1993 the Court of First Instance dismissed the action holding, as a preliminary point, that it had no jurisdiction ratione materiae. The applicant appealed, but the Lisbon Court of Appeal (Tribunal da Relação) upheld the impugned judgment in a decision of 9 December 1993. 12. The applicant appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça), which, in a decision of 31 May 1994, dismissed the appeal holding, inter alia, as follows: “Delays in payment of compensation for nationalisation and expropriation must not be regarded as constituting an unlawful omission by the political and administrative authorities ... It has been established that sections 15 and 16 of Law no. 80/77, which require the authorities to assess the compensation due for the nationalisation and expropriation of agricultural land situated in the area to which the agrarian reform applies, are not substantively unconstitutional as the assessment of such compensation is also within the province of the administrative authorities (see the decision of the Constitutional Court no. 39/88 of 9 February 1988) ... It must be added that Legislative Decree no. 199/88 of 31 May 1988 expressly made the administrative authorities responsible for assessing the amount of [such] compensation ... It therefore follows from the decrees that compensation due to the former owners of rights in property that has been nationalised, expropriated or requisitioned is assessed by the administrative authorities [though an appeal lies to the Supreme Administrative Court against such assessments], such that the ordinary courts have no jurisdiction ratione materiae.” 13. On 17 June 1994 the applicant lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). On 7 June 1995 the Constitutional Court declared the appeal inadmissible. It said that before the lower courts the issue of constitutionality raised by the applicant concerned only the case-law, not the statutory provisions. Therefore, it could not hear the appeal, since it could only examine the conformity of statutory provisions with the Constitution, not the conformity of court decisions. The applicant then applied to the Constitutional Court to have that decision set aside as being null and void, but his application was dismissed on 6 July 1995. 14. On 27 February 1985 the applicant brought a claim for damages against the State in the Lisbon Administrative Court (Auditoria Administrativa, which has now become the Tribunal Administrativo de círculo). He sought, inter alia, reparation for the damage he had sustained as a result of the failure to pay the final compensation following the nationalisation and expropriation of his plots of land. In a judgment of 29 November 1993, the Administrative Court dismissed the applicant's claims. Having referred to the relevant legislation, the Administrative Court held that no compensation for the alleged damage could be claimed other than by following the administrative procedure. 15. On an appeal by the applicant, the Supreme Administrative Court (Supremo Tribunal Administrativo) upheld the impugned judgment in a decision of 12 July 1994. After recognising the applicant's right to “fair compensation”, it pointed out that under the legislation applicable in such cases the amount of compensation had to be assessed by the authorities. On 7 February 1995 the Supreme Administrative Court dismissed an application for interpretation of that decision. On 28 March 1995 it dismissed an application by the applicant for a declaration that that decision was null and void. 16. The applicant lodged a number of claims with the authorities concerning the delays in the payment of the provisional compensation and in the assessment of the final compensation, the first such claim being lodged in 1978. He also requested that an arbitration tribunal be set up in order to decide his dispute with the State. His requests were, however, turned down. By an ordinance issued by the Prime Minister on 5 January 1989 it was decided among other things not to accept the request for the setting up of an arbitration tribunal “in view of the publication of Legislative Decree no. 199/88” (see paragraph 34 below). 17. On 12 July 1991 the applicant requested the Ministry of Agriculture to assess the final compensation in accordance with Legislative Decrees nos. 199/88 and 199/91. 18. On 21 June 1996 the Ministry of Agriculture sent the applicant a proposal for final compensation assessed at PTE 143,659,000 and requested his observations. 19. On 17 July 1996 the applicant submitted his observations, drawing the relevant department's attention to various inaccuracies in the proposal. 20. On 21 July 1999 the Ministry of Agriculture sent a revised proposal for final compensation replacing the previous one. The revised amount came to PTE 207,302,000. 21. On an unspecified date the applicant sent his observations on the new proposal to the Ministry, drawing its attention to various factual and legal points. The proceedings concerning the assessment of the final compensation are thus still pending. 22. In 1975 the Mascarenhas Falcão family was the owner of a plot of agricultural land with a total surface area of approximately 1,197 hectares. 23. Under the agrarian-reform policy, the plot was expropriated by a ministerial decree (no. 560/75 of 17 September 1975) issued by the Minister of Agriculture and published pursuant to Legislative Decree no. 406-A/75 of 29 July 1975 (see paragraph 9 above). In accordance with the relevant legislation, the applicants received the sum of PTE 8,652,420 in government securities in November and December 1983, as provisional compensation. The applicants exercised their right to a reserved share in the land on several occasions, such that by March 1991 they were already in possession of the whole of the land. 24. On 9 May 1990 the applicants brought an action in damages against the State before the ordinary courts (Twelfth Civil Division of the Lisbon Court of First Instance) because of the State's failure to pay the final compensation after the expropriation. They alleged that in view of the length of time they had been kept waiting for payment of the final compensation since the expropriation, the general law on expropriations should have been applied (not the law concerning the agrarian reform). They thus sought payment of compensation that took account of the period that had elapsed since the expropriation. 25. In a judgment of 21 December 1993, the Court of First Instance declared that it had no jurisdiction ratione materiae, holding, in particular, as follows: “It is the ... government which is empowered to assess ... final compensation ... . In view of the administrative nature of the act concerned, an administrative appeal lies against such assessments to the Supreme Administrative Court ... . It therefore follows that, since the statute does not provide for the intervention of the ordinary courts in the procedure for assessing such compensation, the conclusion that this Court has no jurisdiction ratione materiae to hear the [applicants'] claims is inescapable.” 26. The applicants appealed to the Lisbon Court of Appeal, which on 23 June 1994 dismissed the appeal, holding, inter alia: “It is not until after [the request for assessment of the final compensation] has been presented and after the corresponding administrative procedure ... that the remedy before the administrative authorities is exhausted. It is therefore for the claimants to appeal to the courts if they disagree with the decision. In view of the administrative nature of the acts in issue, any appeal should be to the administrative courts ... . Nor do the ordinary courts have any jurisdiction to hear requests for compensation for delay or for damage sustained because of delay, since the wording of Article 1 § 1 of Legislative Decree no. 199/88 – when referring to final compensation due on the nationalisation or expropriation of land under the legislation concerning the agrarian reform – suggests that the decree also covers compensation for such damage to the extent that it results, albeit indirectly, from the expropriation itself.” 27. The applicants appealed on points of law to the Supreme Court but withdrew their appeal purportedly on account of the Supreme Court's settled case-law in such cases. 28. On 26 September 1991 the applicants had lodged a request for compensation with the Minister of Agriculture for the delay in their recovering the land over which they had exercised their right to a reserved share. On the instructions of the Minister, legal counsel from the Ministry then issued a legal opinion concerning the request. The relevant part of the opinion reads as follows: “[The State] can have no liability in the instant case other than that which arises under Law no. 80/77 and the related statutory provisions ... . Otherwise, additional compensation would have to be added to that payable under Law no. 80/77, which would be contrary to the entire body of legislation on compensation payable under the agrarian reform.” 29. On 25 October 1991 the Minister indicated his agreement with the opinion and ordered that the applicants be notified of it. 30. The applicants then asked the Minister of Agriculture on 16 August 1991, 26 September 1991 and 18 April 1995 to award final compensation under Legislative Decrees nos. 199/88, 199/91 and 38/95. On 18 September 1998 the Ministry sent the applicants a proposal for final compensation of PTE 1,930,315 and requested their observations. It was nonetheless stipulated that from that amount had to be deducted the sum which the applicants had already received as provisional compensation, which meant that they were not entitled to any further sum. On 9 October 1998 the applicants submitted their observations. They drew the relevant department's attention to the fact that the proposal contained a number of inaccuracies. To date, no decision has been taken. 31. The rules governing expropriations and nationalisations carried out as part of the policy of agrarian reform were set out in Legislative Decrees nos. 406-A/75 of 29 July 1975 and 407-A/75 of 30 July 1975. The right to a reserved share entitled owners to remain in possession of part of their land. Framework legislation (Law no. 77/77 of 29 September 1977) concerning the general basis of the agrarian reform amended the rules governing the right to a reserved share and established that the nature of the landowners' interest in the reserved share was proprietary. The rules governing the right to a reserved share were further amended by subsequent framework legislation (Law no. 109/88 of 26 September 1988). 32. On 26 October 1977 Parliament adopted Law no. 80/77 laying down the procedures for compensating former owners of nationalised or expropriated property. Under section 19 of that Law, compensation, which was initially assessed provisionally before being assessed finally, was to be paid in government securities maturing over a period of several years and bearing interest at the rates prescribed in the schedule to the Law. For amounts exceeding PTE 6,050,000, payment was scheduled over twenty-three years (after a standstill period of five years) with an annual rate of interest of 2.5%. Section 24 specified that interest started to run from the date of the expropriation or nationalisation since it was due from the date scheduled for the issue of the government securities (which, in the applicants' case, by virtue of Legislative Decree no. 213/79 of 14 July 1979, was 1 September 1980). Lastly, section 13(3) provided that provisional compensation had to be regarded as a payment on account of final compensation such that the person concerned could be required to pay back provisional compensation to the State if either no final compensation was payable or the final compensation came to less than the provisional compensation. 33. As to the procedure for challenging the decisions of the authorities on this issue, section 16 of the Law provided: “1. Without prejudice to any remedies available before other competent bodies, disputes relating to the right to final compensation and to the assessment, payment and effectiveness of such compensation shall be resolved by way of review of the relevant administrative act by an arbitration tribunal ...” As to compensation due specifically in connection with the agrarian reform, section 37 of the Law provided that the government would determine the criteria for valuing the expropriated or nationalised property within sixty days. The government did not, however, comply with that time-limit. 34. On 31 May 1988 the government adopted Legislative Decree no. 199/88 determining how the general principles on compensation for expropriations and nationalisations set out in Law no. 80/77 would apply to the agrarian reform. The explanatory memorandum to the legislative decree included the following statement: “Although more than thirteen years have elapsed since those nationalisations and expropriations, there has yet to be paid, or even assessed, the amount of final compensation due to the private owners who were affected by the measures, since the legislative decree that should have determined the criteria necessary for assessment purposes has never been adopted. It is this serious gap in our legal system which the government now proposes to fill in the light of the general rules adopted by Parliament in 1977.” 35. New criteria for the calculation of compensation were introduced by Legislative Decrees nos. 199/91 of 29 May 1991 and 38/95 of 14 February 1995. Compensation due to people who had recovered all or part of the land concerned by exercising their right to a reserved share was to be calculated on the basis that it was intended to cover only the damage caused by the occupation of that land during the period of deprivation of ownership. 36. The rules of procedure for determining the final compensation were set out in Articles 8 and 9 of Legislative Decree no. 199/88. The onus was on the landowners to claim compensation, thereby commencing the procedure. Claims were decided by an arbitration tribunal which included one representative of each of the Minister of Agriculture, the Minister of Finance and the landowner. The tribunal then made a proposal to the government, which determined the amount of compensation in a decree issued jointly by the Ministers of Agriculture and Finance. That procedure was amended by Legislative Decree no. 38/95 of 14 February 1995. The amendments included a right for the authorities to initiate the procedure for assessing the final compensation ex officio. The arbitration tribunals were abolished, the task of assessing the final compensation becoming the sole responsibility of the Ministers of Agriculture and Finance, whose decision was based on a proposal by the relevant departments of the administrative authorities (the regional directorates of the Ministry of Agriculture). The landowner had the right to comment on the proposal made by the authorities before a final decision was taken by the Ministers of Agriculture and Finance. Those two statutory provisions, Legislative Decrees nos. 199/88 and 38/95, were silent as to the remedies available to the landowner, although under administrative law it is possible to lodge an application with the administrative courts for judicial review of a ministerial act that gives cause for complaint. 37. The Constitutional Court examined the issue of the compatibility with the Portuguese Constitution of the system of payment of compensation following a nationalisation or expropriation in its decisions nos. 39/88 of 9 February 1988 and 452/95 of 6 July 1995. With regard to the authorities' delay in the payment of compensation, it held in the first of these decisions: “... certainly all that [namely, the payment of the compensation] was done a considerable time after the nationalisations were carried out. It might be said that such delay constitutes a violation of the principle set out in Article 82 of the Constitution requiring the payment of compensation. However, that would be wrong. If, as a result of such a situation, there was a breach of the right to compensation on the ground that that right might become uncertain and therefore devoid of substance, the breach would not have been caused by any defect in the provisions under consideration but by the authorities' inaction or lack of diligence; and if it was the case that the authorities failed to act owing to the absence of statutory provisions capable of ensuring the effective application of the provisions in force and, consequently, the effective exercise of the right embodied in Article 82 of the Constitution, then any failure to abide by the Constitution would be by way of omission ... . This Court is not, however, called upon to examine that issue.” | 1 |
train | 001-58113 | ENG | AUT | CHAMBER | 1,997 | CASE OF SZÜCS v. AUSTRIA | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Feyyaz Gölcüklü;N. Valticos | 6. Mr Zoltan Szücs, a Hungarian national born in 1971, lives at Halaszetelek (Hungary). 7. On 8 October 1990 the investigating judge at the Wiener Neustadt Regional Court (Kreisgericht) began a preliminary investigation and issued a warrant for the arrest of the applicant and three other persons suspected of having made fraudulent use of another person’s credit card when making purchases in various shops in Austria to the value of about 200,000 Austrian schillings (ATS). 8. On 25 February 1991 the police arrested the applicant at the border between Austria and Hungary as he was preparing to enter Austria. 9. On 26 February 1991 the investigating judge at the Eisenstadt Regional Court interviewed Mr Szücs and detained him pending trial. 10. On 4 April 1991 he again interviewed the applicant. 11. On 11 May 1991, at the request of the public prosecutor’s office, the investigating judge decided to discontinue the proceedings in the light of a graphologist’s finding that it was unlikely that the signatures on the payment slips for the purchases made with the stolen credit card were in the applicant’s hand. 12. The applicant was released on the same day. 13. On 6 May 1991 the applicant sought compensation from the State for the pecuniary damage sustained on account of his detention. 14. On 8 May 1991 the Review Division (Ratskammer) of the Wiener Neustadt Regional Court refused his compensation claim on the ground that, contrary to the requirements of section 2 (1) (b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz, “the 1969 Act” – see paragraph 20 below), the suspicion concerning him had not been dispelled. 15. On 27 May 1991 the applicant appealed against that decision to the Vienna Court of Appeal (Oberlandesgericht). 16. On 9 January 1992 the Court of Appeal, sitting in private, dismissed the appeal. It ruled as follows: “The Court accepts the appellant’s submission that in its decision the Review Division of the Wiener Neustadt Regional Court confined itself essentially to mentioning the applicable provisions and setting out the facts and did not make use of certain concrete information apparent from the file. The appellant, who has in the meantime been convicted in Austria of handling under Article 164 §§ 1 (2) and 2 of the Criminal Code and imprisoned, is in fact suspected of having participated in obtaining goods fraudulently by using an unlawfully obtained credit card made out in the name of another person. It cannot be ruled out that he signed payment slips using a card made out in the name of a woman by wearing a wig. This attempt to investigate was necessary as it had not been possible to bring the other offenders before the court below. Against the conjecture that the signatures were written by the appellant there stands only his assertion that he did not sign any payment slips and that he does not look like a girl either. In so far as he sought to have admitted as genuine proof of his innocence the expert’s statement that the signatures on the payment slips were probably not written by the appellant, regard must be had to the scale of probability drawn up by the expert, which does not at all exclude that the appellant wrote the signatures, and it must be observed that this submission by the appellant does not refute the argument that he took part in the fraudulent acts by providing the necessary transport to the various places where the offences were committed and conveying the proceeds from them, knowing that the other persons involved were committing offences. On the contrary, the large number of fraudulent purchases made both in Austria and in Italy supports the view that the appellant was fully aware of the criminal nature of the operations and that it was in full knowledge of this that he assisted the offenders in their criminal acts by continuing to provide transport (Article 12 of the Criminal Code). Contrary to what the appellant maintained, compensation under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act is payable only on condition that the innocence of the detained person can be regarded as proved; that is to say, it must be proved that the detained person is not punishable, and cannot be prosecuted, on account of the act in respect of which his detention was ordered. Where that remains only doubtful, suspicion is not dispelled and the condition on which compensation may be paid is not satisfied (see Mayerhofer-Rieder, second ed., E.11a and 12a, on section 2 of the Compensation (Criminal Proceedings) Act). In the instant case it cannot be said that suspicion has been dispelled, and the appeal, being unfounded, must therefore fail.” 17. In his pleadings of 27 May 1991 (see paragraph 15 above) Mr Szücs also complained of the excessive length of the detention pending trial and sought compensation for unlawful detention under section 2 (1) (a) of the 1969 Act (see paragraph 20 below). 18. On 9 January 1992, in a separate decision, the Court of Appeal, sitting in private as a court of first instance, dismissed the applicant’s claim on the ground that neither his arrest nor the order for his detention pending trial or the continuation of that detention had been unlawful. The Court of Appeal also referred to the reasoning in its other judgment of the same day (see paragraph 16 above). 19. Article 90 § 1 of the Federal Constitution provides: “Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law.” 20. The relevant provisions of the 1969 Act read as follows: “(1) A right to compensation arises: (a) where the detention of the injured party has been unlawfully ordered or extended by a national court ...; (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” “(1) ... (2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions of compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3 ... If the investigating judge decides to discontinue the proceedings, the Review Division concerned shall rule. (3) Before ruling, the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ... (5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. (6) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision. If the court which has to rule is the court of first instance, the investigations shall be carried out by the investigating judge. (7) Once the decision has become final, it is binding on the courts in subsequent proceedings.” 21. If the courts consider that the conditions in sections 2 and 3 have been satisfied, the applicant must apply to the Auditor-General’s Department (Finanzprokuratur) for his claim to be allowed. If no decision has been taken on his claim within six months or if it has been refused in whole or in part, the claimant may bring a civil action against the Republic of Austria (sections 7 and 8 of the Act). 22. As a general rule, there is no public hearing before the Review Division of the Regional Court or in the Court of Appeal in appeal proceedings (Beschwerden) against a decision of the Review Division. The two courts rule after sitting in private and after hearing the representative of the public prosecutor’s office and the principal public prosecutor’s office respectively (Articles 32 § 1 and 35 § 2 of the Code of Criminal Procedure – Strafprozeßordnung). 23. Article 82 of the Code of Criminal Procedure provides: “The courts shall have discretion to decide whether a party or his duly appointed representative may, in cases other than those expressly provided for in the Code of Criminal Procedure, be given leave to inspect documents in the file or whether copies may be given to them, provided that the persons concerned can convincingly show that they need such copies in order to be able to claim compensation or to support an application for a retrial or for some other reason.” 24. It is the practice of the registries of the Austrian Constitutional Court and Administrative Court to make their respective court’s judgments available on request. The courts also publish a selection of their decisions each year. Since an amendment to the Supreme Court Act in 1991, the judgments of the Supreme Court (Oberster Gerichtshof) have likewise been available to the public on request. The Supreme Court also publishes a selection of its judgments each year. | 1 |
train | 001-115379 | ENG | AZE | COMMITTEE | 2,012 | CASE OF GURBANOVA v. AZERBAIJAN | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Erik Møse;Khanlar Hajiyev | 4. The applicant was born in 1946 and lives in Baku. 5. On 17 February 1998 the applicant’s husband was issued an occupancy voucher (yaşayış orderi) to an apartment in Baku on the basis of an order of the Yasamal District Executive Authority. On 13 March 1998 the applicant’s husband died. 6. On an unspecified date the applicant became aware that the apartment had been occupied by H. and her family, who were internally displaced persons (“IDP”). According to the applicant, despite her numerous demands, the family refused to vacate the apartment. 7. In 2007 the applicant lodged a court action with the Sabunchu District Court asking the court to order the relevant authorities to change the documents of the apartment into her name and the eviction of H. and her family from the apartment. On 5 October 2007 the Sabunchu District Court partly granted the applicant’s request. The court held that the defendants had no right to use the apartment and that they unlawfully occupied it and ordered their eviction from the apartment. Concerning the changes in the apartment’s documents, the court held that it was not possible to provide the applicant with the relevant documents as the construction of the building had not yet been terminated. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within one month after its delivery. However, the IDP family refused to comply with the judgment. 8. In 2008 the applicant lodged an action with the Yasamal District Court asking compensation for non-enforcement of the judgment of 5 October 2007. On 16 September 2008 the Yasamal District Court and on 24 November 2008 the Baku Court of Appeal dismissed the applicant’s request. On 20 May 2009 the Supreme Court upheld the lower courts’ judgments. 9. At the time of the latest communication with the applicant, the judgment of 5 October 2007 in her favour remained unenforced. 10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010). | 1 |
train | 001-107363 | ENG | DEU | ADMISSIBILITY | 2,011 | GRAF v. GERMANY | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | The applicant, Ms Anna Graf, is a German national who was born in 1946. She is currently confined in a psychiatric hospital in Bayreuth. She was represented before the Court by Mr. H.-H. von Wilcken, a lawyer practising in Munich. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. By a decision of 9 September 1997 the Fürth District Court ordered that the applicant, who was suspected of having killed her husband and had shown signs of a personality disorder in the past, be provisionally placed in the psychiatric department of the Erlangen district hospital in accordance with Article 126a of the Code of Criminal Procedure providing for such a measure if there are strong grounds to assume that a person has committed an unlawful act while lacking criminal responsibility and that committal to a psychiatric hospital will be ordered (see Relevant domestic law below). The applicant had already voluntarily admitted herself to the psychiatric department of the Erlangen district hospital on 13 August 1997 and had remained there on the basis of decisions by the department for guardianship affairs of the Fürth District Court (Vormundschaftsgericht) of 22 August and 1 September 1997. Following a decision of the Fürth District Court dated 12 September 1997 the applicant was transferred to the forensic psychiatric department of the Haar district hospital. On 18 August 1998 the Nuremberg-Fürth Public Prosecutor’s Office applied for the initiation of separate preventive proceedings (selbstständiges Sicherungsverfahren) pursuant to Articles 413 et seq. of the Code of Criminal Procedure (see Relevant domestic law below) with the Nuremberg-Fürth Regional Court. In the course of the subsequent court proceedings it was established that the applicant, who had no previous criminal record, had killed her husband, to whom she had been married for over twenty years and with whom she had raised three children. Since the beginning of the eighties the applicant had developed a pathological compulsion to collect rubbish, which she stored in the family home. Over the years this compulsion became her main purpose in life and she felt increasingly disturbed by her husband’s interfering with her compulsive hoarding. On 7 August 1997, in an attempt to sedate her husband, she secretly dissolved tranquillisers in his drink. Her aim was to attach him to his bed once he had fallen asleep so as to immobilise him for some time and prevent him from interfering with her compulsive hoarding. Since her attempts were to no avail, the next morning she hit her still sedated and unsuspecting husband several times on the head with a mineral water bottle until he lost consciousness. He died later that day as a result of the blows. During the following night, after discovering her husband’s death, the applicant dismembered the corpse and deposited the various parts in waste containers of a nearby housing area. In its judgment of 22 January 1999 the Nuremberg-Fürth Regional Court, relying in particular on a confession by the applicant and corroborating witness statements, held that the killing of the applicant’s husband constituted the offence of murder. However, referring to an expert opinion established at the request of the public prosecutor’s office at the Nuremberg-Fürth Regional Court by a deputy medical director (Oberarzt) of the relevant department of the Haar psychiatric hospital on 27 April 1998, the Regional Court considered that the applicant had committed the offence without criminal responsibility. The expert had diagnosed the applicant as suffering from a psychotic disorder that had to be qualified as schizophrenia (schizophrenia simplex) and confirmed that she was incapable of understanding the wrongfulness of her act or of acting in accordance with such an understanding due to her mental disorder. She had thus acted without guilt when committing the criminal offence in accordance with Article 20 of the German Criminal Code (see Relevant domestic law below). The expert further found that the applicant’s illness had developed gradually over the years and that a recovery was not to be expected. In accordance with the findings of the expert, the Regional Court found that the applicant presented a danger to society, since there was a high risk that she would commit further serious unlawful acts, and therefore ordered her placement in a forensic psychiatric clinic (Articles 20 and 63 of the Criminal Code, see Relevant domestic law below). The Regional Court specified that since the applicant did not recognise that she was suffering from schizophrenia and refused all medication, her continued detention was necessary and a suspension unjustified. The applicant’s appeal on points of law against the Regional Court’s judgment was dismissed as unfounded by the Federal Court of Justice (Bundesgerichtshof) by a decision of 6 July 1999. The applicant, now 65 years old, has meanwhile been confined in psychiatric hospitals for more than fourteen years. Following her placement in the psychiatric hospital at Haar, the applicant was transferred on 15 July 1998 to the psychiatric hospital at Taufkirchen/Vils, where she stayed until 30 August 2006, the date she was transferred to the forensic clinic at Straubing, where she remained until 2009. The attending doctors in the psychiatric hospitals at Taufkirchen/Vils and Straubing upheld the initial diagnosis of schizophrenia when subsequent reviews of the applicant’s detention were conducted. Further experts involved in separately conducted guardianship proceedings came to the conclusion that guardianship should be ordered in respect of the applicant and that it was necessary to administer medication used for the treatment of psychotic disorders. An attempt to treat the applicant with anti-psychotic medication was nevertheless discontinued in 2001, due to adverse effects on the applicant’s health, and the applicant later objected to any further treatment with similar medication. On 4 March 2009 the applicant was transferred to a psychiatric hospital in Bayreuth. The applicant’s placement in a psychiatric hospital has been reviewed annually since the year 2000 (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below) by the competent Regional Courts at Landshut and Regensburg, which have consistently refused her requests to suspend her detention on probation or grant relaxations of her detention (Vollzugslockerungen). Her related appeals to the relevant Courts of Appeal in Munich and Nuremberg were to no avail. In their decisions the domestic courts, having heard the applicant and relying on the statements of the attending doctors at the Taufkirchen/Vils psychiatric hospital, found it established that the applicant was still suffering from schizophrenia, did not show any insight into her illness and its seriousness and objected to the necessary treatment with anti-psychotic medication that would be required for a long-term therapy of her disorder. Since no therapeutic progress had been made, there persisted a risk that the applicant would commit further serious unlawful acts if released. The domestic courts further held that in view of the applicant’s persisting mental disorder and the seriousness of the crime committed the continuation of her detention was necessary and proportionate. Within the scope of their annual reviews the domestic courts also referred on several occasions to external expert opinions which had been commissioned by the applicant’s lawyer, one in 2000 and further ones in the period from 2003 to 2005. These experts had found that the applicant’s personality disorder did not constitute schizophrenia and the negative prognosis as to the danger presented by the applicant could not be confirmed. Several of these experts recommended that relaxations of the applicant’s detention should be implemented rapidly with a view to examining whether she could cope with life outside the hospital. For instance, on 17 June 2002 the Landshut Regional Court, in a decision confirmed on appeal, took into account an external expert opinion of 15 January 2000 obtained by the applicant’s lawyer, which contested the diagnosis of schizophrenia. Considering that the doctors at the Taufkirchen/Vils hospital had been attending to the applicant for almost four years on a daily basis, whereas the findings of the external expert dated from 2000, the court found no reason to doubt the attending doctors’ diagnosis and the negative prognosis for the applicant in terms of the likelihood that she would commit further crimes. In preparation of the annual review of the applicant’s detention in 2004, the Landshut Regional Court commissioned an external expert opinion by the director of the Straubing district hospital, with a view to clarifying whether there was still a risk that the applicant would commit further unlawful acts, making the continuation of her detention necessary. In his opinion, issued on 17 July 2004, the expert found that the applicant was suffering from a schizophrenic disorder (schizotype Störung) and that the prognosis, that she was likely to commit further crimes if released, was a negative one. During her continuing placement in the psychiatric hospital she had not shown any serious insight into her illness, and according to the hospital’s records she had collected and hidden various, sometimes perishable, objects in her room on repeated occasions. The hospital staff’s attempts to dispose of the collected items had triggered anxiety and despair in the applicant, which showed that the compulsive nature of her mental disorder had lost nothing of its intensity. In a related decision of 4 October 2004 the Landshut Regional Court pointed out that the applicant’s statements on the occasion of the hearing had confirmed the thorough and well-founded assessment by the external expert, which was also in line with the initial assessment of the applicant by the experts in 1998. For this reason the court found that there was nothing to indicate a positive prognosis in respect of the applicant if released. The court specified that it was unable to share the opinion of a further external expert heard during the proceedings at the applicant’s request, who suggested that relaxations of the latter’s detention could be envisaged on the ground that her deed had been related to a specific conflict situation between her and her husband, which would not be reproduced. In the court’s view the applicant presented a potential danger to any housemate who interfered with her compulsive hoarding if she was released. In view of the discrepancies between the external expert opinion commissioned by the Regional Court in 2004 and the several external expert opinions obtained by the applicant’s lawyer, the latter obtained a further expert opinion (Obergutachten) from the head physician of the general psychiatric department of the Rhineland clinics at Viersen, which was rendered on 22 September 2006 and supplemented on 29 March 2007. This expert found that while the applicant was suffering from a complex personality disorder (schizothyme Persönlichkeitsstörung) and showed a pathological compulsive personality structure (anankastisch strukturierte Persönlichkeit) there was nothing to establish that her disorder constituted a schizophrenic psychosis or schizophrenia (schizophrenia simplex). The expert emphasised that the related initial diagnosis of 1998, as upheld during the applicant’s continued detention by the attending doctors, was most likely wrong. ’s assistant prior to her marriage, and thereafter had taken care of her family and raised three children. She regretted and did not show any tendency to trivialise the offence she had committed. The insufficient therapeutic progress made during her detention was mainly due to the fact that the attending doctors had made further therapeutic measures subject to the applicant’s treatment with anti-psychotic medication, to which she had objected. In the expert’s opinion the applicant’s personality disorder did not require such medication and there was no justification for making it a precondition for further therapeutic measures or for the applicant’s release on probation. If released on probation the applicant had the opportunity to live with and care for her mother, and in addition she had the lifelong prospect of being integrated into her twin sister’s farm household where she could participate in farming chores. In the light of the above, the expert concluded that in the applicant’s case there was a low risk of reoffending, that her prognosis was most likely positive in terms of likelihood to commit criminal offences if released, and that her continued detention in a psychiatric hospital pursuant to Article 63 of the Criminal Code was no longer justified. The Landshut Regional Court addressed this expert opinion within the scope of a review of the applicant’s detention in 2006. The court noted in its related decision of 8 November 2006 that the expert’s findings and his conclusion that the applicant’s continued detention in a psychiatric hospital under Article 63 of the Criminal Code was no longer justified contradicted the assessments of the applicant by the attending doctors at the Taufkirchen/Vils hospital over several years, as well as those of the external expert opinion commissioned by the court in 2004, and its recommendations should therefore not be followed. In the court’s opinion the expert failed to establish that there was no risk of the applicant being confronted with new situations of conflict if released which, given her disorder, might result in further criminal offences. The Munich Court of Appeal, by a decision of 10 April 2007 endorsing the Regional Court’s reasoning, dismissed the applicant’s appeal. The Court of Appeal found in particular that in view of the applicant’s resurgent addiction to compulsive hoarding, as evidenced by the attending doctors at the Straubing district hospital in a statement dated 14 March 2007, it could not be excluded that the applicant, once released, would be confronted with conflict situations in her personal environment similar to the one that had been the origin of her husband’s murder. Having regard to the numerous expert opinions and due to the fact that the applicant had been transferred to the Straubing district hospital in August 2006, the Court of Appeal took the view that it had not been necessary to commission a further external expert opinion at that point in time. By a decision of the Landshut Regional Court dated 15 November 2007, as confirmed by the Munich Court of Appeal decision of 28 December 2007, the applicant’s renewed request for a suspension of her detention was refused. In their decision-making the courts again opposed the findings of the external expert opinion of 2006 and relied on statements by the attending doctors indicating that the applicant was continuing her compulsive hoarding and did not show any insight into her illness. On 20 November 2008 the Regensburg Regional Court dismissed a further request by the applicant to have her detention suspended on probation (see Article 67d and Article 67e of the Criminal Code) and held that a further similar request would be inadmissible if made within a period of one year. Relying on a statement of the Straubing psychiatric hospital of 4 September 2008, the Regional Court found that it was established that the applicant was suffering from a schizophrenic disorder (schizotype Störung) and that her therapy had not led to any progress that would allow a positive legal prognosis. In particular, the applicant did not show any insight into her illness or its seriousness and objected to treatment with the medication which would be required for long-term therapy for her disorder. In view of these findings, the Regional Court held that for the time being the risk persisted that the applicant would commit further serious unlawful acts if released on probation and that thus her continued placement in a psychiatric hospital was proportionate. On 14 January 2009 the Nuremberg Court of Appeal dismissed an appeal by the applicant against the Regional Court’s decision. The Court of Appeal specified that the applicant’s continued detention was still proportionate. The principle of proportionality required that placement in a psychiatric hospital only continued as long as it served its purpose and as long as that purpose could not be achieved by a less severe measure. The longer the detention lasted the higher were the standards for scrutiny as to whether its duration was still proportionate to the gravity of the offences committed by or to be expected from the detained person and to the danger he or she presented to society. Having regard to the doctors’ statement of 4 September 2008 confirming that the applicant could be expected to commit further serious unlawful acts if released and as long as the applicant was not following a successful course of therapy, her continued detention was justified in view of the threat she still posed to society. Furthermore, since there was no indication that the applicant’s condition would change in the near future, the Regional Court’s decision to set a time-limit of one year before which the applicant could make a new request for suspension of her detention pursuant to Article 67e) § 3 of the Code of Criminal Procedure did not pose a problem. The Court of Appeal also argued that the divergent expert opinions obtained by the applicant in the past had already been the subject of her previous requests for suspension of her detention and had been addressed by the Court of Appeal’s decision of 28 December 2007. Referring to its assessment of the applicant’s complaint in this previous decision, the Court of Appeal confirmed its conclusion that the continued detention of the applicant was justified. In the instant case it had not been necessary to obtain a further psychiatric expert opinion, since the court did not even consider suspending the applicant’s detention on probation. Furthermore, the five-year period as stipulated in Article 463 § 4 of the Code of Criminal Procedure had not elapsed since the last external psychiatric expert opinion had been obtained by the competent courts on 17 July 2004. By written submissions dated 23 February 2009 the applicant lodged a constitutional complaint against the decisions of the Regensburg Regional Court of 20 November 2008 and of the Nuremberg Court of Appeal dated 14 January 2009. She alleged in particular that in view of the several external expert opinions contesting the diagnosis of schizophrenia and confirming that her criminal prognosis was positive, her continued detention in a psychiatric hospital was disproportionate. The domestic courts’ failure to thoroughly examine the expert opinions commissioned by her lawyer, the global reference to previous court decisions rejecting the applicant’s requests for a suspension of her detention, and the courts’ refusal to obtain a decisive expert opinion showed that their decision-making had been arbitrary. On 26 March 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 398/09) on the ground that it had no prospect of success. However, the Federal Constitutional Court pointed out that in view of the fact that the last external expert opinion had been obtained by the relevant courts in 2004, the requirement to obtain the best possible clarification of the circumstances of a case as reflected in Article 463 § 4 of the Code of Criminal Procedure necessitated the commissioning of a new opinion by an external expert who had not yet been involved in the case at hand with regard to the upcoming review of the applicant’s detention. The Federal Constitutional Court’s decision was posted on 7 April 2009. Following the applicant’s transfer to the Bayreuth psychiatric hospital on 4 March 2009 occasional relaxations of her detention were granted, such as accompanied exits from the clinic. On the occasion of the subsequent review of the applicant’s detention, the now competent Bayreuth Regional Court, by a decision of 19 November 2009, after hearing the applicant and relying on an opinion by the Bayreuth district hospital of 21 September 2009, again ruled that the applicant should remain in a psychiatric hospital. The attending doctors had confirmed the diagnosis of schizophrenia and found that her behaviour was characterised by an inability to show emotionally adequate reactions and a lack of motivation, accompanied by increased fatigue. The applicant’s state of health had reached a certain stability in the protected hospital environment that might be at risk if she was subjected to pressure. Referring to the external expert opinion obtained by the applicant on 22 September 2006, as supplemented on 29 March 2007, the court found that, even taking into account that the applicant’s victim had been her husband her illness was so serious that it could not be established that the crime had been an isolated event. The danger the applicant posed to society resulted from her illness, and since she had not made any progress in her therapy, there was still a risk that she would commit further criminal offences if released. The applicant’s related appeal was dismissed by the Bamberg Court of Appeal on 22 December 2009, confirming that the applicant’s placement in a psychiatric hospital was proportionate in view of the danger she still presented to society. However, the Court of Appeal pointed out that the Regional Court had not based its decision on a new external expert opinion as required by Article 463 § 4 of the Code of Criminal Procedure after every five-year period of a detainee’s committal to a psychiatric hospital. While failure to comply with that requirement did not give the applicant the right to be released, any decision to continue confinement in a psychiatric hospital following the expiry of the five-year period that was not based on a new external expert opinion had to be regarded as provisional until a decision in accordance with that requirement had been rendered. The Court of Appeal held that therefore the Regional Court was obliged to proceed immediately to a new review of the continuation of the applicant’s detention on the basis of a new external expert opinion. On 7 January 2010 the Regional Court ordered an external expert opinion with a view to clarifying whether the applicant was likely to reoffend, what type of offences could be expected and what would be the appropriate therapeutic and accompanying measures to diminish the risk of reoffending. The applicant’s objection of 5 July 2010 to the expert, who had been appointed at her own request, was rejected by a decision of the Regional Court of 23 September 2010, and her related complaint was dismissed by a decision of the Regional Court of 19 November 2010. By a further decision of 19 November 2010 the Regional Court again ordered that the applicant’s confinement in a psychiatric hospital be continued, and set the next review of the applicant’s detention for 18 November 2011. The court pointed out that the external expert opinion commissioned on 7 January 2010 had still not been rendered, due to the applicant’s repeated objections to an examination and to the appointed expert. Relying on a statement of the Bayreuth district hospital of 27 October 2010 confirming that the diagnosis of schizophrenia for the applicant remained unchanged, that she still did not show any insight into her disease and that she was refusing the necessary medication, the court found it established that the risk persisted that the applicant would reoffend and therefore a release, even on probation, could not be envisaged. In the court’s view, the expert opinions obtained by the applicant which were at variance with these findings did not lead to a different conclusion. By a decision of 3 January 2011 the Bamberg Court of Appeal dismissed the applicant’s related appeal against the Regional Court’s decisions of 19 November 2010. As regards her objection to the appointed expert, the court held that there were no objective grounds to doubt the latter’s impartiality. Concerning the applicant’s continued detention, the Court of Appeal, having regard to the statements of the Bayreuth district hospital of 27 October 2010 as well as a statement by the Bamberg General Prosecutor, found it established that the risk persisted that the applicant would commit similar offences if released. Referring to the reasoning in its decision of 22 December 2009 the Court of Appeal further reiterated that the confinement was still proportionate. It specified that it had not been able to base its decision on the required new external expert opinion, due to the applicant’s obstructive behaviour. The external expert opinion dated 31 March 2011 was finally submitted to the Bayreuth Regional Court on 6 April 2011. Following examination of the applicant and taking into account the partly conflicting expert opinions previously established, as well as the statements of the attending doctors at the relevant psychiatric hospitals, the expert concluded that the applicant was suffering from schizophrenia which, however, did not meet the characteristics of the previously diagnosed schizophrenia simplex but had to be qualified as so-called undifferentiated schizophrenia (undifferenzierte Schizophrenie). According to the expert, an assessment of all relevant factors led to the conclusion that the prognosis for the applicant was still negative, since there persisted a risk that she might commit offences involving bodily harm towards persons in her personal environment in particular in the event she was subject to pressure. The expert, while pointing out that anti-psychotic medication was no longer essential, recommended that the applicant’s psychiatric treatment be continued. Furthermore, relaxations of the applicant’s detention should be envisaged and gradually increased over a period of up to one year, in order to enable the applicant to confront and learn to deal with situations of stress. In the event these relaxations proved successful, she could be transferred to an appropriate therapeutic institution or an elderly people’s home. Following a stay of two to three years in such an institution under therapeutic supervision a reunion with her relatives might be considered, subject to consultation with all parties concerned. The German Criminal Code distinguishes between penalties (Strafen) and socalled correction and prevention measures (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted without or with diminished criminal responsibility. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to the danger they present (Article 62 of the Criminal Code). Pursuant to Article 20 of the Criminal Code, a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of an act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality, acts without guilt. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article 20, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive assessment of the defendant and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public. Pursuant to Article 126a of the German Code of Criminal Procedure, if there are strong grounds to assume that while lacking criminal responsibility or in a state of diminished responsibility someone has committed an unlawful act and that his committal to a psychiatric hospital or to an institution for withdrawal treatment will be ordered, the court may, in a committal order, direct that he be provisionally committed to one of these institutions if public security so requires. Article 413 of the Code of Criminal Procedure stipulates that if the public prosecutor does not conduct criminal proceedings because of the perpetrator’s lack of criminal responsibility or his unfitness to stand trial, it may file an application for an order imposing measures of correction and prevention on their own, if this is admissible by virtue of a statute and the order is to be anticipated in the light of the outcome of the investigations (procedure for preventive detention). Article 67d of the Criminal Code governs the duration of detention. If the court considers that following the commencement of detention in a psychiatric hospital the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6). Article 67e of the Criminal Code provides for the review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For a person detained in a psychiatric hospital, this time-limit is one year (§ 2 of Article 67e). The court may shorten these time-limits. Within the scope of the stipulated review periods it may fix time-limits within which requests for a review are inadmissible (§ 3 of Article 67e). Article 463 § 4 of the Code of Criminal Procedure specifies that as part of its examinations pursuant to section 67e of the Criminal Code the court shall obtain the opinion of an expert after every five-year period of committal to a psychiatric hospital. The expert shall not, within the framework of such a committal, have been involved in the treatment of the person committed, nor shall he be working in the psychiatric hospital in which the person committed is located. | 0 |
train | 001-100958 | ENG | UKR | CHAMBER | 2,010 | CASE OF KHAYREDINOV v. UKRAINE | 3 | Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | 5. The applicant was born in 1984 and lives in Dachne village in Crimea. 6. On 23 March 2004 a massive fight between youngsters took place in the centre of Simferopol in which a number of persons sustained injuries varying from slight to serious. 7. On the same day the applicant was questioned by the police as a witness at the hospital where he had accompanied a friend who had been injured in the fight. 8. In March and April 2004 the applicant was summoned by and appeared before the investigator on a number of occasions. 9. On 28 April 2004 the applicant, having been questioned as a witness by the investigator, was detained on police premises on suspicion of armed hooliganism in respect of the events of 23 March 2004. 10. On 1 May 2004 the Kyivskyy District Court of Simferopol (“the Kyivskyy Court”), in allowing the investigator's application, remanded the applicant in custody and rejected a request by him to be placed instead under an undertaking not to abscond. The court gave as grounds for that decision the seriousness of the charges against the applicant, his mediocre character reference from the university where he was studying, his medical fitness for detention, and the risk that he might abscond or impede the investigation if at liberty. Although the management of the school from which he had graduated two years earlier and the authorities of the village where he had been living before his arrest gave the applicant positive character references, the court decided that they “could not provide grounds for the rejection of the [investigator's] application, as law-abiding behaviour is a requisite for life in society, and not an exception to the rule.” 11. On 5 May 2004, in the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”), the applicant's lawyer challenged the detention of his client, arguing that the applicant had a permanent place of residence, positive character references, suffered from Vitiligo (a chronic disorder which causes depigmentation in patches of skin) which could worsen in detention, and that he had no criminal record. He further noted that the applicant had always appeared voluntarily before the investigator and that his parents could pay bail for his release. 12. On 18 May 2004 the Crimea Court of Appeal rejected the appeal, referring to the seriousness of the charges brought against the applicant. 13. On 15 June 2004 the Kyivskyy Court extended the term of his detention to 28 August 2004 on grounds of the necessity to complete the investigation, the seriousness of the charges and the inherent risk that the applicant would abscond, influence witnesses or reoffend. 14. On 22 June 2004 the applicant was provided access to the case file. 15. On 16 July 2004 the Crimea Court of Appeal extended his detention to 28 November 2004 following a request by the investigator, who maintained that the other co-accused needed more time to study the case file. The court rejected a request by the applicant to be released under an undertaking not to abscond, on grounds of the seriousness of the charges and the risk that he would abscond. 16. In August 2004 the investigation was completed and the applicant, together with the other co-accused, was committed for trial. 17. On 13 September 2004 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) held a preparatory hearing during which the applicant again asked to be released under an undertaking not to abscond. He argued that all the evidence in the case had been collected by that time so there was no risk that he might tamper with it, that he had a permanent place of residence and well-established social networks, and that he had never hindered the investigation or attempted to abscond or reoffend. The court rejected the request with a final ruling, finding the preventive measure to be in compliance with the criminal procedural legislation. 18. In a judgment of 29 December 2004 the Tsentralnyy Court found the applicant guilty of armed hooliganism, as well as of deliberately inflicting medium and grievous bodily harm, and sentenced him to eight years' imprisonment. 19. On 22 June 2006 the Crimea Court of Appeal upheld that judgment. 20. On 17 May 2007 the Supreme Court changed it, finding the applicant guilty of hooliganism without the use of arms and of deliberately inflicting medium bodily harm, and reduced the sentence to three years and two months' imprisonment. 21. The relevant provisions of the Code of Criminal Procedure (“the CCP”), as worded at the material time, read as follows: “Pre-trial detention during pre-trial investigations shall not last more than two months. When it is impossible to complete the investigation within the period provided for in paragraph 1 of this Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the pre-trial detention] may be extended: up to four months – upon a request of or approved by the prosecutor supervising the compliance with law by the bodies of inquiry and investigation, by a judge of the court which applied the respective preventive measure; ... The term of pre-trial detention shall end on the day the court receives the case file. ... After the completion of the investigation the case file shall be presented to the detained accused and his defence not later than a month before the expiry of the pre-trial detention time-limit set under paragraph 2 of this Article. ... If the accused and his defence received access to the case file [in due time as noted above], but that time appeared insufficient, the respective term may be extended by a judge of an appellate court at the request of the investigator approved by the Prosecutor General of Ukraine or his deputy, or at the request coming directly from the [aforementioned prosecutorial officials]. Where there are several co-accused held in pre-trial detention and if at least one of them finds [the term for the case file study] insufficient, a request [for its extension] may also be applicable to the other coaccused who has/have completed his/their study of the case file, if his/their pretrial detention remains necessary and there are no grounds for changing that preventive measure. ...” | 1 |
train | 001-114966 | ENG | SWE | CHAMBER | 2,012 | CASE OF D.N.W. v. SWEDEN | 4 | No violation of Article 2 - Right to life (Article 2 - Expulsion) (Ethiopia);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Ethiopia) | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 7. The applicant was born in 1978. 8. The applicant appears to have arrived in Sweden in the summer of 2007. He applied for asylum and submitted that in his home country he had been a deacon in the Orthodox Coptic church. In 2005 he had been called upon to be an observer in the national elections. Serving in this capacity, he had witnessed many wrongdoings by officials. The personal integrity and freedom of election of voters had been violated. Due to this, the applicant had refused to sign a statement asserting that the election procedure had been carried out correctly. Subsequently he had received several death threats. In connection with a sermon on 12 June 2005 he had been severely beaten outside the church by two unknown men. He had lost a tooth and had been cut on the hand. In September 2005 he had attended a traditional Christian feast. There he had been pursued and arrested by two policemen who had taken him to a police station in Addis Ababa. He had been accused of activities against the regime and had been incarcerated for three months and eleven days, during which time he had been tortured. On 20 January 2006, after being released, he had participated in a demonstration against the election results. He had again been taken into custody by two unknown men and taken to the Kaliti prison in Addis Ababa. There, he had been kept without criminal charges or a trial and had been tortured through violence with fists and truncheons, cut with sharp objects, chained and blind-folded, forced to hear other inmates being tortured, forced to crawl on his knees on sharp rocks and have his head shaved with broken bottle glass. The detention had lasted for five months. During his time in the prison, he had preached to his fellow inmates. He had told his story to one of the military prison guards, who had then helped him to escape. He had hidden from the authorities by travelling between Christian holy places where he had preached. A group of pilgrims had helped him and had paid him to travel with them and preach to them. On 8 May 2007, the pilgrims had informed him that they had decided to help him flee the country. They had arranged for his travel to Kenya, where he had had to wait for a while. A smuggler had then helped him to reach Sweden, via an unknown European country. 9. On 27 October 2008 the Migration Board (Migrationsverket) rejected the application. It stated that, although the applicant had not submitted any identification papers, a language test had shown it probable that he was from Ethiopia. It further stated that the general situation in Ethiopia was not a sufficient ground for asylum. Regarding the applicant’s situation and individual reasons for asylum, the Board found that his story lacked credibility and that his submission about his escape from prison was not plausible. Also, the applicant had never been convicted of any crime, nor had he tried to contact the judicial authorities in Ethiopia regarding the violence to which he had been subjected. He had not shown it probable that he would be at risk if he returned to Ethiopia. 10. The applicant appealed to the Migration Court (Migrations-domstolen) in Stockholm. He maintained his earlier submissions and added the following. He had been harassed in Ethiopia due to his foreign appearance, his mother being Eritrean. He also claimed that he had been accused by the Government of being a spy. He submitted an arrest order issued by the Ethiopian authorities on 27 February 2008 and stated that some members of his church in Sweden had been visiting Ethiopia and the local police had handed them the arrest order. He also submitted a medical certificate from the Trauma Centre at Danderyd Hospital (Kris- och traumacenter vid Danderyds Sjukhus) containing a psychiatric and physical evaluation as well as a forensic evaluation. 11. The psychiatric evaluation had been carried out by F.H., a licensed physician and specialist in general and forensic psychiatry, and was based on a meeting with the applicant on 6 April 2009. The applicant had claimed to worry a lot, to have a dark outlook on life and to suffer from depression and loss of appetite. He had had thoughts of being better off dead, but had not seemed to consider suicide as an option and had claimed to leave himself in the hands of God. He had tried to cure his depression with holy water and by staying in a monastery. During the examination the applicant had been very formal and had given clear and distinct answers to all the questions. However, he had given an emotionally detached impression and had seemed to have an intellectual and distant attitude towards the story he told. There had been no signs of psychosis. He had seemed rigid in his personality and had had difficulties in adjusting his mind-set and the topics discussed to the limited time of the examination. The risk of suicide had been hard to assess. The applicant had expressed a clear will to die, but had seemed to have religious doubts about actually committing suicide and would therefore deny any such plans. The assessment was that he was probably suffering from Post-Traumatic Stress Disorder (PTSD) and that his depression was a result of this. 12. The forensic evaluation was issued by E.E., associate professor and specialist in forensic medicine, on 17 April 2009. According to the forensic findings the applicant had scar tissue on his head, right arm, both legs and also an artificial tooth. The concluding assessment was that none of the findings contradicted that the applicant’s injuries had occurred at the time he described. Furthermore, the injuries were visibly compatible with his story and could support his claims that he had been subjected to torture in the way he had submitted. 13. On 17 December 2009 the Migration Court rejected the appeal. It noted that the applicant had not proved his identity. Moreover, it stated that the arrest order submitted by the applicant was very simplistic in nature and hence had little evidential value. Regarding the medical certificate, the court found that it confirmed that the applicant was suffering from PTSD and that he had scars, but that it could not confirm how his injuries had occurred. The court further stated that the applicant’s submissions had been vague and had escalated during the proceedings. The applicant had submitted for the first time at the oral hearing, among other things, that he had been suspected of being a spy. Moreover, it found peculiar his explanations as to how he had escaped from prison and how he had received information on being wanted by the Ethiopian authorities. The court thus found that the credibility of the applicant’s submissions was weak. It also added that the incidents described by the applicant had happened several years earlier, that he had not been politically active and that he had not had any problems prior to the 2005 elections. Moreover the court stated that the political situation in Ethiopia had calmed down since then and that the applicant’s submissions did not substantiate that he would risk being subjected to persecution to such an extent that he should be perceived as a refugee. Nor did they substantiate that he would be at risk of being subjected to degrading or inhuman treatment if he were to return. He was therefore not considered to have other needs for protection. 14. On 17 March 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal. 15. The applicant subsequently claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew. In support of his claim he mainly referred to his previous submissions but also stated that the general situation in Ethiopia was such that he feared, due to his background as a critic of the regime, that he would be subjected to further ill-treatment upon return. The applicant further stated that the general situation in the country had become more serious after the elections of May 2010. 16. In its decision of 1 March 2011, the Migration Board found that the applicant’s submissions did not qualify as impediments to deportation nor reasons to examine his asylum application anew. The applicant did not appeal against this decision. 17. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”). 18. An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the 2005 Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a wellfounded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). 19. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 20. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 21. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 22. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9). | 0 |
train | 001-67106 | ENG | FRA | ADMISSIBILITY | 2,000 | LOEWENGUTH v. FRANCE | 1 | Inadmissible | null | The applicant [Mr Yves Loewenguth] is a French national and was born in 1943. He is currently in prison. He was represented before the Court by Mr L. Hintermann, a lawyer practising in Thonon-les-Bains (France). In a judgment of 31 March 1998, the Haute-Savoie Assize Court found the applicant guilty of aggravated rape. It sentenced him to fifteen years' imprisonment and suspended his civic, civil and family rights for ten years. On 18 November 1998 the Criminal Division of the Court of Cassation dismissed an appeal by the applicant in a judgment in which it held: “No ground of appeal has been made out in support of the appeal, the procedure was correctly followed and the sentence lawfully imposed for what both the court and the jury had found were repeated acts.” The applicant maintained that it was the negligence of the lawyer representing him that was to blame for the failure to lodge grounds of appeal with the Court of Cassation. Relying on Article 6 of the Convention, the applicant complained that the criminal proceedings instituted against him had been unfair. He complained in particular of the investigating judge's refusal to order a second expert-witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed 3 French francs (FRF) per page from him for a copy of his case file. Relying on Article 2 of Protocol No. 7, he complained also that he did not have a right of appeal on the facts since the only remedy against judgments of the Assize Court was by way of an appeal on points of law. 1. The applicant complained that the criminal proceedings instituted against him had been unfair. He complained in particular of the investigating judge's refusal to order a second expert-witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed FRF 3 per page from him for a copy of his case file. He relied on Article 6 of the Convention, which provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” The Court notes that neither the case file nor the applicant's submissions indicate that he appealed to the Court of Cassation against the committal order on the ground that the investigation was unfair. The Court further notes the ground on which the Court of Cassation dismissed the applicant's appeal against the judgment of the Assize Court and reiterates that it is all the more difficult for the applicant to pray in aid the negligence of the lawyer who represented him before the domestic courts as he does not allege and there is nothing in the file to suggest that his counsel was appointed under the legal-aid scheme (see M.R. v. Portugal, application no. 14718/89, Commission decision of 14 February 1992, unreported). The Court therefore finds that the applicant has not exhausted domestic remedies as he is required to do by Article 35 § 1 of the Convention. In addition, the Court notes that the applicant does not assert that ultimately he did not receive satisfactory communication of the evidence in the file before the trial at the Assize Court; nor does the transcript of the trial indicate that the Assize Court dismissed any application by the applicant to call witnesses. Consequently, this part of the application must be dismissed pursuant to Article 35 §§ 1, 3 and 4 of the Convention. 2. The applicant also complained that he did not have a right of appeal on the facts since the only remedy against judgments of the Assize Court was by way of an appeal on points of law. He relied on Article 2 of Protocol no. 7, which reads as follows: “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.” The Court notes that the applicant was found guilty of offences of aggravated rape and sentenced to fifteen years' imprisonment by the Haute-Savoie Assize Court in a judgment of 31 March 1998. It notes that he was unable to appeal against the “merits” of that judgment, since the only remedy available under French law against judgments of the Assize Court is an appeal to the Court of Cassation, which may only re-examine the case on issues of law. The Court reiterates, however, that under the wording of Article 2 of Protocol No. 7 the Contracting States retain the power to decide how the right to re-examine shall be exercised and may limit its extent. In a number of States, re-examination is thus restricted to questions of law (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000-I). That was also the position taken by the Commission (see Nielsen v. Denmark, application no. 19028/91, Commission decision of 9 September 1992, Decisions and Reports 73, p. 239; N.W. v. Luxembourg, application no. 19715/92, Commission decision of 8 December 1992, unreported; Altieri v. France, Cyprus and Switzerland, application no. 28140/95, Commission decision of 15 May 1996, unreported; and Saussier v. France, application no. 35884/97, Commission decision of 20 May 1998, unreported). The Court accordingly holds that the fact that the applicant was able to appeal on points of law against the judgment of 31 March 1998 satisfied the requirements of Article 2 of Protocol No. 7 to the Convention. Consequently, this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. | 0 |
train | 001-88546 | ENG | GBR | ADMISSIBILITY | 2,008 | CLARK v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Henry Clark, is a British national who was born in 1939 and lives in Kent. He was represented before the Court by Mr N. Price, a solicitor in Kent. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 2 July 1993. His claim for widows’ benefits was made on 27 November 2000 and was rejected on 30 November 2000 on the ground that he was not entitled to widows’ benefits, namely Widow’s Payment (“Wpt”) and Widow’s Pension (“WP”), because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-68862 | ENG | ITA | CHAMBER | 2,005 | CASE OF LO TUFO v. ITALY | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Christos Rozakis | 5. The applicants were born in 1968 and 1964 and reside in London and Florence, respectively. 6. C.S. was the owner of a flat in Florence, which she had let to M.P. 7. On 21 December 1989 the applicants became the owners of the flat. 8. The applicants served formal notice on the tenant on 21 February 1990, informing him that they intended to terminate the lease when it expired on 30 June 1991, requiring him to vacate the premises by that date and giving him notice to appear before the Florence Magistrate's Court. 9. In a decision of 18 June 1990, that court formally fixed the termination of the lease for 15 November 1993 and ruled that the premises would have to be vacated by 15 September 1994. The decision became enforceable on 17 July 1990. 10. On 17 November 1994 one of the applicants, Mrs Ilaria Lo Tufo, signed a statutory declaration to the effect that she urgently needed to recover the use of the flat for her own accommodation. 11. On 25 May 1995 the applicants served notice on the tenant requiring him to vacate the premises. 12. On 3 August 1995 they served notice on the tenant indicating that he would be evicted on 5 October 1995 by a bailiff. 13. Between 5 October 1995 and 1 October 1998 a bailiff made sixteen attempts to evict the tenant but each attempt proved unsuccessful. The applicants never obtained police assistance for the enforcement of the eviction. 14. On 21 July 1999, relying on section 6 of Law no. 431/98, the tenant applied to the District Court for a stay of execution of the eviction. The court stayed the execution until 23 September 1999. 15. In October 2000 the tenant spontaneously vacated the premises and the applicants were able to recover the use of their flat. 16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the government decreed statutory increases), by the statutory extension of all current leases and by the suspension or staggering of the enforcement of orders for possession. With respect to the extension of leases and the suspension or staggering of the enforcement of orders for possession, the relevant domestic law is set out in the Court's judgment in the case of Immobiliare Saffi v. Italy ([GC], no. 22774/93, §§ 18-35, ECHR 1999-V). 17. Lastly, Legislative Decree no. 147 of 24 June 2003, which later became Law no. 200/03, suspended the enforcement of certain orders for possession until 30 June 2004. 18. By Legislative Decree no. 240 of 13 September 2004, the suspension was extended until 31 October 2004. 19. The history of legislative developments in the area of rent control may be summarised as follows. 20. The first relevant measure was Law no. 392 of 27 July 1978, which provided for a system of “fair rents” (equo canone) on the basis of a number of criteria such as the surface area of the flat and the cost of its construction. 21. The second was adopted by the Italian authorities in August 1992, with a view to the progressive liberalisation of the rental property market. Legislation relaxing rent level restrictions (patti in deroga) then came into force. Owners and tenants were in principle given the opportunity to derogate from the rent fixed by law and to agree on a different amount. 22. Lastly, Law no. 431 of 9 December 1998 reformed the tenancy regulations and liberalised rents. 23. The tenant is under a general obligation to compensate the landlord for any loss caused by the belated return of the accommodation. In this connection, Article 1591 of the Civil Code provides: “Tenants who fail to vacate premises are under an obligation to pay the landlord the agreed amount until the date of their departure, together with compensation for any other loss.” 24. However, Law no. 61 of 21 February 1989 provided, inter alia, that the compensation claimable by the landlord would be limited to the amount of the rent paid by the tenant at the time of the expiry of the lease, index-linked to the cost of living (section 24 of Law no. 392 of 27 July 1978) and increased by 20%, in respect of the whole period in which the landlord had been unable to recover possession of his property. 25. On a number of occasions the Constitutional Court has been called upon to consider whether the statutory system for the extension of leases and for the suspension or staggering of the enforcement of orders for possession was compatible with the Constitution in terms of the right to peaceful enjoyment of property and the reasonable-time requirement. It has also been requested to rule on the issue of the limitation to the compensation that a landlord is entitled to claim. 26. In response to the first question, the Constitutional Court gave a number of judgments between 1984 and 2004 (in particular, judgments nos. 89 of 1984, 108 of 1986 and 155 of 2004) in which it found that the legislative measures were compliant, being justified by their transitional and limited nature. In the last of the above-mentioned judgments, in particular, the Constitutional Court asserted that, even though the legislature had a duty to make provision for individuals who were particularly destitute, the burden could no longer simply be transferred exclusively to the landlord, who might himself be in a situation of hardship. Moreover, the future continuation of the same legislative logic could no longer be perceived as legitimate. 27. As to the second question, in judgment no. 482 of 2000 the Constitutional Court confirmed that compensation could be limited during the periods determined by law for the suspension of evictions. It explained that the introduction of such limits was intended to govern tenancies concerned by the emergency legislation currently in force, and that the housing shortage made such suspension of enforcement necessary. Whilst evictions were suspended ex lege, the law also determined the quantum of the compensation that could be claimed from the tenant, both measures being temporary and exceptional. Besides, to compensate landlords to some extent, they had been exempted from having to prove that they had suffered a loss. 28. The Constitutional Court declared the limitation to the compensation claimable by the landlord unconstitutional in cases where the inability of the landlord to recover possession stemmed from the conduct of the tenant rather than from any legislative intervention. 29. The court thus opened the way for landlords to bring civil proceedings in order to obtain full compensation for the loss caused by the tenant. 30. In its judgment no. 1463 of 5 February 1993, the Court of Cassation held that Article 1591 of the Civil Code did not prevent the parties concerned from agreeing in advance on the amount of the compensation, so that the landlord would not be obliged to adduce evidence of the sum lost. 31. In its subsequent judgment no. 7670 of 12 July 1993, the Court of Cassation explained that a delay in the return of the property could only, by itself, justify a general finding that the tenant should pay compensation for the loss sustained by the landlord, who would be required to provide specific evidence of that loss in relation to the condition and location of the property and its potential use. In that particular case, the Court of Cassation upheld the decision of the court below, which had dismissed the landlord's claim for compensation on the ground that he had not submitted evidence of the loss actually sustained by producing specific documents concerning precise offers to rent the property or agreements with prospective tenants on rent rates. 32. In judgment no. 10270 of 1 December 1994, the Court of Cassation considered that the loss sustained by a landlord could also be evaluated on an equitable basis. 33. In judgment no. 5927 of 27 May 1995, the Court of Cassation established that the limiting of the compensation to which a landlord was entitled only applied in respect of periods during which the suspension of evictions had been provided for by law. 34. In judgment no. 6359 of 6 June 1995, the Court of Cassation confirmed that the landlord was obliged to provide evidence of precise offers to rent or purchase the property, in order to substantiate the loss claimed on the basis of a shortfall in rent or an inability to sell the flat. The same principle was subsequently confirmed by judgments nos. 4864 of 14 April 2000 and 9545 of 1 July 2002. 35. In judgment no. 1032 of 10 February 1996, the Court of Cassation held that the loss sustained by the landlord could be proved simply by a request for a higher rent, determined on the basis of the amount that he could have charged on the free market. 36. Lastly, in judgment no. 10560 of 19 July 2002, the Court of Cassation laid down the principle that the tenant is considered to have been given notice to quit as soon as the lease agreement expires, regardless of the eviction date set by the judge. 37. In judgment no. 3873 of 26 February 2004 the Court of Cassation ruled on the issue of police assistance. 38. That judgment was given in a case arising from a claim for compensation lodged by a number of landlords against the Ministry of the Interior in 1990. 39. In particular, they were claiming reimbursement for losses sustained as a result of a delay in recovering their property that was attributable, in their view, to the fact that they had not been provided with police assistance. 40. A bailiff had made twenty-one attempts to gain access and nineteen of them were unsuccessful. According to the landlords, only six of those attempts were made during periods when evictions were subject to legislative suspension. 41. In the other thirteen cases, the claimants asserted that the authorities had not provided evidence of any force majeure that made it absolutely impossible for them to grant the necessary police assistance. 42. At first instance the Rome District Court found in favour of the claimants and awarded them the sum of 177,886,610 lire (91,870.77 euros) in compensation. The Ministry appealed and the judgment was set aside by the Rome Court of Appeal on the ground that, in view of the public policy imperatives cited by the authorities, the claimants had not provided evidence to show that the refusal to grant police assistance was unjustified. The claimants appealed on points of law. 43. The Court of Cassation observed that, in judgment no. 2478 of 18 March 1988, sitting in plenary, it had laid down the principle that a landlord who has obtained an enforceable judgment in his favour is entitled to apply to the authorities for any acts required for the purpose of enforcement, including police assistance. It was thus an obligation rather than a discretionary power of the authorities. 44. The Court of Cassation further observed that, in judgment no. 5233 of 26 May 1998, sitting in plenary, it had held that as a consequence of that principle any inability of the authorities to comply with their obligation should be subjected to a stringent test. In particular, the question whether the police authority had legitimately refused to provide assistance on the date and at the time indicated by the bailiff was to be assessed by taking into account whether any alternative time, or even date, had been proposed, and if any reasons had been given, in each specific case, to justify the refusal. 45. The Court of Cassation moreover stated that the police authority enjoyed a margin of discretion as to the actual time when its assistance was to be allocated. 46. Except where the inability to comply is caused by force majeure, if the competent authority refuses to grant such resources in spite of a request from a bailiff, the landlord should be entitled to lodge a claim with the ordinary courts seeking compensation from the authorities for the loss sustained as a result of the refusal. 47. The Court of Cassation reiterated the principle set out in judgments nos. 8827 and 8828 of 31 May 2003 that reparation in the form of compensation was the minimum guarantee necessary to uphold an impaired right in cases where the resulting damage interfered with an interest protected by the Constitution. It held that the right to execution of the order contained in an enforceable judgment had to be regarded as such a right, because the possibility for a person to bring legal proceedings seeking the protection of his or her rights extended to the enforcement of final and binding judicial decisions. 48. The Court of Cassation quashed the judgment of the Rome Court of Appeal and referred it back to the lower courts for reconsideration. It stated as a matter of principle that, when compensation claims were brought against public authorities by landlords complaining of damage because an eviction order had not been executed or its execution had been delayed, it was for the authorities to prove that they had been prevented from allocating police assistance. Such a defence would only release the authorities from responsibility, in particular, if it arose from extraordinary and unforeseeable imperatives. In this connection, the Court of Cassation emphasised that any permanent crisis situations, such as those affecting the judicial system or public authorities, did not preclude responsibility for damage caused to individuals, but, on the contrary, might constitute the origin of such responsibility. In particular, the “crisis” in the Italian court system had not helped the State to avoid a number of unfavourable judgments by the European Court for the excessive length of judicial proceedings, and currently did not preclude such findings by domestic courts pursuant to Law no. 89 of 24 March 2001 (the “Pinto Act”). | 1 |
train | 001-111263 | ENG | TUR | CHAMBER | 2,012 | CASE OF ADEMOVİČ v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - General principles of international law) | Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque | 5. The applicant was born in 1972 and lives in Serbia. 6. In 1992 the applicant was found guilty of drug trafficking and sentenced to seventeen years’ imprisonment by an Italian court in abstentia. 7. On 11 August 1994 the applicant was arrested and taken into custody at the Kapıkule border in Edirne, on the basis of a Red Notice issued by Italy via Interpol. 8. On 12 August 1994 the judge at the Edirne Magistrates’ Court ordered the applicant’s provisional arrest on the basis of Article 9 of the former Criminal Code and Article 16 of the European Convention on Extradition. 9. On 20 September 1994 the Ministry of Justice sent a letter to the Edirne Public Prosecutor informing him that, on 10 June 1992, the applicant had been sentenced to seventeen years’ imprisonment for drug trafficking in Italy. On the same day, the public prosecutor stated that the applicant should remain under provisional arrest until the decision of the Council of Ministers regarding his extradition. 10. On 4 October 1994 the Edirne Criminal Court delivered a decision, pursuant to Article 9 of the former Criminal Code (Law no. 765), indicating the applicant’s nationality and the nature of the offences allegedly committed. 11. On 3 November 1994 the applicant’s lawyer requested the Ministry of Justice to allow his client to be tried in Turkey for the crimes he had allegedly committed there. Subsequently, a preliminary investigation was initiated into the applicant’s activities and, on 9 November 1994, the applicant was remanded in custody in connection with the offences he had allegedly committed in Turkey. 12. On 2 December 1994 the Edirne Public Prosecutor filed a bill of indictment charging the applicant with drug trafficking under Article 403 of the former Criminal Code. 13. On 6 January 1995 the Council of Ministers decided to extradite the applicant to Italy when his trial in Turkey was over. 14. On 19 April 1995 the applicant’s trial commenced before the Istanbul State Security Court. On 10 October 1997 the court ordered the applicant’s release pending trial. On the same day, he was placed in provisional detention again with a view to his extradition to Italy on the basis of the order of the Edirne Magistrates’ Court dated 12 August 1994. 15. On 11 April 2002 the Istanbul State Security Court informed the Ministry of Justice that the applicant could be extradited to Italy. 16. In the meantime, the applicant had filed several petitions with the Edirne Criminal Court, requesting his release. In all his petitions, he argued that his prolonged provisional detention with a view to his extradition was illegal. On 24 January 2003 the applicant’s lawyer once again requested the Edirne Criminal Court to lift the decision for the applicant’s provisional arrest and to order his release. In his petition, he relied on Article 16 of the European Convention on Extradition, which limited the length of the provisional detention to forty days after arrest. The applicant further maintained that by virtue of Article 90 of the Constitution international agreements adopted by Turkey formed an integral part of the domestic law, and thus his prolonged detention with a view to extradition for more than five years constituted a breach of Article 16 of the European Convention on Extradition. On 25 January 2003 the court dismissed this request without providing any answer to the applicant’s claim regarding the European Convention on Extradition. On 29 January 2003 the applicant’s lawyer objected to the decision of 25 January 2003, again making a reference to the European Convention on Extradition and arguing that his provisional detention, which had exceeded five years, was illegal. On 30 January 2003 the Edirne Assize Court rejected the applicant’s request for release, upholding the reasoning of the Edirne Criminal Court. 17. On 7 February 2003 the applicant was extradited to Italy. 18. On 29 June 2004 State Security Courts were abolished by Law no. 5190 and the criminal proceedings against the applicant were therefore transferred to the Istanbul Assize Court. 19. On 16 February 2005 the criminal proceedings against the applicant were terminated as the statutory time-limit had expired. On 4 July 2005 the Court of Cassation upheld the judgment. 20. On an unspecified date, the applicant returned to Serbia, where he currently resides. 21. The European Convention on Extradition which was signed in Paris on 13 December 1957 and which came into force on 11 May 1986 provides as follows: “The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition ... It shall not, in any event, exceed 40 days from the date of such arrest.” “1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested. 2. The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement by the Parties.” 22. Article 90 § 5 of the Constitution reads: “... International treaties that are duly in force are directly applicable in domestic law. Their constitutionality cannot be challenged in the Constitutional Court. In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” 23. Article 3 reads: “Whoever commits a crime in Turkey shall be punished in accordance with Turkish law, and a Turk, even if sentenced in a foreign country for a commission of a crime, shall be retried in Turkey.” 24. Article 9 reads: “The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto. When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person’s nationality and the nature of the offence. ... If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government. The investigating judge may order the detention of the alien pending his extradition.” 25. Section 1 provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” | 1 |
train | 001-101688 | ENG | SVK | COMMITTEE | 2,010 | CASE OF MAJTAS v. SLOVAKIA | 4 | Violation of Art. 6-1 | Ján Šikuta;Lech Garlicki | 4. The applicant was born in 1959 and lives in Bratislava. 5. On 3 September 1996 the applicant filed an action with the Bratislava II District Court. He claimed reimbursement of a purchase price. 6. On 4 May 2005 the Constitutional Court found that the applicant's right to a hearing without unjustified delay had been violated, awarded him the equivalent of 1,782 euros (EUR) at that time as just satisfaction, ordered the court concerned to avoid any further delay in the proceedings and to reimburse the applicant's legal costs. 7. On 30 May 2006 the district court delivered a judgment. 8. On 31 October 2007 the Bratislava Regional Court, on the defendant's appeal, quashed the first-instance judgment and remitted the case for further examination to the district court. 9. On 22 September 2009 the district court delivered a judgment. Following the defendant's appeal, the proceedings are pending before the Regional Court. | 1 |
train | 001-70289 | ENG | HUN | CHAMBER | 2,005 | CASE OF KALNASI v. HUNGARY | 4 | Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicants were born in 1958 and 1953 respectively and live in Füzérkomlós, Hungary. 5. On 20 October 1995 the applicants brought an action in trespass against their neighbours before the Miskolc District Court. The court held nine hearings between 14 February 1996 and 5 January 1998 and obtained an expert opinion. On 15 June 1998 the court partly accepted the applicants' claims. 6. On appeal, on 4 February 1999 the Borsod-Abaúj-Zemplén County Regional Court gave a partial decision. It upheld part of the first-instance decision, but quashed the remainder and remitted the case to the District Court. It appears that the applicants' repeated efforts to have the Regional Court's decision enforced were to no avail. 7. In the resumed proceedings before the District Court, hearings took place on 12 July, 6 September, 4 October, 14 December 1999, 19 January and 9 March 2000. On 3 May 2000 the District Court ordered that the proceedings be stayed under section 137 § 1 (b) of the Code on Civil Procedure because the applicants failed to appear at the hearing scheduled for that date. 8. On 8 September 2000 the applicants requested that the proceedings be continued. 9. Meanwhile, on 23 April 1999 the applicants filed a petition for the review by the Supreme Court of the partial decision of 4 February 1999. The Supreme Court appointed a legal-aid lawyer, who subsequently had to be replaced twice at the applicants' request. On 30 November 2000 the Supreme Court eventually rejected the petition as inadmissible, without examining it on the merits, since the applicants had, despite warning, failed to contact the legal-aid lawyer and were therefore not properly represented before the Supreme Court. 10. In the pending proceedings before the District Court, the applicants were repeatedly requested to clarify their claims at the hearings of 2 and 9 May 2001. 11. At the applicants' request, on 10 July 2001 the District Court appointed a legal-aid lawyer. 12. In its order of 30 November 2001 the District Court discontinued the proceedings in respect of the pending claims. On appeal, on 1 March 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed the first-instance order and remitted the file to the District Court. 13. In the resumed proceedings, the applicants requested the District Court to hold a hearing in their absence because they felt that their presence at the previous hearings had been useless. 14. At the hearing on 24 September 2003 the District Court dismissed the applicants' claims. In the absence of an appeal, this decision became final on 25 November 2003. 15. In 1999 the representative of the building, in which the applicants lived, brought an action against them claiming overdue charges. On 9 June 1999 the Miskolc District Court partly accepted the plaintiff's claims. On 16 December 1999 the Regional Court dismissed the applicants' appeal. On 11 April 2001 the Supreme Court's review bench refused to grant leave to appeal. In similar proceedings, on 10 December 2001 the Sátoraljaújhely District Court partly accepted some further claims for overdue charges. On 4 April 2002 the Regional Court dismissed the applicants' appeal. | 1 |
train | 001-99663 | ENG | HUN | ADMISSIBILITY | 2,010 | GEDA v. HUNGARY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | The applicant, Ms Éva Mária Geda, is a Hungarian national who was born in 1954 and lives in Kazár. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 November 2001 criminal proceedings were instituted against the applicant and other defendants on charges of smuggling persons. On 11 July 2003 the Salgótarján District Public Prosecutor's Office preferred a bill of indictment. Hearings took place on 27 November 2003, 24 February and 23 November 2004, 29 March and 28 September 2005. On 6 October 2005 the Salgótarján District Court convicted the applicant of complicity in 27 counts of smuggling persons and 27 counts of violating personal liberty. The District Court appreciated the length of the time which had elapsed from the commission of the crimes as a significant mitigating factor. Because of this, it sentenced the applicant to only two years' imprisonment, suspended for a probationary period of five years, and to the confiscation of property in the amount of 150,000 Hungarian forints. On 8 May 2006 the Nógrád County Regional Court upheld this judgment. Also appreciating the protraction of the proceedings, the Regional Court reduced the probationary period to three years. | 0 |
train | 001-58983 | ENG | FRA | CHAMBER | 2,000 | CASE OF ANNONI DI GUSSOLA AND OTHERS v. FRANCE | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Nicolas Bratza | 8. On 15 October 1990 a bank, Diffusion industrielle nouvelle (“DIN”), granted the applicant a consumer loan in the sum of 172,000 French francs (FRF) with interest at the rate of 14.5% for the purchase of a vehicle. The loan was repayable in fifty-seven monthly instalments of FRF 4,419.44 (making a total of FRF 251,908.08). 9. In March 1991 the bank notified the applicant of its intention to seize the vehicle as he had failed to pay the January and February 1991 instalments. The applicant settled the arrears. 10. From July 1991 to October 1991 the applicant stopped payment of the instalments owing to defects in the vehicle. 11. In November 1991 he made a payment. 12. On 14 December 1991 DIN terminated the loan agreement and had the car sold for FRF 74,243.56. It issued proceedings against the applicant for payment of the balance of the loan. 13. On 24 April 1992 the President of Nantua District Court ordered the applicant to pay the sum of FRF 98,032. The applicant, who contested the amount claimed and the price at which the car had been sold, applied to have that order set aside. 14. In a judgment of 24 June 1993 Nantua District Court ordered the applicant to pay FRF 95,156.26 plus interest at the contractual rate of 14.5% and a further sum of FRF 3,000. The applicant appealed against that judgment, arguing that the bank had been at fault for selling the car at a derisory price. He sought an order against the bank for the payment of damages to be set-off against the amount of his indebtedness. In the alternative, he asked to be allowed to pay off the debt over two years. 15. The applicant, who worked as a consultant in Switzerland, was made redundant in 1994. From 1 January 1995 onwards he received minimum welfare benefit (revenu minimum d'insertion – RMI) of FRF 3,569 monthly. 16. On 31 May 1995 the Lyons Court of Appeal partly allowed the applicant's appeal, ordering him to pay DIN the sum of FRF 90,371.26 with interest at the contractual rate from 19 February 1992 plus FRF 3,000 by way of statutory compensation. It held that the applicant had not established any fault on the part of the bank such as would warrant an order for damages. 17. The applicant appealed to the Court of Cassation on 18 September 1995. He lodged written submissions containing three grounds of appeal on 18 January 1996. In particular, he argued that DIN had acted unfairly since, although he had paid off FRF 10,000 in November 1991 and had undertaken to pay the balance of the loan by the end of the year, DIN had nonetheless seized the vehicle he had purchased with the aid of the loan and had it sold at a derisory price. The applicant consequently asked the Court of Cassation to rule that the Court of Appeal had given insufficient reasons for its decision, in that it had failed to explain why it had rejected his ground of appeal based on the financial institution's liability for making his situation worse by not selling the car at its true value when the proceeds of sale would have been more than ample to cover the balance of the loan. 18. On 16 February 1996 DIN applied for the appeal to the Court of Cassation to be struck out of the list pursuant to Article 1009-1 of the New Code of Civil Procedure, as the applicant had failed to comply with the Court of Appeal's judgment. 19. The applicant lodged submissions in which he explained that he was not in a position to pay any of the amount claimed as he was unemployed, his only income since 1 January 1995 being minimum welfare benefit of FRF 3,569 monthly. Furthermore, he was two years in arrears with his rent. He lodged additional submissions informing the court that he had made an application for legal aid on 14 March 1996. 20. By an order of 16 April 1996 following a hearing on 27 February 1996 the delegate of the President of the Court of Cassation made an order for the case to be removed from the list, holding: “An order for 'removal from the list', which under this provision [Article 1009-1] may be made against a judgment debtor who appeals to the Court of Cassation, does not constitute a penalty for failure to exercise diligence or as a result of any inadmissibility. It is an administrative and regulatory measure intended to remind parties that an appeal to the Court of Cassation is an extraordinary remedy and to enable beneficiaries of enforceable judicial decisions to enjoy the prerogatives afforded them by the judges of the courts below in full, all in accordance with the fundamental rules of the administration of justice. An application may be made for such an order, which is provisional only and preserves all rights, remedies and grounds of appeal, as soon as the notice of appeal bringing the case before the Court of Cassation has been lodged with the registry of that court, without the applicant's having to wait until the time allowed to the appellant and the respondent for lodging their written submissions has expired. In the instant case, Guido Annoni di Gussola has failed to show that he has taken any steps apt to demonstrate his intention to comply with the decision of the court below and has not pleaded any personal circumstances that give rise to a danger or presumption that compliance will entail manifestly unreasonable consequences. In those circumstances, the appeal must be removed from the Court of Cassation's list...” 21. With contractual interest, the sum owed by the applicant at that time came to more than FRF 150,000. 22. On 15 March 1998 the applicant and his family were evicted from their home after failing to pay their rent for two years. 23. On 1 April 1998 the applicant began to receive a monthly retirement pension of FRF 2,480.65. 24. By an order of 25 November 1998 the delegate of the President of the Court of Cassation noted that the appeal had lapsed, no steps having been taken to prosecute it in the two years since the order removing it from the list had been made. 25. After a loan offer was accepted on 13 October 1990, a finance company, SOVAC, granted Ms Desbordes a credit facility in the sum of FRF 85,000, with interest at 20.90%, for the purchase of a vehicle. Mr Omer, her husband, acted as guarantor. 26. The first nineteen monthly instalments – a total of FRF 45,760.36 – were repaid. The applicants were unable to pay the subsequent monthly instalments, as Mr Omer lost his job. 27. SOVAC seized the vehicle, and obtained FRF 41,658.43 on a forced sale. Alleging an event of default under the agreement, it brought an action against the applicants for immediate payment of the sum of FRF 38,669.97, that being the outstanding capital, together with interest at the contractual rate of 20.90% since 1 November 1992. 28. On 16 April 1993 the Abbeville District Court dismissed SOVAC's claim. It held that since the authorised overdraft of FRF 85,000 had been used in a single transaction, it did not constitute a credit facility usable in tranches, but an ordinary loan. Section 5 of the Law of 10 January 1978 on consumer information and protection in financing transactions laid down that a statement of the total cost of the credit, broken down item by item, had to be provided for loans of that type. Noting that the agreement did not contain a statement of the total cost of the credit, the District Court held that the loan offer was not in the required form and that by virtue of section 23 of the Law SOVAC, accordingly, forfeited its rights to interest. SOVAC appealed. 29. On 11 October 1994 the Amiens Court of Appeal overturned that judgment. In so doing, it accepted SOVAC's submissions that the statement required by section 5 of the aforementioned Law of 10 January 1978 was too inflexible to be applicable to an offer with a variable rate of interest, and that a single rate had been applied solely because the applicants had been paid the amount in full, and not in tranches, as they had been at liberty to request. The Court of Appeal ordered the applicants to pay the sum claimed together with compound interest from 20 September 1993. 30. The applicants applied on 17 January 1995 for legal aid to appeal to the Court of Cassation. The legal aid office granted their application on 15 June 1995 on the ground that they had insufficient means (their disposable income being put at minus FRF 862). 31. The applicants accordingly appealed to the Court of Cassation on 14 August 1995 through the lawyer assigned to represent them and he lodged written submissions on 11 January 1996. The applicants alleged that the finance company had contravened the statutory consumer-protection provisions. They relied in their appeal on judgments in which the Civil Division of the Court of Cassation had overturned awards of interest made in cases in which the evidence had showed that the lender had failed to state the overall effective rate of interest or the total cost of the credit, broken down item by item, in the loan agreement. 32. On 27 March 1996 SOVAC requested the President of the Court of Cassation to order the removal of the case from the list pursuant to Article 1009-1 of the New Code of Civil Procedure. 33. In submissions dated 14 May 1996 the applicants opposed that application on the ground that they had insufficient means, as attested by the fact that they had been granted legal aid in 1995. 34. By an order of 21 May 1996 the delegate of the President of the Court of Cassation found, inter alia, that the applicants had failed to show that they had taken “any steps apt to demonstrate their intention to comply with the decision of the court below and [had] not [pleaded] any personal circumstances that [gave] rise to a danger or presumption that compliance [would] entail manifestly unreasonable consequences”. The delegate of the President of the Court of Cassation ordered the case's removal from the list. 35. New Code of Civil Procedure Article 386 is worded as follows: “Proceedings shall lapse if none of the parties take any steps for two years.” Article 1009-1 of the New Code of Civil Procedure, as initially worded when Decree no. 89-511 of 20 July 1989 was issued, provided: “Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President may, on application by the respondent and after obtaining the opinion of Principal State Counsel and the parties, order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision, or unless it appears to the President that compliance may entail manifestly unreasonable consequences. The President shall grant permission for the case to be restored to the list on proof that the impugned decision has been complied with.” Article 1009-1 was amended by Decree no. 99-131 of 26 February 1999, which came into force on 1 March. It was reworded and supplemented by two Articles and now reads as follows: “Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President or his or her delegate shall, on application by the respondent and after obtaining the opinion of Principal State Counsel and the observations of the parties, order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision, or unless it appears to the President that compliance may entail manifestly unreasonable consequences. The respondent's application must be made before the expiration of the periods laid down in Articles 982 and 991, failing which the court shall of its own motion declare it inadmissible. An order for the case's removal from the list shall not prevent time running for the purposes of the time-limits to which the appellant is subject by virtue of Articles 978 and 989.” “Time shall start to run from the date the order for removal of the appeal from the list is served. It shall be interrupted by an act that unequivocally manifests an intention to comply.” “Unless he or she finds that the appeal has lapsed, the President or his or her delegate shall grant permission for the case to be restored to the list on proof of compliance with the impugned decision.” For the purposes of the time-limits to which the respondent is subject by Articles 982 and 991, time shall start to run from the date the order for the restoration of the appeal to the list is served.” 36. Case-law (i) “Appellants to the Court of Cassation may not rely on Article 6 of the European Convention on Human Rights to oppose an application for an order for removal of an appeal from the list, since they have been able to exercise their right to appeal to the Court of Cassation and are not entitled to avoid their own obligations to comply with the orders made in the judgment against them, as they would otherwise deprive their opponent of a prerogative which the latter enjoys by virtue of the judicature rules.” (Cass. ord. 1er prés., 22 February 1995, Bull. civ. ord., no. 6) (ii) “... Mr and Mrs ... appealed on points of law against the judgment ... of the ... Court of Appeal ordering them to pay ... 206,050.31 francs... Mr and Mrs ... contest that measure on the ground that they have been granted full legal aid. It appears that the grant was made on the basis that the spouses' disposable monthly income was 3,834 francs. In those circumstances and regard being had to the amount of the order, it appears that compliance with the judgment would entail manifestly unreasonable consequences for them.” (Cass. ord. 1er prés., no. 91205 of 2 February 2000) (iii) “By a judgment ... the ... Court of Appeal ordered Mr L. and the SCI A. to pay various sums to Mr D.B... Mr L. says he is impecunious ... The documents produced by Mr L., who is in receipt of minimum welfare benefit, show that his financial circumstances are indeed extremely precarious ... that compliance with the judgment would entail manifestly unreasonable consequences for him ...” (Cass. ord. 1er prés., no. 90971 of 12 January 2000) | 1 |
train | 001-58364 | ENG | NOR | GRANDCHAMBER | 1,999 | CASE OF NILSEN AND JOHNSEN v. NORWAY | 1 | Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings | Luzius Wildhaber;Nicolas Bratza | 7. The first applicant, Mr Arnold Nilsen, and the second applicant, Mr Jan Gerhard Johnsen, are Norwegian citizens born in 1928 and 1943 and living in Bergen. The first applicant is a police inspector, who at the material time was Chairman of the Norwegian Police Association (Norsk Politiforbund). The second applicant is a police constable and was at the relevant time Chairman of the Bergen Police Association (Bergen Politilag), a branch of the former association. At the material time they were both working in the Bergen police force. 8. In the 1970s Mr Gunnar Nordhus, then a law student, and Mr Edvard Vogt, then an associate professor of sociology at the University of Bergen, carried out an investigation into the phenomenon of violence in Bergen, a city of some 200,000 inhabitants. They gathered material from the local hospital relating to all patients subjected to violence during the period January 1975-July 1976. Later, they included material from other sources. In 1981 Mr Nordhus and Mr Vogt published a summary of their previous reports in a book entitled Volden og dens ofre. En empirisk undersøkelse (“Violence and its Victims. An Empirical Study”). The book extended to some 280 pages and included a 77-page chapter on police brutality, which it defined as the unlawful use of physical force during the performance of police duties. The authors found, inter alia, that 58 persons had been exposed to police brutality during the aforementioned period, 28 of whom had been medically examined, and that the police in Bergen were responsible for approximately 360 incidents a year of excessive and illegal use of force. The book gave rise to a heated public debate. This involved in part researchers concerning the methods used and the scientific basis for the conclusions drawn, and in part members of the police and the prosecution. 9. In this connection the Ministry of Justice appointed a Committee (utvalg) of Inquiry consisting of Mr Anders Bratholm, professor of criminal and procedural law, and Mr Hans Stenberg-Nilsen, advocate before the Supreme Court. Their mandate was to verify whether the research of Mr Nordhus and Mr Vogt provided a basis for making any general observations as to the nature and extent of police brutality in Bergen. Assisted by a statistics expert and an expert on the use of interviews, the Committee interviewed 101 persons, including 29 police officers, 2 public prosecutors, 4 doctors who had taken blood samples at Bergen police station, 5 social workers who dealt especially with young criminals in Bergen, 2 defence lawyers with extensive experience of criminal cases in Bergen, 13 witnesses of police brutality and 27 alleged victims of such misconduct. In a report published in 1982 under the title Politivoldrapporten (“Report on Police Brutality”) Mr Bratholm and Mr Stenberg-Nilsen concluded: “Since the Committee of Inquiry has been unable to reach a conclusion regarding individual accounts of situations, but has considered all the material as a whole (see remarks on p. 88 with reference to the recommendation of the Reitgjerdet Commission), it will not, on the basis of the descriptions of the situations alone, be able to give any exact figure as to the number of incidents of police violence in Bergen. However, on the basis of all the information concerning police violence in Bergen received from various sources by the Committee, it believes that the nature and the extent of police violence are far more serious than seems to be generally believed. On the strength of the evidence as a whole, the Committee assumes that the real extent hardly differs from the two researchers’ estimates. However, the essential point must be that even the most cautious estimates that can be made on this basis indicate that the extent is alarming.” 10. The conclusions in the 1982 report and its premises were called into question by the Norwegian Police Association, amongst others. The association considered bringing defamation proceedings against Mr Bratholm, Mr Stenberg-Nilsen, Mr Nordhus and Mr Vogt but decided in 1983 to refrain from such action. 11. Newspapers in Bergen, in particular, took a keen interest in the debate following publication of the 1982 report. Prior to that, in 1981, the newspaper Morgenavisen had stated that Mr Nordhus had lied in connection with the collecting of material for his research. Mr Nordhus instituted defamation proceedings against the newspaper but in 1983 the Bergen City Court (byrett) dismissed the action on the ground that the accusation had been justified. 12. Mr Bratholm continued his work on police brutality, eventually as an independent researcher. In the spring of 1986 he published a book entitled Politivold (“Police Brutality”), with the subtitle Omfang – årsak – forebyggelse. En studie i desinformasjon (“Extent – Causes – Prevention. A Study in Misinformation”). He explained his use of the term “misinformation” as meaning the deliberate or negligent dissemination of incorrect information. It related to the “false” – or “misunderstood” – loyalty, leading police officers witnessing the excessive and unlawful use of force to keep quiet or cover the perpetrator by giving false testimony. Taking the 1982 report as its point of departure the book provided additional facts, analyses and conclusions. It also contained strong criticism by Mr Bratholm of the City Court’s judgment in the above-mentioned case brought by Mr Nordhus against Morgenavisen. 13. Following the publication of Mr Bratholm’s book Politivold the second applicant, as Chairman of the Bergen Police Association, was interviewed by the newspaper Dagbladet. The interview was published in an article on 15 May 1986 entitled (all quotations below are translations from Norwegian) “Mr Bratholm out to get the police – An entire service has been denounced by anonymous persons” and read: “ ‘The mood of officers in the police force has been swinging between despair and anger. An entire service has been denounced by anonymous persons. Many of the officers dread making an appearance in town because there is always someone to believe that there must be something in these allegations.’ This is what the Chairman of the Bergen Police Association, Mr Johnsen, told Dagbladet. He describes Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’. ‘Until the contrary has been proved, I would characterise this as a deliberate lie. The allegations come from anonymous sources and are clearly defamatory of the service.’ ‘Are you questioning Mr Bratholm’s motives for exposing police brutality?’ ‘There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.’ ‘Would you suggest that the information be investigated internally?’ ‘If there is any truth in it, we will do what we can to remedy the situation. Such a situation is not to our credit, and we are not interested in having such people in the force.’ ‘So you do not exclude the possibility that misconduct has occurred?’ ‘I discount the possibility that any officers have committed such outrages as described. But I cannot exclude that some of them have in certain instances used force and gone too far.’ ” 14. On 16 May 1986 the first applicant, then Chairman of the Norwegian Police Association, was quoted in an article published by the newspaper Bergens Tidende under the headline “Unworthy of a law professor”. The article read: “ ‘It is beneath the dignity of a law professor to present something like this. The allegations are completely frivolous since they are based on anonymous sources. They have nothing to do with reality.’ This was stated by Mr Nilsen, Chairman of the Norwegian Police Association, in connection with the allegations made by Professor Bratholm in his book on police brutality. ‘I have spent my whole working life in the Bergen police force, and can safely say that the allegations concerning police brutality bear no relation to reality. They are stories that would have been better suited to a weekly with space to fill than a socalled serious study’, says Mr Nilsen. Full parity ‘I am puzzled by the motives behind such allegations,’ continues the Chairman of the Police Association. ‘At any rate, it cannot be in the interests of the rule of law and the public good to create such problems for an entire service. I would claim that the quality of the human resources within the police is fully on a par with that found among professors. We would not be able to base a charge against anyone on such flimsy grounds as Professor Bratholm does. Then, at any rate, there would not be any rule of law in this country.’ Would not be tolerated ‘But you are not denying that police brutality does occur?’ ‘Of course not, but that is a different question. Here it is a question of systematic use of violence and pure theft. Such conduct would not be tolerated within a police force.’ Mr Nilsen points out that, although he has not studied the book closely, he considers that one cannot leave what has emerged so far unchallenged. The problem is that it is difficult to contest the allegations because it is not an individual, but an entire service, which feels it has been libelled. He does, however, agree with Chief of Police, Mr Oscar Hordnes, who told Bergens Tidende yesterday that there must be good reason for the Prosecutor-General [Riksadvokaten] to examine the matter more closely. The Police Association will also consider seeking a legal opinion on the book.” 15. In the autumn of 1986 Mr Bratholm and Mr Nordhus published a book – Dokumentasjon av politivold og andre overgrep i Bergen-politiet (“Documentation of police brutality and other misconduct in the Bergen police force”) in which Mr Bratholm stated: “The harassment and persecution to which Mr Nordhus – and in part Mr Vogt – have been subjected in Bergen are reminiscent of the fate of dissidents in east European countries. I doubt that there is anyone among us whose situation is closer to that of these dissidents than Mr Nordhus. It is almost a wonder that he has had the courage and strength to continue his struggle to bring the truth to light. … It is impossible to say how many officers in the Bergen police force are involved in the unlawful practice described here; hopefully only a small minority. It is, however, difficult to believe that a great many in the force could be unaware of the conduct of certain colleagues. But their silence is ensured by the pressing demand for ‘loyalty’. This has made it possible for the criminal sub-culture in the Bergen police force – whose activities encompass various kinds of offences – to survive and most likely to flourish. ... There is reason to believe that many of the actions against Mr Nordhus and Mr Vogt are headed by somebody who is centrally placed – that there is somebody behind the scenes in the Bergen police force who is pulling the strings, plotting strategies and laying plans together with a few highly trusted persons. According to information that has come to light, it may now be possible to identify the key people responsible for some of the misconduct.” 16. In the spring of 1987 Mr Bratholm published a further book entitled Politiovergrep og personforfølgelse. 220 forklaringer om politivold og andre overgrep i Bergenspolitiet (“Police misconduct and individual harassment. 220 statements concerning police brutality and other forms of misconduct in the Bergen police force”), which to some extent was an update of Mr Bratholm’s and Mr Nordhus’s book of 1986. In the introduction Mr Bratholm stated: “Although abuse of power by the police does occur, and in some places far more frequently than in others, this does not mean that the majority of Norwegian police officers are guilty of such abuse. All the investigations indicate that a small minority of police officers have committed most of the incidents of abuse and are able to continue because the demands for ‘loyalty’ are so strong within the police.” 17. In early 1988 the Norwegian law journal Lov og Rett published a special volume devoted to the issue of police violence. It included a number of articles by academics, amongst others by Mr Bratholm, criticising an investigation ordered by the Prosecutor-General (see paragraph 18 below). Mr Bratholm also published a number of other articles on the subject of police brutality. 18. After receiving from Mr Bratholm an unexpurgated version of the book published in autumn 1986 mentioning the informers’ names (which until then had been known to the researchers only), the ProsecutorGeneral ordered an investigation headed by ad hoc prosecutor Mr Erling Lyngtveit and police officers from another district. In June 1987 the result of the Prosecutor-General’s investigation was made public: 368 cases of alleged police brutality in Bergen had been investigated. Some 500 persons, including 230 police officers, had been interviewed. Charges were brought against one police officer, who was subsequently acquitted. The overall conclusion reached in the investigation was essentially that the various allegations of police brutality were unfounded. At the close of the investigation, fifteen of the interviewees were charged with having made false accusations against the police. Ten of these persons were later convicted in jury trials before the Gulating High Court (lagmannsrett), which took place during the period from November 1988 to March 1992 and were referred to as the “boomerang cases”. 19. On 2 March 1988 a new statement by the first applicant was printed in Annonseavisen in Bergen in an article carrying the following headlines: “Dramatic turn in the debate on brutality Amnesty contacted The Police Association is preparing legal action” The article read: “Not only has Professor Bratholm now issued a demand that a government committee of inquiry should be set up to review what was long ago concluded by the Prosecutor-General, but the Bergen Police Department has now been reported to Amnesty International for violating human rights! A delegation from the international secretariat in London has already been in Bergen. Their report is expected to be ready this spring. ‘I have to admit that I was quite surprised when I was told about this recently. It seems as if gentlemen like Mr Nordhus, Mr Vogt and Mr Bratholm now realise that when one move does not work they try another’, commented Mr Nilsen, Chairman of the Norwegian Police Association. In [his] view, the matter is about to get out of hand. He describes the reporting of the matter to Amnesty as an insult and feels that with the recent, sharp attacks by Professor Bratholm and others, the limits of what can be called impartial research have long since been exceeded. ‘In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives’, Mr Nilsen said to Annonseavisen. Just before the weekend Mr Nilsen was in Bergen, where he had talks with the newly appointed board of the Bergen Police Association ... Mr Nilsen says it was natural that the recent sharp attacks by Mr Nordhus, Mr Vogt and Mr Bratholm were one of the topics discussed. ‘I intend to contact our lawyer ... early this week. He has long ago sent a letter to Mr Bratholm in which we demand an apology for the statements he has made. I think you can count on our instituting defamation proceedings in this matter. We cannot put up with a situation where the same accusations continue to be made against the Bergen police despite the fact that the force has been cleared after one of the greatest investigations of our time.’ Extended accusations ‘But Mr Bratholm has no confidence in [prosecutor] Lyngtveit’s competence and desire to have the whole matter investigated?’ ‘The fact that Professor Bratholm now calls into question the work carried out by Mr Lyngtveit and instituted by the Attorney-General [Regjeringsadvokaten] is in itself serious and remarkable. Now the charges have been extended to include superior police authorities as well.’ According to Annonseavisen’s sources, Mr Nilsen will very soon contact the Prosecutor-General to hear what the latter intends to do about Mr Bratholm’s extended insinuations. As regards the fact that Amnesty International is being brought into [the matter], Mr Vogt ... affirms that this is as a result of the organisation’s wish to gain full insight into the situation in the Bergen police force.” 20. In June 1988 the first applicant gave a speech as Chairman of the Norwegian Police Association at its annual general assembly, from which Bergens Tidende quoted in an article dated 7 June 1988 carrying the headline “Mr Bratholm accused of defamation”. The article read, inter alia, as follows: “... The Norwegian Police Association is serious about its threat to bring defamation proceedings against Professor Bratholm. According to Mr Nilsen, Chairman of the Association, a summons against Mr Bratholm will be issued within the next days requesting that two specific written statements he has made in connection with the police brutality case in Bergen be declared null and void. ... Refused ‘Professor Bratholm has had an opportunity to apologise for the two specific points which we find to be defamatory of the police as a professional group, but he has refused. Therefore we are instituting proceedings. No compensation will be claimed; we are merely seeking to have the statements declared null and void.’ Critical eyes Mr Nilsen also mentioned this matter in his opening speech to the national assembly and said, among other things, that society’s power structure had to tolerate critical eyes. However, this presupposed a responsible and reliable attitude on the part of the critics. He strongly denounced unobjective debates on police brutality fostered by powerful forces of high social status. Dilettantes ‘Mr Bratholm’s status as a professor has lent credibility to the allegations of police brutality, and this has undermined the respect for and confidence in the police. The Norwegian Police Association will not accept the appointment of a new commission to investigate allegations of police brutality; nor will it accept private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public’, said Mr Nilsen. ... Verbal attacks Mr Nilsen described verbal attacks on the police as an attempt to undermine the dignity and authority of the police.” 21. In a special edition of the law journal Juristkontakt, published in the autumn of 1988, the police and the prosecution authorities presented their views on the investigation ordered by the Prosecutor-General and the ensuing investigation into the suspected false statements given by Mr Bratholm’s informers. 22. In July 1988 the Norwegian Police Association and its Bergen branch brought defamation proceedings against Mr Bratholm, seeking to have his above-cited statements in “Documentation of police brutality and other misconduct in the Bergen police force” declared null and void (see paragraph 15 above). 23. In May 1989 Mr Bratholm, for his part, instituted defamation proceedings against the applicants, requesting that a number of their statements be declared null and void. 24. In 1992, in view of the European Court of Human Rights’ Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992 (Series A no. 239), the associations withdrew their defamation action against Mr Bratholm. The latter refused to withdraw his case against the applicants. 25. The Oslo City Court heard the case against the applicants from 24 August to 8 September 1992, during which evidence was taken from twenty-three witnesses and extensive documentary evidence was submitted. In its judgment of 7 October 1992 the City Court observed, inter alia, that it was established that unlawful use of violence had occurred in Bergen and that, although it had emanated from very few police officers, the extent of the violence was problematic. Mr Bratholm had not assailed his opponents’ integrity and had not expressed himself in a manner that could justify the applicants’ attack on him. It found the following statements defamatory under Article 247 of the Penal Code and declared them null and void (død og maktesløs, mortifisert) under Article 253 § 1 (the numbering below follows that appearing in the national courts’ judgments): (Statements by the second applicant published by Dagbladet on 15 May 1986) 1.1 “He describes Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’.” 1.2 “Until the contrary has been proved I would characterise this as a deliberate lie.” 1.3 “There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.” (Statements by the first applicant published by Annonseavisen and Bergens Tidende on 2 March and 7 June 1988 respectively) 2.2 “In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives.” 2.3 “The Norwegian Police Association will not accept ... private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public.” On the other hand, the City Court rejected Mr Bratholm’s claims with respect to the following statements by the first applicant published by Bergens Tidende on 16 May 1986 and 7 June 1988: 2.1 “I am puzzled by the motives behind such allegations. At any rate, it cannot be in the interests of the rule of law and the public good to create such problems for an entire service.” 2.4 “Mr Nilsen described verbal attacks on the police as an attempt to undermine the dignity and authority of the police.” The City Court ordered the first applicant to pay 25,000 Norwegian kroner (NOK) for non-pecuniary damage to Mr Bratholm but dismissed the latter’s claim for non-pecuniary damage against the second applicant on the ground that it had been submitted out of time. The City Court further ordered that the applicants pay Mr Bratholm respectively NOK 112,365.83 and NOK 168,541.91 for legal costs. The City Court’s judgment included the following reasons: “Statement 1.1 ... is an unequivocal allegation that Mr Bratholm’s book contains false allegations of police violence within the Bergen police. The expression ‘misinformation’ may be understood as being a neutral assertion that Mr Bratholm provides false information, or to mean that he should be aware that he [does so], or that he [does it] deliberately. The Court emphasises that the phrase ‘pure misinformation intended to harm the police’ must be read in connection with the rest of the text – particularly statement 1.2 and the last paragraph of the interview – and has come to the conclusion that an ordinary reader would understand the statement as follows: ‘With the intent of harming the police, Mr Bratholm is deliberately imparting false information on police brutality.’ The Court has no doubt that this is an assertion that constitutes a defamatory allegation. It is both offensive to Mr Bratholm’s sense of honour and liable to harm his reputation. The allegation is not a subjective characterisation, but an assertion about a matter of fact that can be proved by means of evidence. The accusation can thus be declared null and void. The Court would add that, when read in context, the statement cannot be construed as an accusation that Mr Bratholm himself is making false allegations of police brutality. However, even if the statement must be understood to be an allegation against persons other than Mr Bratholm (of making false accusations of police brutality), this does not alter its character as an allegation aimed at Mr Bratholm. When read in its entirety, the text clearly indicates that it is Mr Bratholm’s book which Mr Johnsen is referring to. … When statement [1.2] is read in the context of the rest of the text, which essentially deals with Mr Bratholm’s book, an ordinary reader would understand it as follows: ‘Mr Bratholm is deliberately passing on assertions about police brutality which he knows are lies.’ Whether statement 1.2 can be interpreted in such a way that it also targets the informers is of no significance here either. Nor does the Court doubt that this statement constitutes a defamatory allegation directed at Mr Bratholm which may be declared null and void because its truth can be tested by evidence. … [Statement 1.3] must be understood as a clear assertion that Mr Bratholm’s purpose (in writing the book Politivold) has been to undermine confidence in the police. When read in the context of the rest of the text, especially statements 1.1 and 1.2, it must be understood as an assertion that Mr Bratholm for this purpose is passing on allegations of police brutality which he knows to be untrue. The statement also includes an implicit denigration of Mr Bratholm’s purpose as questionable and unworthy. ‘Other motives’ answers the question whether Mr Bratholm’s motives can be doubted, i.e. as opposed to honourable motives such as, for instance, to promote the rule of law. ... The Court has no doubt that the assertion is an allegation which has both offended Mr Bratholm’s sense of honour and is liable to harm his reputation. The part of the assertion alleging that Mr Bratholm’s intention is to undermine the police can be proved to be true or false. That Mr Bratholm’s intention, with the statement worded as it is, must be understood by the reader as questionable or reprehensible is a subjective value judgment that can hardly be proved true or false. However, this does not in principle mean that statement 1.3 may not be declared null and void. [Statement 2.2] is not unequivocal as to whom it is directed against. It can be understood as being directed against Mr Bratholm (probably also against others), when seen in the light of the two preceding passages stating that Mr Bratholm (together with Mr Vogt and Mr Nordhus) is trying a new move and that Mr Bratholm (amongst others) is transgressing the limits of neutral research. When read in its context, the statement may also be understood to imply that it is not at all directed against Mr Bratholm, but against Amnesty. Such an interpretation must be based on the fact that the newspaper interviewed Mr Nilsen just because Amnesty had become involved in the matter. As a third possibility, the Court mentions that the statement – especially when read in the context of the caption in the newspaper – may be understood by an ordinary reader to imply that it is first of all directed at Mr Vogt and Mr Nordhus, but also at Mr Bratholm. The Court has reached the conclusion that when read in context statement [2.2] must be interpreted in any event as an assertion that Mr Bratholm, among others, has questionable motives for his involvement, and that Mr Bratholm is engaged in and/or contributes to what Mr Nilsen describes as skulduggery and private investigation, not impartial research. The statement in part includes value judgments (‘skulduggery’, ‘private investigation’), which are not liable to be declared null and void. However, the statement also includes an assertion on matters of fact, i.e. that there are dishonest motives and that Mr Bratholm is not neutral. The statement must obviously be understood to be an assertion that it is Mr Bratholm whose motives are dishonest. This follows from the first and second paragraphs preceding the statement, where Mr Nilsen first mentions that Mr Bratholm (together with Mr Nordhus and Mr Vogt) is trying a new move, and then claims that Mr Bratholm, among others, has exceeded the limits of impartial research. The Court has no doubt that this assertion constitutes a defamatory allegation against Mr Bratholm. It is both offensive to his sense of honour and liable to harm his reputation. The truth of the allegation can be tested by evidence and it may therefore be declared null and void. … Statement 2.3 contains an assertion that allegations of police brutality are being fabricated and then made public. When read in connection with the rest of the text, this must be interpreted by an ordinary reader as an assertion that Mr Bratholm publicises false allegations of police brutality. This assertion can be proved to be true or false, and is in principle liable to be declared null and void. The statement does not include only the said assertion. When the assertion is also understood to mean that Mr Bratholm is publicising allegations that he should have realised are false it follows that it is also offensive to Mr Bratholm’s sense of honour and liable to harm his reputation. The assertion implies that he, as an expert, is heedlessly publicising false allegations of police brutality. However, when read in context the statement cannot be understood solely in this way. The statement must be interpreted as an assertion that Mr Bratholm is taking part in a private investigation for the purpose of fabricating allegations of police brutality. If the assertion is to be interpreted as also being directed at persons other than Mr Bratholm, this does not preclude its being directed at him. Accordingly, statement 2.3 must also be interpreted as a defamatory allegation against Mr Bratholm, the truth of which can be tested by evidence.” 26. The applicants appealed against the City Court’s judgment to the Supreme Court (Høyesterett), challenging the former court’s interpretation of their statements. Without any support in their wording or the context, it had interpreted the statements as calling into question Mr Bratholm’s honesty and motives. In no event could the statements be regarded as unlawful, as they had been expressed in response to his damaging value judgments of the profession. The applicants invoked, inter alia, Article 250 of the Penal Code pursuant to which a court could refrain from imposing a penalty if the injured party had provoked the defendant or retaliated in a reprehensible manner. A crucial factor was that Mr Bratholm’s attacks on the associations which the applicants represented constituted such provocation and retaliation. In his cross-appeal Mr Bratholm challenged the City Court’s findings with respect to statements 2.1 and 2.4. Moreover, he emphasised, inter alia, that he had not questioned the honesty of the applicants or any other officials. His criticism had been directed against a system and enjoyed special protection under Article 100 of the Constitution. On 19 November 1992 the Appeals Selection Committee (kjæremålsutvalget) of the Supreme Court granted leave to appeal on points of law. 27. On 5 May 1993 the Supreme Court rejected both appeals, thereby upholding the City Court’s judgment, and ordered each of the applicants to pay NOK 45,000 in additional costs to Mr Bratholm. On behalf of the court, Mr Justice Schei stated, inter alia: “In the present case the interest in freedom of expression carries particular weight. The statements sought to be declared null and void were made in a public debate concerning police brutality. Police brutality – and by this I mean the use of illegal physical force by the police against individuals – is a matter of serious public concern. It is of central importance for democracy that a debate concerning such matters may take place as far as possible without a risk of sanctions being imposed on those who participate. It is of particular importance to allow a wide leeway for criticism in matters of public concern (see Article 100 of the Constitution). However, those who act in defence against the criticism, for instance the representatives of the Bergen police, should of course also enjoy this freedom of expression. ... However, freedom of expression does not go as far as [allowing] every statement in a debate, even if the debate relates to matters of public concern. Freedom of expression must be weighed against the rights of the injured party. The limit between statements which may be permissible and statements which may be declared null and void must in principle be set at statements which relate to the other person’s personal honesty or motives ... Nor do accusations of lies, improper motives, dishonesty ... serve to promote freedom of expression but, perhaps, rather to suppress or prevent a debate which should have been allowed to take place. ... [The applicants’] argument that the [impugned] statements cannot be declared null and void because they include subjective value judgments which are not susceptible of proof, is in my view untenable. The statements include, among other things, accusations of deliberate lies, unworthy motives and intent to damage the police. The truth of this type of statement can in principle be proved. The fact that [the applicants] have made no attempt to present such proof is another matter. In the assessment of whether the [statements] are to be considered unlawful [rettsstridig] the aggrieved party’s own conduct may also be relevant. A person who uses strong language may have to tolerate more than others. I will revert to Mr Bratholm’s conduct. Suffice it to say, in this context, that I cannot see that his strong involvement [in the debate] can be decisive with respect to those statements which clearly question whether he is lying or has acceptable motives. [The applicants] have submitted that, regardless of whether the statements are unlawful, the request for a null and void order must be refused, in accordance with an application by analogy of Article 250 of the Penal Code. To this I would ... say that [this] provision scarcely has any independent significance any longer – at least as regards provocation. In the case-law, the injured party’s own conduct has become more central in the determination of [whether a statement should be considered unlawful] and in violation of Article 247 of the Penal Code. I fail to see that there can be any room for exemption from penalty if the statement is unlawful. This approach would be the same if Article 250 ... had also been applicable to nullification. For this reason alone, there are no grounds for application by analogy, as pleaded by [the applicants]. I should think that the reasoning I have ... presented is also correct in respect of retaliation. In any event there [was in the present case] no retaliation such as that required ... ... I agree with the City Court that [the statements in question] fall under Article 247 of the Penal Code. Read in their context, they are directed against Mr Bratholm. In statement 1.2 he is accused of deliberate lies. An accusation of falsehood is also implied in statement 1.1 by the word ‘misinformation’. [Statement] 1.3 implies unworthy motives and suggests malicious intent [underlying Mr Bratholm’s attacks against the police]. This is also implied in statement 1.1. The defamatory nature of the [second applicant’s] statements becomes clearer and is thus reinforced when the statements are read together. The interest in freedom of expression cannot make these statements lawful. I refer to what I have said about statements which are directed against personal honesty and integrity. It has been submitted that Mr Bratholm’s own situation must be of central importance in the evaluation of the issue of lawfulness. He has, it is being alleged, made strong and derogatory statements against his opponents in the debate and must accept that an embarrassing light is put on him as well. I agree that Mr Bratholm voices harsh criticism in his book ‘Police Brutality’. A lot of this criticism is against a system, but a lot of it is also directed against persons. Mr Bratholm uses a number of derogatory expressions. ‘Misinformation’ has been singled out as one of them. I cannot see, for instance, that the use of that expression carries any significant weight when the lawfulness of the impugned statements is being assessed. Mr Bratholm’s point in using this expression has been, inter alia, to expose a deliberate or negligent denial of the existence of police brutality. Such denial is a prerequisite for the occurrence of police brutality on an appreciable scale. The word despotism has also been mentioned. In the manner it is used in the preface to Mr Bratholm’s book it is not linked to the Bergen police force ... The fact that the use of words such as ‘despotism’ probably contributed to raising the temperature and the general noise level of the debate may be relevant to the assessment of the lawfulness [of the impugned statements]. Having regard to the entire context, however, I cannot see that Mr Bratholm’s choice of words or manner of presentation of his views either in ‘Police Brutality’ or in connection with the commercialisation of the book can justify calling into question his integrity as was done in the statements under consideration. It is noted that the appellants have forcefully submitted that their statements were made in their capacity as representatives of the police and that, as such, they must enjoy a particular protection against their statements being declared null and void. I agree that it was natural for Mr Johnsen and Mr Nilsen as representatives to look after the interests of the police officers in the debate. As I have already mentioned, their freedom of expression should be protected to the same extent as the freedom of those who direct the attention towards possible questionable circumstances within the police force. But, as already pointed out, there is a limit also in respect of them. That limit has been overstepped in this case. Accordingly, I conclude along with the City Court that statements 1.1, 1.2 and 1.3 must be declared null and void. I will now turn to Mr Nilsen’s statements ... [Statement 2.2] ... directly assails the honesty of Mr Bratholm’s motives. That this is what is being questioned is reinforced when the statement is read in the context of the whole article ... I therefore agree with the City Court that statement 2.2 must be declared null and void ... ... Statement 2.3 is tantamount to an assertion that allegations of police brutality are being fabricated and then made public. In this, there clearly lies a statement to the effect that the published material is being tampered with. The statement appears in close connection with Mr Bratholm and must at any rate be perceived as applying also to him ... ... I therefore conclude that statement 2.3 but not statement 2.4 must be declared null and void ...” 28. In a concurring opinion Mr Justice Bugge stated, inter alia: “I have reached the same conclusion and I agree on the essential points of the reasoning. However, for my part I have reached this conclusion with considerable doubts as to whether the appellants’ statements were unlawful, having regard to the circumstances in which they were made. The basis for my doubts is as follows: [Mr Justice Schei] pointed out that in a public debate on ‘matters of public concern’ ... the threshold for what the participants may state without being found liable for defamation should be very high. Even if this is accepted, I agree that it should not legitimise attacks directed against the opponent’s personal integrity, or which devalue or throw suspicion on his motives for participating in the debate. ... For my part, I find it hard to see how the statements which the City Court ... declared null and void could be said to have been particularly directed against Mr Bratholm as a private individual. But I shall leave that aside, since I consider that in a heated public debate attacking another person’s integrity and motives instead of what the person has stated must be deemed unlawful as such. What in particular causes a problem for me is that – as I see it – it was Mr Bratholm himself who had called into question the integrity of the police, in particular that of the Bergen Police Department, when the debate on police brutality resumed in 1986. In Chapter 15 of [the book] he states the following about the concept ‘misinformation’: ‘ “Misinformation” can be defined in various ways. One possible definition is untrue information, irrespective of whether the information is provided in good faith. It may, for example, be discovered subsequently that the research was mistaken on some point. There is little reason to place such a wide construction on the concept of misinformation. It is more practical to understand it as meaning deliberate or negligent dissemination of incorrect information. Misinformation in this sense is a problem that is easier to deal with than when our understanding is broadened only gradually. ... If I were to base my conclusion on scattered information and impressions, it would be that the misinformation has been rather successful. The police, their organisations and supporters appear to have convinced fairly large parts of public opinion – which is hardly surprising. It is natural to call to mind how successful misinformation concerning the old Greenland police force has been for several decades. In spite of the extremely bad conditions there – and the fact that sound documentation of these conditions was provided by at least some of the Oslo newspapers from time to time, it was the misinformation that prevailed. The many members of the police that knew of the brutality did nothing to bring the circumstances to light.’ I cannot read this in any other way than that Mr Bratholm here indeed himself accuses his opponents in the debate – ‘the police, its organisations and defenders’ – of lack of integrity, of knowingly hiding factual circumstances and of acting on the basis of inappropriate motives. It is in my view on this basis that the appellants’ statements must be evaluated – and in particular those which were made after the publication of ‘Police Brutality’ in 1986. The appellants’ submission that they, who naturally must have felt offended on behalf of the police, were entitled to reply in the same manner is not as such ill-founded. In this connection it is in my view also of importance that the appellants expressed themselves on behalf of the police organisations in Bergen and at the national level, respectively. They acted as elected representatives and spokesmen of the members. Very likely, and rightly so, they considered it an organisational duty to react to the attacks which were directed against the working methods of the police. It is not unusual in our society for the representatives of a profession to reply to public attacks in a way which might be lacking the necessary reflection and which might be somewhat inappropriate. The appellants were not familiar with the legislation on defamation either. Mr Bratholm has maintained that there must be a difference between what wellknown politicians must endure in respect of statements related to their political activities and the protection he enjoys when ‘from his professional standpoint he engages in important matters of public concern’. I do not agree ... and do not understand ... how this can be argued. In my opinion and as a matter of principle, when a scholar – for example in law – embarks on a public debate on matters of public interest he should not enjoy a greater right to protection under the defamation legislation than a politician. If I nevertheless agree with [Mr Justice Schei’s] conclusions, it is because I accept that there is a need to provide the best possible terms for a debate on ‘matters of public concern’ and that [such a debate] might suffer if statements such as those dealt with in this case are not declared null and void, even if their background is taken into consideration.” 29. On 16 January 1998 the Supreme Court ordered the reopening of seven of the “boomerang cases”. The requests to this effect which had been lodged in 1996 had been rejected by the Gulating High Court. The Supreme Court granted leave to appeal. Pursuant to section 392 of the Criminal Procedure Act the Supreme Court found, in its final decision, that in the special circumstances at hand the correctness of the convictions was doubtful and that weighty considerations warranted a reassessment of the guilt of the convicted persons. In the Supreme Court’s view it was evident that police brutality had existed to a certain extent during the years 1974-86. The reason for the denial by police officers of any knowledge of such incidents had to be sought in “misunderstood loyalty”. It was highly probable that some police officers had given false evidence during the investigations of police brutality in Bergen. On 16 April 1998 the seven convicted persons were acquitted at the request of the prosecution which had found it unnecessary to bring new charges, failing a sufficient general interest. 30. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under its Article 253 declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969) to pay compensation to the aggrieved party. Only the latter two were at issue in the present case. 31. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved may be declared null and void by a court. The relevant part of this provision reads: “1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.” Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy. In recent years there has been a debate in Norway as to whether one should abolish the remedy of null and void orders, which has existed in Norwegian law since the sixteenth century and which may also be found in the laws of Denmark and Iceland. Because of its being deemed a particularly lenient form of sanction, the Norwegian Association of Editors has expressed a wish to maintain it. 32. Section 3-6 of the Damage Compensation Act 1969 reads: “A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable. If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay the compensation. The same applies to any redress imposed under the first subsection, unless the court finds that there are special grounds for dispensation …” 33. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Articles 246 and 247 of which provide: “Article 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months. Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be unlawful (rettsstridig). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. Further limitations to the application of Article 247 are contained in Article 249, the relevant part of which reads: “1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced. …” | 1 |
train | 001-5933 | ENG | GBR | ADMISSIBILITY | 2,001 | O'ROURKE v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1941 and living in London. He is represented before the Court by Mr A. J. Mullem of Moss Beachley and Mullem, a firm of solicitors practising in London. The respondent Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was released from prison in or around February 1991, having served a two year sentence for attempted rape and indecent assault. On 22 February 1991 the applicant applied to Camden London Borough Council (“CLBC”) for accommodation. In response CLBC told him that he did not fall within any of the priority categories as set out in Part III of the Housing Act 1985 (“the 1985 Act”). The applicant made a further approach to CLBC on 28 March 1991, whereupon CLBC agreed to make initial inquiries pursuant to section 62 of the 1985 Act (see below). Since the applicant appeared to have a priority need owing to health problems, CLBC provided him with temporary accommodation in accordance with section 63 of the 1985 Act (see below), in a hotel room. On 24 April 1991, before CLBC had completed its inquiries under section 62, the applicant was evicted from the hotel following complaints about his behaviour there, including allegations of nuisance and assault on female residents. He was advised by CLBC to go to a night shelter pending a decision on permanent housing, but he failed to do so. The applicant informed CLBC that he wanted permanent accommodation and was thus unwilling to accept anything on a temporary basis. A search for suitable accommodation was conducted by five different District Rehousing Offices. The applicant was offered a tenancy on 7 August 1991, but he refused it as he believed that the majority of the surrounding tenants were aware of his past history and claimed that he had been threatened. In February 1992 all five District Rehousing Offices indicated that they were finding it difficult to find permanent accommodation for the applicant due to his specific housing requirements designed to minimize his exposure to women. In or around March 1992 the applicant refused an offer of permanent bed-sit accommodation because it shared a bathroom and toilet. In June 1992 the applicant decided to accept an offer of temporary accommodation. The applicant had remained on the streets, to the detriment of his health, since his eviction from the hotel. In particular, the asthmatic condition and chest infection of which the applicant had been suffering when he first contacted CLBC had deteriorated following his eviction, leading Dr A.M. Rehman to advise CLBC in February 1992 that the applicant should be rehoused urgently. On 13 October 1992 the applicant refused permanent bed-sit accommodation because he said he wanted a one-bedroom flat. On 2 February 1994 he was offered a secure tenancy, which he accepted subject to repairs and decorations being carried out. The applicant’s tenancy commenced on 28 February 1994. Some time in 1993 the applicant commenced an action for breach of statutory duty and damages against CLBC. On 30 October 1995 his claim was struck out by the Central London County Court as disclosing no cause of action. The applicant appealed to the Court of Appeal which decided, on 13 February 1996, that the aspect of the claim concerning CLBC’s failure to provide alternative accommodation following the applicant’s eviction should not have been struck out. CLBC then appealed to the House of Lords which, on 12 June 1997, allowed the appeal. In the course of delivering the leading judgment in the House of Lords, Lord Hoffman stated that: “The question is whether s 63(1) creates a duty to Mr O’Rourke which is actionable in tort. There is no doubt that, like several other provisions in Pt III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy.” Having considered the relevant domestic legal principles and authorities, Lord Hoffman concluded that: “Both in principle and on the authority of the actual decision of this House in Cocks v Thanet DC [1982] 3 All ER 1135, (...) I would therefore hold that the breach of statutory duty of which the plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge Tibber striking out the action.” The Housing Act 1985 (“the 1985 Act”) provides in Part III, section 62(1) that, in respect of a person applying to a local authority, if the local authority “have reason to believe that he may be homeless ... they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless ...”. Under section 63(1) of the 1985 Act, if the authority “have reason to believe that an applicant may be homeless and has a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62”. Both of these sections appear at Part III of the 1985 Act. Administrative decisions by public authorities are generally challengeable under English law by way of judicial review proceedings under Order 53 of the Rules of the Supreme Court. Such proceedings must generally be brought within three months of the offending decision. English law recognizes a dichotomy between public authorities’ public and private law functions. In the leading case of O’Reilly v. Mackman [1983] 2 A.C. 237, Lord Diplock stated: “[I]t would ... as a general rule be contrary to public policy, and as such be an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.” | 0 |
train | 001-83178 | ENG | RUS | ADMISSIBILITY | 2,007 | TYURINY v. RUSSIA | 4 | Inadmissible | Loukis Loucaides | The applicants, Mr Yevgeniy Pavlovich and Mrs Nadezhda Alekseyevna Tyuriny are Russian nationals who were born in 1932 and 1943 respectively and live in Novosibirsk. They are represented before the Court by Mr I.V. Novikov, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are spouses. They receive old-age pensions. On 1 February 1998 the Law on the Calculation and Adjustment of State Pensions (“the Pensions Act”) introduced a new method of calculation of retirement benefits based on so-called “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual’s wages at the moment of retirement and the national average rate and was meant to maintain a link between a person’s pension and previous earnings. The authority in charge of the applicants’ pensions – the Pension Fund Agency of the Zayeltsovskiy District of Novosibirsk (“the Fund”) – decided that the IPC to be applied to them should be 0.525. The applicants considered that this decision was arbitrary as it conflicted, in their opinion, with the Pensions Act. They brought a court action against the Fund for an increase of their pensions in accordance with Pensions Act. On 7 October 1999 the Zayeltsovskiy District Court of Novosibirsk (“the District Court”) found for the applicants. It held that since the defendant had misinterpreted the Pensions Law, the applicants’ pensions should be increased in line with an IPC of 0.7. The court also recovered the pension arrears in the amount of 1,242.10 Russian roubles (RUB) and indexation in the amount of RUB 2,670.25 in favour of the first applicant, RUB 1,169.75 and 2,529.5 respectively, in favour of the second applicant. On 7 December 1999 the Novosibirsk Regional Court (“the Regional Court”) rejected an appeal by the defendant. On the same date the judgment of 7 October 1999 acquired legal force. On 21 January 2000 the Fund requested the District Court to re-consider its judgment of 7 October 1999 due to discovery of new circumstances. The Fund submitted that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Law (“the Instruction”). The instruction clarified how the Pensions Act should be applied. The Fund contended that since it had been unaware of that instruction at the moment when the judgment was passed, the judgment would have to be reconsidered. The Fund claimed that it had learned about the Instruction on 12 January 2000 and requested the District Court to postpone the enforcement proceedings of the judgment of 7 October 1999 until the examination of the request to re-consider the judgment. On 27 January 2000 the District Court rejected the defendant’s request to postpone the enforcement proceedings. The Regional Court upheld the decision on appeal on 30 March 2001. On 21 August 2000 the Fund submitted a new application for reconsideration of the judgment of 7 October 1999 due to discovery of new circumstances. This time the Fund claimed that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry’s interpretation of the Pension Act had been correct. The Fund contended that since it had been unaware of the decision of 24 April 2000 at the time of the judgment of 7 October 1999, the judgment would have to be reconsidered. On 22 September 2000 the District Court granted the Fund’s application. The Court applied Article 333 of the Code of Civil Procedure according to which judgments could be re-considered in case of discovery of significant circumstances which were not and could not haven been known to the party concerned. The court found that the Instruction, as upheld by the Supreme Court, could serve as such a circumstance. No appeal lay against this decision. The court quashed the judgment of 7 October 1999, as upheld on 7 December 1999, and remitted the case for a new examination to the first instance court. The first applicant was present at the hearing. After a fresh examination on 14 February 2001 the District Court dismissed the applicants’ claims in full having applied the Instruction. On 13 March 2001 the Regional Court rejected the applicants’ appeal against the judgment. In the meantime, the applicants filed a new court action against the Pension Agency for wrong calculation of their retirement pension. On 1 February 2001 the District Court rejected their claims. By a decision of 15 March 2001 the Regional Court upheld the judgment. Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority’s decision which had served as a legal basis for the judgment in question. Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances. Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal. | 0 |
train | 001-112706 | ENG | SRB | CHAMBER | 2,012 | CASE OF VUČKOVIĆ AND OTHERS v. SERBIA | 3 | Remainder inadmissible;Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicants were all reservists who had been drafted by the Yugoslav Army in connection with the North Atlantic Treaty Organisation’s intervention in Serbia. They remained in military service between March and June 1999, and were thus entitled to a certain per diem, as recognised in a number of decisions and orders of April 1999 signed by the then Chief of Staff of the Yugoslav Army. These decisions and orders were themselves based on the relevant bylaws adopted in accordance with the armed services legislation, specifically the Rules on Travel and Other Expenses in the Yugoslav Army (Pravilnik o naknadi putnih i drugih troškova u Vojsci Jugoslavije) as amended in March 1999. 7. However, following the demobilisation the Government refused to honour their obligation to the reservists, including the applicants. 8. The reservists subsequently organised a series of public protests, some of which ended in open confrontation with the police. Ultimately, following protracted negotiations, on 11 January 2008 the Government reached an agreement with some of the reservists, in particular those residing in the municipalities of Kuršumlija, Lebane, Bojnik, Žitorađa, Doljevac, Prokuplje and Blace, whereby the latter were guaranteed payment in six monthly instalments. This payment was to be effected through their respective municipalities, aggregate sums having been specified per each municipality. The said municipalities were chosen because of their “underdeveloped” status, implying the reservists’ indigence. For their part, the reservists in question accepted to renounce all of their outstanding claims based on their military service in 1999 which were still pending before the civil courts, as well as any other claims in this connection. It was, lastly, stipulated that the criteria for the distribution of the “financial aid” in question shall be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves. 9. The applicants, just like all other reservists without a registered residence in the listed municipalities, could not benefit from the agreement of 11 January 2008. 10. On 26 March 2009 the applicants therefore filed a civil claim against the respondent State, seeking payment of their per diems and alleging discrimination. 11. On 8 July 2010 the Court of First Instance (Osnovni sud) in Niš ruled against the applicants. In so doing, it acknowledged the valid legal basis of their claim but noted that, as pointed out by the respondent, the applicable prescription period had been three years as of their demobilisation, in accordance with Article 376 § 1 of the Obligations Act. The applicants’ claim had thus been filed out of time. 12. On 16 November 2010 the Appeals Court (Apelacioni sud) in Niš upheld this judgment on appeal, and it thereby became final. In its reasoning the Appeals Court noted that both the three-year and the five-year prescription periods provided in Article 376 §§ 1 and 2 of the Obligations Act had already elapsed before the applicants filed their civil claim (see paragraph 40 below). 13. Having been served with the Appeals Court’s decision, on 21 January 2011 the applicants lodged a further appeal with the Constitutional Court (Ustavni sud). Therein they maintained, inter alia, that the impugned judgment of the Appeals Court in Niš was inconsistent with numerous judgments adopted by the other appellate courts in Serbia – i.e. the district courts (okružni sudovi) while they existed, as well as the high courts and the appeals courts (viši i apelacioni sudovi) thereafter – which on the same facts applied a longer, ten-year, prescription period and thus ruled in favour of the plaintiffs (see Article 371 of the Obligations Act at paragraph 39 below). The applicants also referred to the agreement concluded between the Government and some of the reservists of 11 January 2008, which agreement excluded all of the remaining reservists including themselves. 14. The proceedings before the Constitutional Court are still pending. 15. Between 2002 and early March 2009 the first instance and appellate courts across Serbia ruled both in favour of the reservists in a situation such as the applicants’ and against them, relying on the three-year/five-year or the ten-year prescription periods respectively. 16. In the meantime, in 2003 and 2004, the Supreme Court adopted two legal opinions (pravna shvatanja), both of which implied that the applicable prescription period should be three/five years pursuant to Article 376 §§ 1 and 2 of the Obligations Act (see paragraphs 40, 43 and 44 below). 17. It was also alleged by the Government that the Supreme Court had adopted a further legal opinion on the matter in 2009, to the same effect but in more specific terms, but no such opinion has ever been published in its official Bulletin (Bilten sudske prakse). 18. Between 25 February 2010 and 15 September 2011 various appellate courts substantively ruled in compliance with the Supreme Court’s opinions of 2003 and 2004 (see, for example, the decisions of the High Court in Kraljevo, Gž. 1476/11 of 15 September 2011; the High Court in Valjevo, Gž. 252/10 of 25 February 2010, 806/10 of 27 May 2010, 1301/10 of 30 September 2010, 1364/10 of 4 November 2010 and 355/11 of 24 March 2011; the High Court in Kruševac, Gž. 38/11 of 27 January 2011, 282/11 of 7 April 2011 and 280/11 of 26 April 2011; as well as the Appeals Court in Niš, Gž. 2396/10 of 23 June 2010, 3379/2010 of 2 July 2010, 2373/2010 of 21 July 2010 and 4117/2010 of 30 November 2010). 19. Between 17 June 2009 and 23 November 2011 there were also a number of decisions where the appellate courts ruled against the reservists, albeit on a different ground. Specifically, their claims, unlike the claims of the applicants in the present case, were rejected as administrative in nature, and as such outside the competence of the civil courts (see the decision of the District Court in Belgrade Gž. 7773/09 of 17 June 2009, as well as the decisions of the High Court in Belgrade Gž. 11139/10, 11636/10 and 10897/10 of 17 November 2010, 23 November 2011 and 23 November 2011 respectively). 20. On 17 July 2010 the Court of First Instance in Leskovac adopted a default judgment in favour of a reservist (P.br. 1745/07). According to the information provided by the parties, there is no evidence that this judgment had ever become final. 21. On 17 January 2008 the Government endorsed the agreement of 11 January 2008, and decided to pay to the municipalities in question the amounts specified therein. 22. On 28 August 2008 the Government set up a working group tasked with addressing the requests of all other reservists, i.e. those not resident in the said seven municipalities. However, having discussed the issue with various groups of reservists, this working group ultimately concluded that their demands were not acceptable, inter alia, because: (i) they had not harmonised or specified their requests; (ii) some of their representatives had had dubious standing to represent them; (iii) there had been a lack of State funds which could be used for this purpose; and (iv) in most cases, war per diems had already been paid to the reservists. 23. On 26 July 2011 the Commissioner for the Protection of Equality (Poverenica za zaštitu ravnopravnosti), an Ombudsman-type office established on the basis of the Prohibition of Discrimination Act (published in OG RS no. 22/09), considered the complaints brought by an organisation representing the interests of reservists in a situation such as the applicants’. In so doing, she concluded that they had been discriminated against on the basis of their registered residence, i.e. as non-residents of the seven privileged municipalities, and recommended to the Government to take all necessary measures in order to ensure that all reservists be afforded the payments recognised by their decision of 17 January 2008. The Government was also invited to provide the Commissioner with an appropriate “action plan” within a period of thirty days. In its reasoning, the Commissioner’s decision noted, inter alia, that the payments in question were per diems, notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need (socijalna pomoć), and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems as well as the fact that the individual reservists resident in the seven municipalities at issue were never under an obligation to prove their indigence (imovinsko stanje i socijalnu ugroženost). This being so, there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their residence. 24. On 7 December 2011 the Ministry for Labour and Social Affairs (Ministarstvo rada i socijalne politike) noted that the discussions should continue with the various groups of reservists and that, if possible, financial support should be offered to the most indigent among them. 25. On 16 March 2009 the Ministry of Economy and Regional Development (Ministarstvo ekonomije i regionalnog razvoja) sent a memorandum to the Ministry of Justice (Ministarstvo pravde), stating, inter alia, that there were numerous employment-related civil suits, brought against current or former socially-owned companies, which could endanger the country’s economic stability. It thus urged the Ministry of Justice to review the possibility of advising the courts to suspend certain types of these suits until the end of 2009, as well as to desist from the enforcement of any final judgments already adopted in these proceedings. According to numerous media reports, having received it, the Ministry of Justice forwarded the memorandum to the Supreme Court (Vrhovni sud), which then faxed it to the presidents of the appellate courts for information. 26. On 23 March 2009 the Supreme Court informed the public that it had rejected the recommendation of the Ministry of Economy and Regional Development. In so doing, it noted, inter alia, that the Serbian judiciary was independent of the executive as well as the legislative branches of Government. 27. The relevant provisions of the Constitution read as follows: “Everyone shall have the right to equal legal protection, without discrimination. All direct or indirect discrimination based on any grounds, particularly on the grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability shall be prohibited.” “Everyone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his [or her] rights and obligations ...” “Equal protection of rights before the courts of law ... shall be guaranteed.” “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 28. On 9 June 2010 and 17 February 2011 the Constitutional Court rejected two separate constitutional appeals lodged by reservists who were in a situation such as the applicants’. The said court noted, inter alia, that the civil courts’ decisions rendered against them, respectively, had been “based on the applicable domestic legislation”. The appellants, however, never specifically complained about the inconsistency of the relevant case-law or being discriminated against (Už. 460/08 and Už. 2293/10). 29. On 17 February 2011, in another case such as the applicants’, the Constitutional Court, inter alia, effectively ignored a complaint about the differential treatment of the two groups of reservists stemming from the agreement of 11 January 2008. In particular, it offered no substantive assessment of the issue raised by the appellants, noting further that they had not offered adequate proof as regards the existence of inconsistent case-law on the matter (Už. 2901/10). 30. On 7 April 2011, in yet another case such as the applicants’, the Constitutional Court ruled against the appellants as regards their complaint about the outcome of their case before the lower courts. There was no reference in the decision itself to the agreement of 11 January 2008 and it remains unclear as to whether this issue was ever raised by the appellants (Už. 4421/10). 31. On 8 March 2012, in a case such as the applicants’ but where the civil courts had rejected the reservists claims as being outside of their competence ratione materiae (see, for example, paragraph 19 above), the Constitutional Court ruled in favour of the appellants who had alleged inconsistent case-law (between the judgments adopted in their cases and several other judgments adopted by the courts in 2002) and ordered that the impugned civil proceedings be re-opened. As regards the appellants’ discrimination complaint, the Constitutional Court reasoned that the said inconsistency did not amount to discrimination since the impugned court decisions had not been rendered on the basis of the appellants’ personal status (ličnog svojstva). There was also no reference in the court’s reasoning to the agreement of 11 January 2008 (Už. 2289/09). 32. In decision Už. 61/09, adopted on 3 March 2011, and decisions Už. 553/09, 703/09 and 792/09, all adopted on 17 March 2011, as well as in decisions Už. 2133/09, 1928/09, 1888/09, 1695/09, 1578/09, 1575/09, 1524/09, 1318/09 and 1896/09, rendered between 7 October 2010 and 23 February 2012, the Constitutional Court noted the existence of inconsistent domestic case-law in the civil context and then went on to find that this had been in breach of the principle of judicial certainty as an integral part of the appellants’ right to a fair trial. The appellants’ complaints to the effect that the same situation had also resulted in discrimination against them, was rejected by the Constitutional Court as manifestly ill-founded, since the impugned court decisions had not been rendered on the basis of the appellants’ personal status. No re-opening of the proceedings was ordered. The above-cited decisions concerned matters which were factually unrelated to the applicants’ situation in the present case. 33. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights. 34. Article 476 sets out the circumstances in which a default judgment (presuda zbog izostanka) may be adopted, based on, inter alia, the respondent’s failure to appear before the court despite being duly served with the summons. 35. Article 422.10 provides that a case may be reopened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue. 36. Article 40 §§ 2 and 3 provides, inter alia, that a meeting of a division (sednica odeljenja) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions (pravna shvatanja) adopted thereupon shall be binding for the panels (veća) of the division in question. 37. These Rules set out the relevant details concerning the reimbursement of expenses incurred in connection with military service. 38. Article 360 § 3 provides that courts may not, in the course of proceedings before them, take into account negative prescription periods unless an objection to this effect has been made by the debtor. 39. Article 371 states that the general negative prescription period for civil claims shall be ten years, unless provided otherwise. 40. Article 376 §§ 1 and 2 provides, inter alia, that the negative prescription period for seeking civil compensation shall be three years as of when the claimant learned of the damage in question, but that, in any event, the absolute deadline shall be five years as of when the damage occurred. 41. Articles 387 and 388 provide, inter alia, that the running of a negative prescription period shall be interrupted by the debtor’s acceptance of the claim at issue, directly or indirectly, as well as by the claimant’s lodging of a civil action in this respect. 42. Article 392 §§ 1-3 provides, inter alia, that the effect of such an interruption shall be that the applicable period shall start running anew as of the debtor’s acceptance of the claim in question and the conclusion of the civil suit, respectively. 43. On 26 May 2003 the Supreme Court held, inter alia, that, quite apart from the competence of the administrative authorities in respect of the reservists’ claims concerning their per diems, civil courts shall have jurisdiction to rule on the merits in all related cases where they seek damages (see paragraph 40 above) based on the State’s alleged malfeasance (pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije utvrđeno na sednici od 26. maja 2003. godine, published in the Supreme Court’s Bulletin no. 1/04). 44. On 6 April 2004 the Supreme Court essentially reaffirmed the opinion of 26 May 2003, extending its application to certain other “military entitlements”. It also noted that there have been some inconsistencies before the courts in the meantime (pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije utvrđeno na sednici od 6. aprila 2004. godine, published in the Supreme Court’s Bulletin no. 1/04). | 1 |
train | 001-76581 | ENG | ALB;ITA | ADMISSIBILITY | 2,006 | TRESKA v. ALBANIA AND ITALY | 1 | Inadmissible | null | The applicants, Nikolaus and Jurgen Treska, are Albanian nationals who were born in 1934 and 1941 respectively and live in Durrës. They were represented before the Court by Mr M. Lana, a lawyer practising in Rome. s and the Governments of Italy and Albania pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows. In 1950 the applicants' father's villa and an adjacent plot of land were confiscated without compensation by the regime. The State subsequently built an annex to the villa. On an unspecified date the Italian Government informed the Albanian Government of their intention to purchase the premises of the Italian Mission in Albania. Accordingly, they requested the Albanian Government to put at their disposal different proposals for the purchase of premises. On 1 July 1991 the Italian Embassy in Albania entered into an agreement to purchase two buildings. One of the buildings, designated for use as the private residence of the head of the Mission, was the villa confiscated from the applicants' father. On 5 August 1991 the applicants informed the Italian Ambassador in Tirana about their property claims to the villa, in view of the fact that it had been illegally confiscated from their father. The transaction was concluded through an inter-State agreement authenticated by note verbale exchanges between the two governments. Pursuant to the relevant provisions of Albanian law, as they stood at the material time, the land was inalienable; consequently the title to the buildings alone was transferred by the Albanian Government to the Italian Government. The relevant property title was not entered in the Tirana Property Register. On an unspecified date the applicants brought civil proceedings in the Tirana District Court claiming their title to the unlawfully confiscated property. On 9 September 1992 the Tirana District Court allocated to the applicants their father's villa and ordered the Ministry of Foreign Affairs to make it possible for the applicants to enter into possession of that property. As the Ministry did not lodge an appeal, the decision became final. Pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged an application with the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave), claiming their title to their father's property. On 17 December 1994 the Commission, confirming the unlawfulness of the confiscation of the property, allocated to them the villa and the adjacent plot of land measuring 2,573 sq. m. Moreover, the court also allocated to the applicants the annex to the villa as, pursuant to section 13 of the Property Act, the outlay by the State in respect of structural changes and annexes to the original building amounted to less than 20% of the property's original value. In so far as it was impossible for the applicants to have the whole original plot of land returned to them, the Commission held that the State had an obligation to pay them compensation under the Property Act for a plot of land measuring 290 sq. m. and it ordered the restitution of the original plot of land measuring 2,283 sq. m. Lastly, the Commission ordered that the applicants' title to the properties be entered in the Tirana Property Register. The applicants were also provided with a certificate of registration of property issued by the Registry Office, registration no. 5401, dated 20 December 1994. In reply to the applicants' requests for recovery of their property, on 20 January 1995 the Italian Ambassador to Albania informed them that their property claims to the Italian Embassy's premises had to be settled with the Albanian authorities. On an unspecified date the applicants instituted proceedings against the Italian Embassy in Albania, before the Tirana District Court, in order to recover possession of their property. On 31 October 2000 the Tirana District Court held that it did not have jurisdiction to deal with the case. On an unspecified date the applicants brought proceedings in the Tirana District Court seeking damages from the Italian Embassy in Tirana for its occupation of the plot of land measuring 2,283 sq. m. The proceedings were adjourned several times by the District Court because of the absence of the representative of the Italian Embassy in Tirana. On 24 April 1997 the Tirana District Court, in the absence of the Italian Embassy's representative, ordered the Embassy to pay the applicants a monthly rental fee, amounting to 3,424 United States dollars, for use of the plot of land measuring 2,283 sq. m. The decision became final and binding on 2 June 1997. On 10 June 1997 the Tirana District Court, in enforcement proceedings, issued a writ for the enforcement of the Tirana District Court's judgment of 24 April 1997. On 29 May 1998 and 8 November 1999, following the failure of the Italian Embassy in Albania to comply with the District Court's judgment of 24 April 1997 and invoking the inactivity of the Albanian authorities in enforcing a final decision, the applicants lodged two appeals with the Constitutional Court. On 27 October 1998 the Constitutional Court dismissed the first appeal on the ground that the applicants had not exhausted all the possible means of recourse available to them in order to challenge the inactivity of the Bailiffs' Office. On 10 March 2000 the Constitutional Court dismissed the applicants' second appeal, the reason being that the immunity of the Italian Embassy and the inviolability of its premises gave rise to a circumstance where the District Court's decision could not be enforced in practice. On 18 June 2003, with a view to having the Tirana District Court judgment of 24 April 1997 validated by the Italian courts and enforced, the applicants applied to the Rome Court of Appeal for a writ of enforcement (delibazione). On 22 December 2004, in a judgment served on the applicant on 24 January 2005, the Rome Court of Appeal rejected the applicants' request, as the proceedings before the Tirana District Court that led to the judgment of 24 April 1997 had been held in breach of the principle of equality of arms, which was an essential requirement for the recognition of a foreign judgment in Italy. According to the court, by sending confused and short-term notifications of hearings, the Albanian court had denied the Italian Embassy in Albania the opportunity to present the case effectively and to be able to enjoy the benefit of an equality of arms. The applicants, anticipating an unsuccessful outcome, did not appeal against the Rome Court of Appeal decision of 22 December 2004. Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Italian Government, on 7 April 2005, having regard to the fact that the premises of the Italian Embassy in Albania had been legally purchased, contested the applicants' allegations of possession sine titulo. They maintained that the lawfulness of the property title to the premises of the Italian Embassy in Albania stemmed from a valid international agreement between the two countries. Furthermore, they stated that the Albanian court judgment, which had decided on the Italian Embassy's obligation to pay the applicants a rental fee for use of their property, had no binding effect in Italy; in fact the Rome District Court had dismissed the applicants' application for the validation of the above-mentioned judgment in Italy. Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Albanian Government stated on 6 April 2005 that in 1991, following a request by the Italian Embassy in Albania, the Albanian Government had put at its disposal three State-owned premises. The Italian Embassy in Albania had arranged to purchase two buildings, one of which had been the former property of the applicants' father. The agreement had been validated by note verbale on 1 July 1991. On 5 November 1991, by note verbale no. 2183, the Albanian Ministry of Foreign Affairs transmitted to the Italian Embassy in Albania the topographic maps of the properties purchased and confirmed the legitimacy of the ownership of the properties. According to the Government, on 2 March 1994, by decision no. 108, the Albanian Council of Ministers had authorised the Ministry of Foreign Affairs to use the income from the transaction (a lump sum of approximately 1,936,713.37 euros) for the purchase of the premises of the Albanian Embassy in Rome. “For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (...) (i) the 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.” “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” In accordance with its Articles 28 and 33, the Convention was opened for signature from 17 January 2005 and will remain open for signature until 17 January 2007. Neither Albania nor Italy have signed it. In its relevant parts the Convention reads as follows: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” “1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.” “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defending a criminal charge, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “(1) Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is implemented directly, except in cases where it is not self-executing and its implementation requires enactment of a law. The amending, supplementing and repealing of laws approved by the majority of all members of the Assembly, with the purpose of ratifying an international agreement, require the same majority. (2) An international agreement that has been ratified prevails over national laws that are incompatible with it. (3) In case of conflict, the norms issued by an international organisation prevail over the national laws if the agreement ratified by the Republic of Albania for its participation in the organisation expressly contemplates their direct applicability.” “The Constitutional Court shall determine: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “State bodies shall comply with judicial decisions.” The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments over the past ten years. The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of impossibility for the authorities to return the original property. The Act provides for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, (e) a sum of money (section 11). The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows: “Former owners and their legal heirs have the right of ownership. A former owner of property shall have the right either to restitution of the original land or to compensation in kind if one of four conditions is met: (1) the land formerly owned was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) the land is not subject to Law no. 7501 of 19 July 1991; (3) the land is currently State-owned; or (4) the land has now been designated as being suitable for construction and lies within the boundaries of a town or city. The extent of restitution or compensation in kind shall not exceed 10,000 square metres in accordance with Article 1 § 4 of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.” “Former owners shall be entitled to restitution of their former buildings without having to repay any outlay by the Government or other owners for structural changes, annexes, or floor additions to former private buildings where such outlay does not exceed 20% of the building's value. Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of the outlay, where such outlay amounts to between twenty percent 20% and 50% of the building's value. The value of the outlay shall be calculated on the basis of construction prices at the time of the building's restitution. A building shall remain in co-ownership where the value of such outlay exceeds 50% of the building's value. ... The courts shall have authority to resolve disputes between parties.” “When building land or agricultural land that has become building land is occupied by a permanent structure, compensation will be provided to the former owner within the limits of expropriation in one of the following forms: (a) state bonds of an equivalent value and the right of pre-emption of the holders to be exercised in the process of the privatisation of state enterprises, and in other activities funded by loans; (b) an equivalent plot or building land near to land designated as an urban area in the general development plans; (c) an equivalent plot of land designated as a tourist area in the general development plans. The remaining portion for items (b) and (c) will be subject to other methods of compensation established under this Law.” Section 64 of Law no. 218 of 31 May 1995 (Reform of the Italian system of International Private Law) provides that a foreign court's judgment shall be recognised in Italy without formal proceedings if it complies with the following requirements: “(a) the judgment had been delivered by the competent court; (b) the other party had been informed promptly of the civil claim in accordance with the domestic laws of the State where the proceedings had been held and the guarantee of defence rights had not been breached; (c) the parties to the proceedings had been duly notified of the hearings or formally declared in absentia pursuant to the laws of the State in which the proceedings took place; (d) the judgment had become final according to the laws of the State in which it had been issued; (e) it did not contain provisions which ran counter to a final decision delivered by an Italian judge; (f) proceedings are not in progress in Italy in respect of the same act and between the same parties; (g) the judgment did not contain provisions which ran counter to the principles of the rule of law as applied by the Italian State; ...” | 0 |
train | 001-97423 | ENG | HRV | CHAMBER | 2,010 | CASE OF LESJAK v. CROATIA | 4 | Violation of Art. 6-1 | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1974 and lives in Trnovec Bartolovečki. 5. He was employed by the Varaždin Police Department where he worked in the catering service. In October 1999 he received his employment booklet (radna knjižica) by registered mail, and his employer had noted in it that his employment had been terminated on 4 October 1999. Enclosed with it, for the applicant to sign, was a draft mutual agreement to terminate his employment, reference no. 511-14-07/1-4767/1-99, dated 4 October 1999 and signed by the employer. 6. The applicant refused to sign the draft agreement. Instead, on 4 November 1999 he made a request to the employer for the protection of his rights (zahtjev za zaštitu prava) arising from the employment relationship. However, no formal decision was given by the employer in response to the applicant's request. Rather, in a letter of 8 November 1999 the applicant was merely notified that his employment had been terminated because the catering service of the Varaždin Police Department had been outsourced to a third party for whom the applicant had refused to work. 7. On 11 November 1999 the applicant brought a civil action in the Varaždin Municipal Court (Općinski sud u Varaždinu) seeking reinstatement. He argued that his employment had been terminated against his will as he had never agreed with the employer to terminate it. Thus, the employer's actions had amounted to a dismissal, which was unlawful since no formal decision had been issued. 8. On 15 November 1999 the Municipal Court, considering that the Administrative Court was competent to hear the applicant's case, declined jurisdiction in the matter and declared his action inadmissible. On 3 December 1999 the Varaždin County Court (Županijski sud u Varaždinu) dismissed the applicant's appeal and upheld the first-instance decision. On 7 February 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible the applicant's subsequent appeal on points of law (revizija) against the second-instance decision. The case was then transferred to the Administrative Court. 9. On 4 November 2002 the Administrative Court (Upravni sud Republike Hrvatske) issued a decision whereby it invited the applicant's representative to specify which decision, that is, which administrative act, the applicant was challenging, and to submit two copies of it. The decision read as follows: “In the administrative dispute of the plaintiff Dražen Lesjak ... against the decision of the respondent, the Ministry of the Interior of the Republic of Croatia (Varaždin Police Department) concerning the termination of his employment, [the plaintiff's] representative is invited, within the meaning of section 29 of the Administrative Disputes Act, to provide this court within ten days with: - an express statement indicating which specific administrative act he is contesting by his action – it is necessary to indicate the [reference] number of the act, as well as its date of issue, and to provide this court with two copies of that decision. If the [plaintiff's] representative does not correct the above shortcomings of the action, the court will declare it inadmissible as deficient.” On 14 November 2002 the applicant's representative replied as follows: “Acting upon the decision of the [Administrative Court] of 4 November 2002, the plaintiff states that he is unable to indicate the specific [reference] number of the administrative act, that is to say, a potential decision, because such an act has never been issued by the respondent and the plaintiff's employment contract was terminated in the manner indicated and described in the statement of claim [('u tužbi')] [of 11 November 1999].” On 20 February 2003 the Administrative Court declared the applicant's action inadmissible, finding that he had failed to rectify the shortcomings of his action as requested. 10. The applicant then lodged a constitutional complaint against the Administrative Court's decision. On 13 April 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on his representatives on 11 May 2006. 11. On 15 March 2005 a certain Mrs B.Z., who had also been employed by the Varaždin Police Department and dismissed in the same way as the applicant, brought a civil action in the Varaždin Municipal Court seeking reinstatement. She was represented by an advocate from the same law firm as the advocate who represented the applicant in the above proceedings. In her action B.Z. explained that she used to work in the catering service of the Varaždin Police Department and that on 20 October 1999 she had received her employment booklet by registered mail and her employer had noted in it that her employment had been terminated on 4 October 1999. Enclosed with it, for her to sign, was a draft mutual agreement to terminate her employment, no. 511-01-62-20614/51-96, dated 4 October 1999 and signed by the employer. B.Z. further explained that she had refused to sign the draft agreement. Instead, she had made a request to the employer for the protection of her rights arising from the employment relationship. However, no formal decision had been given by the employer in response to her request. Rather, in a letter of 4 November 1999 she had merely been notified that her employment had been terminated because the catering service of the Varaždin Police Department had been outsourced to a third party. 12. On 18 November 1999 the Municipal Court, considering that the Administrative Court was competent to hear the plaintiff's case, declined jurisdiction in the matter and declared her action inadmissible. On 14 December 1999 the Varaždin County Court dismissed her appeal and upheld the first-instance decision. The case was then transferred to the Administrative Court. 13. On 15 March 2005 the Administrative Court issued a decision whereby it invited the plaintiff's representative to specify which decision, that is, which administrative act, the plaintiff was challenging, and to submit two copies of it. 14. On 30 March 2005 the plaintiff's representative replied to the court's request. The relevant part of her reply read as follows: “On the basis of its mutual agreement on the termination of employment contract number: 511-01-62-20614/51-96 of 4 October 1999, which agreement was signed only by the respondent ..., the respondent recorded the termination of employment in the plaintiff's employment booklet, and on 20 October 1999 the plaintiff received the employment booklet and the [abovementioned draft] mutual agreement by registered mail. The plaintiff made a request to the respondent for the protection of her rights but on 4 November 1999 she received notification that her employment relationship with the respondent had been terminated because the respondent no longer provided catering services. Since the provisions of the Labour Act prescribe that a written mutual agreement on the termination of an employment contract constitutes a legal way to terminate the employment contract if both parties sign it, and given that the plaintiff refused to sign the [abovementioned draft] mutual agreement, [that agreement] cannot be considered to have been concluded and could not have produced any legal effect. The respondent could only have dismissed the plaintiff for business reasons by giving her notice. Therefore, the termination of employment in question and the rescission of the employment contract represents a flagrant breach of the employee's rights because the respondent – contrary to the legislation in force – unilaterally rescinded the plaintiff's employment contract on the basis of a 'mutual agreement' the plaintiff did not sign and was not obliged to sign.” The plaintiff's representative also emphasised that the Varaždin Municipal Court had already declined jurisdiction in the case and invited the Administrative Court, should it find that it did not have jurisdiction either, to apply to the Supreme Court in order to resolve the conflict of jurisdiction with the ordinary courts thereby created. 15. On 2 November 2005 the Administrative Court, considering that it did not have jurisdiction to examine the case, applied to the Supreme Court to resolve the conflict of jurisdiction with the ordinary courts. In its application the court wrote, inter alia: “.. [It] is undisputed that the plaintiff concluded an employment contract of unlimited duration with the respondent on 1 January 1996 and that the respondent tried to rescind that contract by a mutual agreement ... which the plaintiff did not sign and which cannot in any case constitute an administrative act ... for which reason the Administrative Court cannot decide on [its] lawfulness. This case does not concern a dispute where a decision on a right of a civil servant or an employee employed by a state organ is being contested. Rather, it concerns a mutual agreement on the termination of an employment contract, and its lawfulness cannot be reviewed by the Administrative Court.” 16. On 22 February 2006 the Supreme Court ruled that the Varaždin Municipal Court was the competent court to hear the B.Z's case. 17. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) regulates the procedure before the Administrative Court and in its relevant part provides as follows: Section 6(1) provides that the proceedings before the Administrative Court (that is, an administrative dispute) may be initiated only against an administrative act. Section 6(2) provides that an administrative act, within the meaning of that Act, is an act whereby a state organ in the exercise of public authority decides on a right or obligation of an individual or an organisation in some administrative matter. Section 27(1) provides that a statement of claim must indicate, inter alia, the contested administrative act and must be accompanied by the original or a copy of the contested act. Section 29(1) provides that if the action is incomplete or incomprehensible, the president of the panel shall invite the plaintiff to correct the shortcomings within a certain time-limit. In doing so, the president should instruct the plaintiff what has to be done and how and warn him or her of the consequences of failing to comply with the court's request. Section 29(2) provides that if the plaintiff does not correct the shortcomings of his action within the time-limit fixed, and they are of such a nature as to prevent the court proceeding with the case, the court shall declare the action inadmissible as deficient. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis. Sections 52-59 provide for the remedy of reopening proceedings before the Administrative Court and regulate the procedure following a petition for reopening. 18. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008), as in force at the relevant time, provided as follows: “If the court to which the case has been transferred ... considers that the court which has transferred the case or some other court has jurisdiction, it shall refer the case to the court competent to resolve that conflict of jurisdiction ...” “The conflict of jurisdiction between courts of different types shall be resolved by the Supreme Court of the Republic of Croatia.” ... “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the finality of the judgment of the European Court of Human Rights, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” | 1 |
train | 001-85960 | ENG | GBR | ADMISSIBILITY | 2,008 | GRIFFITHS v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Malcolm Griffiths, is a British national who was born in 1941 and lives in Leigh. The applicant was unrepresented before this Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 26 February 1998. On 18 February 2002, the applicant made a claim for widows’ benefits. On 27 February 2002 the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant appealed. On 25 June 2002 the appeal tribunal confirmed the previous decision. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-111652 | ENG | HRV | ADMISSIBILITY | 2,012 | GJURASIN v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 1. The applicant, Mr Davor Gjurašin, is a Croatian national who was born in 1957 and lives 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 28 July 2004 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted the applicant in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of failing to pay child maintenance for his two children. 4. At a hearing on 30 November 2004 the applicant pleaded not guilty and decided to remain silent and to not give any evidence. The judge conducting the proceedings informed the applicant of his obligation to inform the court if he were to move or change his place of residence. She also informed the applicant of the legal consequences if he failed to comply with this obligation, one of which was that the judgment could be placed on the court’s public noticeboard. 5. On 25 May 2006 the Zagreb Municipal Criminal Court issued a judgment by which it found the applicant guilty of failing to pay child maintenance for one child but acquitted him of the same charge in respect of the other child. The applicant was sentenced to ten months’ imprisonment, suspended for three years on the condition that he compensate the injured party by paying the maintenance due within six months. The judge conducting the proceedings publicly pronounced the judgment and informed the applicant of his right to appeal within eight days after he received a written copy of the judgment. 6. On 4 January 2007 the Zagreb Municipal Criminal Court ordered that the judgment be served on the parties. 7. On 24 January 2007 the Zagreb Municipal Criminal Court received a notice from the post office informing that court that the service of the judgment on the applicant had been unsuccessful. Service had been attempted on 10 January, 11 January and 12 January 2007 but nobody had answered at the applicant’s address. Two notices of attempted delivery had also been left for the applicant but he had never contacted the post office. 8. On 25 January 2007 the Zagreb Municipal Criminal Court ordered that service of the judgment was to be executed through the court’s delivery service. 9. On 13 February 2007 the applicant’s children lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu) against the first-instance judgment. 10. On 7 March 2007 a notice from the court’s delivery service was submitted to the judge conducting the proceedings informing her that service of the judgment on the applicant had remained unsuccessful. Service had been attempted on 1 February, 13 February, 23 February and 1 March 2007 but without success. The applicant’s address had been visited in the morning and the evening and notices of attempted delivery had also been left for him but it had been impossible to serve the judgment on him. 11. The judge conducting the proceedings ordered that the judgment be placed on the court’s public noticeboard. On an unspecified date in mid-March 2007 the judgment was placed on the public noticeboard and after the expiry of fifteen days it was presumed that the judgment had been served on the applicant. 12. On 10 April 2007 the applicant was served with the appeal lodged by his children against the judgment of the Zagreb Municipal Criminal Court. 13. On 20 April 2007 the applicant submitted written observations in respect of the appeal. 14. On 17 September 2007 the Zagreb County Court dismissed the appeal by the applicant’s children and upheld the first-instance judgment, as a result of which it became final. 15. On 5 October 2007 the judgment of the Zagreb County Court was served on the applicant. On the same date the applicant consulted and copied the case file of the Zagreb Municipal Criminal Court. 16. On 3 December 2008 the Zagreb Municipal Criminal Court opened proceedings for revocation of the applicant’s suspended sentence because he had failed to comply with the conditions set out in the judgment. 17. On 2 March 2009 the applicant lodged a request with the Zagreb Municipal Criminal Court asking that the stamped certificate stating that the judgment had become final be revoked on the grounds that the judgment had never been served on him. On an unspecified date he also lodged a request for the reopening of the proceedings, which was rejected by the Zagreb Municipal Criminal Court on 18 March 2009. 18. On 19 March 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that the Zagreb Municipal Criminal Court had never decided on his request for the stamped certificate stating that the judgment had become final to be revoked. On 23 February 2012 the Constitutional Court declared the applicant’s complaint inadmissible on the ground that the impugned decisions were not susceptible for the constitutional review. 19. At the time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided: “(1) A court shall grant reinstatement to the prior state of affairs in order to file an appeal to a defendant who, for justifiable reasons, fails within a prescribed term to file an appeal against a judgment or a ruling on security or educational measures or on the confiscation of a monetary benefit, provided that the defendant submits a petition for reinstatement to the prior state of affairs within eight days following the removal of the cause of his failure to act within the term and that, at the same time as the petition, he lodges an appeal ... (2) After a lapse of three months from the date of failure, no petition for reinstatement to the prior state of affairs may be submitted.” “(1) Decisions and other documents shall as a rule be served by mail. Service may also be effected by an official of the authority which has rendered the decision or directly by such authority. ... (6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court’s public notice board. After the lapse of the term of appeal the decision shall become final.” “ ... (2) An indictment and a judgment or other decision for which the term of appeal begins to run when service occurs shall be served in person on a defendant who does not have defence counsel. Upon the defendant’s request, a judgment or other decision shall be served on a person designated by him. (3) If, with the exception of a judgment referred to in paragraph 4 of this Article, a decision or an appeal by the adverse party which is served for reply cannot be served on a defendant because he has not reported a change of address or if it is evident that he is evading receipt of the decision, the court shall put the decision or the appeal on the court’s public noticeboard and after the lapse of fifteen days it shall be deemed duly served. (4) If a defendant who does not have defence counsel is served with a judgment imposing a sentence of imprisonment and this judgment cannot be served at his present address, the court shall assign defence counsel to the defendant, who shall perform this duty until the new address of the defendant is determined. ...” “(1) When a defendant is examined for the first time, he shall be asked for his first name and surname ... The defendant shall be instructed that he is bound to appear upon a summons and to notify the court immediately of changes of his address, as well as of any intention to change his place of residence, and shall be warned of the consequences of failure to comply.” | 0 |
train | 001-61262 | ENG | RUS | CHAMBER | 2,003 | CASE OF SMIRNOVA v. RUSSIA | 1 | Violation of Art. 5-1+5-3;Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 7. The applicants, Ms Yelena Pavlovna Smirnova (“Y.S.”) and Ms Irina Pavlovna Smirnova (“I.S.”) are twin sisters. They are Russian nationals, who were born in 1967 and live in Moscow. 8. On 5 February 1993 criminal proceedings were initiated against the applicants on suspicion of defrauding a Moscow bank on a credit matter. The prosecution's case was that the applicants acted together to obtain a loan in the bank on the security of a flat which did not in fact belong to them. 9. On 26 August, according to the applicants, on 27 August 1995, according to the Government, Y.S. was arrested and remanded in custody. Several days later, on 31 August 1995, she was charged with large-scale concerted fraud. 10. On 5 September 1995 the proceedings against I.S. were discontinued. 11. Following Y.S.'s arrest, her lawyer lodged an application for release with the Tverskoy District Court of Moscow. On 13 September 1995 the court held that it was too late to examine the application for release as by that time the preliminary investigation had finished. 12. On 26 March 1996 the investigating authorities sent Y.S.'s case to the Tverskoy District Court for trial. 13. On 21 March 1997 the Tverskoy District Court found that the evidence gathered against Y.S., although serious, did not embrace all offences possibly committed by her. The court also found that the proceedings against I.S. should not have been stopped because there had been evidence of her involvement in the offence too. It was decided to remit the case against Y.S. for further investigation. The court of its own motion re-instituted criminal proceedings against I.S. and joined them to Y.S.'s case. It was furthermore ordered that Y.S. should stay in detention, and that I.S., at large at the moment, should be imprisoned as soon as the police established her whereabouts. 14. Both applicants lodged appeals against the decision of 21 March 1997, but on 23 July 1997 the Moscow City Court disallowed them. 15. Since I.S. continued to hide from the investigating authorities, it was decided to sever her case from that of her sister and to stay it. The term of Y.S.'s detention was extended. 16. On 9 December 1997 the Lyublinskiy District Court of Moscow ordered that Y.S. should be released from custody because the extension of her detention had been unlawful and because of her poor health. She was released conditionally under the undertaking not to leave her permanent residence. 17. On 15 December 1997 the case against Y.S. was for the second time sent to the Tverskoy District Court for trial. 18. On 30 March 1999, the police arrested I.S. and took her into custody. The proceedings against her were resumed. 19. The second examination of the case against Y.S. by the Tverskoy District Court took place on 31 March 1999. The court noted that I.S. had by that time been arrested, and that given close factual links between the offences imputed to the sisters, the proceedings against them should be joined. The court also noted that Y.S. had not had sufficient opportunity to familiarise herself with the prosecution file before the hearing. As a result, the case against Y.S. was joined to that against I.S. and remitted for further investigation. 20. On the same day Y.S. was imprisoned on the ground of the gravity of the accusation. 21. The decision of 31 March 1999 became final on 13 May 1999 after it had been upheld on appeal by the Moscow City Court. 22. On 29 April 1999 the Lyublinskiy District Court granted I.S.'s application for release from custody because the investigating authorities had not submitted convincing material to justify her continued detention. The investigating authorities appealed against this decision, and on 19 May 1999 the Moscow City Court allowed the appeal. However, by that time I.S. had already left the prison. 23. On 20 May 1999 the Tverskoy District Court considered that the case against I.S. should be returned to the investigating authorities to be joined with the case against Y.S. 24. On 3 September 1999, I.S. was arrested and detained. 25. On 2 October 1999 Y.S. was released from prison because the investigation had finished and because the detention period set by the General Prosecutor's Office had expired. 26. Shortly afterwards, on 7 October 1999, I.S. was also released. Both applicants signed an undertaking not to leave their permanent residence. 27. On 29 October 1999 the investigating authorities handed over the case file they had prepared to the Tverskoy District Court. On 10 November 1999 the judge who had accepted the case for consideration ruled that the applicants should be remanded in custody pending trial in view of the gravity of the accusations and “the applicants' character”. 28. On 14 January 2000 the Constitutional Court examined an application lodged earlier by I.S. The court ruled that Article 256 of the Code of Criminal Procedure was unconstitutional as far as it empowered criminal courts to initiate of their own motion criminal prosecution of third persons not being party to the original proceedings, to apply measures of restraint and to order further investigations. The court held that by initiating criminal proceedings the courts in essence assumed prosecutorial functions in violation of the principle of the separation of powers. 29. Based on the judgment of the Constitutional Court, on an unspecified date, the acting president of the Moscow City Court lodged an application for supervisory review of the applicants' case. 30. On 24 February 2000 the Presidium of the Moscow City Court granted the application. The decisions of 21 March and 23 July 1997 were quashed in respect of I.S. The decision of 31 March 1999 was quashed in respect of both applicants. The decisions of 13 and 20 May and 10 November 1999 were also quashed. The case against the applicants was sent for further investigation. I.S. was released, but her sister remained in prison. 31. On 20 March 2000 the Prosecutor of the Tverskoy District re-instituted criminal proceedings against I.S. The case against I.S. was joined to that of Y.S. 32. On 20 April 2000 the investigation of the applicants' case was finished. On 25 April 2000 the prosecution file and indictment were submitted to the Tverskoy District Court. The same day, Y.S. was released because of the expiry of the custody period. 33. The examination of the applicants' case was scheduled for 9 June 2000. However, the hearing did not take place because the applicants had failed to appear even though they had been several times summoned for the service of the indictment. 34. The hearing was adjourned until 22 August 2000 but it again failed to take place since the applicant had not appeared before the court. 35. As the applicants persistently avoided the court proceedings and did not live at their permanent address, on 28 August 2000 the Tverskoy District Court ordered their arrest. The proceedings were stayed until the applicants were arrested. 36. On 12 March 2001 the applicants were arrested and detained. The court proceedings resumed and on 24 September 2001 the court extended the custody period for a further three months. 37. On 9 January 2002 the Tverskoy District Court found the applicants guilty and sentenced Y.S. to eight years' imprisonment with forfeiture of her estate, and I.S. to six years' imprisonment with forfeiture of her estate. 38. On 9 April 2002 the Moscow City Court annulled the judgment, closed the proceedings and discharged the applicants from serving the sentence under the statute of limitations. 39. The applicants were released in the courtroom. 40. When the investigating authorities were arresting Y.S. on 26 August 1995, they withheld her national identity paper – the “internal passport”. The passport was enclosed in the case file at the Tverskoy District Court. Y.S. made several unsuccessful attempts to recover the document, filing complaints to courts and prosecutors of various instances. 41. The lack of passport made Y.S.'s everyday life difficult. In December 1997 and April 1998 the Moscow Social Security Service and a law firm both refused to employ her because she did not have a passport. In December 1997 a Moscow clinic informed Y.S. that free medical care could only be provided to her if she presented an insurance certificate and her passport. For the same reason, in April 1998 the Moscow Telephone Company refused to install a telephone line in Y.S.'s home. On 2 June 1998 the Moscow City Notary Office notified Y.S. that she needed to verify her identity, for example, with a passport, if she wished to obtain notarial acts. On 10 December 1998 Y.S. was refused the registration of her marriage. On 19 March 1999 she was stopped by a police patrol for an identity check. As she was unable to produce the passport, she was taken to a police station and had to pay an administrative fine. 42. On 29 April 1998 the Office of the Moscow Prosecutor requested the Tverskoy District Court to return the passport. 43. On an unspecified date the President of the Tverskoy District Court informed Y.S. that the passport could be made available to her for certain purposes. But it should nonetheless remain in the case file because otherwise the authorities would not be able to tell Y.S. from her twin sister, who was in hiding. 44. On 29 June 1998 the President of the Tverskoy District Court confirmed that the passport should be retained in the case file. 45. On 31 March 1999 a police patrol came to the applicants' home to escort Y.S. to a court hearing. Both applicants were at home. Perplexed by their almost identical appearance, the police demanded that the applicants identify themselves or produce identity papers. Having met a refusal, and knowing that I.S. was also being looked for by the police, the patrol decided to arrest both applicants and took them to a police station. 46. On 6 October 1999, the investigation officer in charge of Y.S.'s case returned the passport to her. “No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.” “When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor or the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.” Article 92 - Order and decision on the application of a preventive measure “Upon application of a preventive measure a person conducting an inquiry, an investigator or a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained. A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.” “Placement in custody as a preventive measure shall be effected in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.” “A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ... An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).” Article 101 - Cancellation or modification of a preventive measure The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.” “If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days after the case reaches the court.” “The examination of a case before the court must start no later than 14 days as from the fixing of a hearing date.” Section 1 of the Rules regarding the passport of a citizen of the Russian Federation adopted by the Decree of the Russian Government No. 828 of 8 July 1997 provides that the passport of a citizen represents the basic document proving the citizen's identity on the territory of Russia. Pursuant to Section 5, the passport shall contain information about the citizen's residence, liability to military service, marital status, minor children, issue of other identity documents. Section 21 provides that the passport of convicted persons and persons remanded in custody shall be seized by investigating authorities or a court and adduced to the case file. When the citizen is released, the passport shall be returned. Article 178 of the Code of Administrative Offences of 1984 establishes that residing without a valid passport or residential registration shall be punishable with an official warning or a fine. The Moscow Government Decree No. 713 of 17 July 1995, concerning the rules of residential registration, establishes a fine of up to five times the minimum wage if residential registration cannot be shown, and up to fifty times the minimum wage in case of repeated violations. | 1 |
train | 001-22060 | ENG | HRV | ADMISSIBILITY | 2,001 | ZAKLANAC v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, Teodor Zaklanac, is a Croatian citizen, born in 1948 and living in Sisak, Croatia. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in Croatia, at that time part of the Socialist Federal Republic of Yugoslavia (hereinafter “SFRY”), where he had lived until 1991 when, together with his family, he allegedly left for Switzerland. As he did not obtain permission to stay in Switzerland, in 1992 he moved to the Federal Republic of Yugoslavia. Some months later he returned to Croatia and lived in different parts of the then occupied territories. In September 1995 Parliament passed a law governing temporary use of the property of persons who left Croatia - Temporary Takeover and Managing of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “Takeover Act”), which allowed municipalities to give such property for the use of other persons. It appears that, pursuant to that Act, the Sisak Municipality temporarily accommodated M. I. in the applicant’s house in Sisak. On 17 January 1997 the applicant instituted civil proceedings with the Sisak Municipal Court seeking re-possession of his house. On 21 April 1997 the court pronounced judgment by default in the applicant’s favour. Subsequently, M. I. filed an application to return the proceedings to the status quo ante and at the same time lodged an appeal against the judgment. On 11 March 1998 the Sisak Municipal Court dismissed the application to return the proceedings to the status quo ante. In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba - hereinafter the “Programme for Return”), regulating the principles for their return and the re-possession of their property. In July 1998 Parliament passed the Act on Termination of the Takeover Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom). The applicant sought, and on 7 December 1998 obtained, an eviction order from the Sisak Municipal Court. The eviction with the assistance of the court organs was scheduled for 22 December 1998, but was not enforced due to M. I.’s above mentioned appeal against the judgment by default of 21 April 1997. On 18 February 1999 the Sisak County Court quashed the first instance judgment, and remitted the case to the Sisak Municipal Court for re-examination. It found that the Sisak Municipal Court had failed to assess whether M. I. was given a permission to use the applicant’s property according to the Takeover Act, or without any legal basis, as that was a decisive fact concerning the application of the Programme for Return. On 27 March 2000 the Sisak Municipal Court dismissed the applicant’s claim. It found that the applicant wrongly filed his action with a municipal court. Instead, he should have filed a request for re-possession of his property with a housing commission, as provided by the Act on Termination of the Takeover Act. The court also stated that that Act was a lex specialis in relation to the Property Act (Zakon o vlasništvu i drugim stvarnim pravima), which regulates property rights. As neither party appealed against that decision, it became final on 20 April 2000. According to the documents submitted by the applicant, it appears that in the meantime he had lodged a request for re-possession of his property with the Sisak Municipality Housing Commission (Stambena Komisija Općine Sisak). On 4 November 1999 the Sisak Municipality Housing Commission decided to annul the previous decision by which M. I. had obtained the right of use of the applicant’s property. Subsequently, upon M. I.’s appeal, on 17 January 2000 the Sisak Municipality Housing Commission upheld its previous decision. It found that M. I. was the illegal possessor of the applicant’s property. On 15 January 2001 the Sisak Municipality Housing Commission ordered M. I. to vacate the premises within a period of 15 days. It appears that he failed to comply with that order. On 13 September 2001 the Sisak Housing Commission filed an action for eviction of M. I. from the applicant’s property with the Sisak Municipal Court. It appears that these proceedings are currently pending. Section 2 §§ 3 and 4 of the Act on Termination of the Temporary Takeover and Control of Certain Property Act (Official Gazette no. 73/1995) provide that the proceedings concerning temporary use, management and control of the property of persons who left Croatia are to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They shall apply provisions of the Administrative Proceedings Act. Section 9 of the Programme of Return of Refugees and Displaced Persons (Official Gazette no. 92/1998) provide as follows: “Persons with Croatian documents, who are the owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek re-possession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of the ownership, the commission shall annul previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision to the owner and the temporary occupier within seven days. The decision shall contain a time limit for eviction and an offer of an alternative lodging for a temporary occupier in a house or a flat in the state ownership. ... “In case that a temporary occupier does not vacate the premises within the fixed time, the commission shall institute eviction proceedings with a competent municipal court within seven days. The court shall apply provisions concerning the civil summary proceedings. The court’s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner." | 0 |
train | 001-81209 | ENG | BGR | CHAMBER | 2,007 | CASE OF ZHECHEV v. BULGARIA | 3 | Violation of Art. 11;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award | Peer Lorenzen | 6. The applicant is the chairman of the association “Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria” („Гражданско общество за български интереси, национално достойнство, единение и обединение – за България“ – “the association”). 7. The association was founded on 19 December 1996 in Plovdiv. At a meeting on that date the founders adopted its articles and elected its management bodies. The applicant was elected as its chairman. 8. The association's articles read, as relevant: “1. [The association] is a Bulgarian patriotic nonprofit organisation. It shall be DEMOCRATIC in form and NATIONAL in content. OBJECT: mass, historically and morally enlightening, societal and political, cultural and educational, scientific and research, sport and technical, publishing, advertising, charitable and all other types of activities and services which are allowed (not prohibited) under the [Persons and Family Act of 1949] in respect of nonprofit associations. 2. [The association] is founded with the aims of: uplifting the Bulgarian spirit; protecting the Bulgarian interests and creating a wealthy, prosperous and patriotic nation; elevating, developing and preserving the Bulgarian national dignity; uniting the Bulgarian identity within and outside the boundaries of the promised Bulgarian land, under the flag of historical truth; protecting and restoring the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. 3. [The association] is for the creation of a people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years. ... 4. [The association] is for a wide discussion ... of the illegal trampling and repealing of our first constitution after our liberation in 1878, the most democratic Constitution of Tarnovo and the imposition of the present [Constitution]... [The association] is for the reinstatement (possibly with amendments) of the unlawfully abolished 'CONSTITUTION OF TARNOVO'... [The association] is for ... changing the form of government of Bulgaria, for the returning of H.M. KING SIMEON II to the motherland and the throne. ... 8. ... The core of the [association's] activity shall be the spiritual unification of all Bulgarians, contacts with and consolidation of the Bulgarian Diaspora, establishment of sincere relations with ... all Bulgarians outside Bulgaria, and, in the international relations – point one shall be: abolition (opening) of the border between Bulgaria and Macedonia...” 9. On an unspecified later date the association submitted to the Plovdiv Regional Court an application for registration. 10. The Plovdiv Regional Court refused the application in a judgment of 6 June 1997. It held: “[According to] clause 2 of [its articles], [the association] intends to protect and restore the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. According to clause 3 of the articles, the association is for the establishment of a 'people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years'. Clause 4 of the articles provides for a debate on the repealing of the Constitution of Tarnovo and the adoption of the [C]onstitution [of 1991] which is presently in force. The goals which have been enumerated thus far are sufficient to refuse the association's registration. They are clearly political in nature and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990].” 11. The applicant, acting in his capacity of chairman of the association, appealed to the Supreme Court of Cassation. He argued, inter alia, that the association's aims were not political, but goals which could be pursued by every citizen. 12. Following an amendment to the Code of Civil Procedure of 1952 providing that the judgments of the regional courts were no longer appealable before the Supreme Court of Cassation, but before the newly established courts of appeals, on 1 April 1998 the Supreme Court of Cassation forwarded the applicant's appeal to the newly created Plovdiv Court of Appeals. 13. On 10 March 1999 the Plovdiv Court of Appeals upheld the lower court's judgment. It held as follows: “The articles of [the association] contain provisions which are contrary to the ... Constitution of the Republic of Bulgaria. For instance, clause 2 of the articles provides for the restoration of the coat of arms of the Bulgarian Kingdom as the country's coat of arms. Clause 4 provides for a change of the form of government from republic to monarchy and for the restoration of the Constitution of Tarnovo [of 1879]. Clause 8 of the articles – abolition of the border between Bulgaria and [the former Yugoslav Republic of] Macedonia. These goals, as formulated in the above-cited clauses, run counter to Articles 1, 2 § 2 and 164 of the Constitution. Moreover, the association indeed has political goals, whereas by Article 12 § 2 of the Constitution associations may not pursue political goals and carry out political activities that are characteristic solely of political parties.” 14. The applicant appealed on points of law to the Supreme Court of Cassation. He argued that the lower court had incorrectly held that the association's aims were contrary to the Constitution. Furthermore, the association did not pursue political aims, because it was not aspiring to accede to power. The courts' refusal to register it was an infringement of its founders' freedom of expression. 15. On 17 May 1999 the Supreme Court of Cassation directed the applicant to specify the grounds on which he sought the quashing of the judgment below. In line with these instructions, the applicant submitted additional observations. He reiterated his contention that the association's aims were not political, because it was not seeking to accede to power through elections or otherwise, or exercise it. Its aims were characteristic of the civil society and were to be achieved through other, nonpolitical means. Furthermore, the association's articles did not provide for the creation of a people's court, it did not in fact object to the new coat of arms of Bulgaria and was not seeking to change the form of government from republic to monarchy. These were erroneous findings of the lower court. Finally, the association was seeking to achieve the spiritual union of all Bulgarians, not the abolition of the border between Bulgaria and the former Yugoslav Republic of Macedonia. 16. On 11 October 1999 the Supreme Court of Cassation upheld the Plovdiv Court of Appeals' judgment in the following terms: “The [lower court] correctly found that the goals set out in clauses 2, 3 and 4 of the association's articles have a certain political tenor and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990]. These goals are contrary to Articles 1, 2 § 2 and 12 § 2 [of the Constitution of 1991].” 17. The relevant provisions of the Constitution of 1991 read as follows: “Bulgaria is a republic with a parliamentary form of government.” “The territorial integrity of the Republic of Bulgaria shall be inviolable.” “... 3. Parties shall facilitate the formation of the citizens' political will. The manner of forming and dissolving political parties, as well as the conditions pertaining to their activity, shall be established by law. 4. No political parties shall be formed on ethnic, racial, or religious basis, nor parties which seek to accede to power by force.” “1. The citizens' associations shall serve to further and safeguard their interests. 2. Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “1. Citizens may freely associate. 2. Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited. 3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.” “The Coat of Arms of the Republic of Bulgaria shall depict a gold lion rampant on a dark gules shield.” 18. At the material time this Act („Закон за лицата и семейството“), the relevant provisions of which were superseded by new legislation in 2001, regulated the formation, status and dissolution of nonprofit legal entities, i.e. associations and foundations. Its pertinent provisions were: “An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.” “An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...” “Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, aims, means...” 19. At the material time this Act („Закон за политическите партии“), which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows: “1. Citizens may freely associate in political parties to influence the formation and expression of the political will of the people through elections or other democratic means. ... 3. Other organisations and movements may also carry out political activities within the bounds set by the Constitution and the laws.” “A political party may be formed [by] not less than fifty enfranchised citizens.” “1. A public organisation which has not been registered as a political party may not carry out the activity of a political party. 2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations. 3. 'Organised political activities' shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate. 4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall propose that it be dissolved or [re]register as a political party within one month. 5. If the organisation under the foregoing subsection does not cease its political activity or [re]register as a political party, it shall be dissolved...” 20. The Act also regulated the manner in which political parties were financed, providing for certain upper limits on the donations that they could receive and prohibiting their receiving anonymous donations and donations from foreign states and organisations (section 17). 21. Only political parties (and coalitions of such parties), and not associations, may participate in parliamentary, presidential, local and European elections and nominate candidates (section 41(2), (3) and (4) of the Electing of Members of Parliament, Municipal Councillors and Mayors Act of 1991 („Закон за избиране на народни представители, общински съветници и кметове“), section 43(1) of the Electing of Members of Parliament Act of 2001 („Закон за избиране на народни представители“), section 3(1) and (2) of the Electing of a President and a VicePresident of the Republic Act of 1991 („Закон за избиране на президент и вицепрезидент на републиката“), section 35(1) of the Local Elections Act of 1995 („Закон за местните избори“), and section 48(1) and (3) of the Electing of Members of the European Parliament Act from the Republic of Bulgaria of 2007 („Закон за избиране на членове на Европейския парламент от Република България“)). 22. In a judgment of 21 April 1992 (реш. № 4 от 21 април 1992 г. по к.д. № 1 от 1991 г., обн., ДВ, бр. 35 от 28 април 1992 г.) the Constitutional Court stated, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2 of the Constitution of 1991, were defined by Article 11 § 3 thereof as those which facilitate “the formation of the citizens' political will” through “elections or other democratic means”, as specified by section 1(1) of the Political Parties Act of 1990. The court also stated that “what was essential for this type of political activity [was] the direct participation in the process of forming the bodies through which, according to the Constitution, the people exercise[d] its power”. Of course, the activities of a party in connection with upcoming elections embraced the holding of meetings, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which were also activities aimed at “forming” the citizens' political will. 23. The Constitution of 1879 was the first written constitution of Bulgaria, adopted by a Constituent National Assembly on 16 April 1879, shortly after the creation of Bulgaria as an independent State in 1878. It was repealed in 1947. It provided for constitutional monarchy (Articles 4, 5, 9, 10 and 12), with a directly elected parliament and universal suffrage (Article 86), a government accountable to the parliament (Article 153), and separation of powers (Articles 9, 12 and 13). It prohibited torture (Article 75 § 2) and punishment without law and due process (Articles 73 and 75 § 1), enshrined the right to property (Articles 67 and 68), the right to respect for one's home and correspondence (Articles 74 and 77), and the freedoms of the press and of assembly and association (Articles 79, 81, 82 and 83). | 1 |
train | 001-114604 | ENG | POL | ADMISSIBILITY | 2,012 | CIOK v. POLAND | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Piotr Ciok, is a Polish national, who was born in 1973 and lives in Barczewo. He was represented before the Court by Mr B. Hausler, a lawyer practising in Berlin. 3. On 14 March 2005 a Polish national, E.D., was found dead in Antwerp, Belgium. Subsequently, the applicant was arrested in Belgium in connection with her murder. 4. On 17 November 2006 the Anvers Regional Court convicted the applicant of homicide and sentenced him to life imprisonment. 5. On 9 March 2007 the judgment was upheld by the Antwerp Assize Court. 6. It appears that the Belgian authorities requested the Polish authorities to take over the execution of the applicant’s sentence. On 22 November 2007 they also decided that the applicant was to be expelled from Belgium and prohibited from returning for a period of ten years. The applicant did not give his consent to his transfer to Poland. On 16 December 2008 the Olsztyn Regional Court decided that it was possible to transfer the applicant to Poland under the Convention on the Transfer of Sentenced Persons (the Transfer Convention) and its Additional Protocol. Afterwards the Polish Ministry of Justice agreed to his transfer. 7. On 25 March 2009 the applicant was transferred to Poland. 8. On 26 May 2009 the Olsztyn Regional Court gave a ruling on the legal qualification of the offence under Polish law and on the enforcement of the sentence. It considered that the offence of which the applicant had been convicted in Belgium fulfilled the description of the offence of homicide prohibited by Article 148 § 1 of the Polish Criminal Code. The court further considered that this offence carried under Polish law a minimum sentence of eight years’ imprisonment or life imprisonment. Thus the sentence imposed in Belgium did not exceed the maximum prescribed by the law of the administering State and it was not necessary to adapt the sanction. 9. In consequence the court decided that the applicant would serve the sentence of life imprisonment in Poland. The court finally decided that the additional penalty of deprivation of civic rights imposed by the Belgian court could not be imposed as it had not been foreseen for the offence prohibited by Article 148 § 1 of the Criminal Code. 10. The applicant appealed against the ruling. He complained in particular about the decision not to apply regulations pertaining to conditional release that were binding in the sentencing country, Belgium. 11. On 18 June 2009 the Bialystok Court of Appeal upheld the judgment. The court amended the legal basis of the Regional Court’s judgment in that it considered that the latter court had correctly converted the applicant’s sentence according to Articles 9 § 1 (b) and 11 of the Transfer Convention. Moreover, the court admitted that the rules pertaining to conditional release differed between Poland and Belgium. In Poland a person in the applicant’s situation could apply for parole after having served twentyfive years’ imprisonment whereas in Belgium that term was shorter and amounted to ten years. However, the court decided not to rule on the matter of conditional release as the Belgian judgment did not include a provision on the length of the sentence the applicant would have to serve before he was eligible to apply for conditional release. Therefore, Polish rules on enforcement of sentences would be applicable to the case. 12. Under Article 78 § 3 of the Criminal Code a prisoner serving a life sentence is eligible for parole after serving a minimum of twenty-five years of his sentence. 13. The objectives of the 1983 Transfer Convention (European Treaty Series, ETS, No. 112), including its 1997 Additional Protocol (ETS No. 167), are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. According to the Preamble to the Transfer Convention, these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. 14. Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer. 15. Article 9 of the Transfer Convention (“Effect of transfer for administering State”) provides: “1. The competent authorities of the administering State shall: a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” 16. Article 11 of the Transfer Convention (“Conversion of sentence”) provides: “1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State; b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction; c. shall deduct the full period of deprivation of liberty served by the sentenced person; and d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.” 17. Article 3 of the Additional Protocol (“Sentenced persons subject to an expulsion or deportation order”) provides: “1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.” 18. The Additional Protocol entered into force in respect of Poland on 1 June 2000. | 0 |
train | 001-61194 | ENG | DEU | GRANDCHAMBER | 2,003 | CASE OF SAHIN v. GERMANY | 1 | Preliminary objection dismissed;No violation of Art. 8;Violation of Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 11. The applicant, born in 1950, was a Turkish national at the time of the events complained of. He subsequently obtained German nationality. 12. The applicant is the father of G., born out of wedlock on 29 June 1988. In a document dated 15 June 1988, he acknowledged paternity of the unborn child, and in a further document, dated 15 August 1988, he acknowledged paternity and undertook to pay maintenance. 13. The applicant met the child's mother, Ms D., in 1985 and in December 1987 he moved into her flat, where they lived together until at least July 1989 or, as stated by the applicant, until February 1990. In any event, the applicant continued to visit the child and her mother until February 1990, and between the end of July and October 1990 he regularly fetched G. for visits. From November 1990 onwards, Ms D. prohibited any contact between the applicant and the child. 14. On 5 December 1990 the applicant applied to the Wiesbaden District Court for a decision granting him a right of access to his daughter on every Sunday from 10 a.m. until 6 p.m. as well as on Boxing Day and Easter Monday. 15. On 5 September 1991 the District Court, having regard to the statements made by the parties and the Wiesbaden Youth Office and having considered evidence obtained from several witnesses, dismissed the applicant's request. 16. The court, referring to Article 1711 of the Civil Code, observed that the mother, as the person having custody, determined the father's right of access to the child and that the guardianship court could only grant the father a right of access if this was in the child's best interests. The court found as follows: “The Court is convinced that the petitioner's wish for [G.] to visit him is motivated by attachment to his child and genuine affection for her. It nonetheless takes the view that personal contact with her father is not in the child's best interests, since her mother dislikes her father so deeply and opposes all contact so fiercely that any visits ordered by the court would take place in a tense, emotionally charged atmosphere which would probably be extremely harmful to the child. The Court can discern no special circumstances which, given the strong differences between the parents, might make personal contact with her father appear beneficial for [G.] ... The relationship which developed between [G.] and her father in the period from her birth to her father's moving out – that is, approximately one year and nine months – is probably not of such fundamental importance that the risk of seriously upsetting the child by resuming contact opposed by her mother is worth taking. The staff who looked after [G.] at the day nursery, and who were questioned as witnesses, stated that she displayed no – or at least no serious and lasting – behavioural abnormalities when she was parted from her father and contact between them ceased, and that she is a balanced, cheerful and outgoing child. The evidence does not therefore confirm her father's claim that she missed him and frequently asked about him after their contact at the day nursery ceased. It has not therefore been shown that the conditions laid down in Article 1711 § 2 have been met, and the Court is accordingly obliged to dismiss the father's request.” 17. On 12 March 1992 the applicant appealed to the Wiesbaden Regional Court. 18. On 12 May 1992 the Regional Court ordered a psychological expert opinion on the question whether contact with the applicant was in G.'s interests. On 8 July 1992, following a first conversation with the expert, the applicant challenged her for bias. He also requested that another expert be appointed on the ground that the scientific approach adopted did not reflect the latest state of research. On 9 September 1992 the Regional Court refused the applicant's request, finding that, taking into account the expert's explanations of 8 August 1992, there were no reasons to doubt her impartiality or her capabilities. 19. On 17 December 1992 the applicant requested the Regional Court to progress with the proceedings. He also applied for a provisional order granting him a right of access to G. during one afternoon every week and prohibiting her mother from obstructing such contact. 20. On 23 December 1992 the Regional Court dismissed the applicant's request for a provisional order granting access. The Regional Court found that there was no urgency and that the applicant could be expected to await the outcome of the main proceedings. Furthermore, such an order would anticipate the possible terms of a final decision. Should a provisional order be issued and the request be eventually dismissed in the main proceedings, the disadvantages for the child would be more serious than those for the applicant in continuing with the prevailing situation. 21. In her opinion dated 25 February 1993, the expert noted that she had visited the applicant's family in June 1992 and again heard the applicant, the child's mother and the child on several occasions between November 1992 and February 1993. As regards her meetings with G., the expert explained that in the course of various games she had explored her feelings concerning persons and situations and concerning the applicant. They had also looked at a family photo album and G. had avoided looking at the more recent photographs. This reaction showed that G. had repressed the memories of her father. The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child's interests. 22. By a letter of 8 March 1993, the Regional Court, noting that the District Court had omitted to hear the child, enquired of the expert whether hearing the child in court on the issue of her relationship with her father would place a psychological strain on her. 23. In her reply of 13 March 1993, the expert indicated that she had not directly asked the child about her father. She had expected that G. would react spontaneously in the course of the meetings and express her feelings towards him. In the expert's view, the fact that G. had not mentioned her father was certainly relevant. The expert further referred to the last meeting, when they had glanced through a family photo album and she had asked G. about whether she still knew her father. On both occasions, she had appeared to repress her memories concerning him. The risk inherent in questioning her about whether she wished to see her father was that, in this conflict between the parents, the child might have the impression that her statements were decisive. Such a situation could provoke serious feelings of guilt. 24. At a court hearing on 30 April 1993, the applicant and the child's mother entered into an agreement. Under the terms of this agreement, the applicant declared that he would refrain from instituting any court proceedings, making any enquiries about the mother's personal circumstances and exercising his right of custody obtained under Turkish law on condition that they underwent parental therapy. The proceedings were suspended until the termination of this therapy. 25. On 1 June 1993 the applicant requested that the proceedings be resumed as the child's mother had not approved the two institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal. 26. On 25 August 1993 the Wiesbaden Regional Court dismissed the applicant's appeal, finding as follows: “Personal contact with a child born out of wedlock is intended to allow a father to satisfy himself as to the child's welfare and development and preserve the natural ties existing between them. It is not therefore the purpose of granting access, but the legal conditions for doing so, which differ: while a parent who does not have custody of a child born in wedlock is entitled to access under Article 1634 [of the Civil Code], Article 1711 [of the Code] does not grant a right of access to the father of a child born out of wedlock. Rather, the law leaves it up to the person having custody, as a rule the mother, to determine whether, and to what extent, the father should be able to spend time with his child. However, the guardianship court may decide that the father is entitled to access if this is in the child's best interests. The main reason for the weaker legal position of the father of a child born out of wedlock is his different social position. After the Federal Constitutional Court's decisions of 1971 and 1981, the constitutionality of Article 1711 can no longer be seriously doubted. For considerations of legal policy, a reform of the law on children born out of wedlock is even more urgently necessary. In the meantime, the courts are bound by Article 1711. Under that provision, the guardianship court decides to grant a father access to a child born out of wedlock if this is beneficial for the child's welfare. It is not enough for such contact to be consistent with, or not contrary to, the child's interests, it must serve those interests and promote them. This interpretation justifies the assumption that fathers should generally be granted access to their children because this enables the latter to develop as normally as possible and helps them to form a clear image of themselves and their origin. It is in fact important for children not simply to have a fantasy picture of their fathers, but to be able to form a personal, realistic picture. Whether contact with the father is conducive to the child's well-being depends initially on the father's motives for seeking it. The Regional Court is convinced that the father in this case is motivated by attachment to [G.] and genuine affection for her. Even when a father acts from responsible motives, however, the court is not necessarily obliged to grant him access if there are serious tensions between the parents, these are communicated to the child, and there is reason to fear that every meeting with the father will interfere with the child's further undisturbed development in the residual family provided by the mother ... In view of the findings in the [psychological expert] report referred to above, it must be assumed that this would happen in the instant case. If the father were granted access to [G.] in present circumstances, she would have to shuttle between hostile camps, which should not be asked of her. If – as in this case – there is a danger that differences between parents may affect a child, then special circumstances are needed to justify the assumption that contact with the father will nevertheless have permanently beneficial effects on the child's development or well-being ... However, no such circumstances can be discerned here. It is true that, for the first two years of her life, [G.] grew up with both father and mother, but this period was not conflict-free. The disagreements and sometimes open aggression between her parents – in other words, the family violence she witnessed – have certainly left their mark on her, even if she can no longer recall them spontaneously. As the psychological report indicates, she has also repressed her old ties with her father – a fact reflected in the care she takes to avoid talking about him. In view of all this, the report finds that she does not suffer as a result of the present situation. The Court can rely fully on the report, which has no apparent defects and is not invalidated by the fact that the father sees the situation differently. In finding that therapy had not enabled the parents to put their former conflicts behind them, thus making it possible for [G.] to have access to both of them, the Court did not have to decide who was to blame for this ... The decisive factor is always the child's point of view. As already pointed out, however, the situation in this case is such that the parents must first initiate dialogue with each other.” 27. The Regional Court finally considered that exceptionally it had not been required to hear the child, since questioning her about her relationship with her father would have placed a psychological strain on her. In this connection, the court referred to the expert's supplementary report of 13 March 1993 (see paragraph 23 above). 28. On 21 September 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, and alleging that the taking of expert evidence had been unfair. The Federal Constitutional Court acknowledged receipt on 29 September 1993. By a letter of 26 April 1994, the applicant asked the Constitutional Court about the state of the proceedings and urged a speedy decision. On 16 May 1994 the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for the first half of 1995. On 26 November 1995 the applicant sent a letter to the President of the Federal Constitutional Court complaining that the examination of his constitutional complaint had been postponed until the first half of 1996. In her reply of 15 February 1996 the judge dealing with the applicant's case informed him that, owing to the heavy workload of the Federal Constitutional Court in 1995, it had not been possible to take a decision. A decision was envisaged in 1996. Having regard to the importance of the subject matter, such a decision required careful preparation. 29. On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint. 30. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed following the adoption of new family legislation (Reform zum Kindschaftsrecht) on 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 31. Article 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority [elterliche Sorge] over a minor child. The parental authority includes the custody [Personensorge] and the care of property [Vermögenssorge] of the child.” 32. Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child's relationship with the other parent or seriously interfere with the child's upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; they may also order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child's well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. 33. Before the entry into force of the new family legislation, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows: “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” Article 1632 § 2 concerned the right to determine third persons' rights of access to the child. 34. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: “Custody over a minor child born out of wedlock is exercised by the child's mother ...” “1. The person having custody of the child shall determine the father's right of access to the child. Article 1634 § 1, second sentence, applies by analogy. 2. If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child's personal circumstances is set out in Article 1634 § 3. 4. Where appropriate, the Youth Office shall mediate between the father and the person who exercises the right of custody.” 35. Like proceedings in other family matters, proceedings under former Article 1711 § 2 of the Civil Code were governed by the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 36. According to section 12 of that Act, the court shall, of its own motion, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 37. In proceedings regarding access, the competent Youth Office has to be heard prior to the decision (section 49(1)(k)). 38. As regards the hearing of parents in custody proceedings, section 50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child's assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to section 50a(2), a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 39. The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child. The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 40. The convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children's rights by setting standards in health care, education and legal, civil and social services. 41. States parties to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9). | 1 |
train | 001-127123 | ENG | HUN | COMMITTEE | 2,013 | CASE OF FARAGÓ AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Nebojša Vučinić;Peer Lorenzen | 4. The applicants were born in 1995, 1969 and 1962, respectively. 5. On 6 July 1995 the second applicant gave birth to a boy, the first applicant. In 1996 the latter was diagnosed with cerebral atrophy. 6. On 1 October 1997 the applicants lodged a medical liability action against the hospital where the first applicant was born. 7. On 30 October 2009 the Pest Central District Court partly found for the applicants and ordered the respondent to pay them respectively 47,647,959 Hungarian forints (HUF) (approximately 163,000 euros (EUR)), HUF 8,000,000 (approximately EUR 27,000) and HUF 3,000,000 (approximately EUR 10,000) and accrued interests. The respondent appealed. 8. On 26 March 2010 the Budapest Regional Court, acting as a second-instance court, gave judgment, upholding the first-instance decision. 9. On 21 May 2010 a written copy of the decision was served on the applicants’ lawyer. | 1 |
train | 001-83217 | ENG | GEO | CHAMBER | 2,007 | CASE OF OGANOVA v. GEORGIA | 4 | No violation of Art. 6-1 | null | 5. The applicant was born in 1960 and lives in Tbilisi. 6. On 8 May 2002 the applicant brought a civil action, claiming back the money which she had lent to a private person on 14 September 1998, further to a note envisaging repayment within two months. 7. On 22 May 2002 the respondent replied in writing, claiming that she had repaid the debt and that the applicant's action was time-barred under Articles 129 and 130 of the Civil Code (“the CC”). 8. On 14 June 2002 the Isani-Samgori District Court allowed the applicant's claim at an oral hearing. The court found that the respondent's assertion about payment of the debt was unsubstantiated. It did not reply to the time-bar objection. 9. On 5 August 2002 the respondent appealed, reiterating, inter alia, that the applicant's action was time-barred. The latter replied that, in view of the respondent's continuous promises to discharge the debt, she could not have concluded that her rights had been breached between 1998 and 2001. 10. On 18 September 2002 the Tbilisi Regional Court quashed the judgment of 14 June 2002 and decided the case anew, dismissing the applicant's action as time-barred. The appellate court found that the limitation period had started to run from the date of non-compliance with the note of 14 September 1998, that is two months after the loan, on 14 November 1998. It noted that the case materials did not substantiate the applicant's assertion that the respondent had continuously promised to return the money. 11. On 16 October 2002 the applicant lodged a cassation claim. Referring to varioushe reiterated that the respondent's verbal assurances had prevented her from applying to the court earlier. She consequently claimed that the appellate court had wrongly applied Articles 129 and 130 of the CC. 12. On 19 November 2002 the Supreme Court of Georgia declared the applicant's cassation claim admissible but decided to dispense with an oral hearing on the merits. Both parties were informed of that decision on 22 November 2002. On the same day, the cassation claim was forwarded to the respondent for comments. No reply was forthcoming from the latter. 13. On 6 February 2003 the Supreme Court dismissed the applicant's cassation claim. Endorsing the facts of the case as established by the appellate court, the cassation court found that the disputed Articles 129 and 130 of the CC had been correctly interpreted and applied in the appellate judgment of 18 September 2002 and that, consequently, there was no ground, under Article 393 §§ 1 and 2 of the Code of Civil Procedure, to quash it. Pursuant to Articles 129 § 1 and 130, the period for bringing contractual claims was limited to three years, and it started to run from the moment the person learnt or should have learnt about the breach of his or her rights. Pursuant to Article 393 §§ 1 and 2, only the lawfulness of an appellate judgment could be challenged in cassation. The disputed judgment could be found to be unlawful if the appellate court had wrongly applied or interpreted the law. Article 396 § 1 (f) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was calling into question the application of procedural legal provisions. Article 404 § 1 “The cassation court shall review the [disputed] judgment only in so far as challenged in the cassation claim. The cassation court cannot go beyond the facts referred to under Article 396 § 1 (f) and inquire of its own motion into other procedural breaches.” “The cassation court shall take into account the party's submissions only in so far as disclosed by the case file or the appellate judgment; only the facts submitted under Article 396 § 1 (f) can be taken into account. The establishment of the facts [by the appellate court] is binding on the [cassation] court, unless an additional and well-founded cassation argument has been raised.” “In the event the cassation court finds it appropriate..., it can decide the case without an oral hearing. The parties shall be notified of such a decision.” Article 411 “The cassation court shall take a [final] decision Article 412 § 1 and 2 “If it is not possible for the cassation court to decide the case in accordance with Article 411, it shall quash the appellate judgment and remit the case for a retrial. The Constitutional Court dismissed the applicants' complaint challenging Article 408 § 3 of the CCP, which provided for the possibility to dispense with an oral hearing in cassation proceedings. The Constitutional Court noted that, unlike an appellate court which established facts, the cassation court could only review the application of legal provisions. It could however examine, on the basis of Articles 396 § 1 (f) and 407 §§ 1 and 2 of the CCP, the facts which have been explicitly raised by the appellant in relation to the alleged violations of procedural law. Consequently, whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law, the Constitutional Court concluded that the right to an oral hearing in cassation proceedings was not absolute. In its judgment of 28 February 2006 in the case of “Gokhi” v. “Telasi” JSC, the Supreme Court defined the notion of an “additional and well-founded cassation argument” (Article 407 § 2 of the CCP), as follows: “...'An additional and well-founded cassation argument' is ... a reference to those procedural breaches which, having been committed by the appellate court during the examination of the case, have resulted in an erroneous assessment of the matters of fact and/or the incorrect interpretation and application of substantive legal provisions.” | 0 |
train | 001-85714 | ENG | DEU | ADMISSIBILITY | 2,008 | FALK v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Alexander Falk, is a German national who was born in 1969 and lives in Hamburg. He was represented before the Court by Mr G. Strate, a lawyer practising in Hamburg. The applicant is chief executive officer of the ISION corporation and member of the board of directors and major shareholder of the Distefora Holding corporation, Switzerland. On 5 June 2003, the Hamburg District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected of fraud and offences under the Stock Exchange Act on two occasions and in complicity with six other accused. The Hamburg District Court also found that the applicant was likely to abscond given his wealth, which would allow him to live abroad. His family bonds were not sufficient to prevent his absconding. Moreover, the applicant’s arrest was not disproportionate in view of the damage he had allegedly caused and given the sentence which he risked incurring if found guilty as charged. On 31 July 2003, the Hamburg Regional Court amended the arrest warrant in view of the strong suspicion that the applicant had also committed fraud on two occasions. It also found that there existed the danger of absconding and prejudicing proceedings under Article 112 of the Code of Criminal Procedure. On 14 November 2003, the Hanseatic Court of Appeal dismissed the applicant’s appeal against the decision of the Hamburg Regional Court of 31 July 2003. On 29 January 2004, the Hamburg Regional Court dismissed the applicant’s appeal against the arrest warrant as amended on 31 July 2003. On 20 February 2004, the Hanseatic Court of Appeal dismissed the applicant’s further appeal against the decision of the Hamburg Regional Court of 29 January 2004. It found that the arrest warrant was not unlawful in view of the alleged denial of access to the confiscated data. The court took the view that the present case was not comparable to cases in which the Federal Constitutional Court, the Federal Court of Justice or the European Court of Human Rights had regarded arrest warrants as unlawful, because the defence counsel had been denied access to the part of files which were necessary to respond effectively to the allegations which formed part of the arrest warrant. It found that the domestic courts had sufficiently observed the requirement to make available to the detained all materials which were important for the arrest. The applicant’s defence counsel had had unrestrained access to all documents, protocols of the interrogation and any other evidence on which the domestic courts had based their decisions concerning the arrest warrant. It could not be inferred from the available case-law that there existed an extended principle that the defence counsel should be given access to all other data which were seized by the investigation authorities or otherwise the arrest warrant had to be suspended. Regardless of the above, the applicant’s defence counsel had been given access to all other documents that had been seized. The defence counsel’s motion of 24 October 2003 to have access to all data seized, which had been stored on some 500 CD-ROMs, had been granted by the Prosecutor’s Office on 27 October 2003 by offering access to the data in the premises of the Hamburg Office for Criminal Investigations (this offer had not been taken up by the applicant’s counsel). The defence counsel’s request to have access, in particular, to the data on the hard drive confiscated in the applicant’s flat was granted by handing over a copy version of the data on 22 January 2004. Prior to that, the defence counsel had been given a hard drive with these data in November and December 2003 which had however been defective. A further request by the defence counsel of 26 January 2004 to have access to data from the server of the applicant’s premises was granted by producing a copy of the data which was handed over to the defence counsel on 12 February 2004. The Hanseatic Court of Appeal reasoned that, even though it had not been possible to deliver the copy of the data from the entire server earlier, the arrest warrant could not be suspended as a consequence. The defence had not been deprived of any material which had been necessary to comment effectively on the allegations made in the arrest warrant. As far as there had been data on the server which had been relevant for the decisions regarding the arrest warrant, the defence counsel had already received a printed version. No other data had been used to decide on the arrest warrant. On 31 March 2004, the Hanseatic Court of Appeal ordered the continuation of the arrest warrant of 31 July 2003. The Court of Appeal found that there had not been a violation of the right to a fair trial by refusing access to the confiscated data for the reasons set out in the decision of 20 February 2004. The voluminous material presented by the applicant’s counsel did not call into question the suspicion against the applicant. On 10 May 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decision of the Hanseatic Court of Appeal of 31 March 2004. Articles 112 et seq. of the Code of Criminal Procedure concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112, a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides, of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-22). | 0 |
train | 001-57618 | ENG | ESP | CHAMBER | 1,989 | CASE OF UNIÓN ALIMENTARIA SANDERS S.A. v. SPAIN | 3 | Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings | J.A. Carrillo Salcedo | 8. Unión Alimentaria Sanders is a limited company in the food industry and has its registered office in Madrid. 9. In 1974, it concluded a contract whereby it would finance the rearing of pigs belonging to it on a farm owned by another company, Linconin SA. In return, Linconin SA was to pay the price of the animals and the administrative costs. Owing to its insolvency, however, it was unable to honour its commitments; and in the meantime it had sold the pigs. Criminal proceedings were brought against Linconin SA and its directors but were subsequently discontinued following a general amnesty. 10. On 2 May 1979, Unión Alimentaria Sanders SA brought an action in the Barcelona Court of First Instance (juzgado de primera instancia) for payment of the sum it considered was owed to it by Linconin SA and one of its directors, Mrs P. Since it thought the company and Mrs P. to be insolvent, it also brought two actions based on the principle of subrogation against them and three other persons, for the enforcement of contracts for the purchase of land and a farm by the first two defendants and the registration of the purchase in the land register. 11. The case was assigned to the Barcelona Court of First Instance no. 9, which summoned the defendants to appear before it. Only one of these, Mrs B., appeared, however; the others could not be found. Mrs B. raised preliminary objections and submitted observations on the merits. On 27 November 1980, the court requested the parties to produce their evidence, and this they did from 17 December 1980 to 26 March 1981. Once that was done, it asked them to make their submissions, since they were not seeking a hearing. The applicant company did so on 29 October, and Mrs B. on 12 November. 12. In an order (providencia) of 28 December 1981, the court declared the case ready for decision (declaró los autos conclusos para sentencia). By Article 678 of the Code of Civil Procedure, judgment had to be given within twelve days, or within fifteen days if the file contained more than a thousand items. 13. On 10 July 1983, Unión Alimentaria Sanders SA wrote to the court to complain of a breach of Article 24 para. 2 of the Constitution, which guarantees "the right to a public trial without undue delay (sin dilaciones indebidas) and with all safeguards". On 21 October 1983, the company applied to the Constitutional Court for a declaration that there had been undue delay in the proceedings in question, an order requiring the trial court to give judgment and a declaration that the applicant company was entitled to compensation for the damage ensuing from the delay. The Constitutional Court dismissed the appeal (recurso de amparo) on 23 January 1985 (see paragraphs 17-19 below). 14. On 17 December 1983, the Court of First Instance no. 9 found partly in favour of the applicant company. It ordered Linconin SA and Mrs P. jointly and severally to pay the plaintiff the sum of 1,852,343.67 pesetas with statutory interest, and two of the defendants who were sued on the principle of subrogation to perform the contract for the sale of certain land and have it entered in the land register. On the other hand, the court dismissed the applicant company’s claims against Mrs B. In one of the recitals of fact, it acknowledged the delay in giving judgment but gave no reason for it. 15. On 23 December 1983, Unión Alimentaria Sanders SA appealed against the judgment. The file was sent to the Barcelona Court of Appeal (Audiencia Territorial) on 25 April 1984, and in May the case was allocated to the First Civil Chamber of that court. On 5 June, the applicant company stated that it was ready for the trial; on 10 July, the Court of Appeal held that the defendants had forfeited their right to submit written observations as they had not appeared. On 13 September 1984, after the file had been studied by the reporting judge, the court declared the case to be ready for trial, without however setting any date for the hearing. 16. A third civil chamber had been established in the meantime, and the case was transferred to it on 27 September 1985, pursuant to a decision of 4 September. On 17 March 1986, it appointed a new reporting judge and set the case down for trial on 6 May. On 12 May 1986, the Third Civil Chamber partly allowed the applicant company’s appeal and ordered Mrs B. to repay Linconin SA a specified sum paid for the purchase of the land; it upheld the remainder of the judgment of the court below. The appeal court’s judgment was notified to the applicant company by the Court of First Instance on 13 September. 17. During the proceedings in the Court of Appeal, the Constitutional Court was considering the application brought by Unión Alimentaria Sanders SA on 21 October 1983 (see paragraph 13 above). It declared the application admissible on 30 November and subsequently received observations from Crown Counsel (ministerio fiscal), the applicant company and counsel representing the Government (Abogado del Estado). Crown Counsel recognised that there had been undue delay, which was not explained by the Court of First Instance, but considered that once the normal course of the trial had been resumed and judgment given, the constitutional appeal no longer had any purpose except to obtain compensation. Counsel for the Government submitted that the case had become devoid of purpose. 18. In its judgment of 23 January 1985 dismissing the appeal, the Constitutional Court first rejected these submissions by Crown Counsel and counsel for the Government and then concluded as follows on the merits: "... Having reviewed the criteria relating to the complexity of the case and to the conduct of the judicial authorities and the parties, the Court must examine the consequences of the trial for the rights and interests at stake. This is one of the factors to be considered, as has often been pointed out by the European Court of Human Rights (Buchholz judgment). In its claim for compensation, the appellant company has given no indication of any consequences of the delay other than the precautionary entry which, in order to cover itself against the outcome of the trial, it had made [in the land register] against security at the time of the civil proceedings, so as to provide for possible compensation of the defendants if they should succeed at trial. Nothing was said about the practical consequences of the length of the trial for the rights and interests of the plaintiff. The latter confined itself in its submissions to noting the aforementioned effect of the precautionary step provided for in section 42 of the Mortgages Act and ‘non-pecuniary damage’, about which it remained vague. It thus appears that the time factor was not of primary importance in the instant case. Seeing that only court costs and the amount of the security were involved, it does not seem that this case before the Barcelona court merited any priority. If other, more urgent cases were pending, nothing precluded giving them priority and provisionally postponing the decision which is the subject of the present appeal. Consideration must also be given to what is regarded as the norm in respect of a court’s level of activity and output in the light of the number of cases to be dealt with. This was the factor to which counsel for the Government referred when he set out the position not only of the court which had to deal with the case under appeal but also of the other Barcelona courts dealing with ordinary - and other - cases within their jurisdiction. He stressed the temporary backlog of cases and saw that as one of the reasons for the length of the trial in issue. This Court must consider that factor, just as the European Court of Human Rights has done, which has given judgment, under Article 6 para. 1 (art. 6-1) of the Convention, on delays found to have occurred in different types of trial. The Buchholz judgment may be cited as an example. The length of an ordinary trial of a case which is complex and much disputed but does not merit any priority must be assessed on the basis of all these factors and in the light of the total time taken up by the trial. Inasmuch as the right to a trial without undue delay is not the same thing as strict compliance with court deadlines and does not necessarily mean that there is no abnormal situation, the delays during the civil proceedings in issue are not sufficient to warrant the conclusion that there has been a breach of Article 24 para. 2 of the Constitution ..." (Boletín de Jurisprudencia Constitucional no. 46, February 1985, p. 152). 19. One of the judges, however, dissented: "... In the absence of any justification duly advanced by the trial court, we must ascertain whether or not the dilatoriness of which it is accused amounts to ‘delay’ within the meaning of Article 24. Even accepting the relevance of the criteria adopted in the judgment of this Court, the signatory of this separate opinion does not approve the manner in which they have been applied. The action was brought on 2 May 1979 and judgment given on 17 December 1983. A total duration of more than four and a half years is in principle excessive if we take into account ... the ‘total time taken up by the trial’ and particularly if we remember that the trial court did not indicate to us any special feature of the case justifying such dilatoriness. In the absence of any detailed justification, it is likewise not possible ... to consider ‘what is regarded as the norm in respect of a court’s level of activity and output’. Since normality is what corresponds to the norm and not what departs from it, even if the norm is more often honoured in the breach than in the observance, the traditional slowness of the system of justice cannot be regarded as ‘normal’. Furthermore, if the length of trials were to continue to grow longer, if the failure to comply with the norms of ‘output of the system of justice’ were to become widespread and if such ‘abnormal’, but commonplace, circumstances always had to be taken as a basis for assessing whether or not the right to a trial without undue delay had been respected, the protection of this fundamental right would by that very fact be reduced to nought ..." (ibid., p. 154). 20. On 18 October 1986, Unión Alimentaria Sanders SA applied to the Barcelona Court of First Instance no. 9 for enforcement of the Court of Appeal’s judgment and seizure of the defendants’ assets, which it listed. That application is still pending. 21. In its report for 1982 the General Judicial Council noted that each of the Barcelona courts of first instance had had to deal with an average of 1,800 cases. The same courts continued to lack judges for periods that recurred more and more often, despite the use of substitutes for urgent matters. This was the case with Court of First Instance no. 9: the judge had to be replaced on several occasions in 1982/83 for health reasons. He retired on 27 July 1983 and his successor was not installed until 21 September 1983. Two months later, however, the new appointee left the post, which again remained vacant. Until 22 February 1984, when the new incumbent took up his duties, the judge of the Barcelona Court of First Instance no. 1, acting as a substitute, dealt with the cases assigned to Court no. 9, and he it was who gave the judgment in the instant case (see paragraph 14 above). 22. Similar difficulties prevailed in the Barcelona Court of Appeal, to the point that the Ombudsman (Defensor del Pueblo) devoted a chapter of his report for 1985 to them. He stressed the large number of complaints about the length of proceedings in the Court of Appeal’s civil chambers and mentioned the inquiry into them which had been instituted (Boletín oficial de las Cortes Generales, 15 September 1986, p. 125). Between 1981 and 1984 the volume of cases to be dealt with by the two chambers had increased by 62%. Two new judgeships were created in 1983; but as this measure proved inadequate, a new chamber was established in 1985 and cases pending before the other two chambers were transferred to it - 964 from the First Chamber and 586 from the Second Chamber. The parties had to be informed, new reporting judges appointed and a new timetable prepared in order to deal with the backlog of cases, priority being given to the most urgent. 23. In June 1985, the Council (Junta de Gobierno) of the Barcelona Bar launched a campaign to secure an improvement in the system of justice in the city with a manifesto which by January 1986 had already been signed by a thousand lawyers. 24. More generally, in his reports for 1983 and 1984 the Ombudsman drew the attention of the Chamber of Deputies (Congreso de Diputados) to the frequency of complaints about the law’s delays and the difficulty of obtaining enforcement of judgments. In the following year he described the situation as alarming. In his view, the main reasons for it were the shortage of staff and the continual changing of judges. 25. The Spanish State indeed took several relevant steps at national level. An institutional Act of 10 January 1980, for example, established the General Judicial Council, and the Judicature Act of 1 July 1985 reorganised the system. Between the two, a royal decree of 3 July 1981 set up four new courts of first instance in Barcelona, which have been in operation since September 1981; and an Act of 21 May 1982 established new judicial districts there. Lastly, an Act of 28 December 1988 completely reorganised the administration of justice. Between 1989 and 1992 the number of judges is planned to rise from 2,000 to 3,570. In Barcelona 10 additional courts are to be set up by converting district courts (tribunales de distrito) into courts of first instance, which will increase the number of the latter to 44 by 1992; and the Barcelona Provincial Court should have 64 judges. | 1 |
train | 001-104040 | ENG | ITA | GRANDCHAMBER | 2,011 | CASE OF LAUTSI AND OTHERS v. ITALY | 1 | No violation of P1-2 | András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Giovanni Bonello;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Mihai Poalelungi;Nicola Lettieri;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 10. The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms. 11. On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms. 12. On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution). 13. On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below). On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below). 14. By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree. Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed”. By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality. 15. On 17 March 2005 the Administrative Court dismissed the application. After ruling that Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 were still in force and emphasising that “the principle of the secular nature of the State [was] now part of the legal heritage of Europe and the western democracies”, it held that the presence of crucifixes in State-school classrooms, regard being had to the meaning it should be understood to convey, did not offend against that principle. It took the view, in particular, that although the crucifix was undeniably a religious symbol, it was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. It went on to say that the crucifix was a historical and cultural symbol, possessing on that account an “identity-linked value” for the Italian people, in that it “represent[ed] in a way the historical and cultural development characteristic of [Italy] and in general of the whole of Europe, and [was] a good synthesis of that development”. The Administrative Court further held that the crucifix should also be considered a symbol of a value system underpinning the Italian Constitution. It gave the following reasons: “... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith. Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ...” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular. 11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word. In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ... 11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently. 11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State. 11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ... 11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution. In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion. 12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority. The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ... 12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ... 13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ... 13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept. 13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ... 14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ...” 16. The first applicant appealed to the Consiglio di Stato (Supreme Administrative Court), which confirmed that the presence of crucifixes in State-school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil – even in a “secular” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-mentioned values, the values which defined secularism in the State's present legal order. In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning: “... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages). This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution. The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework. In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ... In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions. Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed. In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion. In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils. Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation. Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State. The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power (but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously (and not contradictorily) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them. As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ...” 17. The obligation to hang crucifixes in primary school classrooms was laid down in Article 140 of royal decree no. 4336 of 15 September 1860 of the Kingdom of Piedmont-Sardinia, promulgated in accordance with Law no. 3725 of 13 November 1859, which provided: “each school must without fail be equipped with ... a crucifix” (Article 140). In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [and] other existing creeds shall be tolerated in conformity with the law”. 18. The capture of Rome by the Italian army on 20 September 1870, following which the city was annexed and proclaimed capital of the new Kingdom of Italy, caused a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church, granting the Pope a number of privileges for the orderly conduct of religious activity. According to the applicants, the display of crucifixes in schools fell little by little into disuse. 19. During the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms. For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.” On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools (ordinamento interno delle giunte e dei regi istituti di istruzione media). Article 118 provided: “Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”. Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education (approvazione del regolamento generale sui servizi dell'istruzione elementare), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”. 20. The Lateran Pacts, signed on 11 February 1929, marked the “Conciliation” of the Italian State and the Catholic Church. Catholicism was confirmed as Italy's official religion, Article 1 of the Conciliation Treaty being worded as follows: “Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.” 21. In 1948 Italy adopted its republican Constitution, Article 7 of which provides: “The State and the Catholic Church, each in its own order, shall be independent and sovereign ... their relations shall be regulated by the Lateran Pacts [and] amendments to the Pacts accepted by both parties shall not require proceedings to revise the Constitution.” Article 8 provides: “All religious creeds shall be equally free before the law ... religious creeds other than Catholicism shall have the right to organise in accordance with their own statutes, in so far as these are not incompatible with the Italian legal order [and] their relations with the State shall be determined by the law on the basis of agreements with their respective representatives”. 22. The Protocol to the new concordat, of 18 February 1984, ratified by Law no. 121 of 25 March 1985, states that the principle laid down in the Lateran Pacts, that the Catholic religion is the only State religion, is no longer in force. 23. In a judgment of 12 April 1989 (no. 203), rendered in a case which raised the question of the non-compulsory nature of Catholic religious instruction in State schools, the Constitutional Court held that the principle of secularism was derived from the Constitution, ruling that it implied not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism. Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State-school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations (decision of 15 December 2004, no. 389; see paragraph 14 above). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State-school classrooms was compatible with the principle of secularism (judgment of 13 February 2006, no. 556; see paragraph 16 above). In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”. 24. On 3 October 2002 the Minister of Education, Universities and Research issued the following instruction (no. 2666): “... The Minister ... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind; Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish; Issues the following instruction: The Ministry's competent service ... shall take the necessary measures to see to it that: 1) school governors ensure the presence of crucifixes in classrooms; 2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ...”. 25. Articles 19, 33 and 34 of the Constitution are worded as follows: “Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.” “The Republic guarantees the freedom of the arts and sciences, which may be freely taught. The Republic lays down general rules for education and establishes State schools of all branches and grades. ...” “Schools are open to everyone. Elementary education, given for at least eight years, is compulsory and free. ...” 26. In the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations. 27. The presence of religious symbols in State schools is expressly forbidden only in a small number of member States: the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia. It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany (Länder) and Switzerland (communes), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania. 28. The question has been brought before the supreme courts of a number of member States. In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 116 1a 252). In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached. In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State-school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32). In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils' parents (11 June 2008; no. 2393). In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250). | 0 |
train | 001-60324 | ENG | LTU | CHAMBER | 2,002 | CASE OF PUZINAS v. LITHUANIA | 3 | Violation of Art. 8;Non-pecuniary damage - financial award | Ireneu Cabral Barreto | 8. Since 20 March 1991 the applicant has been serving in the Sniego Prison in Vilnius a sentence of 13 years’ imprisonment for aggravated murder. By a Presidential decree of pardon of 27 June 1998 the applicant’s sentence was reduced by two years. 9. On 21 July 1998 the applicant applied to the prison administration, requesting his transfer to another prison. The prison administration refused his request. The applicant unsuccessfully complained that he was unable to change prisons to various Lithuanian and international authorities and NGOs, including the Council of Europe, the Council of the Baltic Sea States (“the CBSS”) and Amnesty International. 10. On 20 October 1998 he received a letter dated 16 October 1998 from the CBSS Commissioner on Democratic Institutions and Human Rights based in Copenhagen. The letter had been opened when he received it. 11. On 2 November 1998 he received a letter dated 21 October 1998 from the Secretariat of the European Commission of Human Rights. The letter had also been subjected to initial screening by the prison administration before the applicant had access to it. 12. On 3 December 1998 the applicant was reprimanded in disciplinary proceedings. He lodged with the Ombudsman a complaint concerning the reprimand and alleged breaches of the freedom of his correspondence. 13. On 22 December 1998 the Ombudsman found that the prison administration had censored a letter from the applicant to his wife in which he had accused the prison staff of theft. The Ombudsman found that, as a consequence, on 30 October 1998 the prison administration had disciplined the applicant for slander. The Ombudsman held that the applicant’s letters to his wife pertained to the field of his private life, and that his allegations of theft did not constitute any formal suggestions, applications or complaints for the purpose of Rule 7 § 3 (4) of the Prison Rules (see the ‘Relevant domestic law’ part below). The Ombudsman concluded that the disciplinary penalty was unlawful, and suggested that it should be lifted. The Ombudsman also found that the letter from the CBSS of 16 October 1998 had been opened. He held that the applicant’s right to respect for correspondence under Article 8 of the European Convention of Human Rights was “almost inviolable”, but that the State was allowed to censor prisoners’ letters in certain cases. The Ombudsman found no violation of the applicant’s right to respect for his correspondence. 14. On the basis of the Ombudsman’s conclusions, on 29 December 1998 the Director of the Penitentiary Department lifted the disciplinary penalty. 15. Article 22 of the Constitution provides that correspondence of a person is inviolable. Persons shall be protected by courts from arbitrary or unlawful interference with that right. 16. Article 41 of the Prison Code (Pataisos darbų kodeksas) provides that “convicted persons’ correspondence shall be censored”. 17. Rule 7 § 1 (7) of the Prison Interim Rules (Pataisos darbų įstaigų vidaus tvarkos laikinosios taisyklės) states that “convicted persons’ letters (except those to a prosecutor) sent from or received in a prison are subject to censorship”. Rule 7 § 1 (8) states that any letters containing “cryptography [and] cynical or threatening statements shall not be sent to the addressee”. Rule 7 § 3 (4) provides that written “suggestions, applications or complaints containing insults, jargon or obscenities shall not be sent, [and that] disciplinary penalties may be imposed on the persons who have signed” such papers. | 1 |
train | 001-84198 | ENG | RUS | ADMISSIBILITY | 2,007 | BRINZEVICH v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Mikhail Vasilyevich Brinzevich, is a Russian national who was born in 1981 and lives in Arkhangelsk. He was represented before the Court by Mr I. Ilyin and Mr M. Sitilin, lawyers practising in Arkhangelsk. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mrs V. Milinchuk. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 October 2003 the Lomonossovskiy District Court of Arkhangelsk convicted the applicant of inflicting grievous bodily harm that had caused the victim’s death and sentenced him to thirteen years and six months’ imprisonment in a high-security colony. As the applicant was indigent, Mr Ilyin was appointed by the local bar association to represent him in the proceedings. On 22 October 2003 Mr Ilyin lodged a statement of appeal. The appeal hearing was initially scheduled for 17 November 2003. On that day the applicant submitted a handwritten statement of appeal to the Arkhangelsk Regional Court. Invoking Article 6 of the Convention, he asked the court to have Mr Ilyin appointed as his counsel at the appeal hearing. By a letter of 17 November 2003, Mr Ilyin and the director of the detention centre where the applicant was being held were advised that the appeal hearing had been adjourned until 5 December 2003. On 5 December 2003 the Arkhangelsk Regional Court examined the case on appeal in the absence of the applicant’s lawyer. It heard submissions by the judge rapporteur and oral submissions by the applicant and the public prosecutor, and upheld the judgment of 15 October 2003. On 19 February 2004 the Arkhangelsk Regional Court rejected Mr Ilyin’s application for supervisory review of the conviction on the ground that the applicant’s right to defence had not been violated by the Regional Court. On 18 March 2004 the President of the Arkhangelsk Regional Court dismissed Mr Ilyin’s appeal against the decision of 19 February 2004. On 26 October 2006 a deputy prosecutor of Arkhangelsk Region lodged an application for supervisory review (надзорное представление) with the Arkhangelsk Regional Court against the conviction on the ground that the applicant’s case had been examined by the Regional Court in the absence of the applicant’s lawyer. On 20 December 2006 the Presidium of the Arkhangelsk Regional Court granted the prosecutor’s application. In particular, the Presidium found as follows: “According to Article 409 § 2 of the Code of Criminal Procedure, an appeal judgment must be quashed if the supervisory-review court finds that the appeal judgment was issued in breach of the requirements of the Code of Criminal Procedure which affected or could have affected the correctness of the judgment. According to Article 47 § 4 (8) of the Code of Criminal Procedure, an accused has the right to legal assistance, which must be provided free of charge in the circumstances described in the Code. In his supplementary statement of appeal of 10 November 2003... [the applicant] requested that the advocate Mr Ilyin take part in the appeal proceedings. The advocate Mr Ilyin did not attend the appeal hearing, despite having been properly notified of its date, time and place. It appears from the Regional Court’s appeal judgment of 5 December 2003 that [the applicant] did not waive his request for participation of the advocate Mr Ilyin in the appeal proceedings. The appeal court did not take measures to ensure the presence of that advocate or to secure participation of another advocate in the appeal proceedings, which fell short of the requirement of Article 50 § 2 of the Code of Criminal Procedure ... This breach is a ground for quashing the appeal judgment concerning [the applicant] and remitting the case for a new appeal hearing. In the new hearing the appeal court must take measures to ensure that parties can exercise their legal rights...” The proceedings are currently pending before the Arkhangelsk Regional Court. Article 50 establishes that the investigator, the prosecutor or the court have a duty to provide the suspect or accused with legal-aid counsel upon his or her request. Article 51 establishes that counsel must imperatively be appointed by the investigator, prosecutor or court if the suspect or accused has not waived his right to legal assistance. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in the appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” In a number of cases (no. 608п04, decision of 13 October 2004; no. 931п2004пр, decision of 26 January 2005; and no. 144п05, decision of 6 April 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsels in the appeal proceedings whereas the legal representation of the accused was obligatory. | 0 |
train | 001-75285 | ENG | TUR | ADMISSIBILITY | 2,006 | CINTOSUN v. TURKEY | 4 | Inadmissible | null | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until September 1993 the applicants lived in Kayabaş, a hamlet of the Dağcılar village, in the district of Silvan, in Diyarbakır. In September 1993 security forces destroyed the applicants’ properties and forcibly evicted the applicants from their hamlet. On 2 February 1996 Abdulhamit Çintosun lodged a petition with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of his property and permission to return to their village. He further requested that an investigation be initiated into the destruction of their properties. On the same day his petition was received by this office. The applicant received no response to his petition. Until May 1994 the applicants lived in Alauşak, a village of the Silvan district, in Diyarbakır. It is to be noted that the documents attesting ownership of property, which Meliha Esatoğlu, Sabiha Yabancı, Türkan Vuran, Kini Elmacı used in Alauşak, bear the name of their brother, İsmet Sönük. In May 1994 security forces destroyed the applicants’ property and forcibly evicted the applicants from their village. On 17 January 1996 one of the applicants, İsmet Sönük lodged a petition with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village. He further requested that an investigation be initiated into the destruction of their properties. On 22 January 1996 his petition was received by this office. The applicant received no response to his petition. Until May 1994 the applicants lived in Dolapdere, a village of the Silvan district, in Diyarbakır. It is to be noted that the documents attesting ownership of property, which Medeni Açık, Belkisa Nergiz, Nezife Nergiz, İhsan Nergiz, Sakine Nergiz and Zinet Nergiz used in Dolapdere, bear their fathers’ and brothers’ names. In May 1994 security forces destroyed the applicants’ property and forcibly evicted the applicants from their village. On 17 January 1996 and 18 January 1996 two of the applicants, Hakki Nergiz and Mehdin Açık lodged petitions with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village. They further requested that an investigation be initiated into the destruction of their properties. On 26 January 1996 their petitions were received by this office. The applicants received no response to their petitions. The investigation carried out by the authorities indicated that the applicants had left their villages on their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
train | 001-78794 | ENG | BGR | CHAMBER | 2,006 | CASE OF BORISOVA v. BULGARIA | 3 | Violation of Article 6+6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-a - Information on nature and cause of accusation;Prompt information;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence;Article 6-3-d - Examination of witnesses;Same conditions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Peer Lorenzen | 6. On the morning of 8 September 1999 the applicant, who was unemployed at the time, went to the Employment Office to look for new job offers. A considerable number of people, mainly women of Roma origin, had already gathered there and were waiting to enter the Employment Office. The applicant, also of Roma origin, lined up at the back of the queue that had formed in front of the building. 7. At around 11.15 a.m. part of the group of persons burst into the Employment Office. A police officer, who was there to enforce public order, managed to force them back outside. As the police officer was walking out of the building he was pushed by several women, who did not include the applicant. One of those women indicated to the police officer that the applicant, still at the back of the queue, had pushed them. 8. The police officer approached the applicant and requested to see her identity documents. She refused and after a short, impolite verbal exchange the police officer instructed her to accompany him to the police station so as to perform an identity check. The applicant did not comply and the police officer tried to handcuff her. In accordance with the statements later given by two police officers before the District Court, the applicant then slapped the police officer in the face and threw herself to the ground screaming. Another police officer then came over and assisted the first police officer in removing the applicant from the queue and escorted her to the police station. The time was 11.30 a.m. 9. At the police station, the applicant was placed in a cell. She was not allowed to use a phone to contact a next of kin or an attorney. 10. Approximately two hours later, the applicant was taken out of the cell and placed in a police car together with the two police officers who had arrested her. They were all taken to the Pazardzhik District Court where they arrived at 2.40 p.m. 11. Shortly before the start of the hearing the applicant was requested to sign an assessment of an act of minor hooliganism (акт за констатиране на дребно хулиганство : the “assessment”). The applicant alleged, which the Government challenged, that she did not have time to review the document. She signed the document without making any reservations. The applicant further alleged, which the Government did not expressly dispute, that she was not given a copy of the signed assessment. 12. The hearing began at 3 p.m. The applicant represented herself before the Pazardzhik District Court. She was charged with the administrative offence of minor hooliganism. 13. The hearing started with the assessment being read out in court. It was claimed that the applicant (1) had created a disturbance in front the Employment Office by pushing the other women in the queue; (2) had acted disruptively in response to the police officer's instructions and had resisted arrest; and (3) had slapped one of the police officer's in the face. When the applicant was asked whether she was aware of the assessment she responded as follows: “I am aware of it, actually I am not aware of the assessment of [an act of minor hooliganism]. Now that you read it out though, I understand what all of this is about, but it is not true, I have witnesses.” 14. The court proceeded to question the applicant, the two police officers who arrested her and an official from the Employment Office. 15. The applicant refuted the accusations against her. She claimed that the police officers had dragged her to the police station and had kicked her repeatedly before placing her in a cell. She also claimed that she had never hit the police officer, but that he had injured himself on a tree during the arrest. On several occasions during the hearing the applicant claimed that she could summon witnesses who would corroborate her version of events. She also stated that she was unable to call witnesses for the hearing as she was not aware where the police officers were taking her when they placed her in the police car to take her to court. 16. Both police officers testified that the applicant had acted disruptively and had hit one of them. 17. The official from the Employment Office testified that she had seen the applicant lifting her hand, but had not seen her actually slap the police officer. 18. The hearing ended at 3.20 p.m. 19. After a short session in camera for deliberations, the Pazardzhik District Court delivered its verdict. It found the applicant guilty of minor hooliganism and imposed an administrative sanction of five days' detention at the Pazardzhik police station effective as of 11.30 a.m. on 8 September 1999. The court fully credited the testimonies of the police officers and the official from the Employment Office while it refused to accept that of the applicant, because she had made the statements in “the context of her defence”. The judgment was not subject to appeal and entered into force immediately. 20. The applicant was then taken back to the Pazardzhik police station where she served her sentence. 21. The Decree on Combating Minor Hooliganism (the “Decree”) was adopted in 1963. It envisages an expedited procedure for bringing to court minor offences of hooliganism which are punishable with an administrative sanction of up to fifteen days' detention at a police station or a fine of between 10 to 200 Bulgarian levs (approximately between 5.13 to 102 euros: section 1). It is unclear whether the Administrative Offences and Punishments Act, which sets out general principles of procedure, is applicable to the proceedings under the Decree (see two contradictory decisions on that issue: Тълкувателно решение № 46 от 16. X. 1979 г. по н. д. № 36/79 г. на ОСНК and Определение № 9959 от 07.11.2003 г. по адм. д. № 9327/2003 г., I отд. на ВАС). 22. The expedited procedure under the Decree provides that an “assessment of an act of minor hooliganism” (акт за констатиране на дребно хулиганство) is prepared by the police or competent municipal authorities. The document is then presented to the accused for signature who has the right to make any reservations he or she deems fit (section 2). 23. If judicial proceedings are to be initiated against the accused, the assessment, together with the colleted data, is to be filed with the District Court immediately, or at the latest within twenty-four hours (section 3). In turn, a District Court judge, sitting alone, holds a hearing in the presence of the accused and examines the case within a further twenty-four hours (sections 4 and 5). 24. Witnesses are summoned at the discretion of the judge and the accused have the right to be represented by legal counsel (section 5). 25. The resulting judgment of the District Court judge is not subject to appeal and is to be executed immediately (section 7). Prior to the amendments of 1998 to the Administrative Offences and Punishments Act it was possible to file a petition for review of the judgments adopted under the Decree by following the procedure envisaged in the said act (Тълкувателно решение № 58 от 30.XII.1980 г., н.д. № 53/80 г., ОСНК). Following the amendments of 1998 that was no longer possible. Similarly it was not possible to file a cassation appeal under the above mentioned act (Определение № 9959 от 07.11.2003 г. по адм. д. № 9327/2003 г., I отд. на ВАС). 26. A judgment against an individual under the Decree is not considered a criminal conviction and is not entered into his criminal record. | 1 |
train | 001-23268 | ENG | GBR | ADMISSIBILITY | 2,003 | RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM | 3 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The first applicant, Fateh Rechachi, is an Algerian national, born in 1962. The second applicant, Hocine Ben Abdelhafid, is a British national, born in 1964. Both live in London. They are represented before the Court by Birnberg Peirce and Partners, a firm of solicitors practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, a paraplegic, is in a wheelchair. He has a pending asylum application in the United Kingdom. On the morning of 12 May 1998 the police arrested him pursuant to the Prevention of Terrorism (Temporary Provisions) Act 1989 (“PTA”). He was detained in the police station until 16 May 1998 when he was charged under sections 16A (possession of articles for suspected terrorist purposes) and 16B (collection of information likely to be useful for terrorist purposes) of the PTA and remanded in custody by the Magistrates’ Court. He was held in the prison medical wing. Numerous bail applications were refused until he was released on bail on 11 December 1998. He claims that he suffered ill-health during detention, that the facilities in the prison were not adapted for paraplegics and that he developed urinary infections because he was unable to maintain the personal hygiene necessary for the catheter which was in place. The second applicant was also arrested on 12 May 1998 under the PTA. After detention in police custody, he too was charged with offences contrary to sections 16A and 16B of the PTA and remanded in custody by a Magistrates’ Court. He was released on 23 October 1998 when the charges against him were dropped. On 24 May 1999 an article appeared in a legal journal (Criminal Law Week) suggesting that sections 16A and 16B of the PTA had lapsed on 22 March 1998. On 22 June 1999 the criminal proceedings against the first applicant were formally discontinued on the basis that the offences of which he had been charged were no longer part of English law. On 23 June 1999 the Home Secretary made a statement to Parliament confirming that the offences in question had indeed lapsed from English law. He said that this had escaped the notice of the draftsman, Ministers (including himself), Parliament and the legal profession. The matter had come to light because of the relevant legal article published in May 1999 and, as soon as the article had been brought to his attention, he had taken legal advice. Once the status of the sections had been clarified, the police had been advised not to rely on them. Certain persons had been erroneously charged on the basis of those lapsed sections and certain steps had been taken to resolve those cases. He referred to the first applicant’s case (without naming him), noting that the indictment had been quashed. The applicants applied for compensation for the time spent in detention under the ex gratia compensation scheme operated by the Home Office. In a letter of 4 April 2002 the applicants’ representative informed the Court that the Home Secretary had made offers of interim ex gratia payments. The applicants had also made a claim for damages against the Commissioner for the Metropolitan Police for false imprisonment, assault and battery and malicious prosecution. The Commissioner had made a pre-issue offer and the applicants had made a counter-offer which was under consideration by the Commissioner. The applicants were requested by the Court, by letter of 15 April 2002, to confirm whether they were considering a settlement or withdrawal of the application before the Court. No response was received. By letter dated 28 May 2002 the Government noted that it was for the Home Secretary to determine eligibility for the ex gratia compensation scheme and he considered that the applicants qualified. The amounts to be awarded would be determined by an independent assessor. While the final awards had not yet been determined, each applicant had been offered an interim payment of 50,000 pounds sterling (GBP). The first applicant had not yet accepted this interim award whereas the second applicant had. By letter of 16 April 2003 the Court requested the applicants to provide full information to the Court on the current position concerning ex gratia compensation and any civil proceedings. By facsimile dated 23 April 2003 the applicants’ representative confirmed an interim ex gratia payment of GBP 50,000 to the first applicant by the Home Secretary and that his final award was being currently assessed. The Home Secretary had made a final ex gratia award of GBP 75,000 to the second applicant. No admission of liability had been made in either case. The applicants’ representative further confirmed that the applicants had sent a “pre-action” letter to the Commissioner for the Metropolitan Police claiming false imprisonment, assault, battery and malicious prosecution. The threatened civil proceedings had not issued since the Commissioner had paid each applicant GBP 15,000 in settlement. As to the first applicant, the Commissioner acknowledged that he may well have been unable to prove the lawfulness of the arrest and that the detention following his being charged had been on the basis of lapsed legislation. He expressed regret for unlawfully arresting and detaining the first applicant. With respect to the second applicant, the Commissioner contended that he would have been able to prove the lawfulness of the arrest but acknowledged that the detention following his being charged had been on the basis of lapsed legislation and was therefore unlawful. The PTA was first enacted in 1989. It is temporary legislation which lapses after 12 months unless renewed. The procedure for such renewal involves laying before Parliament a statutory instrument which is subject to affirmative resolution of both Houses of Parliament. The PTA had 5 parts (I, II, II IV and V) and section 82 of the Criminal Justice and Public Order Act 1994 inserted a new part (IV.A) which included sections 16A and 16B. Between 1995 and 1997, Part IV.A was continued in force, together with the remaining provisions of the PTA, by statutory instruments coming into force on 22 March of each year. The 1997 Order expired on 22 March 1998. On that date the Prevention of Terrorism (Temporary Provisions) Act 1989 (Partial Continuance) Order came into force. However, Parts II and IV.A had been omitted from that renewal Order and, therefore, lapsed on 22 March 1998. The Home Office operates a discretionary scheme which provides for the ex gratia payment of compensation, upon application, to people who have spent time in custody following a wrongful charge or conviction. The Home Secretary decides whether an individual qualifies for the scheme and an independent assessor calculates the level of ex gratia compensation required. | 0 |
train | 001-111420 | ENG | NOR | CHAMBER | 2,012 | CASE OF LINDHEIM AND OTHERS v. NORWAY | 2 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46 - General measures;Article 46-2 - Measures of a general character);Pecuniary damage - award;Pecuniary damage - claim dismissed | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. The applicants are: 1) Ms Berit Mogan Lindheim, born in 1953, who lives in Gvarv; 2) Mr Knut Heian, born in 1953, who lives in Åsgårdstrand; 3-4) The spouses Mrs Ellinor Nilsen and Mr Georg Nilsen, born in 1943 and 1940, who live in Larvik; 5) Ms Nina Titten Brandt-Kjelsen, born in 1956, who lives in Nesoddtangen; and 6) Mr Dagfin Bonde Henriksen, born in 1956, who lives in Åsgårdstrand. 7. The applicants are landowners and lessors who concluded ground lease contracts regarding their plots of lands for permanent homes or holiday homes prior to 1 January 1976. On that date, upon the entry into force of the Ground Lease Act 1975 (Tomtefesteloven), for the first time under Norwegian law, the rental or leasing of plots of land for permanent homes and holiday homes became the subject of special statutory regulation. 8. Prior to 1 January 1976 such agreements were governed by the general rules (statutory and other) on contracts. Ordinarily such contracts were concluded for a period of 99 years and often contained clauses giving the lessee a right to extension of the contract upon expiry. According to legal doctrine, where such clauses had not expressly been set out in the contract, there was a custom or implicit assumption that the lessee had a right to extension of the contract unless the lessor had an objective ground for refusing renewal. Some lease contracts contained clauses which gave the lessor a right to increase the rent at intervals, in order to compensate for inflation. However, pursuant to two Supreme Court judgments of 1988, such a right was granted even in the absence of any explicit contract clause to that effect. 9. In 1996 a new Ground Lease Act was enacted with effect from 1 January 2002. 10. Under both the 1975 Act and the 1996 Act the lessee was entitled to have the ground lease contract extended but the lessor had the right to introduce new conditions into the contract. 11. With effect from 1 November 2004 the Ground Lease Act was amended anew; inter alia, from that date its section 33 granted all lessees of plots for permanent homes and holiday homes the right to claim extension of their lease on the same conditions as previously and without limitation in time, when the agreed term of lease between the parties expired. The reason was a strongly felt concern across Parliament (Stortinget), with only one exception – the Progress Party (Fremskrittspartiet), that lessees who were not able to afford the price of redemption would need the legislator’s protection in order to be able to extend the lease. The introduction of the disputed provision of section 33 of the Ground Lease Act was essentially motivated by social policy considerations (see paragraphs 47-51 below). 12. In order better to understand the rationale behind this amendment, it is important to bear in mind the underlying socio-economic factors in Norway. In the post-war area, limited resources for the purchase of real estate was one factor that made ground lease arrangements attractive for people who wanted to own a permanent home or a holiday home. For property owners, it was an expedient way of obtaining a steady income from their land without making any investments and an attractive alternative to selling the land, in a country with a small population on a vast territory and with moderate price levels. This might explain why such arrangements became so popular. There exist between 300,000 and 350,000 ground lease contracts (sixty percent for permanent homes and forty percent for holiday homes) in a population of 5 million people, the majority of contracts being for private homes (Proposal No. 41 to the Odelsting (2003-2004), p. 11). 13. From 1950 until 1980 the price level of the real-estate market developed more or less at a similar pace to general price inflation. However, this began to change around 1980, when real-estate prices started soaring. This was especially the case from the second half of the 1980s for property around the larger cities and in popular areas for recreation, but prices have continued to rise, in all parts of the country. A number of lessors then used the opportunity under the law to demand redemption, which resulted in many lessees being put in a difficult financial position (paragraph 46 of the Supreme Court’s judgment of 21 September 2007 in the leading case referred to at paragraph 16 below). Because of the dramatic increase in pressure on real-estate prices the legislator thought it necessary to intervene to protect the lessees’ interests. This was done in 2004 by regulating the level of possible rent increases so that they could only reflect general inflation, not the rising cost of land. 14. In consequence thereof a lessor, who is not one of the applicants, lodged civil proceedings before the Oslo District Court (tingrett) against fifty-four lessees who had leased plots of land for permanent homes, claiming that the amended section 33 of the Ground Lease Act contravened Articles 97 or 105 of the Constitution, concerning respectively the prohibition of retroactive laws and the right to full compensation in case of expropriation, or Article 1 of Protocol No. 1 to the Convention. 15. On 10 January 2007, the Oslo District Court passed judgment in favour of the lessor, finding that section 33 of the Ground Lease Act contravened both Article 97 and Article 105 of the Constitution. 16. On appeal, the case was brought directly before the Supreme Court (Høyesterett), which by judgment of 21 September 2007 (HR 20071593-P, case no. 2007/237) found against the lessor. It considered that section 33 of the Ground Lease Act should be examined exclusively in the light of Article 97 of the Constitution, with which it was compatible, and that there was no infringement of Article 1 of Protocol No. 1 to the Convention. In his reasoning, approved in the main by the other six Justices sitting in the case, the first voting judge, Mr Justice Matningsdal, stated in so far as relevant: “(88) The lessee’s submission that the right to extension of the lease ‘on the same terms as previously’ represents a restriction can in my opinion not succeed. Ever since the judgment in the Concession Act case in the Supreme Court’s law reports (Norsk Retstidende - “R.t.”) 1918 I p. 403, the Supreme Court has taken as its point of departure that if, as stated by Assessor Siewers in Rt. 1914 p. 205, there is ‘a ceding on the part of the owner and an acquisition on the part of the State which wholly or in part transfers the owner’s disposal of the property to the State or others for further enjoyment for the same or other purposes’, it will follow from Article 105 that full compensation must be paid. Conversely, there will be a restriction on the use of property if ‘there is no ceding and acquisition but rather provisions that for the promotion of public interest considerations and in the interest of society aim to regulate the owner’s disposal of the property, without any transfer to third parties’. (89) The right to extension provided for in section 33 must clearly be distinguished from a regulation of the owner’s disposal of the property. Section 33 grants the lessee a right to lease the plot for a longer period than provided for in the agreement. In other words, there is a transfer of rights in the property beyond the agreed period of time - which viewed in isolation could indicate that the situation is directly regulated by Article 105. In this context, I should note that the requirement as to ‘full compensation’ in Article 105 also applies in the case of expropriation of limited rights ... (90) Although section 33 of the Ground Lease Act entails a transfer of the owner’s disposal of the property, I nevertheless have no doubt that the constitutionality of the right to an extension on unchanged conditions must be assessed in relation to Article 97 of the Constitution, rather than Article 105. This was also the view of the legislators, see Proposal No. 41 to the Odelsting (2003-2004), p. 55, quoted above, which assumes that the question of constitutionality must be decided by reference to Article 97. A central point in this context is that the rules on extension intervene with a regulatory effect in a situation created by the parties themselves through the contract of ground lease. The agreement makes it necessary for the lessees to be permitted to maintain their buildings on the plot for a very long period of time after the agreed term of lease has expired. The statutory provision represents a regulation – with retroactive effect – related directly to the agreement, or, more precisely, to the restrictions contained in the agreement. In our legal tradition a subsequent regulation of this nature relating to a contractual relationship between the parties is assessed in relation to Article 97 of the Constitution, not in relation to Article 105. This is the case even where a regulation has resulted in a transfer of rights and obligations between the parties. This view must also be applicable in a case such as ours, even though the intervention in the agreement entails a transfer of disposal.’ ... (98) The concrete assessment in relation to Article 97 of the Constitution (99) ... An assessment must be made in full of the consequences of the act. In this assessment, on the one side weight must be accorded to the considerations of the lessees. The latter must be balanced against the act’s consequences for the lessors, and how protection-worthy their interests are. (101) When it comes to a ground lease it is fundamental that one is confronted with a conflict of interests between two parties. The landowner owns the land, while the lessee owns the building or buildings which have been erected on the land. When balancing, it is of central importance that almost without exception the lessee’s economic interest is greater. Even if the example is not representative for buildings constructed for individual habitation or for holiday purposes, I note nevertheless that in the sales project regarding the fifty-four apartments in the present case, the prices were set at between NOK 140,000 and NOK 395,000 depending on size and position. The price for one of the most expensive apartments was thus higher than the price paid a few years previously for the whole plot of land. But also as regards buildings constructed for individual habitation and for holiday purposes, normally the lessee has paid the more significant financial contribution. (102) In respect of a lease for permanent homes, the lessee’s essential right to housing for himself and his family must be protected – which was the principal reason behind the amendment of the act. In addition, for the majority of lessees it concerns their single largest investment. They have a well-founded expectation that the legislators will protect their factual situation. Moreover, this is illustrated by the fact that besides the area of ground leasing, we have several examples where the legislators have found it justified to protect rights of this kind, even when such interference may mean a certain form of transfer of rights: (103) Firstly I note Act of 23 July 1920 no. 1 ... (104) Secondly I note Act of 16 July 1939 concerning rent ... (105) The regulation of rent is a third example, which illustrates the legislation’s endeavour to protect the right to housing ... (106) The right to continue the lease contract on ‘the same terms as before’ has first and foremost significance for the lessor’s possibility to increase the rent. The examination above [103-105] shows that for a long time considerable legislative efforts have been made to protect the right to housing. This area of law has been strongly legislated, and the market mechanisms have to a large extent not been the deciding factor. Already, therefore, lessors must have been prepared for the law makers to follow developments closely and if necessary intervene in the ongoing lease relations in order to safeguard the lessee’s need to protect his home and his investments. (107) Furthermore, as regards long-term agreements, like ground lease contracts, the parties must be prepared for developments to take a direction which increases the legislator’s need to intervene with legislation to secure a proper balance between the parties. This has not only benefited the lessees: the enactment of section 36 of the Agreement Act in 1983 gave lessors the possibility to adjust the lease upwards in contracts which did not contain a regulation clause, and where the rent had become unreasonably low because of a significant decrease in the value of money... ... (109) [The lessors] have emphasised that as the contracts were entered into during a period of index linkage, they anticipated that price regulation would be lifted [at the expiry of the contract] and that, when extending the contract, they would be able to charge a rent which reflected the real value of the land. I note in this connection that it is questionable how strong this anticipation could have been. ... I refer to [a Supreme Court judgment, Rt. 2006 p.1547, in which the court stated among other things about the parties’ expectations] ... ‘[the lessors] have attached great weight to the fact that a clause was inserted in the contract stipulating that disputes as to the regulation of ground rent were to be decided in the light of an expert opinion. They maintain that the insertion of such a clause would have been unnecessary had they anticipated that price regulation would follow index linkage. In my view, however, much weight cannot be attached thereto. In the 1960s it was difficult to predict that the prices of plots of land for holiday houses would increase considerably more than general inflation would indicate. It is most likely that when entering into the contract, the parties did not have any clear conception of what the material basis for regulating the ground rent should be.’ (110) In addition to the quotation above, I note that in so far as the lessors had anticipated that price regulation would be lifted, they could not have had any legitimate anticipation that the legislator would accept an increase in ground rent which deviated significantly from the general price trend. Had the legislator not intervened, the price increase in recent years would almost have amounted to an ‘accidental profit’ – see Ot.prp.nr.41 (2003-204) p. 51, second column. Accordingly, it was not realistic to anticipate that the legislators would not intervene in the price increases we have had in recent years. (111) Moreover, I observe that the present case concerns long-term contracts under which the landowner has received contractual ground rent for forty-five years. This also has its importance under Article 97 of the Constitution. (112) The lessors have maintained that it is unreasonable that at the expiry of the contracts they will be in a [worse] position than lessors who enter new leasing contracts. In these situations, it follows that under section 11 of the Ground Lease Act the freedom of agreement is significant in that the agreed ground rent is valid as long as it is not ‘unreasonably high in relation to what is customarily paid in the locality on new leases on similar plots on similar contractual terms’. In my view, however, there is a crucial difference between the two situations: I refer to the elements already emphasised. In this connection, I especially note that concerning ground leases, such as those in question, where the life span of the building clearly exceeds the duration of the ground lease contract, the lessor has all along been aware that the extension of the contract would become an issue. When negotiating the terms of the extension of the contract, a lot would be at stake financially for the lessee. Despite the authority to expropriate in the Expropriation Act, there was a risk, as also indicated in Ot.prpr. no. 41 (2003-2004), p. 54, second column, that the lessor would impose some quite oppressive conditions on the lessee. In such cases the lessors could not expect the legislator to refrain from price regulation when renewing ground lease contracts. I recall that when the ground lease contracts at issue were entered into, the establishment of ground lease contracts was price-regulated, and an increase in the ground rent required approval from the Price Board [prisnemnda]. (113) Taking the [above circumstances into consideration,] there is a strong case for concluding that the provision which gives lessees the right to continue the ground lease on the same terms as before is not affected by the prohibition of retroactive laws set out in Article 97 of the Constitution. It is true that the provision means that the entire increase in the value of the land – to the extent that it exceeds increases in the consumer price index – can be said to accrue to the lessees after the extension of the lease. In other words, there is no apportioning of the increase in value that led to the legislative amendment. Nevertheless, I find that, given the situation which existed, it must lie within the freedom granted to the legislator under Article 97 of the Constitution to regulate matters in this way. (114) When assessing [compliance with the constitution] the question arises whether the retroactive provision safeguards objective considerations of equality. [...] (115) It is section 15 on the adjustment of the ground lease rent which in particular raises the question of whether considerations of equality have been sufficiently preserved. As a result of this provision the former provision on adjustment of the ground lease rent was repealed. Section 15 (1) provides: ... (116) With regard to the one-off adjustment upon the entry into force of the Act on 1 January 2002, section 15 (2) provides: ... (117) Section 15 of the Ground Lease Act thus provided for a possibility to factor into the calculation of the ground lease rent an increase in the value of the plot beyond the general inflation rate. But the possibility is limited to instances where such adjustments have ‘unequivocally’ been agreed to, and the requirement that the agreement be clear is particularly strict – see Norsk Rettstidende ‘R.t.’ 2006, at p. 1547. In view of this requirement as to clarity, and of the information available about adjustment clauses in ground lease contracts in general, a minority of contracts is covered by this provision. There are in addition important limitations also on the situations which are covered by the right under section 15 (2)(2) to include in the calculation an increase in values as mentioned. There is only provision for a one-off adjustment and there are limitations as to the amount. (118) In my view, even though Article 97 of the Constitution hardly requires the exception provided for in section 15(2)(2), there is arguably an objective ground for giving these ground lease agreements a special status with regard to the possibility to adjust the ground lease rent. The basis for so doing is precisely that adjustment in accordance with the ground value here has been directly expressed and has therefore created a safer and closer expectation about adjustment on that ground. In the light of that I cannot see that the provision in section 15(2)(2) infringes the condition of equality and thus provides a ground for setting the section 33 right aside as being incompatible with Article 97 of the Constitution. (119) I add that the fact that the redemption rules can offer a better financial result for the lessor than those on extension of the lease on unaltered conditions is not a ground for holding that section 33 is incompatible with Article 97 of the Constitution. Redemption is left to the lessee’s choice. The legislator should be free to decide that if the lessee wishes to avail himself or herself of this right, he or she will have to pay compensation beyond the constitutional minimum. ... (121) Hereafter my conclusion is that section 33 of the Ground Lease Act does not contravene Article 97 of the Constitution. The provision is justified by weighty housing/social considerations. There was a clear need to protect a number of lessees and the lessors had no justified expectation to profit from the quite extraordinary increase of the value of plots of land for leasing. ... (123) Finally, it is necessary to assess whether section 33 leads to results that contravene Article 1 of Protocol No. 1 to the Convention ... (125) The question is whether the fact that in the event of an extension the lessor does not have the right to regulate the ground lease upwards to an amount that reflects the actual land value means that the arrangement contravenes this Convention provision. (126) The central decision in this context is the judgment by the European Court of Human Rights in Plenary Session of 21 February 1986 in James and Others v. the United Kingdom, 21 February 1986, Series A no. 98. The case was occasioned by the enactment by the UK Parliament of a statute ‘The Leasehold Reform Act 1967’ which granted residents the right to redeem contracts for ‘building lease’ and ‘premium lease’. The former types of agreement had major similarities with Norwegian ground leases, the difference being that under these contracts, the house too belonged to the landowner. However, the residents had defrayed the cost of erection and paid a charge for the plot to the landowner. The new act provided that in the event of redemption, the residents should pay only for the value of the land. The plot would not be valued as a plot where a right of title to the house and land were grouped, but rather on the basis of what the landowner could be expected to sell it for with the encumbrance of a leasehold of at least 50 years’ duration, should anyone else purchase the plot. This amount was far lower than the market value of a released plot, and the plaintiffs claimed that they suffered a loss in the region of NOK 1.500.000 on individual conveyances. The Court did not find for the applicants. (127) The applicants contended firstly that the ‘public interest’ test was satisfied only if the property had been taken ‘for a public purpose of benefit to the community generally’ (see James and Others, cited above, paragraph 39). This argument did not succeed (ibidem, paragraph 45): ‘For these reasons, the Court comes to the same conclusion as the Commission: a taking of property effected in pursuance of legitimate social, economic or other policies may be ‘in the public interest’, even if the community at large has no direct use or enjoyment of the property taken. The leasehold reform legislation is not therefore ipso facto an infringement of Article 1 (P1-1) on this ground. Accordingly, it is necessary to inquire whether in other respects the legislation satisfied the ‘public interest’ test and the remaining requirements laid down in the second sentence of Article 1 (P1-1).’ (128) In paragraph 46 the Court further underlines that the national courts ‘are in principle better placed than the international judge to appreciate what is ‘in the public interest’. The national authorities accordingly enjoy ‘a certain margin of appreciation’. (129) The Court then discussed whether the aims sought to be pursued by the British Parliament were legitimate. In this regard, the Court held, inter alia (ibidem, paragraph 47): ‘Eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. More especially, modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of market forces. The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice in the sphere of people’s homes, even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large. In principle, therefore, the aim pursued by the leasehold reform legislation is a legitimate one.’ (130) Thereafter, the Court emphasised that it would not be sufficient that the legislation pursue a ‘legitimate aim’ but ‘there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (ibidem, paragraph 50). On the proportionality assessment in the concrete case, the Court stated (paragraph 51): ‘According to the applicants, the security of tenure that tenants already had under the law in force ... provided an adequate response and the draconian nature of the means devised to give effect to the alleged moral entitlement, namely deprivation of property, went too far. This was said to be confirmed by the absence of any true equivalent to the 1967 Act in the municipal legislation of the other Contracting States and, indeed, generally in democratic societies. It is, so the applicants argued, only if there was no other less drastic remedy for the perceived injustice that the extreme remedy of expropriation could satisfy the requirements of Article 1 (P1-1). This amounts to reading a test of strict necessity into the Article, an interpretation which the Court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a ‘fair balance’. Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way ... . The occupying leaseholder was considered by Parliament to have a ‘moral entitlement’ to ownership of the house, of which inadequate account was taken under the existing law ... . The concern of the legislature was not simply to regulate more fairly the relationship of landlord and tenant but to right a perceived injustice that went to the very issue of ownership. Allowing a mechanism for the compulsory transfer of the freehold interest in the house and the land to the tenant, with financial compensation to the landlord, cannot in itself be qualified in the circumstances as an inappropriate or disproportionate method for readjusting the law so as to meet that concern.’ (131) As to whether it is permissible to adopt legislation which does not guarantee full compensation, the Court held in paragraph 54: ‘The Court further accepts the Commission’s conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 (P1-1). Article 1 (P1-1) does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of ‘public interest’, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Furthermore, the Court’s power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this domain ... .’ section 33 of the Ground Lease Act does not contravene Norway’s obligations under international law.” 17. The first applicant, Ms Lindheim, owned agricultural property and had leased nine plots of land for holiday home purposes, all of which had been built upon. One of the leasing contracts was signed in September 1968 with the original ground rent amounting to NOK 200. The lease provided for adjustment of the ground rent in accordance with the Consumer Price Index every tenth year. The lease had a term of 40 years and accordingly expired in 2008. At the time of lodging the application the ground lease rent amounted to 1,622 Norwegian Krone (NOK) (approximately 200 euros (EUR)) per year. Since the applicant and the lessees could not reach an agreement as to an extension of the lease pursuant to section 33 of the Ground Lease Act, the first applicant brought the case before the Hallingdal District Court claiming that in the event of an extension of the lease, she should have the right to require the ground rent to be adjusted to the lawful market price. By a judgment of 3 February 2007, the Hallingdal District Court found in favour of the lessees. 18. The first applicant appealed against the judgment, and the case was brought directly before the Supreme Court, which heard it together with the leading case mentioned above. By a judgment of 21 September 2007 the Supreme Court found against the first applicant. In his reasoning, approved in the main by the five Justices sitting in the case, the first voting judge, Mr Justice Utgård, stated in so far as relevant: “(13) I have arrived at the conclusion that the appeal cannot succeed on the grounds given in the [leading judgment] earlier today. (14) It is true that this case concerns a holiday home property, whereas the case decided earlier today concerned leases for permanent home purposes. On some points, the Ground Lease Acts of the past have made distinctions between these purposes. The current section 32 does not distinguish between plots for permanent homes and plots for holiday homes. It must accordingly be assumed that the legislators intended that extensions of leases should be treated equally, irrespective of which of these purposes the plots were used for. This must carry considerable weight in our assessment here. Reference is made to the first voting judge’s comments [the leading judgment above] on the weighing of the political considerations by Parliament. I would nevertheless add that, although it is probably the case that social considerations would be of particular importance to permanent homes, having a holiday home also has considerable benefits in terms of well-being and welfare. It is illustrative of the assessment on this issue that counsel in the case has not attached noteworthy weight to distinctions regarding purpose.” 19. The second applicant, Mr Heian, owns agricultural property, of which the outlying fields have been parcelled out as plots. One plot was leased out for housing purposes for ninety-nine years, from 14 April 1909 to 14 April 2008. On 15 March 2007 the annual ground rent amounted to NOK 589 (approximately EUR 75). The contract did not provide for a right to claim an extension of the lease and was silent on the question of future adjustments of the ground lease rent. The leased plot is located in an area containing several housing properties and is approximately 2.3 dekar in size. The plot has a shoreline adjoining the Oslo Fjord. It appears that the lessee resides outside Norway and uses the property as a holiday home. Originally she claimed the right to redeem the plot with effect from the expiry of the agreed term of lease. For the purpose of determining the amount payable in redemption, the parties agreed that they should each appoint an assessor. Based on the values determined by these assessors, the amount payable in redemption would be fixed at forty per cent of the undeveloped plot value, as provided for in section 37 of the Ground Lease Act. 20. Each of the parties accordingly arranged for the plot to be valued. On 6 June 2007 the assessor appointed by the lessor estimated the market value of the undeveloped plot to be NOK 3,750,000 (approximately EUR 468,750), whereas the assessor appointed by the lessee on 20 September 2007 estimated the market value of the undeveloped plot to be NOK 3,400,000 (approximately EUR 425,000). 21. Subsequent to the Supreme Court passing judgments in the leading case and the case involving the first applicant on 21 September 2007, the lessee informed counsel for the second applicant that she was no longer in favour of redemption at forty per cent of the market value of the undeveloped plot. Instead, redemption was offered in an amount equal to the capitalised value of the ground rent based on a five per cent rate of interest on capitalisation, in other words compensation for redemption equal to twenty times the ground rent, rounded off to a total of NOK 14,000 (approximately EUR 1,750). On 23 October 2007 the lessee gave notice claiming an extension of the lease on the same conditions as previously, pursuant to section 33 of the Ground Lease Act. In a letter of 22 November 2007, the second applicant disputed the claim, referring to his intentions to bring the case before the Court. 22. The third and fourth applicants, Mrs and Mr Nilsen, own an agricultural property with few agricultural resources. The property has no fields and the outlying areas make up a total of 145 dekar, of which most consists of forest with little or no productivity. On 26 November 1956, the applicant spouses concluded a ground lease contract for fifty years in respect of a plot of land consisting of 990 sq. m, which had its own shoreline. It contained no clause regulating the future adjustment of the ground lease rent. The lessee built a holiday home on the plot. When the contract expired on 26 November 2006, the annual ground rent amounted to NOK 500 (approximately EUR 60). 23. It appears that the rent was the main regular source of income on the property. The third applicant receives a disability pension. 24. The contract contained no right to extension of the lease, but referring to the amended section 33 of the Ground Lease Act, the lessee claimed an extension of the lease on unchanged conditions. Since the applicants objected, the lessee brought civil proceedings against them before Larvik City Court on 23 November 2006, which on 29 January 2007 stayed the proceedings pending the outcome of the leading case before the Supreme Court. 25. By a judgment of 3 April 2008, the City Court upheld the lessee’s claim that she was entitled to extend the ground lease contract on the same terms as before. It observed inter alia: “The question whether section 33 of the Ground Lease Act must be considered to lead to results which violate Article 1 of Protocol No. 1 was decided by the Supreme Court in Rt. 2007/284. The Supreme Court held that section 33 of the Ground Lease Act does not violate the Convention with regard to permanent homes. Further, the Supreme Court in Rt. 2007/1306 established that the same applied with respect to holiday homes. Subordinate courts must rely on the interpretations made by the Supreme Court and the City Court cannot therefore uphold the [third and fourth applicants’] submission.” 26. On 11 August 2008 the Agder High Court (lagmannsrett) found it clear that the third and fourth applicants’ appeal would not succeed and that it should therefore not be admitted for examination (section 29-13 (2) of the Code of Civil Procedure (tvisteloven). 27. In the meantime, on 11 February 2008 the applicant spouses had arranged for a valuation of the undeveloped plot, which was found to have an estimated value of NOK 2,500,000 (approximately EUR 312,500). 28. The fifth applicant, Ms Brandt-Kjelsen, is the landowner and lessor of twenty-one plots for permanent housing which were leased out with effect from 31 December 1947. The plots are located in one of the most expensive areas in Oslo. By way of illustration, she stated that in January 2007 a permanent home and the lease on one of the plots of land had been sold for NOK 10,250,000 (approximately EUR 1,281,250). The agreed term of lease is sixty years with a right for the lessees to claim an extension for thirty years on new conditions. Pursuant to the amended section 33 of the Ground Lease Act, however, all lessees have claimed extensions of their leases on unchanged conditions and unlimited in time. 29. On 31 October 2007 the fifth applicant initiated a conciliation complaint before the Oslo Conciliation Board, claiming that the lessees in question did not have the right to enjoy the same conditions as previously after extension of their leases. She submitted valuations of the undeveloped value of the various leased plots made on 4 December 2007, an overview of ground rents at the time of extension, as well as details of plot sizes, valuation amounts and ground rents as a percentage of the value of the individual plots. The values of the various undeveloped plots ranged from NOK 1,900,000 (approximately EUR 237,500) for the lowest to NOK 6,000,000 (approximately EUR 750,000) for the highest. The ground rents range from NOK 1,376 (approximately EUR 170) per year to NOK 7,116 (approximately EUR 900) per year. 30. On 14 February 2008 the Oslo Conciliation Board ruled that the dispute should be referred to the Oslo City Court. 31. By a judgment of 29 April 2009 the City Court found in favour of the lessees and against the fifth applicant and, on 27 August 2009, the Borgarting High Court refused to admit her appeal for examination, for similar reasons to the Larvik City Court and the Agder High Court in their respective judgment and decision mentioned above (see paragraphs 25 and 26 above) 32. The sixth applicant, Mr Henriksen, owns agricultural property of which the outlying fields have been parcelled into plots for several permanent homes and holiday homes. They are situated close to Oslo Fjord, over which they have a view. 33. The lessees of three plots for holiday homes and seven plots for permanent homes, with contracts entered into in the late 1950s which were about to expire, initiated proceedings against the applicant before the Tønsberg City Court claiming extension of the lease on the same conditions as previously and with no limitation in time, pursuant to section 33 of the Ground Lease Act. All the ground lease contracts in question had been entered into in 1950 for a term of 50 years. One of the contracts contained a provision for indexed regulation of the ground lease rent. 34. The values of the undeveloped plots ranged from NOK 1,200,000 (approximately EUR 150,500) to NOK 1,750,000, (approximately EUR 218,750). The ground rents ranged from NOK 1,900 (approximately EUR 240) per year to NOK 3,205 (approximately EUR 400) per year. 35. The applicant maintained that the real market value of the ten plots of land was NOK 13,900,000 (approximately EUR 1,737,500) and that as a consequence of section 33 of the Ground Lease Act, the total economic value of his legal position related to the ten plots in question would be NOK 526,760 (approximately EUR 65,850), which is the capitalised present value of the unchanged total ground rent of NOK 26,338 (approximately EUR 3,300). 36. Against this background, the applicant disputed the lessees’ claim and submitted that section 33 of the Ground Lease Act contravened Article 1 of Protocol No. 1 to the Convention. 37. By a judgment of 14 October 2009 the City Court found in favour of the lessee and against the sixth applicant and, on 18 January 2010, the Borgarting High Court refused to admit his appeal for examination, for similar reasons to the Larvik City Court and the Agder High Court in their respective judgment and decisions mentioned above (see paragraphs 25 and 26 above) 38. The conclusion of ground lease contracts and the contractual relationship between the landowner/lessor and the lessee was regulated for the first time in a statute from 1975, which entered into force on 1 January 1976. 39. A new Ground Lease Act was enacted in 1996 and entered into force on 1 January 2002. Its section 15 contained rules on the regulation of rent for ground lease which were mainly based on changes in the consumer price index but allowed increases based on other parameters in some situations (see paragraph 43 below). The new Ground Lease Act also contained provisions granting the lessee the right to claim an extension when the agreed term of the lease expired (former section 32 for lessees of plots used for permanent homes and former section 33 for lessees of plots used for holiday homes), and the lessor the right to introduce new conditions into the extended contract of lease. 40. In its amended version as applicable at the material time, the 1996 Ground Lease Act read in so far as relevant: Section 11 “A ground rent that is unreasonably high in relation to what is customarily paid in the locality on new leases on similar plots on similar contractual terms cannot be agreed or demanded.” Section 15 “In a ground lease agreement concerning a main residence or a holiday home each party may require that the rent be adjusted in accordance with changes in the general price level [pengeverdien] since the conclusion of the agreement. If the rent has been adjusted, it is the rent that has been lawfully charged since the last adjustment that may be adjusted in accordance with the changes in prices that have occurred since that time. If the parties unequivocally agreed that the rent should remain unchanged, or agreed to a lower adjustment than that suggested by changes in the general price level, this agreement shall apply instead. If a ground lease contract concerning a plot of land to be used for a main residence home or a holiday home was concluded before 1 January 2002, the following provisions apply for the first adjustment after 1 January 2002: 1. If the adjustment is to be made in accordance with changes in the general price level, the lessor may require that it be made in accordance with changes that have occurred since the ground lease contract was concluded, even if the rent has been adjusted before. 2. The lessor may require that the rent be adjusted in accordance with what has unequivocally been agreed upon. Nonetheless, if the lease contract was concluded on or before 26 May 1983, the lessor may not require that the annual rent be adjusted upwards beyond a maximum amount per dekar of ground or to an amount corresponding to inflation. The maximum amount according to the second sentence is NOK 9,000, adjusted every turn of the year after 1 January 2002 in accordance with inflation. This maximum also applies if the size of the plot is smaller than one dekar. ...” “In the case of leases on plots for permanent homes and holiday homes, the lessee has the same physical enjoyment of the leased plot as an owner for use within the purposes of the lease, unless otherwise stipulated in what has been agreed between the parties. ...” “The lessee has the right to transfer the right to lease the plot to a third party unless otherwise stipulated in the agreement or the purpose of the lease.” “The lessee has the right to mortgage the lease and the buildings existing now or in the future on the plot, unless otherwise stipulated by statute or under an agreement limiting the right to transfer. The mortgage must apply both to the right to lease the plot and to present and future buildings.” “The lessee may establish any specific rights of disposal of the plot for third parties that with regard to type of use, scope and limitations in time lie within the lessee’s own right of disposal, save as otherwise agreed.” “The lessee may claim redemption of a plot for a permanent home or for a holiday home when thirty years of lease have passed, unless a shorter time has been agreed upon, or when the term of the lease expires. After thirty years of lease have passed, the lessee may then claim redemption of a plot for a permanent home at two-year intervals, and redemption of a plot for a holiday home at ten-year intervals. On expiry of the lease for such a plot that has been leased for the life of the lessee, the following may claim redemption: a) the spouse of the lessee, b) heirs to the lessee, c) a foster child who has the same position as an heir, d) someone who for the previous two years has shared the same home as the lessee. ...” “Instead of claiming redemption of a plot for a permanent home or a holiday home pursuant to section 32 when the term of the lease expires, the lessee, or those encompassed by section 32 second paragraph, may claim an extension of the lease on the same conditions as previously. In the case of leases thus extended, section 7, first paragraph, concerning the term of the lease, shall apply.” [The reference to section 7, first paragraph, on the term of the lease, entails that an extension of the lease on the same conditions as previously will be without restrictions in terms of time.] “Upon redemption of a plot for a permanent home or a holiday home, the payment should be set at thirty times the yearly ground rent at the time of redemption, unless a lesser amount has been agreed upon. If nothing else has been agreed upon, the parties may nevertheless claim that the redemption sum should amount to forty per cent of the sales value of the undeveloped plot at the time of redemption, after deduction of any increase in value brought about by the lessee or others. The value of the plot must not be set higher than the price for which the land could have been sold, had it been permitted exclusively to erect the house or houses already erected on it.... “ 41. At Parliament’s request to the Government, an assessment of the Ground Lease Act 1996 was carried out, notably its section 15, two years after its entry into force on 1 January 2002. The Ministry of Justice received various submissions from private individuals who had experienced, or had been notified of, considerable increases in the annual rent payable. There had also been media coverage of rent increases following the entry into force of the Act. In the public review processes various organisations had pointed to the fact that a large number of plots were leased for a very low rent. A number of organisations had noted that the Act was difficult to understand and generated a high level of conflict. The need for a simpler legal regime was highlighted. 42. In 2002 the Ministry of Justice collected statistical material, the findings of which were summarised in the Bill (Ot.prp. nr. 41 (2003-2004) p.11), and carried out a survey aimed at lessees and lessors to establish sufficient facts for the proposed legal amendment (to section 15). The following findings were highlighted as being some of the most important: “The ground lease rent is adjusted according to changes in the consumer price index in the majority of ground lease contracts. Somewhat fewer than 30 per cent of the ground leases for permanent homes and between 10 and 20 per cent of the holiday home ground leases contain clauses providing for other means of rent adjustment. In most cases this involves adjustment according to changes in the value of land. The figures provided by the Norwegian Association of Commons show that 20 per cent of permanent home leases and more than 40 per cent of holiday home leases are subject to adjustment in other ways than by linkage to changes in the consumer price index. Section 15 has resulted in a dramatic increase in rent in contracts with ground value clauses. The average annual level of rent in permanent home lease contracts containing such clauses, revised after the Act came into force, has increased from NOK 2,500 to around NOK 8,000-10,500 per ground lease contract. For holiday home ground leases the average increase is somewhere between NOK 5,000 and NOK 10,000 per contract (the figures provided by lessors and lessees are inconsistent). The figures provided by the Norwegian Association of Commons show an increase from approximately NOK 900 to NOK 3,800 per plot leased for holiday home purposes. Somewhat more than 40 per cent of permanent home leases are subject to an annual rent below NOK 1,000, while 30 to 40 per cent are around NOK 1,000-3,000, and some 6 to 7 per cent are between NOK 3,000 and NOK 6,000. Between one and eleven per cent pay annual rent in excess of NOK 9,000 per dekar [1000 m²]. The figures from the Norwegian Association of Commons are incomplete in this regard, yet they suggest that approximately 70 per cent of ground leases are subject to annual rent of less than NOK 1,000. The average level of rent must, however, be seen in the light of the fact that a large number of contracts with ground value clauses are due to be adjusted in the coming 8 years (adjustment, as a rule, occurring every tenth year). 25 to 30 per cent of holiday home ground leases are subject to annual rent of less than NOK 1,000, while approximately 50 per cent are between NOK 1,000 and NOK 3,000. Somewhat less than ten per cent are between NOK 3,000 and NOK 6,000, and less than five per cent between NOK 6,000 and NOK 9,000. Approximately 0.5 per cent of lessees pay more than NOK 9,000 per dekar. In the main bulk of contracts reported to the Norwegian Association of Commons the rent lies between NOK 1,000 and NOK 6,000. Here, too, the figures must be read in light of the fact that a great number of contracts with ground value clauses are due to be adjusted in the coming 8 years. Approximately 80 per cent of permanent home leases and more than 50 per cent of holiday ground leases were entered into prior to 1976. This has particular impact on the rules of redemption, as the conditions for redemption are linked to the time when the contract was entered into. 3.5 Main impressions from the assessment Approximately 300,000 households in Norway lease ground for permanent or holiday home purposes. Approximately 75 per cent of permanent home leases are found in cities or other densely populated areas. These leases, and the holiday home leases in popular coastal areas, are increasingly marred by conflicts between lessees and landowners. A lot of the contracts are old and were entered into at a time when ground lease was a viable alternative for those individuals who were unable to finance the purchase of property, and prior to social development that forced real-estate prices in densely populated areas to unforeseen levels. Today leased plots must be considered as permanently restructured due to the lessees’ work on the land and their considerable investment in housing on the plot. Lessors comprise traditional lessors, for instance in agriculture, but ground is also leased by professional real-estate investors, who own a number of leased plots. The Ministry is of the opinion that the assessment has shown, importantly, a clear need for making the rules of redemption simpler. ...” 43. Former section 15, which entered into force on 1 January 2002, contained a main rule enabling upward rent adjustment in accordance with changes in the consumer price index and an exception where it had unequivocally been agreed that there should be no adjustment of the rent, or where rent was to be adjusted by other means than by reference to the consumer price index. In such cases adjustment was to be done on the basis of the terms of the agreement in question. This applied in full for contracts entered into after 26 May 1983. For contracts entered into prior to 26 May 1983 the new rule was subject to the modification that a rent “ceiling” of NOK 9,000 per dekar was introduced for upward adjustment based on other parameters than correspondence with the consumer price index. 44. In the context of the revision of section 15, the Ministry of Justice considered eight alternative options, including whether to re-introduce a mandatory consumer-price-index-regulated adjustment system for ground lease contracts for permanent and holiday home purposes. There were several arguments in favour of this. After the former rent control system was repealed on 1 January 2002, many lessees had been faced with dramatic unexpected rent increases. Although the contracts had initially been entered into on the basis of possible upward adjustment of the ground lease rent to reflect increases in the value of the property, the long period with a system for public rent control in force had led to a situation where lessees were used to a gradual increase in rent in accordance with the consumer price index. The increasing discrepancy between ground lease rents subject to rent control and those indexed to the increase in property prices made dramatic inroads into the household budgets of numerous families and single people, subject to the regime introduced on 1 January 2002. This price trend was also seen in the rental market, but in the rental market the increase was more gradual, and there was at any rate a difference between the ordinary rental market and the ground lease market in that the lessee had built his or her own house upon the ground in question for his or her own use. 45. It was further observed that a minority of the contracts provided for adjustment by reference to factors other than the consumer price index and were concerned by this problem. For most of the contracts covered by the survey the rent level could be said to be high. Then the report went on to consider the arguments for and against introducing mandatory all-round rent control based on the consumer price index (Ot.prp. nr. 41 (2003-2004) pp. 21-22): “What first and foremost militates against a compulsory scheme for rent adjustment in correspondence with the consumer price index is the principle of the freedom of contract. Limitations to the freedom of contract principle will be more noticeable in those older contracts containing ground value clauses. In most such contracts, which have been the subject of public regulation since the entry into force of the new Ground Lease Act 1 January 2002, the aforementioned proposed amendment to the act will entail downward adjustment of payable ground rent, bringing the rent back to its level at the time of the rent control scheme prior to 1 January 2002. A downward adjustment would undoubtedly be noticeable for lessors who have already adjusted the rent upwards to reflect the increase in property prices and also made arrangements accordingly. It should also be part of the overall consideration that section 15 of the Ground Lease Act has enabled more lessors to make profit on property that for years has accrued very low income in terms of ground lease rent because of the previous rent control scheme. The Ministry would also like to add that the survey undertaken in 2003 shows that the average level of rent charged, including rent subject to adjustment after 1 January 2002, corresponds to what was foreseen when section 15 was amended in 2000. The Ministry will therefore not support the introduction of a mandatory adjustment scheme linked to the consumer price index for older contracts on the basis of the rent charged at the time the contract was entered into. At the same time the assessment of section 15 of the Ground Lease Act demonstrates that clauses linking rent adjustment to the increase in property prices are often conducive to disputes, and they may have ramifications unforeseen by the parties when the contract was entered into. Since the Ground Lease Act entered into force a number of disputes have arisen regarding the interpretation of adjustment provisions in ground lease contracts. Part of the problem seems to be that many contracts were entered into without any party having envisaged the possibility of the dramatic increase in property prices that has been seen in recent decades, and its consequences for rent levels. In older contracts entered into by non-professional parties in particular, the wording of the contracts appears often to be haphazard and imprecise and thus of little use in determining questions that were not anticipated at the time. Such cases can naturally be left to the decision of the judiciary, but from the perspective of social economics it seems unfortunate to allocate such substantial resources to the settlement of such disputes, in terms of free legal aid and the workload on the courts. As the cases concern a significant social asset, namely the permanent or holiday homes of the lessees, considerable uncertainty may also be a source of unnecessary personal strain. In the Ministry’s opinion, the third option mentioned in the letter carrying the proposal submitted for public review (consumer price index regulation only in cases after the last adjustment has been made) covers aspects related to foreseeability and the avoidance of legal disputes. [...] Such random effects can be avoided by introducing a provision that entitles the lessor to adjust the rent upwards once in accordance with the original contract and subject to limitations already in force under section 15, before the consumer price index adjustment scheme comes into effect. In this way the rent charged in the transition period is brought, by way of a one-off operation, to a level higher than that established under the prior rent control scheme repealed when the Ground Lease Act entered into force 1 January 2002. For more recently agreed ground lease contracts it will still be possible to agree upon a rent that reflects the value and appreciation of the land, but rent adjustment will subsequently be linked to changes in the consumer price index. Such a provision for older contracts will respect what has been agreed upon, while at the same time helping to achieve a uniform system of rent adjustment based on the consumer price index over time. This, it must be assumed, will result in fewer legal disputes and not give rise to unforeseen radical upward adjustments of ground rent. The Ministry proposes, then, this solution for ground lease contracts for permanent and holiday home purposes. The main rule of the proposal is a system of rent control linked to changes in prices. For the older contracts mentioned above, however, the Ministry proposes introducing a one-off operation in which what has been agreed upon between the parties will represent one factor. Any subsequent adjustment after this one-off operation should reflect price trends. This solution does not, however, address the fact that ground lease rent has risen and will continue to rise in some ground lease contracts containing ground value clauses. This must be seen in context. The Ministry proposes the expansion and simplification of the rules of redemption. It is suggested that the price to be paid for redemption should be calculated having regard to the ground lease rent. A balancing of the interests of the lessors and the lessees suggests in the Ministry’s opinion that there should be no intervention in rent adjustment clauses in existing contracts more than what will follow from this proposal.” [Emphasis added.] 46. Chapter 6, on the “Calculation of the compensation for redemption”, included the following observations (Ot.prp. nr. 41 (2003-2004) p. 46): “The Ministry of Justice considers that the provision on calculating compensation upon redemption must be seen in the light of the provisions on rent adjustment, the general conditions for redemption and the right to extend the lease. The Ministry assumes at the outset that these provisions, seen as a whole, must not substantially alter the present balance of interests in ground lease contracts. Several instances that have taken part in the public review process have also stressed this. In section 5.4 the Ministry proposes a considerable simplification of the conditions for redemption. At the same time, the Ministry favors the introduction of a one-off upward adjustment operation for contracts with ground value clauses, followed by the introduction of an adjustment scheme linked the consumer price index (see section 4.4). This gives due regard to what has been agreed between the parties. With this point of departure in mind, the Ministry considers that it is possible to introduce a balanced provision for the calculation of compensation for redemption.” [Emphasis added.] 47. The proposal for the existing section 33 concerning the right for the lessee to claim an extension on the same conditions as previously without limitations in time was presented by the Ministry of Justice and Police Affairs (Det Kongelige Justis- og Politidepartement – hereinafter referred to as the Ministry of Justice) in the spring of 2004 (Ot.prpr. nr. 41 (20032004) - proposal no. 41 to the Odelsting, which is the larger division of Parliament), stating inter alia (at p. 54): “The Ministry draws attention to the fact that the main aim of the proposal is to make it easier for more people to acquire ownership of the leased plots. In certain cases redemption would be such a heavy financial burden that the lessee should have other alternatives than terminating the lease agreement. Lessees who are not able to redeem the plot should, in the Ministry’s view, be secured a lasting right to dispose of the plot. This issue has not been of great interest until now, but this can be expected to change in the years to come as more lease contracts expire. In the absence of absolute rules, the lessors will be faced with the choice between redemption, termination or continuation [of the ground lease contract]. As the Ministry sees it, this is an untenable legal situation and it is therefore proposed that the lessee should have a right to prolong the ground lease agreement. The Ministry has considered whether the landowner should have a right to set new conditions in the agreement, but has found that the lessee should be able to continue the lease agreement on the same terms. According to the Ministry’s assessment, social policy considerations on the side of the lessee should be decisive. If the lessor were to have the possibility to adjust the ground lease rent up to the market level, the lessees would in principle find themselves in the same financial straits as in the event of redemption where the costs of a loan exceed the annual ground lease rent.” 48. As regards the issue of constitutionality of the provision in section 33, the Bill to Parliament stated (p. 55): “The Bill entails some retroactive effect particularly for landowners who concluded ground leases before 1976, when no such right to extension existed. The Ministry has reasoned that the social considerations on the lessee’s side weigh heavier than those on the landowner’s side, and concludes that the proposal is consistent with Article 97 of the Constitution. The proposal is not considered to be more intrusive than the proposed rules on redemption, and on this point reference is made to Rt.1990-284 and the discussion of the relationship to the Constitution in para. 6.5. The Ministry also stresses, inter alia, the social considerations that will apply, and that these are rules that relate to a long-term contractual relationship between the parties.” 49. The Bill proposed that payment upon redemption should be set at thirty times the ground rent at the time of redemption, although the lessor should be able to claim a minimum of NOK 50,000, equal to EUR 6,250, for the plot (section 37), which was to apply to all ground lease contracts irrespective of the value of the plot, of when the contract had been concluded, and of whether the contract was limited or unlimited in time. In this connection the Ministry of Justice stated (p. 50): “As noted above, the fundamental purpose of the rules on redemption is already to ensure that lessees of plots for permanent homes and holiday homes are secured a lasting right to use the plot. It is probably the case that many lessees will not be in a position to redeem the plot if the costs of borrowing are significantly higher than the annual ground rent. As noted above, the Bill will entail some increase in the expenses of the lessee, depending on the prevailing level of interest rates, but it is estimated that it nevertheless lies within what most lessees with limited economic means should be able to afford.” 50. The proposal concerning the minimum compensation of NOK 50,000 was later amended by Parliament to forty per cent of the sales value of the undeveloped plot at the time of redemption. 51. As regards the grounds given by Parliament in 2004 for supporting the proposed section 33 in the Bill granting the right for lessees to claim an extension on unchanged conditions instead of redemption, the recommendation presented to Parliament by the Standing Committee on Justice (Recommendation no. 105 to the Odelsting (20032004) p. 18) contained the following: “The Committee majority, all except the members from The Progress Party, agree with the Ministry that lessees who are unable for financial reasons to purchase their plots under section 37 of the new Ground Lease Act should be secured a lasting right of disposal of the plot. The majority view is that a right of extension should be granted on the same conditions as referred to in the contract of lease. In assessing these matters, the majority has attached considerable weight to considerations of social policy in housing [boligsosiale hensyn]. The majority support the Ministry’s assessment of the situation with regard to the Constitution on this point as on other points, and also refer to the comments above on the subject of the relationship to the Constitution.” 52. The Norwegian Constitution read as follows, in so far as relevant: “No law must be given retroactive effect.” “If the welfare of the State requires that any person shall surrender his movable or immovable property for public use, he shall receive full compensation from the Treasury.” | 1 |
train | 001-58090 | ENG | ITA | CHAMBER | 1,997 | CASE OF DI LUCA AND SALUZZI v. ITALY | 4 | Art. 6 inapplicable | C. Russo;N. Valticos;R. Pekkanen | 7. Mr Giustino Di Luca and Mr Osvaldo Saluzzi are surveyors living in Bari. 8. On 21 December 1989 they instituted proceedings against the Ministry of Finance in the Apulia Regional Administrative Court (“the RAC”), seeking judicial review of a decision of the Ministry assigning them, at the time when they were recruited to permanent posts, to a category of staff and salary scale lower than those to which they considered themselves to be entitled on the basis of the duties they had performed as temporary staff. 9. On 8 January 1990 they applied to the President of the RAC for a date to be fixed for the hearing. On 8 February 1993 they filed an application for the case to be set down for an urgent hearing. 10. On a date which is not specified in the file the RAC set down the case for hearing on 7 February 1996. 11. According to the information supplied by the applicants, the RAC required the Ministry of Finance, in an interlocutory judgment of 24 September 1996, to produce certain documents which have still not been filed. On 12 February 1997 the applicants asked for a date to be fixed for the hearing. | 0 |
train | 001-98380 | ENG | RUS | CHAMBER | 2,010 | CASE OF MUTAYEVA v. RUSSIA | 4 | Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1948. She lives in the village of Assinovskaya, in the Chechen Republic. The applicant is the mother of Luiza Mutayeva, born in 1984. 6. The applicant, with her husband and two daughters, Luiza and Madina, lived at 60 Bershchanskaya Street in the village of Assinovskaya, in the Achkhoy-Martanovskiy district (in the submitted documents the district is also referred to as Sunzhenskiy district), in the Chechen Republic. Their house was located near a local hospital. At the material time the village was under the firm control of the federal forces, which maintained manned checkpoints at the entry and exit points to and from the village. 7. In the night of 19 January 2004 (in the submitted documents the date is also referred to as 9 January 2004) the family was sleeping in their house at the above address. 8. At about 2.30 a.m. on 19 January 2004 the applicant and her family members were woken up by someone knocking at the entrance door. The applicant approached the door and asked in Chechen: “Who is it?” The answer was given in Russian: “Passport check”. When the applicant wondered why the passport check was being conducted so late at night, she was told: “You better open the door; we have an order!” The applicant opened the door and fifteen to twenty armed men in camouflage uniforms without insignia entered the house. All but five or six of the intruders were wearing masks. The applicant and her relatives noticed that the men without masks were of Slavic appearance. The intruders spoke unaccented Russian. The applicant inferred that they were Russian servicemen. 9. The servicemen asked the applicant whether there were any men in the house. The only man in the household was the applicant's husband, a disabled person with one leg. The servicemen checked the family's passports and returned them to the applicant. Then the unmasked servicemen said to their colleagues that they should leave the applicant's house as no men were to be found there. However, one of the masked servicemen told them that they should search the house. The servicemen searched the house, turning everything upside down. It appears that they did not find anything of interest to them other than a few video cassettes which they took away. 10. Having searched the house, the servicemen ordered the applicant's daughters, Luiza and Madina, to put on warm clothing as they were being taken to the vehicles for questioning. The applicant's younger daughter, fifteen-year old Madina, started crying. One of the masked servicemen told her: “Do not be afraid; we will just question you and will let you go. I promise that nothing will happen to you.” Before leaving the house, Luiza Mutayeva insisted that she should be the only one to go for questioning. The servicemen let Madina stay in the house; they took Luiza outside to the vehicles. 11. The applicant managed to run outside and saw that Luiza Mutayeva was handcuffed and was standing next to a white GAZ minivan. Beside the minivan the applicant saw a white VAZ-2107, two grey UAZ vehicles, two military all-terrain UAZ vehicles (“таблетка”) and a grey VAZ-2109 vehicle, which were all parked around the applicant's house. The vehicles did not have number plates. According to the applicant, further vehicles belonging to the intruders were parked near her house but she was unable to recall their models or their colour. The applicant shouted at the servicemen and asked them to take her for questioning with her daughter. In response they pushed her away. Luiza Mutayeva was put into the GAZ minivan and the intruders drove away. 12. A number of people witnessed the abduction of Luiza Mutayeva. In particular, M.K., who was a patient in the hospital across the street, was woken up by shouting coming from the applicant's courtyard and rushed outside. She saw that the applicant's house was surrounded by armed men in masks and camouflage uniforms. The men did not allow her to approach and pushed her back into the hospital. While they were doing so, she saw them take Luiza Mutayeva away. 13. At about 3 a.m. on 19 January 2004 the applicant's neighbours, B.M. and S.B., were woken up by the noise of armoured vehicles and the applicant's shouting and saw armoured and other vehicles stationed at the street. B.M. and S.B. were afraid to approach the persons in camouflage uniforms and masks because they were armed. Another neighbour, Yu.D., who was woken up by a woman's shouting at about 3 a.m. on 19 January 2004, got outside and saw armoured and other vehicles parked on the street at the applicant's house; women at the entry gate to the applicant's house were shouting at several men wearing camouflage uniforms and masks. Afraid of the camouflaged men because of their weapons, Yu.D. returned home. When it was quiet he went to see the applicant and learnt from her that Luiza Mutayeva had been kidnapped. 14. The applicant has had no news of Luiza Mutayeva since 19 January 2004. 15. The description of the events above is based on the applicant's application form and written statements by M.K., B.M., S.B. and Yu.D., made on 19 October 2005. 16. The Government submitted that on 19 January 2004 Luiza Mutayeva had been abducted by unidentified persons. 17. On the morning of 19 January 2004 the applicant complained about her daughter's abduction to a number of law-enforcement agencies in Achkhoy-Martan. In particular, she complained to the Achkhoy-Martan District Department of the Interior (the ROVD), to a local department of the Federal Security Service (the FSB) and the security service of the Chechen President. The authorities denied having any information about the whereabouts of the applicant's daughter. However, unspecified officers from the security service of the Chechen President suggested to the applicant that her daughter had most likely been abducted by officers of the FSB Special Forces from Khankala, Chechnya. 18. The applicant also complained about the abduction of Luiza Mutayeva to T., head of the local administration. The latter also suggested that her daughter had been probably taken to Khankala. 19. Every day between 19 and 26 January 2004 the applicant went in person to a number of State authorities in Achkhoy-Martan, trying to obtain information concerning her daughter's whereabouts. It appears that her attempts produced no results. 20. The applicant also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders' offices and prosecutors' offices at different levels, describing in detail the circumstances of Luiza Mutayeva's abduction and asking for help in establishing her whereabouts. The applicant retained copies of a number of those letters and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below. 21. On 27 April 2004 the prosecutor's office of the Achkhoy-Martanovskiy district (“the district prosecutor's office”) instituted an investigation into the abduction of Luiza Mutayeva under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 49516. It does not appear that the applicant was informed about the decision. 22. By a decision of 28 April 2004 the district prosecutor's office granted the applicant victim status in connection with criminal case no. 49516. The decision stated, among other things, that at about 2.30 a.m. on 19 January 2004 about fifteen unidentified armed men in camouflage uniforms and masks had arrived at the applicant's home at 60 Bershchanskaya Street in a GAZ minivan, a UAZ vehicle, two military all-terrain UAZ vehicles (“таблетка”), a VAZ-2109 and a VAZ-2107 and had taken Luiza Mutayeva to an unknown destination. The applicant was accordingly provided with a copy of the decision. 23. On 27 August 2004 the district prosecutor's office informed the applicant that on that date the investigation in criminal case no. 49516 had been suspended for failure to identify the perpetrators; the operational and search measures aimed at solving the crime were under way. 24. On 14 May 2005 the applicant's representatives from SRJI wrote to the district prosecutor's office, complaining about the lack of information concerning the investigation. They requested to be informed about its progress; the specific actions taken to solve the crime since the opening of the criminal case and during the eight months after the decision to suspend the investigation; the reasons for the suspension of the investigation, and the reasons for Luiza Mutayeva's arrest. They further requested to be informed whether the investigating authority had interviewed the witnesses of the abduction and had requested information from various remand centres on Luiza Mutayeva's eventual detention. Lastly, they submitted that the applicant had not been provided with the decision to open the investigation and requested that she be provided with a copy. 25. On 21 June 2005 the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) replied to the applicant's representatives that the district prosecutor's office had instituted an investigation into the abduction of Luiza Mutayeva and the applicant had been granted victim status in the criminal proceedings; the operational and search measures aimed at solving the crime were under way. The letter also stated that pursuant to Article 161 of the Code of Criminal Procedure any information about the investigation was confidential and was not to be disclosed. 26. On 20 July 2005 the applicant's representatives wrote to the republican prosecutor's office and to the Prosecutor General's office. Referring to the case-law of the European Court of Human Rights, they pointed out that the authorities' letter of 21 June 2005 had failed to provide the requested information or any plausible explanations for the authorities' failure to provide the applicant with copies of basic investigative decisions. The applicant's representatives repeated their request for information about the progress of the investigation and copies of those decisions. 27. On 17 August 2005 the Prosecutor General's office informed the applicant's representatives that their request of 20 July 2005 had been forwarded to the republican prosecutor's office for examination. 28. On 27 October 2005 the applicant wrote to the district prosecutor's office. In her letter she described the circumstances of her daughter's abduction by armed persons in camouflage uniforms and masks, who had arrived in “ordinary” and armoured vehicles and complained that she had had no information concerning the investigation. She pointed out that her numerous requests to various State authorities had failed to produce any results and requested, among other things, to be provided with the following information: the number of the criminal case opened in connection with the abduction of Luiza Mutayeva; the prosecutor's office and the name of the person in charge of the investigation; the investigative measures taken by the authorities; whether witnesses to the abduction had been questioned by the investigation; whether the investigation had been suspended; whether the investigation had established how a convoy of military and civil vehicles with the abducted Luiza Mutayeva had managed to drive through the numerous Russian federal forces checkpoints located in the Achkhoy-Martanovskiy district and, in particular, on the road to and from the village of Assinovskaya; whether the investigation had examined the theory of possible implication of Russian servicemen or representatives of Russian special forces in the abduction of Luiza Mutayeva and whether the authorities had obtained information from various detention centres in Chechnya concerning her eventual detention. Lastly, she requested to be provided with the decision to suspend the investigation, which the authorities had not sent to her. 29. On 28 October 2005 the district prosecutor's office replied to the applicant. The letter stated that on 27 April 2004 the district prosecutor's office had opened criminal case no. 49516 into the abduction of Luiza Mutayeva and that the investigation had undertaken the following measures: examination of the crime scene; the applicant had been granted victim status; an unspecified number of the applicant's relatives, acquaintances and neighbours had been interviewed; unspecified investigative measures had been undertaken in collaboration with a number of other law-enforcement agencies; instructions had been given to the ROVD to conduct operational and search measures; the district prosecutor had issued instructions aimed at solving the crime. According to the letter, the investigation had been examining the thesis of possible involvement of servicemen or members of special forces in the crime. In addition, the investigation was examining the theory that Luiza Mutayeva had been kidnapped for ransom. Finally, the letter stated that the above measures had failed to produce any results and on 27 August 2004 the investigation in criminal case no. 49516 had been suspended for failure to establish the identity of the perpetrators. 30. On 13 June 2006 the applicant's representatives wrote to the republican prosecutor's office. Referring to the case-law of the European Court of Human Rights, they complained about the lack of information concerning the investigation into the abduction of the applicant's daughter and pointed out that the applicant had not received copies of the decisions to open the criminal case and to grant her the victim status in the criminal proceedings. The letter requested the authorities to provide the applicant with the following information: the status of the criminal investigation; the reasons for Luiza Mutayeva's abduction; whether witnesses to the abduction had been questioned by the authorities; measures undertaken by the investigation between 21 June 2005 and 13 June 2006 and whether the authorities had carried out an examination of detention centres in the region to establish the whereabouts of the applicant's daughter. Finally, the letter requested that the applicant be provided with copies of basic investigative decisions, including the one granting the applicant victim status in the criminal case. 31. On 17 June 2006 the republican prosecutor's office forwarded the request of the applicant's representatives to the district prosecutor's office for examination. 32. On 3 July 2006 the republican prosecutor's office informed the applicant's representatives that they had examined their request. According to the letter, the investigation had been undertaking measures aimed at solving the crime. Referring to unspecified provisions of Russian legislation the letter stated that copies of basic investigative decisions could not be provided to the applicant's representatives; under Article 42 § 13 only the applicant was entitled to receive in person copies of the decisions concerning opening of the criminal proceedings, grant of the victim status and suspension of the investigation. 33. On 20 April 2004 the district prosecutor's office received from the NGO Memorial information concerning the abduction of Luiza Mutayeva. 34. On 27 April 2004 the district prosecutor's office launched an investigation into the abduction of Luiza Mutayeva under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 35. On 28 April 2004 the district prosecutor's office requested prosecutor's offices of various levels, departments of the interior in the Chechen Republic and the Criminal Police of the Temporary Operational Group of Authorities and Departments of the Ministry of the Interior of the Russian Federation in the Caucasus Region (“Служба Криминальной милиции МВД Временной оперативной группировки органов и подразделений МВД в Северо-Кавказском регионе”, “the CP”) to provide information on whether Luiza Mutayeva had been arrested. From the replies of those State authorities it appeared that the applicant's daughter was not being held in the ROVDs of the Chechen Republic; she had not applied to medical institutions for assistance; there were no compromising materials (“компрометирующий материал”) on her. 36. According to a reply from the deputy head of CP, that authority had not carried out any special operations in Assinovskaya on 19 January 2004; Luiza Mutayeva had not been taken to any penal institutions in the North Caucasus Region. 37. On 28 April 2004 the applicant was granted victim status in criminal case no. 49516 and her procedural rights and obligations were explained to her. 38. Being interviewed as a victim on 28 April 2004, the applicant submitted, among other things, that on 19 January 2004 unidentified persons had told her to open the door for an identity check. Subsequently, several armed men in camouflage uniforms and masks burst into the house. They had asked the applicant in Russian where the men were. The applicant had pointed at her husband, explaining that he was the only man in the household. The intruders had checked the family members' identity papers and told the applicant's daughters to get dressed. Meanwhile the intruders had turned everything in the house upside down. They had told Luiza Mutayeva to follow them to their vehicle for questioning. When the applicant protested the armed men replied that they would question Luiza Mutayeva and then let her go. The applicant had wanted to follow her daughter outside but had been held in the house. Having nonetheless managed to get outside, she had seen Luiza Mutayeva, handcuffed, near a white GAZ minivan without number plates. The applicant had also seen about six or seven vehicles, including an UAZ vehicle, two UAZ military all-terrain vehicles (“таблетка”), a VAZ-2109 and a VAZ-2107 vehicle. Despite the applicant's attempts to stop them, the abductors had left with her daughter. The applicant also submitted that in December 2003, according to local custom, Luiza Mutayeva had been abducted for marriage by a man from Urus-Martan. She had only stayed with that man for two weeks. When the elders had come to the applicant to pay the bride-price and the family had learnt about Luiza's whereabouts, they had taken her back home. 39. The applicant's husband and daughter Madina, questioned on 28 April 2004, gave similar descriptions of the circumstances of Luiza Mutayeva's abduction. 40. B.A., the applicant's neighbour, interviewed as a witness on 28 June 2004, submitted that he had learnt from the applicant that at about 3 a.m. on 19 January 2004 about fifteen armed men in masks and camouflage uniforms had abducted Luiza Mutayeva from her parents' house in Assinovskaya. The intruders had arrived in a convoy of vehicles, including a Gazel minivan, several UAZ and VAZ-2107 and VAZ-2109 vehicles. 41. The applicant's neighbour, L.V., interviewed as a witness on an unspecified date, stated that during the night of 18-19 January 2004 she had heard several vehicles in the street. On 20 January 2004 she had learnt from the applicant about the abduction of Luiza Mutayeva by armed men in camouflage uniforms. 42. Ms L.G., interviewed as a witness on an unspecified date, submitted that she had learnt from fellow residents in Assinovskaya that on 19 January 2004 Luiza Mutayeva had been abducted by armed men in camouflage uniforms, who had arrived in a GAZ minivan and several UAZ and VAZ vehicles without number plates. Similar submissions had been made by the applicant's neighbours and acquaintances Kh.A., S.M., Kh.G., T.D., Kh.M., A.B., A.M., A.A., I.M., M.M., A.At., D.M., Kh.Yu., P.T., M.Me., L.A., A.Am., R.A., M.Kh., M.S, M.D., Z.B., M.T., B.B., Kh.D., F.D., R.Kh., A.Al., Kh.G., T.K., B.A., S.A., A.S., L.Ts., S.Am., M.T., Sh.A., R.Ts., M.A., B.Ts., who were interviewed as witnesses on unspecified dates. 43. According to replies from the Operational and Search Bureau of the North Caucasus operational department of the Main Directorate of the Ministry of the Interior of the Russian Federation in the South Federal Circuit (“Оперативно-Розыскное Бюро Северо-Кавказского управления Главного управления МВД РФ по Южному федеральному округу”) and the FSB department in the Chechen Republic, those authorities had not arrested Luiza Mutayeva and had no compromising materials on her. 44. On 1 May 2004 the military prosecutor of military unit no. 20102 was instructed to verify the following information: whether federal troops had carried out a special operation in Assinovskaya on 19 January 2004; whether they had arrested Luiza Mutayeva, and whether the military units stationed in the Achkhoy-Martan district and the Khankala settlement were equipped with GAZ minivans, UAZ, VAZ-2109 and VAZ-2107 vehicles. According to the military prosecutor's reply dated 22 June 2004, federal forces had not carried out any special operations in the village of Assinovskaya on 19 January 2004 and had not arrested Luiza Mutayeva. The military forces in question were equipped with GAZ minivans, UAZ and VAZ-2107 and VAZ-2109 vehicles. However, in the absence of information about their number plates it was impossible to establish which military unit owned the vehicles mentioned in the district prosecutor's office' request for information. 45. On 1 May 2004 heads of unspecified remand prisons in Stavropol, Nalchik, Chernokozovo, Nazran and Pyatigorsk were requested to provide information as to whether Luiza Mutayeva had been detained in those facilities. No relevant information was provided by those persons. 46. On 3 May 2004 the district prosecutor's office requested the military commander's office of the Achkhoy-Martan district, the Ministry of the Interior of the Chechen Republic, the Ministry of the Interior internal troops office in the North Caucasus Circuit, FSB departments in the Chechen Republic, Ingushetiya, North Ossetia-Alania and Dagestan, and the ROVD and police offices of the Dagestan and Kabardino-Balkariya Republics, to find out whether those State authorities had carried out special operations in Assinovskaya on 19 January 2004 and had arrested Luiza Mutayeva. No relevant information had been received from those State bodies. 47. The investigation in criminal case no. 49516 had been suspended on numerous occasions for failure to identify the culprits and reopened to check the information obtained as a result of operational and search measures. 48. The investigation in case no. 49516 is pending. 49. Despite a specific request by the Court the Government did not disclose most of the contents of criminal file no. 49516, providing only copies of the following documents: letter of 20 April 2004 by the Achkhoy-Martan deputy prosecutor, addressed to the head of the ROVD and requesting the latter to verify the information on the abduction of Luiza Mutayeva, submitted by the Memorial NGO on an unspecified date; a report by a police officer of the ROVD, dated 25 April 2004 to the effect that there were indications that a crime had been committed against Luiza Mutayeva; records of interviews with the applicant, her husband and her daughter Madina, dated 28 April 2004 and a record of an interview with B.A., dated 28 June 2004; a reply from the military prosecutor's office of military unit no. 20102 dated 22 June 2004; replies from various State authorities to the effect they had not carried out special operations in Assinovskaya on 19 January 2004, had not arrested Luiza Mutayeva, had not held her in detention and had no compromising materials on her or information on her whereabouts. 50. The Government submitted that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information on personal data concerning witnesses and other participants in the criminal proceedings. 51. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
train | 001-90062 | ENG | ROU | CHAMBER | 2,008 | CASE OF POPESCU AND DIMECA v. ROMANIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 4. The applicants are brothers, who were born in 1931 and 1925 respectively and live in Bucharest and Aachen (Germany) respectively. 5. In 1932 the applicants’ parents bought a 596 sq. m plot of land with a one-storey building on it. In 1936 they built a three-storey building, linked to the existing one. The property is situated in Constanţa, at the crossroad of two streets, Dacia no. 1 and Răscoala din 1907 no. 38. 6. In 1967 the property of the applicants’ parents was seized by the State under Decrees nos. 218/1960 and 712/1966. 7. In 1974 two of the then tenants bought two of the flats. 8. On 30 September and 18 October 1976 respectively, the Constanţa Court of First Instance declared the two sales null and void on the ground that they had ignored the legal provisions. However, on 9 February 1978 and 24 November 1992 respectively the two sales were deemed valid by court decisions. 9. On 10 April 1996 the first applicant brought an action for the recovery of possession of immovable property, requesting the court to declare the nationalisation of her property unlawful and to order its return to her. The second applicant and the former tenants intervened in the proceedings. The former tenants claimed to be the owners of the two flats bought in 1974 and sought a declaration that they had acquired a right of property through acquisitive prescription, being in good faith. 10. On 23 July 2001 the applicants lodged an application with the administrative authorities for restitution in kind of the property under Law no. 10/2001 governing immovable property wrongfully seized by the State. So far they have not received any answer. 11. On 15 October 2002 the Supreme Court of Justice, in the operative part of a final decision, allowed in part the applicants’ action for recovery of possession, excepting the two flats bought by the former tenants, who were considered as being their owners. In the reasoning of the judgment the court stated that the seizure had been unlawful, that the State had no title to property since the two decrees had been contrary to the Constitutions of 1952 and 1965 respectively, and that the entire property belonged to the applicants’ parents, the applicants being their sole heirs. However, it considered that the former tenants, although buying from a non-owner, the State, had been in good faith and had acquired a right of property through acquisitive prescription. It would have been exaggerated and manifestly unfair to have requested the former tenants to question the validity of the State’s title at that moment. 12. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, ECHR 2005-XII (extracts)); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008). | 1 |
train | 001-70104 | ENG | TUR | CHAMBER | 2,005 | CASE OF KEPENEKLİOĞLU AND CANPOLAT v. TURKEY | 4 | Violations of Art. 6-1;Not necessary to examine Arts. 6-2 and 6-3 | null | 6. The applicants, Mr Adem Kepeneklioğlu and Mr Mehmet Hakan Canpolat, are Turkish nationals, who were born in 1954 and 1964 respectively. When they lodged their application with the Court they were imprisoned in Turkey. 7. On 29 and 30 June 1992 the applicants were taken into custody in Istanbul by police officers from the Istanbul Anti-Terrorist Branch. On 13 July 1992 they were detained on remand. 8. On 27 July 1992 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicants of, inter alia, organised murder and armed burglary, as well as being members of an illegal terrorist organization. 9. On 25 November 1992 the Istanbul State Security Court commenced the trial against the applicants and three other accused and prolonged the applicants' detention. 10. On 3 April 1998 the Istanbul State Security Court convicted the applicants under Article 146 of the Criminal Code and sentenced them to death. 11. On 10 March 1999 the Court of Cassation quashed the judgment. 12. On 12 June 2001 the Istanbul State Security Court convicted them of the same crimes. 13. On 4 February 2002, upon the applicants' appeal, the Court of Cassation upheld the judgment of the State Security Court. 14. A full description of the domestic law may be found in the judgments of Demirel v. Turkey (no. 39324/98, §§ 47-49, 28 April 2003) and Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). | 1 |
train | 001-60413 | ENG | FRA | CHAMBER | 2,002 | CASE OF CISSE v. FRANCE | 1 | Preliminary objection rejected (non-exhaustion);No violation of Art. 11 | Gaukur Jörundsson | 8. The applicant was a member of (and a spokeswoman for) a group of aliens without residence permits who in 1996 decided to take collective action to draw attention to the difficulties they were having in obtaining a review of their immigration status in France. 9. Their campaign, which received widespread coverage in the press, culminated with the occupation of St Bernard's Church in Paris on 28 June 1996 by a group of some two hundred illegal immigrants, most of whom were of African origin. Ten men within the group decided to go on hunger strike. The applicant's daughter joined her mother as one of the occupiers of the church. The movement, known as the “St Bernard sans papiers” movement, was supported by several human-rights organisations, some of whose activists decided to sleep on the premises in a show of solidarity with their predicament. 10. On 22 August 1996 the Paris Commissioner of Police signed an order for the total evacuation of the premises. It was made on the grounds that the occupation of the premises was unrelated to religious worship, there had been a marked deterioration in the already unsatisfactory sanitary conditions, padlocks had been placed on the church exits and there were serious sanitary, health, peace, security and public-order risks. 11. More specifically, the order read as follows: “The director of the Paris Mobile Emergency Medical Service (SAMU) was given responsibility on 17 July 1996 for ensuring day to day care of the hunger strikers and the parish priest has been reminded of the health hazards to which the occupants were exposed by the precarious living conditions as also of the need to allow unrestricted access to the emergency services. The World Doctors (Médecins du Monde) organisation, which offers continuous medical assistance in the church, has made public alarming information on the very serious consequences of this hunger strike for the health of those concerned at the expiration of the medically critical period of forty days. On the basis of the provisions of Article 223-6 of the Code of Criminal Procedure, the ten hunger strikers were evacuated on 12 August 1996, solely in order for the men to be given appropriate medical check-ups in hospitals in Paris. The men returned to the aforementioned church of their own accord and immediately declared their intention to pursue their action. Since 28 June 1996 there has been a marked deterioration in the already unsatisfactory sanitary conditions, the available sanitary equipment being totally inadequate for the long-term use of the premises as a collective shelter. The number of people present on the premises has grown considerably during the last few days, and this has led to incidents in the immediate vicinity and notably on the public highway. Such incidents create a risk of behaviour that may result in public order disturbances. The various movements concerned have erected barriers on the public highway, across rue Saint-Bruno at the junctions with rue Saint-Luc and rue Jérôme l'Ermite. The barriers obstruct the highway, hindering the passage of ordinary traffic and of emergency vehicles. The church doors and various exits are kept closed, and in some cases padlocked, to enable a filter system to be operated at the only remaining entrance that is permanently accessible, and a barricade formed of barriers chained together has even been placed between the enclosure railings and the north entrance to the church chancel. These installations constitute a major hazard should an emergency evacuation of the persons present inside the building become necessary. These activities and movements are totally unrelated to religious worship, which is the exclusive use to which this public building may be put under the law of 9 December 1995. It follows from the matters noted above that the current situation represents a serious sanitary, health, peace, public-security and public-order risk...” 12. The following morning the police carried out the evacuation. The police officers arrived at the scene at 6.30 a.m. and set up a checkpoint at the church exit to verify, on the basis of Article 78-2, subparagraphs 1 and 3, of the Code of Criminal Procedure and Article 8, subparagraphs 2 and 3, of the Ordinance of 2 November 1945, whether the aliens evacuated from the church had documentation authorising them to stay and circulate in the territory. The police entered the church at 7.56 a.m. 13. All the occupants of the church were stopped and questioned. Whites were immediately released while the police assembled all the dark-skinned occupants, apart from those on hunger strike, and sent them by coach to an aliens' detention centre at Vincennes. Orders were made for the detention and deportation of almost all of those concerned. More than a hundred were subsequently released by the courts on account of certain irregularities on the part of the police, which even extended to making false reports regarding the stopping and questioning procedure. 14. At 8.20 a.m. a police officer asked the applicant as she was leaving the church for documentary evidence that she had leave to stay in France, but she was unable to produce any. The applicant had attended the Paris Police Commissioner's Office on 5 June 1996 but on 17 July 1996 had been refused leave to remain in France on the ground that she did not satisfy any of the conditions laid down by the Ordinance of 2 November 1945 for the issue of a residence permit and that there were no personal or family reasons justifying her being granted leave to remain on humanitarian grounds. She had been invited to leave French territory within one month after receipt of notification of the Commissioner of Police's decision. 15. At 9.55 a.m. the applicant was taken into custody and informed of her rights pursuant to Articles 63-2 and 63-4 of the Code of Criminal Procedure. The measure was deemed to have taken effect at 7.56 a.m., when she was stopped. The applicant refused to speak throughout her period in custody. At 8.15 p.m. on 23 August the Senior Deputy Public Prosecutor at the Eighth Division of the Paris Public Prosecutor's Office instructed the police officers to bring the applicant before him, with the case file as it stood. 16. At 1.30 p.m. on 24 August 1996 the applicant appeared before the Paris Criminal Court under the “immediate summary trial” procedure. She was accused of having “entered and stayed in France without being in possession of the documents or visas required by the rules” and was sentenced to two-months' imprisonment, suspended. The Criminal Court held: “The occupation of a place of worship ... over a period of several weeks, ... in order to contest their immigration status and create a movement in their favour, in itself constitutes an emergency justifying the administrative authority's decision to expel them. The presence in St Bernard's Church of several hundred people for a period of several weeks claiming, through public statements made by individuals or through spokespersons representing them, status as, in their own words, aliens without residence permits or papers, constituted grounds for suspecting that those concerned had committed offences under the immigration rules such that the verification of their identity pursuant to Article 78-2 was justified. However, since a large number of people were stopped at the same time and refused to disclose their identities, the police were not able to carry out an immediate identity check. The fact that the identity check was not carried out when they were first stopped, but within what, given the practical contingencies inherent in an operation of that size, was a reasonable period thereafter, does not render the proceedings defective. Regard being had to the large number of persons stopped and the circumstances in which the operation was conducted, the defendant was notified of her rights within a reasonable time...” 17. On 23 January 1997 the Paris Court of Appeal, on appeal by the applicant, upheld the sentence and added an order excluding her from French territory for three years. In addition, it held in its judgment: “The occupation of a place of worship by approximately three hundred individuals over several weeks, in order to create a movement in their favour and to contest their immigration status, constitutes an emergency that justified the administrative authority making an expulsion order without making a prior application to the courts. The occupiers of the premises continued their hunger strike for almost forty days and the living conditions of those concerned continued to deteriorate. The scale of the demonstrations over several weeks, with barriers being used to obstruct the highway and hinder the passage of vehicles, constituted a risk for security, sanitation, the health of the hunger strikers and public order that justified urgent measures being taken to put an end to the disturbances.” 18. On 4 June 1998 the Court of Cassation dismissed the applicant's appeal on points of law on the following grounds: “In the proceedings before the courts below, in which Madjiguène Ndourit, a Senegalese national, was accused of illegally entering and staying in France, the accused duly challenged the lawfulness of the order issued by the commissioner of police, without a prior court order, for the evacuation of the church occupied by the accused and several other persons, which evacuation was followed by police identity checks that revealed that the demonstrators were illegal immigrants. In these circumstances, the reasons which the courts below relied on – unnecessarily – in dismissing her objection cannot serve as a basis for complaint by the appellant, since, even if she had proved that the administrative act referred to above was unlawful, it would have had no bearing on the outcome of the criminal proceedings.” 19. Article 111-5 of the Criminal Code provides: “The criminal courts shall have jurisdiction to interpret general or individual administrative decisions or regulations and to determine their lawfulness if the outcome of criminal proceedings pending before them depends on their so doing.” 20. Article 78-2, subparagraph 1, of the Code of Criminal Procedure reads as follows: “Senior police officers and ordinary police officers acting on the orders of senior police officers who are accountable for their actions,... may invite any person to prove his or her identity by any means if there are grounds for suspecting that he or she: (i) has committed or attempted to commit an offence; (ii) is preparing to commit a serious crime (crime) or other major offence (délit), may be able to provide information that will assist in the investigation of a serious crime or other major offence, or is wanted by a judicial authority.” 21. Article L. 2512-13 of the General Code of the Territorial Authorities reads as follows: “In the City of Paris the Commissioner of Police shall have the powers and prerogatives conferred on him by the Ordinance of the Consuls of 12 Messidor, Year VIII, determining the functions of the Paris Commissioner of Police, by the amendments that have been made thereto, and by Articles L. 2512-7, L. 2512-14 and L. 2512-17. However, in the circumstances set out in this Code and the Public Health Code, the Mayor of Paris shall be responsible for ensuring that public highways in the city are kept clean and tidy, for maintaining order at fairs and markets and, subject to the opinion of the Commissioner of Police, for all grants of parking permits to small traders and of permits or licences for erecting stalls on the public highway. Further, in the circumstances set out in Article L. 2215-1, sub-paragraph 3°, and Articles L. 3221-4 and L. 3221-5 of this Code, the Mayor shall be responsible for ensuring the preservation of State property incorporated into the public property of the City of Paris. For the purposes of the application of these provisions, the power of substitution conferred on the State in the département shall be exercised, in Paris, by the Commissioner of Police.” 22. The relevant provisions of the Ordinance of the Consuls of 12 Messidor, Year VIII, which determines the functions of the Commissioner of Police of Paris, read as follows: Section I – General provisions “1. The Commissioner of Police shall perform the functions set out hereafter, under the immediate authority of the ministers. He shall communicate directly with them about the matters for which their departments have responsibility. 2. The Commissioner of Police may republish the administrative rules and regulations and issue orders to ensure that they are complied with.” Section III – Maintaining law and order in the city 21. The Commissioner of Police shall have responsibility for all matters concerning minor highways, save that an appeal will lie against his or her decisions to the Minister of the Interior. 22. The Commissioner of Police shall secure liberty and security on the public highway and to that end shall have responsibility for preventing criminal damage to the public highway, for lighting, for ensuring that residents comply with their obligation to keep the area in front of their houses swept, and for arranging for squares and the perimeters of public gardens and buildings to be swept at the city's expense...” 23. The relevant provisions of the Law of 30 June 1881 on Public Meetings provides: “1. Anyone may attend public meetings. Public meetings may be held without prior permission subject to compliance with the conditions laid down in the following Articles... 6. Meetings may not be held on the public highway; ... 8. Every meeting shall have a board of at least three people. The board shall be responsible for maintaining order, preventing any breach of the law, ensuring that the meeting retains the character ascribed to it in the declaration, prohibiting any speech that is contrary to public order or morals or containing any incitement to commit an act constituting a serious crime (crime) or other major offence (délit)... 9. ... the right to terminate a meeting shall not be exercised by the authority's representative unless he or she is called upon to do so by the board or unless clashes or patently illegal acts occur. 10. Any breach of the provisions of this Law shall be punishable by the penalties laid down for summary offences, without prejudice to any proceedings that may be instituted in respect of any serious crime or other major offence that may have been committed at the meetings.” 24. Sections 25, 26, 32 and 35 of the Law of 9 December 1905 on the Separation of Church and State read as follows: “Assemblies for the purposes of worship in premises belonging to or placed at the disposal of a religious association shall be open to the public. They shall be exempted from the requirements of section 8 of the Law of 30 June 1881, but shall remain under the supervision of the authorities in the interests of public order. Such assemblies may not take place until a declaration has been made, in the form required by section 2 of that Law, identifying the premises where they will be held...” “It is prohibited to hold a public meeting in premises habitually used as a place of worship.” “Anyone who prevents, delays or interrupts religious ceremonies by causing disturbances or disorder in the premises used for such ceremonies shall be liable to the same penalties. “A minister of religion guilty of making a speech or posting or distributing notices publicly in a place of worship that contain direct incitement to resist compliance with the law or the lawful acts of public authorities or are aimed at stirring up or rousing one group of citizens against the others shall be liable to two years' imprisonment, without prejudice to the penalties for complicity if the incitement is followed by sedition, revolt or civil war.” | 0 |
train | 001-80284 | ENG | RUS | CHAMBER | 2,007 | CASE OF VOZHIGOV v. RUSSIA | 4 | No violation of Art. 6 | David Thór Björgvinsson | 6. The applicant was born in 1974 and lives in Bryansk. 7. In October 2000 the applicant was taken to a police station in the Bezhitskiy District of Bryansk on suspicion of the murder of a man who had been beaten to death. 8. The applicant submitted that he was arrested on 17 October 2000 and interrogated in the absence of a lawyer. According to the applicant, on the same date he was ill-treated by policemen and wrote a confession under pressure from them. He further submitted that a medical examination was conducted only ten days later, when bruises could no longer be seen. 9. The Government submitted that the applicant was arrested and first interrogated on 18 October 2000. In the report on his arrest the applicant stated that he “agreed to be detained”. In the course of the interrogation between 9.07 p.m. and 9.57 p.m. he waived his right to legal assistance, as was noted in the record of the interrogation. 10. On 21 October 2000 detention as a measure of restraint was applied to the applicant. 11. During interrogation on 26 October 2000 the applicant confirmed the waiver of his right to legal assistance, which was also noted in the minutes of the interrogation. 12. On 27 October 2000 he was charged with murder. During the interrogation on the same date the applicant refused to make any statements and denied his guilt. 13. In the course of the investigation a witness, Ms Y., stated to the investigative authorities that she had seen the applicant beating the man. On an unspecified date the applicant was confronted with Ms Y., where it was open to him to put questions and comment on her statements. Ms Y. confirmed her earlier statement. 14. On an unspecified date the public prosecutor's office instituted criminal proceedings against the policemen who had allegedly ill-treated the applicant. As a result of the investigation conducted, the proceedings were discontinued on account of lack of indication of a crime. 15. On 30 October 2000 the applicant sent a request for legal assistance to the prosecutor. He indicated that he wanted to be represented by one of the following counsel: Mr V., a lawyer from the Moscow law firm Vedischev and Partners; Ms M., a lawyer of the Moscow Bar Association; or an unspecified lawyer from the Legal Advice Office of the Bezhitskiy District of Bryansk. According to the Government, the request was received by the public prosecutor's office on 8 November 2000. The prosecutor then transferred the request to the investigator. 16. On 21 December 2000 the investigator sent three letters to the counsel chosen by the applicant, asking them to inform him whether they could participate in the investigative measures – the serving of the bill of indictment and studying of the case file – scheduled for 21, 25 and 26 December 2000. 17. On 21 December 2000 the letter was received by the Legal Advice Office of the Bezhitskiy District of Bryansk and on 10 January 2001 by the law firm Vedischev and Partners. It is not clear whether it was received by Ms M. 18. The Government submitted that no investigative measures were undertaken on either 21 or 25 December 2000. 19. The applicant submitted that the investigative measures were not postponed, and that he was not provided with the opportunity to study the case file. 20. On 25 December 2000 advocate K., a member of the Bryansk Bar Association, was assigned to assist the applicant. According to the Government, advocate K. worked for the Legal Advice Office of the Bezhitskiy District of Bryansk. 21. On 26 December 2000, when the bill of indictment was served on the applicant, advocate K. assisted him in studying the case file. The applicant refused to sign a statement to the effect that he had studied the case file. However, the statement was signed by advocate K. 22. On 12 January 2001 the law firm Vedischev and Partners sent two replies, to the investigator and the applicant. The reply to the investigator read: “We have received your letter, in which you inform us that the following investigative measures ... are scheduled for 21, 25 and 26 December 2000 ... however, according to the postmark, the letter was sent on 21 December 2000 and it was received by us on 10 January 2001. By using such a method of notification you deliberately excluded the possibility of our lawyer's participation in the investigative measures indicated. By your action you have grossly violated the defence rights of the accused [Mr] Vozhigov, who expressed his wish to be assisted by a lawyer from our law firm. You must set a new date for [the investigative measures] and notify us about it in due time in order to provide a real opportunity for our lawyer to participate in the defence of [Mr] Vozhigov.” 23. On 30 January 2001 the Bezhitskiy District Court of Bryansk ordered a number of witnesses, including Ms Y., who appeared to be the only eyewitness, to be brought before the court. The hearing was fixed for 19 February 2001. On that date the bailiff went to Ms Y.'s residence. However, he did not find her at home as, according to her mother, since December 2000 she had been living in Moscow. The hearing was then postponed twice, until 19 March and 19 April 2001. Both times the court ordered to have Ms Y. brought to the hearing. According to the bailiff's report of 19 April 2001 Ms Y. had ceased to reside at the address indicated to the court and her new place of residence was not known. 24. On 7 May 2001 the court requested the prosecutor at the Bezhitskiy District Court of Bryansk to establish Ms Y.'s whereabouts. In the reply of 29 May 2001 the prosecutor informed the court that Ms Y. was not registered as resident either in Moscow or in the Moscow Region. The court issued another order to have Ms Y. brought to the hearing of 4 June 2001. The Government submitted that by the aforementioned date it appeared impossible to establish her whereabouts since she did not live at the address provided to the court and her relative did not have any information as to where she was. 25. At the hearing of 4 June 2001 the Bezhitskiy District Court of Bryansk decided to examine Ms Y.'s statements made during the preliminary investigation. The court asked both parties whether they had any objections. Neither party objected. The court based its judgment on the statements of Ms Y., the applicant's confession made at the beginning of the investigation – although he later changed his statements and pleaded not guilty before the court – and on a certain amount of indirect evidence, such as statements by indirect witnesses and expert reports. At the hearing the court also examined the applicant's doctor, Mr R., who had monitored the applicant since April 2000 in connection with a hip fracture he had sustained in August 1999, with a view to determining whether the applicant would have been able to commit the offence, taking into account his injury. Mr R. stated that because of the improvement of his state of health the applicant had not been operated on but had been recommended not to lift weights of over 12 kilograms. The court also found the applicant's allegations of ill-treatment unsubstantiated. The court reached that conclusion relying on oral evidence given at the hearing by another policeman, a medical certificate according to which the applicant had no injuries that could have been caused on the date of the alleged ill-treatment, and the results of the investigation conducted by the public prosecutor's office. Advocate K. assisted the applicant in the proceedings before the trial court. The court convicted the applicant of murder and sentenced him to 11 years and six months' imprisonment. 26. On 7 June 2001 the applicant applied to the Bezhitskiy District Court of Bryansk to examine the record of the hearing. On 21 June 2001 the applicant stated in writing that he had studied the record. 27. The applicant appealed against the conviction on the grounds, inter alia, that during the preliminary investigation he had been unduly refused legal assistance and that the authorities had deliberately precluded him from being assisted by the lawyer of his choosing. He also claimed that his confession had been made under pressure from the police officials and stated that the key witness, Ms Y., had not been examined at the hearing. 28. On 6 July 2001 the Bryansk Regional Court upheld the conviction. The court held that the trial court had been correct to rely on Ms Y.'s statements made during the preliminary investigation because it had been impossible for her to appear at the hearing. The court also held that there had been no substantial breaches of procedural requirements, including any alleged breach of the applicant's right to defence, such as to render the conviction unlawful. 29. Article 48 of the Constitution guarantees everyone the right to qualified legal assistance. Under Article 48 § 2 an arrested person has the right to the assistance of a lawyer from the moment of the arrest. 30. Pursuant to Articles 47 and 52 of the RSFSR Code of Criminal Procedure of 1960, a suspect, from the moment of his arrest, has the right to be represented by defence counsel, if necessary to be paid for by the authorities. 31. Pursuant to Article 199 of the Code of Criminal Procedure of 1960, the preliminary investigation ends by the drawing up of a bill of indictment. Article 201 further provides that an investigator has to notify the accused of the termination of the preliminary investigation and explain to him his right to examine the case file either in person or with the assistance of a lawyer. When the accused asks for the assistance of a lawyer the investigator has to provide the accused and his lawyer with the file on the case, which facility has to be deferred until the actual appearance of a lawyer, but not for longer than five days. After the accused and his lawyer have finished studying the case file, the investigator has to ask them whether they wish to make any applications to amend the investigation. | 0 |
train | 001-69287 | ENG | POL | ADMISSIBILITY | 2,005 | ROSLON v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Alfred Rosłoń, is a Polish national who was born in 1950 and lives in Warszawa. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 April 1995 the applicant lodged a claim with the Warsaw Regional Court (Sąd Wojewódzki w Warszawie) to have his defective car exchanged for a new one The proceedings, following the defendant's cassation appeal, are pending before the Supreme Court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
train | 001-85834 | ENG | POL | ADMISSIBILITY | 2,008 | KOWALEWSKI v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | The applicant, Mr Mariusz Kowalewski, is a Polish national who was born in Saint Petersburg and lives in Kamińsk. 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 24 March 2000 the applicant was arrested on suspicion of robbery. On 26 March 2000 the Ostrołęka District Court (Sąd Rejonowy) ordered that the applicant be detained on remand. The applicant’s pre-trial detention was extended throughout the trial on numerous occasions. On 29 May 2000 the Ostrołęka District Prosecutor (Prokurator Rejonowy) lodged with the Ostrołęka District Court a bill of indictment against the applicant and his coaccused. The applicant was charged with attempted robbery and assault. On 30 October 2000 the District Court remitted the case to the prosecutor for further investigation. The applicant remained in detention, which was prolonged on 27 November 2000 and 9 March 2001. On 22 March 2001 the Ostrołęka District Prosecutor again indicted the applicant for assault and attempted robbery. The applicant’s detention was further extended. On 14 March 2002 the Ostrołęka District Court convicted the applicant as charged and sentenced him to 7 years’ imprisonment. The Ostrołęka Regional Court (Sąd Okręgowy) upheld the first-instance judgment on 19 September 2002. On 3 June 2003 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal. From 5 July 1999 to 10 May 2004 the applicant was serving a prison sentence imposed on him by the Łomża Regional Court in respect of other convictions. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 0 |
train | 001-23927 | ENG | FRA | ADMISSIBILITY | 2,003 | BREISACHER v. FRANCE | 1 | Inadmissible | null | The applicant, Mr Michel Breisacher, is a French national who was born in 1945 and lives in Paris. He was represented before the Court by Mr P.-F. Divier, of the Paris Bar. On 23 July 1986 a part publicly owned company, the Société d’économie mixte parisienne de prestations (SEMPAP), was set up, with the City of Paris as its majority shareholder. The chairperson of its board of directors was also chairperson of the tenders committee. SEMPAP, which was formed to replace the City of Paris Stationery Office (Imprimerie municipale de la ville de Paris), entered into a number of contracts with suppliers. The City of Paris Inspectorate General reported unfavourably on its operations in 1989, 1992 and 1995. On 30 October 1997, following the forwarding of a report from the Ile-de-France Regional Audit Office to the Paris public prosecutor on 29 September 1997, a judicial investigation was opened at the Paris tribunal de grande instance against an unnamed person for favouritism in the award of public contracts for supplies and printing services by SEMPAP. Two investigating judges from the court were put in charge of the investigation. On 24 September 1999 the judges’ remit was extended to cover embezzlement of public funds, misappropriation of corporate assets, acquiring or retaining a prohibited interest or complicity therein, receipt of stolen goods and aiding and abetting. By a judgment of 7 July 2000, the Paris Administrative Court gave the applicant leave under Article L. 2132-5 of the General Code of Territorial Authorities, “at his own risk and expense, to join the proceedings as a civil party in place of the City of Paris in the judicial investigation opened into the alleged over-billing of the City of Paris for contracts made through SEMPAP’s intermediary”. On 21 November 2000 the applicant asked the investigating judges to order the examination, as a witness, of Mr Chirac, who was the mayor of Paris until 1995 and has been President of the French Republic since then. By an order of 14 December 2000 the judges, who noted that the request had been written in accusatory terms that effectively levelled charges against Mr Chirac, held that, in the absence of specific case-law from the Court of Cassation concerning the Constitutional Council’s position (decision of 22 January 1999) with regard to the President of the Republic’s immunity, they did not have jurisdiction to order such a measure. On 29 June 2001 the Investigation Division of the Paris Court of Appeal, before which the applicant had revised his request, now seeking an order for Mr Chirac to be placed under investigation, upheld the order of 14 December 2000. By a judgment of 10 October 2001 the Court of Cassation, sitting in plenary, held that proceedings could not be brought before the ordinary criminal courts for the duration of the President’s term of office, during which period the right to prosecute was suspended. The appeal judgment had therefore erred in holding that the appeal was admissible and that the investigating judges did not have jurisdiction, but would not be reversed as the investigating judges did not in fact have power to order an investigative measure of this sort. “The territorial authorities of the Republic shall be the municipalities, the départements, the regions, the special-status areas and the overseas territories to which Article 74 applies. Any other territorial authority shall be established by statute, where appropriate in place of one or more authorities referred to in this paragraph.” “Any taxpayer registered on the municipal electoral roll shall be entitled, at his or her own risk and expense and with the leave of the administrative court, to bring or defend any action which he or she believes the municipality should bring or defend but has refused or neglected to do so after being put on notice to consider the matter.” “When examining a request submitted by a taxpayer on the basis of [Article L. 2132-5 of the General Code of Territorial Authorities], the administrative court, ruling in its capacity as an administrative authority, and the Conseil d’Etat, on a full appeal against a decision by the administrative court, shall, without acting as the trial judge and in the light of the evidence before them, check whether the action contemplated is of sufficient public interest for the municipality and has a prospect of success.” (See, among many other authorities, judgments no. 249303 of 14 March 2003; no. 242768 of 13 January 2003, published in the Tables du Recueil Lebon; no. 233036 of 22 February 2002; no. 226385 of 15 October 2001; no. 210088 of 24 May 2000; no. 197017 of 28 July 1999.) | 0 |
train | 001-114783 | ENG | SVK | CHAMBER | 2,012 | CASE OF HORVÁTH v. SLOVAKIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1983 and lives in Bratislava. 7. On 28 April and 8 and 16 September 2005 the applicant was charged with attempted murder, robbery and fraud respectively. 8. On 15 December 2005 the applicant was indicted to stand trial in the Bratislava Regional Court (Krajský súd) on those charges. 9. On 26 January 2006 the Regional Court remitted the case to the Public Prosecution Service (“the PPS”) for the taking of further evidence, in particular in respect of the mental health of the key witness. That decision was upheld by the Supreme Court (Najvyšší súd) on 27 April 2006, following an interlocutory appeal by the PPS. 10. On 27 September 2006 the applicant was again indicted to stand trial on the charges mentioned above. 11. On 30 October 2006 the Bratislava District Court (Okresný súd) held a meeting with a view to making an initial assessment of the indictment (predbežné prejednanie obžaloby). At the conclusion of the meeting, the District Court ordered a hearing of the indictment (hlavné pojednávanie) for 6 December 2006. 12. In the course of the trial the applicant’s initial charges were requalified and, on 18 May 2007, the District Court found him guilty of a number of offences, including oppression, unlawful restriction of liberty and robbery, and sentenced him to nine years in prison. The judgment was, however, quashed on appeal and the case was remitted to the District Court for reexamination. The Court has not been informed of any further developments in the case, or of its outcome. 13. On 29 April 2005 the applicant was arrested and on 2 May 2005 he was remanded in detention pending trial on the murder charge. He was detained under Article 67 §§ 1 (c) and 2 of the Code of Criminal Procedure (“CCP”) (Law no. 141/1961 Coll., as applicable at the relevant time) as he was facing a charge carrying a penalty of imprisonment for eight years or more and there was a risk that he would continue offending. The applicant lodged an interlocutory appeal (sťažnosť) against the remand decision, which was declared inadmissible as belated on 16 June 2005. 14. The applicant’s first request for release was dismissed by the District Court on 22 September 2005 and, following his interlocutory appeal, by the Regional Court on 18 October 2005. The decisions were taken in private (neverejné zasadnutie). 15. Meanwhile, on 12 October 2005 the PPS had requested judicial authorisation for an extension of the applicant’s detention until 29 April 2006. The request was acceded to by the District Court on 17 October and, following an interlocutory appeal by the applicant, by the Regional Court on 8 November 2005. The decisions were taken in private. 16. On 26 January 2006, when the applicant’s case was remitted to the PPS for the taking of further evidence (see paragraph 9 above), the Regional Court also ruled that the applicant should remain in detention. That decision was upheld by the Supreme Court on 27 April 2006 following an interlocutory appeal by the applicant. The decisions were taken in private. 17. On or around 2 or 4 October 2006, the applicant again requested release. The request was dismissed by the District Court on 16 October 2006 and, following an interlocutory appeal by the applicant, by the Regional Court on 23 November 2006. The decisions were taken in private. 18. On 2 November 2006 the applicant lodged an application arguing that, at the preparatory meeting on 30 October 2006 (see paragraph 11 above), the District Court had failed to make a ruling concerning his continued detention. 19. On 6 November 2006 the relevant Chamber of the District Court ruled that the applicant’s detention should continue; this was confirmed by a ruling on 27 November 2006 by which the President of the Chamber corrected what was termed a clerical error in the decision of 6 November 2006. The decisions were taken in private. 20. On 24 January 2007 the Regional Court dismissed interlocutory appeals by the applicant against both the decision of 6 November and that of 27 November 2006. The decisions were taken in private. The Regional Court accepted the applicant’s objection that mistakes had occurred on the part of the District Court in that it had failed to rule on his detention during the meeting of 30 October 2006 and in that it had made the ruling of 6 November 2006 with reference to the wrong provisions of the CCP. However, those errors were merely technical in nature, had been remedied, and had resulted in no prejudice to the applicant. At the same time, the Regional Court rejected a request by the applicant for release in return for a pledge under Article 80 § 1 (b) of the CCP that he would live in accordance with the law. 21. On 30 July 2007 the applicant challenged the above-mentioned decisions in the Constitutional Court (Ústavný súd) by way of a complaint (sťažnosť) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). On 27 September 2007 the complaint was declared inadmissible as having been lodged outside the statutory two-month time-limit. 22. On 11 January 2007 the applicant filed a third request for release, which was received at the District Court on 16 January 2007, and which he amended on 26 June 2007. 23. In its later observations in reply to the applicant’s constitutional complaint (see paragraphs 26 et seq. below), the District Court submitted as follows: “... no decision had been taken in respect of [the request for release], which was explained by the ... judge as being because he had considered [the request for release] to be a supplement to the [applicant’s] interlocutory appeal against the decision of 6 November 2006” [see paragraph 19 above]. 24. In the absence of any decision, on 21 August 2007 the applicant requested that his submissions of 11 January and 26 June 2007 be responded to. The request was lodged with the Regional Court, which transmitted it to the District Court, where it was received on 5 September 2007. 25. On 24 September 2007 the District Court held a public session (verejné zasadnutie) at which it ordered the applicant’s immediate release, finding that his detention was no longer justified. The written version of the order refers to the applicant’s “request for release”, the release to be “based on the Regional Court’s decision [to quash the convicting judgment]” (see paragraph 12 above), without any further specification. The order was implemented immediately. 26. The applicant lodged a new complaint under Article 127 of the Constitution. No copy of it has been submitted to the Court. However, from the summary of the complaint in the Constitutional Court’s judgment (nález) (see below), the following can be established. 27. The complaint was received at the Constitutional Court on 22 August 2007. It was assessed to be a separate complaint from the complaint of 30 July 2007 (see paragraph 21 above). Upon an invitation by the Constitutional Court, the applicant’s lawyer provided further and better particulars on 4 December 2007. 28. The applicant challenged the District Court’s handling of his request for release of 11 January 2007, alleging a violation of his rights under Article 5 §§ 3 and 4 of the Convention, as well as the constitutional counterpart of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention. 29. The applicant claimed the equivalent of approximately 6,600 euros (EUR) in compensation, citing “a particularly arbitrary and grave violation of [his] rights”. 30. On 13 December 2007 the complaint was declared admissible. 31. In its observations in reply to the complaint, which were filed with the Constitutional Court on 26 May 2008, the District Court made the submission cited above (see paragraph 23). 32. On 17 June 2008 the Constitutional Court found a violation of the applicant’s rights under Article 5 § 4 of the Convention. It observed, inter alia, that it was clear from the title and content of the applicant’s submission of 11 January 2007 that it was a request for release and not a supplement to his interlocutory appeal against the decision of 6 November 2006. It had been the responsibility of the District Court to deal with it accordingly, with priority and adequate expeditiousness, which it had failed to do. 33. The Constitutional Court awarded the applicant the equivalent of approximately EUR 660, and the reimbursement of his legal costs, by way of just satisfaction. The amount of just satisfaction was determined “on an equitable basis” and with reference to Article 41 of the Convention, the “character of the violation found”, the “length of the District Court’s inactivity”, and the fact that the applicant had been released in the meantime. 34. In so far as the applicant had invoked Article 5 § 3 of the Convention, the Constitutional Court observed that the case concerned matters of procedure falling within the ambit of Article 5 § 4 of the Convention, and not the former provision, taken in conjunction with Article 5 § 1 (c) of the Convention. Similarly, as no determination of the merits of the case was involved, the constitutional equivalent of Article 6 § 1 of the Convention was not applicable. 35. The relevant part of Article 46 of the Constitution reads as follows: “... 3. Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, other State organ or an organ of public administration, or by wrongful official action. 4. The conditions and details ... shall be provided for by an Act of Parliament.” 36. Article 127 reads as follows: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of the person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 37. The Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs the organisation of the Constitutional Court, the procedure before it and the status of its judges. An individual complaint under Article 127 of the Constitution is made subject to the rule of exhaustion of ordinary remedies, which is formulated in the relevant part of section 53(1) and (2) as follows: “1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition for reasons worthy of particular consideration.” 38. Under section 56(4), when dealing with individual complaints, in the event of a finding of a violation of a fundamental right or freedom: “The Constitutional Court may also grant appropriate financial compensation to the person whose fundamental right or freedom has been violated.” 39. Section 56(6) provides that: “If the Constitutional Court quashes a final and binding (právoplatné) decision, measure or act and remits the matter for further proceedings, [the authority] which issued the decision, decided on the measure or carried out the act is liable to examine and determine the matter anew. In such proceedings or procedure [it] shall be bound by the legal view of the Constitutional Court.” 40. In connection with four other individual applications under the Convention, the Constitutional Court produced a report dated 7 March 2011 concerning the existence of an enforceable right to compensation, as required by Article 5 § 5 of the Convention, in respect of detention in contravention of Article 5 §§ 1 to 4 of the Convention and the Constitutional Court’s practice in awarding appropriate financial compensation. The report and case-law references contained therein may be summarised as follows. 41. Awarding appropriate financial compensation under Article 127 § 3 of the Constitution is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals or legal entities which has been found by the Constitutional Court. The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection greater than a mere finding of a violation or, as the case may be, order by the Constitutional Court that the case be dealt with by another authority instructed to avoid a similar violation of the fundamental right in question (cases nos. IV ÚS 410/04 and IV ÚS 139/08). The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy a violation of a right or freedom by way of quashing the impugned decision or measure or by restoring the status quo ante (case no. I ÚS 15/02). The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right, the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned (mutatis mutandis, case no. III ÚS 424/08). 42. As regards the system of remedies in respect of detention in violation of Article 5 §§ 1 to 4 of the Convention, by virtue of Article 127 § 4, the liability of a person who has violated rights or freedoms as referred to in paragraph 1 of that Article for damage or other loss is not to be affected by the Constitutional Court’s decision, including on appropriate financial compensation. This provision is of particular relevance in correlation with the right to compensation for damage (including nonpecuniary damage) caused by a public authority under the State Liability Act. 43. The provision of Article 127 § 3 of the Constitution, which allows for an award of appropriate financial compensation, is a special and autonomous remedy which is independent of the State Liability Act. It does not constitute a lex specialis and, therefore, an award or non-award of appropriate financial compensation under Article 127 of the Constitution does not preclude a claim for compensation for pecuniary or non-pecuniary damage under sections 7, 8 and 9 of the State Liability Act. 44. The State Liability Act (Law no. 514/2003) was enacted on 28 October 2003 and became operative on 1 July 2004. It provides for the liability of the State for damage which has been caused by, inter alia, unlawful arrest, detention (zadržanie) or other deprivation of liberty (section 3(1)(b)); decisions concerning remand in custody (väzba) (section 3(1)(c)); and wrongful official action (section 3(1)(d)). 45. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty has been quashed as being unlawful, or where there has been wrongful official action in that context, the person affected by it is entitled to compensation for damage. 46. The right to compensation for damage caused by a decision concerning pre-trial detention is vested in the person who has been detained, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)), or he or she has been acquitted (section 8(5)(b)), or the matter has been referred to another authority (section 8(5)(c)). 47. However, no such right arises when the person concerned has himself or herself given cause to be remanded in custody (section 8(6)(a)). 48. Section 9, which deals with compensation for damage caused by wrongful official action, provides: “1. The State is liable for damage caused by wrongful official action. Wrongful official action includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings, or other unlawful interference with the rights and legally recognised interests of individuals and legal entities. 2. The right to compensation for damage caused by wrongful official action is vested in the person who sustained the damage.” 49. A claim for damages under the Act has first to be raised by the injured party with the authority liable for the damage in question with a view to its preliminary assessment (section 15(1)). Should that authority fail to satisfy the claim within six months of the day of its reception, the injured party is free to assert the claim in court (section 16(1)). 50. Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part: “1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise. 2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.” 51. Under section 25(4), unless otherwise provided for by special legislation, disputes concerning matters regulated by the State Liability Act are to be decided upon by the courts. 52. In a judgment dated 16 March 2007 (in case no. 4C 258/2006), the Brezno District Court allowed an action for damages by two individuals against the State under the State Liability Act and ordered the defendant to pay the costs of their defence in connection with a criminal trial that had ended with their acquittal. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following an appeal by the defendant. 53. On 14 October 2009 the Bratislava Regional Court allowed an appeal (case no. 2Co 238/2008) in connection with an action by an individual against the State under the State Liability Act for damages, awarding him a sum of money in compensation for non-pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal. 54. In a judgment dated 17 August 2009 (case no. 19C 47/2006), the Bratislava I District Court allowed an action for damages by an individual against the State under the State Liability Act and awarded the claimant a sum of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned the extension of the claimant’s detention pending trial. The action was preceded by a Constitutional Court judgment given on 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court had found a violation of the claimant’s rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court did not award the claimant damages as he had made no claim for damages. | 1 |
train | 001-103108 | ENG | BGR | ADMISSIBILITY | 2,011 | GEORGI GEORGIEV v. BULGARIA | 4 | Inadmissible | Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | The applicant, Mr Georgi Todorov Georgiev, is a Bulgarian national who was born in 1929 and lives in the village of Trud, in the Plovdiv region. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At about 6.30 p.m. on 22 April 1996 the applicant’s son, who had earlier consumed alcohol, entered a pub in the centre of Trud. There he met Mr I.M., whom he apparently knew, who had also consumed a considerable amount of alcohol. The applicant’s son sat down at Mr I.M.’s table and asked him to lend him some money. Mr I.M. refused, but offered to buy him a drink instead. The applicant’s son became angry and started swearing at Mr I.M. He went outside and returned several times, visibly enraged. At one point he said to his cousin, who was also in the pub: “Just watch me slap the halva-seller around in two minutes”. The quarrel escalated. The applicant’s son grabbed Mr I.M.’s clothes and pulled him up from his chair. After that the two stood opposite each other, shouting. A waitress asked them to take their quarrel outside. The applicant’s son pushed Mr I.M. through the door causing him to fall on his back. The applicant’s son then proceeded to kick him in the midriff and jump on top of him, pinning him to the ground with his knee. According to the findings of the prosecutors who later dealt with the case, he also grabbed Mr I.M. by the throat and started strangling him. The applicant strongly disputed that finding. The prosecutors also found that Mr I.M. had tried to free himself from the applicant’s son’s grip, but to no avail. According to the prosecutors’ findings, at that point Mr I.M., who was choking, drew a knife from a sheath attached to his belt and stabbed the applicant’s son in the chest. Seeing the knife, a bystander intervened and separated the two men. The applicant’s son got up and took a few steps towards a car parked nearby. Mr I.M. followed him with the bloodstained knife, but did not try to hit him again. He said “Now see who you have sworn at and what it is to hit someone”. According to the applicant, the stabbing took place after his son had already been separated from Mr I.M. After that two eyewitness, Mr Z.P. and Mr T.K., put the applicant’s son in a car to take him to hospital. They came across a police car and told the officers about the incident. The police called an ambulance, but the applicant’s son died before it arrived. A test revealed that at the time of the incident the alcohol content in the applicant’s son’s blood was 2.06 mg per ml. Mr I.M.’s bloodalcohol content, measured three hours after the incident, was 2.39 mg per ml. At about 7 p.m. the same day the police dispatched two officers to the scene of the incident. They impounded I.M.’s knife, arrested him, took him to a police station in Plovdiv and took a statement from him. Later that day the authorities opened an official investigation into the incident. Between 8.20 p.m. and 8.50 p.m. the investigator to whom the case was assigned and a forensic technician inspected the body of the applicant’s son. Between 8.55 p.m. and 9.15 p.m. they inspected the scene of the incident. At the investigator’s request, at about 9.30 p.m. a medical doctor examined Mr I.M. Between 9.45 p.m. and 10.50 p.m. two police officers, acting on the investigator’s instructions, interviewed five eyewitnesses (Mr H.G., Mr Z.P., Ms Y.K., Mr T.K. and Ms E.B.). The next day, 23 April 1996, a forensic pathologist performed an autopsy on the body of the applicant’s son. He found that he had died as a result of the stabbing, which had ruptured key blood vessels, causing massive loss of blood. He found that the angle of entry of the wound was upwards, from front to back and from right to left. The same day, 23 April 1996, the case was taken up by another investigator. He placed Mr I.M. in pretrial detention, charged him with murder under Article 115 of the Criminal Code (see Relevant domestic law below) and interviewed him, first alone and then in the presence of his counsel. Mr I.M. chose not to make a statement, saying that he did not feel very well. On 24 April 1996 the investigator ordered an expert report on the blood found on the knife impounded from Mr I.M. and on a blood sample taken from the scene of the incident. The results were ready on 8 May 1996. On 25 April 1996 the investigator asked a forensic expert to examine Mr I.M. for injuries and express his opinion on how they had been inflicted. In his report, filed the same day, the expert said, inter alia, that although Mr I.M. complained of pain in the neck, he bore no visible traces of strangulation. On 29 April 1996 the investigator interviewed Mr H.G. and Mr Y.K. Both of them said that their earlier statements had not been comprehensive and gave fuller accounts of their versions of the events. Mr H.G. mentioned that the hands of the applicant’s son had left red marks on Mr I.M.’s throat. On 30 April 1996 the investigator interviewed Mr I.M., who gave a full account of his version of the events. On 2 May 1996 the investigator interviewed Ms E.B., Mr T.K. and Mr Z.P. On 13 and 14 May 1996 he interviewed three other witnesses who had not directly seen the incident. On 14 May 1996 the investigator ordered a psychiatric expert report on Mr I.M.’s state of mind at the time of the incident. In their report, filed the same day, three experts said that at the time of the incident Mr I.M. had been in a state of fear which had influenced his conduct, additionally affected by his state of alcoholic intoxication. On 23 May 1996 the investigator amended the charges against Mr I.M. to murder committed through the use of excessive force in selfdefence, contrary to Article 119 of the Criminal Code (see Relevant domestic law below). On 27 May 1996 the investigator asked a forensic expert to express his opinion, based on the materials in the case file, on the relative positions of the applicant’s son and Mr I.M. at the time of the stabbing and on the strength of the blow. In his report, filed on 29 May 1996, the expert said that the wound could have been inflicted while the applicant’s son had been pinning Mr I.M. to the ground and strangling him, or if the two had been standing opposite each other, or if Mr I.M. had been standing behind the applicant’s son. However, the manner in which the incident had unfolded suggested that the most likely version was that the stabbing had taken place while the two men had been struggling on the ground. In February 1997 the case was assigned again to the investigator who had dealt with it initially. On 7 February and 2 April 1997 he interviewed Mr T.K., Mr H.G. and Mr Z.P., as well as another eyewitness, Ms S.P., in the presence of counsel for the applicant and his wife and of counsel for Mr I.M. While on 7 February 1997 Ms S.P. had maintained that Mr I.M. had stabbed the applicant’s son long after the two had been separated, on 2 April 1997 she said that she had not seen clearly how the stabbing had taken place. When asked to explain the divergence, she said that she had been frightened, had not seen the stabbing directly, and was too frail psychologically and burdened with other problems to be able to have a clear recollection of the events. Meanwhile, on 2 April 1997 the applicant and his wife applied to join the proceedings as civil parties. The investigator granted their application the same day. On 16 June 1997 the investigator interviewed the former wife and the child of the applicant’s son. On 25 June 1997 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. On 26 June 1997 the investigator allowed Mr I.M. and his counsel to inspect the case file. They objected against the investigator’s decision to allow the applicant and his wife to join the proceedings as civil parties, pointing out that they had failed to specify the amount of their claim. The same day, 26 June 1997, the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office, proposing that Mr I.M. be put on trial. He described in detail his findings of fact and concluded that by resorting to a knife Mr I.M. had used excessive force in selfdefence. However, on 11 July 1997 the Plovdiv Regional Prosecutor’s Office decided to discontinue the investigation. It reasoned that Mr I.M.’s act fell within the ambit of Article 12 § 3 of the Criminal Code (see Relevant domestic law below), because he had used excessive force out of fear. He had acted under the influence of fear induced by the applicant’s son’s attack, which had significantly reduced his ability to assess the situation correctly and adapt his conduct so as to remain within the limits of selfdefence. His act, which had consisted in a single blow with a knife, had essentially been defensive, in spite of his words after the fight. It was apparent from the statements of the eyewitnesses that the applicant’s son had pinned Mr I.M. to the ground and grabbed him by the throat, preventing him from breathing normally. He had at first unsuccessfully tried to free himself from that robust grip, which had caused him to fear for his life and safety. On 28 July 1997 the applicant and his wife appealed against the discontinuance to the Chief Prosecutor’s Office. They argued that the stabbing had taken place after their son had already been separated from Mr I.M. and that the latter had continued chasing him with a bloodstained knife. They argued that the witnesses had said so in their initial interviews, and had changed their statements only later. Moreover, the fight had been brief and Mr I.M. was physically the stronger. In those circumstances, there was no room for the application of Article 12 § 3 of the Criminal Code. On 20 August 1997 a prosecutor from the Chief Prosecutor’s Office allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to resume its work on the case. He reasoned that the investigation had failed to elucidate the exact timing of the stabbing and the applicant’s son’s and Mr I.M.’s relative positions at that moment. The witnesses’ initial and subsequent statements on that point were contradictory. It was also unclear whether or not the applicant’s son had in fact been able to walk after the stabbing and at what point he had halted his assault on Mr I.M. Finally, it had not been clarified whether or not the fatal blow was delivered while the two men were still wrestling on the ground and whether or not it had been indeed feasible for Mr I.M. to draw the knife from its sheath and administer a forceful upward blow, as described in the medical expert report. On 5 September 1997 Mr I.M. appealed against that decision. On 1 October 1997 the Head of the Investigations Division of the Chief Prosecutor’s Office quashed it and upheld the discontinuance. He found that the lower prosecutor’s misgivings about unclarified aspects of the incident were unsupported by the evidence. While it was true that there were discrepancies between the witnesses’ initial statements as to the timing of the stabbing, on requestioning one of the witnesses had maintained that the stabbing had taken place while the attack by the applicant’s son was still continuing and the others said that they had not seen the actual stabbing. Moreover, the medical expert report had concluded that the blow had been delivered in a horizontal position. Therefore, all possibilities of clarifying the facts had been exhausted and the decision to discontinue the investigation had been warranted. The applicant and his wife appealed to the Chief Prosecutor. On 31 March 1998 the Deputy Chief Prosecutor, to whom the case had been referred, allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to investigate further. He considered that it had not been made clear what had caused the eyewitnesses to change their statements. There were also serious discrepancies between the subsequent statements and the statements of other witnesses. These could have been cleared up by arranging a confrontation between the witnesses. Since the reports describing the crime scene were quite laconic, it would have been helpful to interview the persons present when they were drawn up. No efforts had been made to check the clothes and the shoes worn by the applicant’s son and Mr I.M. in order to determine whether the bloodstains on them corresponded to their relative positions and movements as described by the eyewitnesses. The persons who had taken the applicant’s son to hospital had not been asked whether he had said anything. No reconstruction had been staged to test the witnesses’ statements. The medical expert had not been asked clear and comprehensive questions. In view of the force of the blow, the expert should have been asked whether or not it was possible for an individual who was under the influence of drink, gripped by the throat to the point of strangling and had a damaged right elbow joint to draw a knife out of its sheath, swing it forcefully and administer a strong blow. The expert should also have been asked whether or not it would have been possible for the applicant’s son to walk after receiving such a blow. No consideration had been given to bringing in other experts whose specialist knowledge could have shed more light on the circumstances in which the applicant’s son had died. On 20 May 1998 Mr I.M. appealed to the Chief Prosecutor. On 14 July 1998 the Chief Prosecutor quashed his deputy’s decision and upheld the discontinuance. He noted that all eyewitnesses had been questioned several times and all the discrepancies between their initial statements had been cleared up. Fresh interviews would not add anything. The clothes and shoes worn by the applicant’s son and Mr I.M. would not alter the findings either, because the manner of stabbing had been established through a medical expert’s report and the statements of witnesses. It was also clear that the applicant’s son had not spoken to the witnesses before his death. Mr I.M.’s act amounted to selfdefence, because he had used the only means at his disposal to repel the attack. In February 1999 the Chief Prosecutor’s term of office came to an end and a new one was sworn in. The applicant and his wife challenged his predecessor’s decision. On 20 May 1999 the new Chief Prosecutor assigned the case to a prosecutor of the newly created Supreme Cassation Prosecutor’s Office. On 22 June 1999 that prosecutor upheld the challenge and ordered the Plovdiv Regional Prosecutor’s Office to resume the investigation and carry out various steps. Firstly, in view of the dubious validity of the medical expert report and its failure to take into account the eyewitnesses’ initial statements, it was necessary to order a further report to be drawn up by two forensic specialists and a surgeon. Secondly, in view of evidence by Mr H.G. that he had seen red marks on Mr I.M.’s throat, and of the fact that a medical expert who had examined Mr I.M. that same evening and two days later had not found any visible traces of injuries to his throat, it was necessary to clarify whether it was medically possible for them to have disappeared so fast. It was also not clear why the eyewitnesses had changed their statements and why the investigator who had initially taken up the case had been replaced. The applicant had alleged that the replacement was a friend of Mr I.M.’s son. It was therefore necessary to assign the case to another investigator with instructions to requestion the eyewitnesses and specifically ask them why they had changed their statements and whether they had been pressured into doing so. After that the case was assigned to another investigator. On 14 July 1999 she interviewed Mr H.G., Mr Z.P. and Mr T.K. On 15 July 1999 she interviewed Ms S.P. and Ms E.B. As Ms S.P.’s account differed from the one that she had given on 7 February 1997 but coincided with the one that she had given on 2 April 1997, the investigator asked her to explain the difference and to confirm which one was true. After a certain amount of hesitation, Ms S.P. said that her statement of 7 February 1997 was true and that her statement on 2 April 1997 had been made under pressure by counsel for Mr I.M., who had talked to her just before the interview. However, she then said that she had not clearly seen the stabbing. On 23 July 1999 the investigator interviewed Ms Y.K. On 3, 7, 8 and 16 September 1999 she interviewed the police officers who had seen the applicant’s son in the car on his way to hospital and the police officers who had arrested Mr I.M. On 25 August 1999 Mr I.M. appealed to the Chief Prosecutor against the investigation’s renewal. The appeal was rejected on 22 March 2001 and the case file was sent back to the investigator on 29 March 2001. On 1 June 2001 the investigator interviewed Mr I.M. On 5 June 2001 she interviewed the applicant and his wife and their other son, the deceased’s brother. At the request of Mr I.M., on 6 June 2001 the investigator revoked the earlier decision to accept the application by the applicant and his wife to join the proceedings as civil parties (see above). She found that the application had been defective, as it had only mentioned their names and their wish to join the proceedings as civil parties, whereas under Article 61 § 1 of the 1974 Code of Criminal Procedure (see Relevant domestic law below) it should have contained a number of other items. On 10 April 2002 the Plovdiv Regional Prosecutor’s Office endorsed that decision. The applicant appealed, but the decision was upheld by the Plovdiv Appellate Prosecutor’s Office on 25 April 2002. The applicant appealed further. On 6 June 2002 a prosecutor of the “Investigations” division of the Supreme Cassation Prosecutor’s Office also upheld the decision. In his view, there was no legal impediment preventing the investigator from revoking an earlier procedural decision. On 27 June 2001 the applicant and his wife lodged a fresh application to join the proceedings as civil parties. On 26 July 2001 the investigator allowed their application. In the meantime, on 7 June 2001 the investigator asked three forensic experts to express their opinion on the exact mechanism of the stabbing, based on the materials in the case file. She asked three other experts to explain whether it was possible for Mr I.M. to have been strangled and to have had no marks of that on his throat, and, if so, to determine how strong the strangling had been. In their report, filed on 19 June 2001, the first three experts said that the stabbing had occurred from a close distance. It was entirely possible that it had occurred while the applicant’s son was strangling Mr I.M. However, it could not be excluded that the blow had been delivered when the two were standing upright, or when Mr I.M. was chasing the applicant’s son. In their report, also filed on the same date, the second group of experts said that the red marks on Mr I.M.’s throat mentioned by Mr H.G. could have many explanations, and that no trace of them had been found during the later medical examinations. It was however possible that they had disappeared in the meantime. On 12 October 2001 the investigator amended the charges against Mr I.M., accusing him of an offence under Article 118 of the Criminal Code (see Relevant domestic law below), and interviewed him. On 27 November 2001 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. The same day she allowed the wife of the deceased to inspect the file as well. On 29 November 2001 Mr I.M. was allowed to inspect the case file, in the presence of his counsel. He made a number of objections and requests. The investigator rejected them on 22 March 2002. On 5 April 2002 the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office with a recommendation to bring Mr I.M. to trial. She analysed the statements of the witnesses in detail, noting that they were quite contradictory and, save for those of Mr S.P., unclear as to the exact timing and mechanism of the stabbing. She also analysed the expert reports and concluded that Mr I.M. could not have genuinely feared for his life and had stabbed the applicant’s son when the two had already been separated. Based on that, she found that by pulling out his knife and administering a blow with it Mr I.M. had used excessive force in selfdefence, contrary to Article 118 of the Criminal Code (see Relevant domestic law below). On 19 July 2002 the Plovdiv Regional Prosecutor’s Office, disagreeing with the investigator’s proposal, discontinued the proceedings. It noted that the medical expert report had concluded that the applicant’s son’s wound could have been inflicted either while he and Mr I.M. were wrestling on the ground, or later, when they had been already separated. Whereas the first scenario was consistent with the statements of three witnesses – Mr H.G., Ms Y.K. and Ms E.B. –, the second scenario was not supported by any evidence save for the account of one witness – Ms S.P. – whose statement had been changed several times and was therefore not credible. The experts had, moreover, found that the applicant’s son would not have lost all his strength immediately and would have been able to take a few steps before falling to the ground. It could therefore be concluded that in stabbing the applicant’s son Mr I.M. had used excessive force in his selfdefence on account of the fear caused by the applicant’s son’s attack. Mr I.M.’s inability to assess the facts correctly had been exacerbated by the influence of drink. His act had been intended to repel a direct attack posing a threat to his life, not to cause the death of the applicant’s son. This was borne out by the fact that before drawing the knife he had tried to free himself from the latter’s grip. On 26 July 2002 the applicant sought judicial review of that decision. He argued that it was almost identical to the previous decision to discontinue the investigation and failed to take into account the newly gathered evidence. No consideration had been given to the explanation which Ms S.P. had provided for changing her statement. It would, moreover, have been impossible to deliver such a strong blow while being strangled and pinned to the ground. In addition, Mr I.M. had been so heavily intoxicated that his actions had been driven entirely by drink and not by fear. It was necessary to order an additional expert report on that point. On 2 September 2002 the Plovdiv Regional Court decided to examine the case at a public hearing, which took place on 18 February 2003. The applicant appeared together with his counsel. Mr I.M. also appeared with his counsel. The court heard the public prosecutor, counsel for the applicant, counsel for Mr I.M. and Mr I.M. On 5 March 2003 the court upheld the prosecutor’s decision. It found that the investigation had not been characterised by significant omissions and that the authorities had taken the necessary steps to establish the facts. The higher prosecutor’s offices had ordered further investigatory measures – requestioning of witnesses and fresh expert reports – which had been carried out. The prosecutor’s findings, based on the evidence thus obtained, were correct, and the applicant’s arguments were not sufficient to cast serious doubt on them. The main issue in determining whether Mr I.M.’s act had been justified under Article 12 of the Criminal Code, was at which point the applicant’s son had stopped attacking him. The available evidence categorically showed that he had used the knife at a time when the attack was still going on. That was confirmed by the accounts of the eyewitnesses Mr H.G. and Ms S.P., who had clarified the discrepancies between their various statements. Moreover, their statements supporting the version that Mr I.M. stabbed the applicant’s son when he was still strangling him fully coincided with the statements of the other eyewitnesses (Mr Z.P., Mr T.K., Ms E.B. and Ms Y.K.), and the remaining witnesses. The second medical expert report came to the conclusion that the blow could have been administered when the applicant’s son had been on top of Mr I.M. and had been strangling him. That conclusion, as well as the report’s other conclusions, fully matched the statements of the witnesses. The court went on to say that there was no need for an additional psychiatric expert report. There was enough evidence to allow the conclusion that Mr I.M. had used excessive force out of fear. On 18 March 2003 the applicant appealed to the Plovdiv Court of Appeal, reiterating his arguments. However, an amendment to the 1974 Code of Criminal Procedure which came into force on 2 June 2003 (see Relevant domestic law below) removed the possibility of appealing against firstinstance court decisions reviewing discontinuances of preliminary investigations. Accordingly, on 3 June 2003 the Plovdiv Court of Appeal terminated the proceedings. According to information produced by the Government, the applicant has not tried to bring separate civil proceedings against Mr I.M. Article 12 of the 1968 Criminal Code provides for a defence of selfdefence. Under paragraph 1 of that provision, an act committed in selfdefence and not inflicting disproportionate damage on the attacker is not criminal. Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault (paragraph 2). The use of excessive force is nevertheless not punishable if committed out of fear or bewilderment (at the relevant time paragraph 3, now paragraph 4). Article 115 of the Code makes it an offence to wilfully take the life of another. The penalty on conviction is ten to twenty years’ imprisonment. Article 118 of the Code provides that murder committed under provocation is punishable by one to eight years’ imprisonment. Aggravated cases carry a penalty of three to ten years’ imprisonment. Article 119 of the Code provides that homicide committed through the use of excessive force in selfdefence is punishable by up to five years’ imprisonment. Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civilparty claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civilparty claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003). At present it can be made only after the case has already been brought to trial (Article 60 § 1 of the 1974 Code, as in force after June 2003, and Article 84 § 1 of the 2005 Code). The claim can be made in writing or orally, and has to specify the claimants’ and the defendants’ names, the number of the criminal case, the offence which has caused the damage, and the nature and extent of the damage (Article 61 §§ 1 and 2 of the 1974 Code and Article 85 §§ 1 and 2 of the 2005 Code). In a judgment of 28 October 2002 the Supreme Court of Cassation accepted that it could be made even by simply taking an active part in the preliminary investigation (реш. № 541 от 28 октомври 2002 г. по н. д. № 420/2002 г., ВКС, I н. о.). Civilparty claimants are entitled to take part in the proceedings, inspect the case file and make copies, adduce evidence, make requests and objections, and challenge rulings which impinge on their rights and legitimate interests (Article 63 § 1 of the 1974 Code, superseded by Article 87 § 1 of the 2005 Code). Those rights can be exercised only in so far as necessary for establishing the wellfoundedness of the claim and the extent of the damage suffered (Article 63 § 2 of the 1974 Code, superseded by Article 87 § 2 of the 2005 Code). Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code) the examination of the civilparty claim cannot cause the criminal case to be adjourned. If the proceedings are discontinued, the claim is not determined, but can be lodged separately with the civil courts (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code). The criminal court rules on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it finds that the accused’s criminal liability has been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н. д. № 849/2003, ВКС, II н. о.). Under Article 237 § 1 (1) of the Code, as in force until 31 December 1999, public prosecutors were to discontinue proceedings if they found that, inter alia, the acts alleged did not constitute an offence. Copies of the decision were to be served on the accused and the victim (paragraph 5 of the same Article), who were entitled to challenge it before a more senior prosecutor (paragraph 6 of the same Article). As worded after May 2001, Article 237 provided that the decision to discontinue the proceedings was reviewable by a firstinstance court, whose decision was in turn subject to appeal to a higher court (Article 344 § 1 of the Code, as in force between May 2001 and June 2003, and Article 345 § 1 of the Code) and, from there, on points of law (Article 349 § 5 of the Code, as in force between May 2001 and June 2003, and Article 353 of the Code). An amendment which came into force on 2 June 2003 removed the possibility of appealing against the firstinstance court’s decision. Section 46 of the 1951 Obligations and Contracts Act provides that no tort liability arises in cases of selfdefence. In a binding interpretative decision of 12 November 1973 (пост. № 12 от 29 ноември 1973 г. по н. д. № 11/ 73 г., Пленум на ВС) the former Supreme Court held that in cases where excessive force has been used in self-defence the individual defending himself is liable in tort, even if not subject to a criminal sanction under Article 12 § 4 (former § 3) of the 1968 Criminal Code (see above). The limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(h) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. In some cases the courts construed that phrase as meaning that time stops running not only during the pendency of a civil suit, but also during the pendency of criminal proceedings relating to the same facts, even at their preliminary investigation phase (реш. № 456 от 18 май 2000 г. по н. д. № 435/1999 г., ВКС, І н. о.). In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time, because these proceedings are not “judicial” (реш. № 2110 от 28 март 2005 г. по гр. д. № 3159/ 2002 г., ВКС, ІІІ г. о.). The matter was settled by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation, which held, in a binding interpretative decision of 5 April 2006, that time stops running under section 115(1)(h) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС). | 0 |
train | 001-57703 | ENG | NLD | CHAMBER | 1,991 | CASE OF KOSTER v. THE NETHERLANDS | 3 | Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | null | 8. Mr Jacobus Koster, a Netherlands national, currently resides at Gainesville, Florida (United States of America). 9. On 11 March 1987, while completing his compulsory military service, despite being warned he repeatedly refused to obey an order that he should take receipt of a weapon and a uniform. Accordingly he was arrested on the same day at 3.45 p.m. and then kept in custody, the measure being confirmed by the officer commanding his unit at 4.30 p.m. He was questioned by the military police (Koninklijke marechaussee) at 7 p.m. 10. On Friday 13 March the applicant, assisted by a lawyer appointed to act for him, appeared before the investigating officer (officier-commissaris) assigned to the case. 11. Before the Military Court, which sat in private on Monday 16 March, Mr Koster’s lawyer pleaded that the length of his detention had exceeded the four-day limit which, he argued, derived from Article 5 para. 3 (art. 5-3) of the Convention. He added that the Military Court did not have the necessary independence and impartiality to rule on questions of this nature. However, the Military Court confirmed the earlier detention and extended it by thirty days, in order, so it stated, to maintain military discipline. In its opinion, Article 5 para. 3 (art. 5-3) did not lay down specific time-limits. The court had moreover sat as soon as possible, regard being had to the fact that its military members had been participating in two-yearly major manoeuvres at the time; moreover, the fourth day following the arrest had been a Sunday. In addition, the European Commission had recognised, in its opinion on the applications in the cases of van der Sluijs (no. 9362/81), Zuiderveld (no. 9363/81) and Klappe (no. 9387/81), that the Military Courts were competent to rule on such questions. 12. On 9 September 1987 the Supreme Military Court sentenced the applicant to a term of one year’s imprisonment, from which was deducted the time which he had already spent in detention. 13. At the material time, criminal procedure for army and air force personnel, including in particular the matter of arrest and detention on remand, was governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land- en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. It was repealed with effect from 1 January 1991. 14. Every officer and non-commissioned officer was empowered to arrest military personnel of lower rank suspected of a serious offence, provided the circumstances required immediate deprivation of liberty (Article 4 of the Military Code). The resulting detention was not to exceed twenty-four hours, unless it was extended by the commanding officer in accordance with Article 7 (Article 5). 15. The commanding officer had to deal with the matter without delay. He could order that the suspect be placed or kept in detention on remand, in particular if this proved necessary to maintain military discipline. He was to report to the commanding General any cases of detention exceeding four days (Article 7, first, second and sixth paragraphs). 16. The General ordered that the accused be brought for trial before the Military Court, if this was necessary (Article 11, first paragraph). That order was to be formulated in writing and indicate whether or not it was appropriate to release the accused, the grounds for keeping him in custody laid down in Article 7 being applicable by analogy (Article 14, first and second paragraphs). 17. Detention ordered or continued in the decision referring the serviceman for trial was not to exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained under the referral decision had to be heard by the officier-commissaris as speedily as possible and in any event within four days of referral; for this purpose, he could be assisted by an adviser (Article 33, first paragraph). Before extending the detention, the Military Court was to give the accused and his adviser the opportunity to put forward their views (Article 33, second paragraph). 18. A directive of 21 March 1983 governed the bringing before a judicial authority of military personnel in custody. It provided as follows: "In accordance with Article 5 para. 3 (art. 5-3) of the European Convention on Human Rights, where a serviceman is placed in custody, care is to be taken to ensure that, within four days of his arrest, his case is brought before the Military Court, sitting in private, for confirmation or extension of the detention. To this end, the following rules should be observed: 1. Every officer or non-commissioned officer who arrests a member of the military personnel suspected of an offence shall inform the officer commanding the serviceman’s unit as soon as possible. 2. If, after having questioned the accused, the officer commanding considers that the detention should be continued or extended, he shall inform the prosecuting officer (auditeur- militair/fiscaal) by telephone not later than two days after the arrest, either in person, or through a person delegated by him (for example the officer commanding the relevant detachment of military police). 3. If the accused appears before the auditeur-militair, the latter shall fix, with the officer commanding or in his name, the time and place so as to ensure that under normal circumstances, within four days of the arrest: (a) the accused can be brought before the auditeur-militair; (b) the latter can communicate his opinion to the authority with competence to refer the case to the Military Court; (c) that authority can make an order so referring the accused (which shall also include a decision on the matter of the detention); (d) the accused can be interviewed by the commanding officer; (e) the auditeur-militair can raise the question of the confirmation/extension of the detention of the accused in the Military Court. 4. The different armed services shall adapt their regulations accordingly (VS27-1 and VVKM 142)." 19. By a ministerial decree of 19 December 1983 this directive had been incorporated in the Regulation on the application of military criminal and disciplinary law (Voorschrift Toepassing Militair straf- en tuchtrecht KL/Flu). | 1 |
train | 001-4783 | ENG | NLD | ADMISSIBILITY | 1,999 | HAMER v. THE NETHERLANDS | 4 | Inadmissible | Nicolas Bratza | The applicant is a Dutch national, born in 1958, and resides in Leidschendam. On 7 July 1997, the Municipal Executive (Burgemeester en Wethouders) of Leidschendam ordered the applicant to remove a garden house and a 1,80 metre high garden fence, which the applicant had built without a construction permit as required under the Act on Housing (Woningwet), or to reduce the height of the fence to one metre. He was further informed that, in accordance with Article 136 of the Act on Municipalities (Gemeentewet), failure to comply with this order would entail a penalty of NLG. 450 per week for the garden house and NLG. 450 per week for the fence, not exceeding a total amount of NLG. 9,000. The applicant’s objection (bezwaar) against the decision of 7 July 1997 was rejected by the Municipal Executive on 7 January 1998. As regards the garden fence, the Municipal Executive noted that, under Article 43 § 1 (j) of the Act on Housing, a construction permit is required for fences higher than one metre. Although the applicable rules did allow exemptions, no exemption could be granted in the applicant’s case given the local urban development situation, the dominant character of the fence and the fact that, according to the local Commission on External Appearance of Buildings (Welstandscommissie), the fence did not comply with the reasonable requirements of external appearances of buildings (“redelijke eisen van welstand”). The applicant’s subsequent appeal to the Administrative Law Division of the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 7 May 1998. By letter of 21 June 1998, the applicant filed an appeal against the decision of 7 May 1998 with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In this letter the applicant informed the Administrative Law Division that, in the meantime, the garden house had been moved to a different - for the municipal authorities acceptable - place on his premises. As regards the decision concerning the fence the applicant invoked, inter alia, Article 8 of the Convention and in this context argued that this fence had been built on his property in order to protect the privacy of his family. He explained that the aim of the fence was to protect his pets, plants and bushes from footballs of soccer playing children landing in his garden, and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly. In its decision of 5 March 1999, the Administrative Law Division rejected the applicant’s appeal. It noted that, according to Article 43 of the Act on Housing, no construction permit is required for a fence built outside the building line (rooilijn) if its height does not exceed one metre. As the applicant’s premises lie on a corner of two streets and as the fence, which was higher than one metre, had been built outside the front building line, the Municipal Executive was competent to issue the order for removal. It further held that it had not been established that the fence qualified for legalisation. The Administrative Law Division also rejected the applicant’s argument under Article 8 of the Convention, holding that the submitted aim of the fence, namely to prevent children’s footballs from ending up on the applicant’s premises, was insufficient for a finding that the applicant’s right to respect for his private life or home came into play. | 0 |
train | 001-91841 | ENG | TUR | CHAMBER | 2,009 | CASE OF BEKER v. TURKEY | 3 | Violation of Art. 2;Pecuniary and non-pecuniary damage - award | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicants were born in 1955, 1976, 1979 and 1983, respectively, and live in Ankara. The first applicant is the mother and the remaining three applicants are the brothers and sister of Mr Mustafa Beker, who was born in 1977 and was working as an expert corporal in the special teams of the gendarmerie in Tunceli. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. At around 9.20 a.m. on 8 March 2001 Mustafa Beker allegedly committed suicide by shooting himself in the head in the dormitory of the military barracks where he was stationed. A non-commissioned officer who arrived at the scene immediately checked for a pulse and realised that Mr Beker was still alive. At 9.30 a.m. he was taken to the infirmary in an ambulance. 8. The same day a First Lieutenant (“the military investigator”) carried out an inspection of the dormitory, drew a sketch of the place, questioned a number of Mr Beker’s colleagues and recorded their statements. 9. A pistol was found some distance away from the place where Mr Beker had fallen, but the exact distance is not specified in the sketch. The pistol had been cocked and had fired two rounds but had failed to fire a third time. Two spent bullet cases and two bullets – one of which was misshapen – were also found. It was established that the pistol belonged to one of Mr Beker’s colleagues, expert sergeant T.Y., who had left it in his locker just outside the dormitory. According to a document drawn up by the military investigator, Mr Beker had obtained the pistol by smashing the padlock on the locker with a stick. 10. Expert sergeant M.A., when questioned by the military investigator, stated that Mr Beker had stayed at the former’s house the previous night. Mr Beker had been drunk and in an agitated state. M.A. had been concerned about Mr Beker’s state and had taken his pistol away from him and then hidden it in his house. When he had woken up in the morning, Mr Beker had already left the house, leaving his pistol behind. He had found Mr Beker in a restaurant, drinking. They had then gone to the barracks where Mr Beker had unsuccessfully asked expert sergeant T.Y. for the key to T.Y.’s locker. M.A. had then started to walk away but turned back when he heard a gunshot; whereupon he saw Mr Beker on the floor, with a pistol next to his feet. 11. When questioned by a military prosecutor, expert sergeant T.Y. confirmed that he had seen M.A. and Mr Beker in the corridor and that the latter had asked him for his key to his locker. He had told Mr Beker that he did not have the key on him. He had then left to attend to business elsewhere in the barracks. He had left his pistol in his locker. 12. Expert sergeant M.K. told the military investigator that, between 9.10 and 9.15 a.m., he had been changing his clothes in front of his locker in the corridor when Mr Beker had approached him and asked him where T.Y.’s locker was. M.K. had then heard noises which he thought were coming from the area near Mr Beker’s locker. Twenty to thirty seconds later he had heard two gunshots coming from the dormitory. When he had reached the dormitory he had seen Mr Beker lying on the floor with his head bleeding. 13. Four expert sergeants questioned by the military investigator and subsequently by the military prosecutor stated that they had been in their bunk beds in the dormitory when Mr Beker entered at around 9.15 a.m. and asked them to get up and start work. They had told Mr Beker that it was still too early to get up as their shifts did not start until 11 a.m. Mr Beker had then left the dormitory and they had heard noises coming from the locker area. Mr Beker had then re-entered the dormitory carrying a pistol. They had then heard him cock the pistol before they heard two gunshots within a second of each other. With the exception of one of the expert sergeants, none of them had seen Mr Beker shoot himself. None of the expert sergeants had heard Mr Beker talking or arguing with anyone before the shooting or seen anyone running away from the scene afterwards. 14. A number of Mr Beker’s colleagues told the military prosecutor that he had been feeling low for the last couple of months and had been drinking a lot. He had fallen in love with a girl in January 2001 but his mother opposed their marriage. 15. Expert sergeant S.U. was the only person in the dormitory who claimed to have seen Mr Beker shoot himself. He told the military investigator that he had seen and heard Mr Beker fire once, using his right hand and aiming at the right side of his head. When he was subsequently questioned by the military prosecutor, he stated that he could not remember exactly how many shots he had heard as he had been in a state of shock. He added that, although he had been about five metres away from Mr Beker at the time, he had not actually seen Mr Beker shoot himself as he had covered his face with his hands. 16. According to a report prepared by the Tunceli public prosecutor the same day, the military authorities had requested him to assist them in the investigation by carrying out a preliminary examination of the body of Mr Beker, who had died before his arrival at the Tunceli State Hospital. Mr Beker’s body was formally identified by his colleague, expert sergeant M.A.. 17. The prosecutor and a doctor first examined Mr Beker’s clothes and observed that there were no bullet holes or any other marks on them. They observed a bullet entry hole on the left temple and a bullet exit hole on the right temple. A lack of gunpowder residue or burns on the skin next to the entry hole led the doctor to conclude that the shot had been fired at close but not at point-blank range. There were no other injuries on Mr Beker’s body. 18. During the examination the prosecutor and the doctor smelt alcohol emanating from Mr Beker’s body. Expert sergeant M.A. confirmed that Mr Beker had been drinking that morning. M.A. also informed the prosecutor and the doctor that Mr Beker had been right-handed and had always used his right hand when shooting during their military training. 19. The doctor secured plastic covers to Mr Beker’s hands to preserve them for a subsequent swab test. The body was then sent to Elazığ Military Hospital, where a post-mortem examination was carried out the same day. 20. In the course of that examination, the pathologist observed no gunpowder residue next to the bullet entry hole and concluded that the shooting had occurred at point-blank range. The bullet entry hole was approximately two centimetres above the left eyebrow. The exit hole was next to the right ear. There were burnt and un-burnt gunpowder particles inside the bullet entry hole. 21. A blood sample was found to contain no alcohol and the cause of death was established as the destruction of the brain. The pathologist also took swabs from Mr Beker’s hands for a forensic examination which found gunpowder residue on the outside of the deceased’s right hand (report of 27 April 2001). 22. On 10 March 2001 the military investigator concluded his investigation. In a one-sentence conclusion, the military investigator stated that Mr Beker had “committed suicide as a result of a sudden bout of depression”. 23. A lieutenant, who was Mr Beker’s immediate commander and who knew him well, was recorded as stating that Mr Beker had been a very good soldier and that he had not had any psychological problems. 24. On 13 March 2001 Özgür Beker, who is one of the applicants and a brother of Mr Beker, asked the office of the military prosecutor for copies of the documents from the investigation file because the family had “suspicions surrounding his death”. 25. On 12 April 2001 the lawyer for the applicants wrote to the office of the Elazığ military prosecutor and repeated the family’s request for information and documents about the investigation into Mr Beker’s “alleged suicide”. 26. On 9 January 2002 the lawyer for the applicants wrote to the Ministry of Defence and again asked for information about the investigation. The lawyer also stated in his letter that his clients had merely been informed by the military authorities that Mr Beker had committed suicide. However, neither he nor the family had been given any information or documents from the investigation file despite their written requests. The lawyer submitted that a number of anonymous telephone calls had been made to the mobile telephone which had been owned by Mr Beker and which had since been returned to the family. The callers had stated that Mr Beker had been murdered. The lawyer submitted that the lack of information about the investigation strengthened the family’s conviction that Mr Beker had indeed been murdered. 27. A military prosecutor in Elazığ replied to the lawyer’s letter on 30 January 2002, enclosing a copy of the post-mortem report. The prosecutor stated that, as the investigation was still continuing, no decisions had been taken yet. 28. On 8 November 2002 the military prosecutor in Elazığ decided to close the investigation. He concluded that Mr Beker had shot himself in the “right temple and at close range” because his mother had opposed his marriage to his girlfriend. He had thus been feeling unhappy. No one had helped him to commit suicide. 29. The military prosecutor’s decision is largely devoted to notes reproduced from a notebook which had apparently been found among Mr Beker’s personal belongings following his death. Some of the notes are confused and resemble a suicide note. 30. On 9 December 2002 the applicants lodged an objection to the military prosecutor’s decision to close the investigation. They pointed out, inter alia, that gunpowder residue had been found on Mr Beker’s right hand but the bullet entry hole had been on the left side of the head. According to the applicants, it was improbable that a person would commit suicide by shooting himself in the left side of the head with his right hand. Furthermore, they drew attention to the failure to determine the distance between the place where the pistol was found and the place where Mr Beker had fallen. They also pointed to the fact that the military prosecutor had not investigated the conflicting statements made by the officers who had witnessed the incident. 31. On 16 December 2002 a military court rejected the objection lodged by the applicants, considering that all necessary investigative steps had already been taken. 32. On 18 March 2003 the applicants wrote to the Elazığ military prosecutor’s office and asked for the investigation to be reopened. In their request they repeated their above-mentioned arguments and added that they had not been consulted during the investigation. They also argued that the case file should have been sent to the Forensic Medicine Institute with a view to obtaining that Institute’s opinion as to whether it would have been possible for Mr Beker to commit suicide by shooting himself in the left side of the head with his right hand. They pointed out that the pistol used in the incident had been semi-automatic, meaning that the trigger had to be pulled for each shot and, as such, it would not have been possible for Mr Beker to shoot himself a second time after a bullet had already entered and exited his head. Nevertheless, according to the investigation, the pistol was found cocked and it was established that it had failed to fire a third time. To try to shoot himself a third time, they maintained, would have been impossible. 33. The applicants also submitted in their request that neither the pistol nor the wooden stick allegedly used to smash the padlock on T.Y.’s locker, nor the locker itself, had been examined for fingerprints to establish whether Mr Beker’s fingerprints were on them. 34. They asked the military prosecutor to carry out another investigation with a view to eliminating these unresolved issues and to determine with certainty whether Mr Beker had been killed or had committed suicide as alleged. They maintained that, even assuming that Mr Beker had committed suicide, those responsible for the failure to ensure his psychological wellbeing should be prosecuted. 35. The applicants did not receive any information about the outcome of their application for a reopening of the investigation. | 1 |
train | 001-108436 | ENG | NLD | CHAMBER | 2,012 | CASE OF G.R. v. THE NETHERLANDS | 3 | Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1961. He is married; he and his wife (born in 1968) have three children, born in 1992, 1993 and 1998 respectively. The family are resident in Zoetermeer. 6. On 8 December 1997 the applicant arrived in the Netherlands, five months after his wife and two children had arrived there. On 10 December 1997 the applicant applied for asylum. The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this application on 19 February 1999 but he did grant the applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid as of 10 December 1997, on the basis of a temporary “policy of protection for certain categories” (categoriaal beschermingsbeleid). The applicant’s wife and children received residence permits for the purpose of asylum that same day. The applicant lodged an objection against the decision to refuse him asylum. 7. The situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years. Subsequently, with the entry into force of the Aliens Act 2000 (Vreemdelingenwet 2000) on 1 April 2001, the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum. In view of this development, the applicant’s objection against the decision of 19 February 1999 was declared inadmissible on 16 July 2001. 8. On 28 May 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, at that time the successor to the Deputy Minister of Justice) withdrew the applicant’s residence permit (but not those of his wife and children) as Article 1F of the 1951 UN Convention relating to the Status of Refugees was held against him. The applicant filed an appeal against this decision which was rejected by the Regional Court (rechtbank) of The Hague on 29 March 2005. On 4 August 2005 the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) confirmed the decision of the Regional Court at final instance. 9. The applicant’s wife and children were granted Netherlands nationality on 13 December 2004. 10. On 21 October 2005 the applicant filed a new application for asylum, which was rejected by the Minister on 27 October 2005. The applicant’s appeal was dismissed by the Regional Court of The Hague on 17 November 2005, and on 22 December 2005 the Administrative Jurisdiction Division of the Council of State dismissed the applicant’s appeal at final instance. 11. Subsequently, on 9 January 2006, the applicant applied for a residence permit for the purpose of residing in the Netherlands with his wife. At the same time, he requested an exemption from the obligation to pay the statutory administrative charges (leges) of 830 euros (EUR). In this respect he invoked Decision 2005/46 amending the Aliens Act Implementation Guidelines 2000 (Wijzigingsbesluit Vreemdelingencirculaire 2000), according to which an alien who has a justifiable claim under Article 8 of the Convention in proceedings to obtain a residence permit for the purposes of family reunion (gezinshereniging) or family formation (gezinsvorming) could be exempted from paying the required charges if he or she complied with certain conditions. The applicant argued that he had a legitimate claim under Article 8 and that he had provided sufficient proof that he did not have the resources to pay the charges: since the withdrawal of his residence permit he himself was no longer eligible for social assistance and his family had to survive on social assistance intended for a single-parent family. There were no relatives or third persons prepared or able to pay the charges for him. He submitted a copy of his wife’s social assistance pay slip for the month of December 2005 (stating a total payable amount of EUR 988.71), an official extract from the register of marriages dated 29 December 2005 showing him to be married to his wife, and an official document showing him, his wife and their children to be registered at the same address. 12. On 23 March 2006 the Minister decided not to process the application for a residence permit, as the applicant had failed to pay the required charge. 13. The applicant lodged an objection with the Minister against that decision, arguing that he had submitted a reasoned request to be exempted from the obligation to pay the administrative charge, which request the Minister had rejected without stating any grounds. On 31 March 2006 the applicant also applied for a provisional measure (voorlopige voorziening) to the Regional Court of The Hague in order to be allowed to await the outcome of his appeal in the Netherlands. 14. On 27 March 2007 the Regional Court rejected the request for a provisional measure and at the same time dismissed the objection. It considered that the applicant had failed to submit sufficient proof of his lack of resources to pay the required fees; it had therefore not been unreasonable for the Minister to decide not to process the applicant’s request for a residence permit. 15. No appeal lay against the judgment of the Regional Court. 16. On 11 January 2008, in reply to questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court, the Government confirmed that, at the time the applicant lodged his request for a residence permit for the purpose of residing with his wife, the latter was in receipt of social assistance benefits for a single-parent family. They further confirmed that the applicant was not in possession of a residence permit entitling him to acquire income by working in the Netherlands. He had nevertheless not qualified for the exemption from the obligation to pay administrative charges as he had submitted neither the required declaration of income and assets nor evidence relating to efforts made by his wife (being the residence permit holder with whom the applicant intended to stay) to obtain the necessary funds. 17. In reply to a further question, the Government submitted on 28 May 2008 that the assessment framework for an objection against the decision not to process an application for a residence permit due to a failure to pay the administrative charges was based on an ex tunc evaluation of whether that decision had been taken on reasonable grounds. Paying the administrative charges or submitting the required evidence subsequently was not an option; nor would it have any bearing on the decision not to process the application, as an ex nunc assessment was no longer possible. 18. On 21 July 2008, in response to a further question, the Government confirmed that the applicant could submit a new application for a residence permit, which would be processed once he had paid the administrative charges or obtained an exemption from the obligation to pay them. The examination of the merits of such an application would include an assessment of compliance with Article 8 of the Convention. 19. Section 4.1.2 of Chapter B1 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000), as applicable at the relevant time, stated that if an applicant for a residence permit claimed to be unable to pay administrative charges, that inability must be substantiated. The following documents should then be submitted with the application: a. a statement of income and assets relating to the residence permit holder with whom the alien intended to stay; b. evidence relating to efforts on the part of the alien and the residence permit holder over the previous three years to obtain funds; c. documents establishing a plausible case for the fact that neither the alien nor the residence permit holder would be able in the short term to obtain the funds necessary to pay the administrative charges that were owed, and that obtaining the funds from a family member or third party was likewise impossible. 20. Day-to-day implementation of the Work and Social Assistance Act, including the providing of social assistance and any verification, is the responsibility of the Mayor and Aldermen (burgemeester en wethouders) of the municipality (section 7 (1)). 21. An entitlement to social assistance exists for every Netherlands national and every alien lawfully resident in the Netherlands if he or she has not the means to meet necessary living expenses (section 11(1) and (2)). A married couple in such a position are jointly entitled to such social assistance, unless one of the parties is not so entitled (section 11(4)); in the latter event, the other party is entitled to social assistance in the amount applicable to a single person living alone or a single-parent family as the case may be (section 24). 22. Persons in receipt of social assistance are obliged to make demonstrable efforts to obtain and take up generally accepted employment, and to co-operate with the Mayor and Aldermen in any attempts aimed at finding them such employment (section 9(1) and (2); see also Schuitemaker v. the Netherlands (dec.), no. 15906/08, 4 May 2010). 23. Persons seeking or receiving social assistance under this Act must inform the Mayor and Aldermen, on their own initiative or when so required, of all facts and circumstances that may reasonably be expected to influence inter alia their entitlement to social assistance; except in so far as such facts and circumstances can be established on the basis of certain authentic or official information (section 17(1)). 24. Social assistance paid in excess of entitlement may be recovered from the recipient (section 58(1)). In cases where another person is liable to support the recipient financially, the Mayor and Alderman may recover moneys paid by way of social assistance from that person (sections 60-62i). 25. Certain official and private institutions and persons are legally obliged to provide information to the Mayor and Aldermen when so required. These include, among others, the tax authorities; landlords; pension funds; chambers of commerce; health insurance providers; heads of police; suppliers of water and energy; and the registrars of the courts (section 64 (1) and (4)). | 1 |
train | 001-22339 | ENG | POL | ADMISSIBILITY | 2,002 | NITECKI v. POLAND | 3 | Inadmissible | null | The applicant, Mr Zdzisław Nitecki, is a Polish national, who was born in 1932 and lives in Bydgoszcz, Poland. The respondent Government were represented by Mr Krzysztof Drzewicki, from the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1976 the applicant was diagnosed with amyotrophic lateral sclerosis (ALS) also known as Lou Gehrig’s disease. In June 1999 the applicant was prescribed Rilutek, a drug used to treat ALS. On 14 June 1999 the applicant asked the Kujawsko-Pomorski Health Insurance Fund (Kasa Chorych) to refund him the cost of the drug. He pointed out that he was a pensioner and that the price of a prescribed monthly intake of the drug exceeded his means. In a letter of 28 June 1999 the Fund declined the applicant’s request in the following terms: “In reply to your letter (...) I should explain that Kujawsko-Pomorski Health Insurance Fund does not have legal possibilities of refunding the price you paid for drugs. The Ministry of Health and Social Security publishes registers of drugs which are refunded and according to those registers the Health Insurance Funds make either partial or full refunds. In your case, four out of five drugs are fully refunded. As for Rilutec, it is included in the register of refunded drugs (patient’s contribution at 30%) [...]. The Health Insurance Fund pays 70% of the price of [that drug]. I should also inform you that you can be assisted by [...] the Bydgoszcz Social Services (...).” On 19 July 1999 the applicant asked the Kujawsko-Pomorski Regional Office (Urząd Wojewódzki) to quash the decision of the Fund. He submitted that he could not afford to pay for the drug and that he had no children to help him. The Regional Office transmitted the applicant’s request to the Bydgoszcz Social Services. On 11 August 1999 the Director of the Bydgoszcz District Social Services (Rejonowy Ośrodek Pomocy Społecznej) issued a decision declining the applicant’s application for the drug refund. In a letter of 13 August 1999 the Bydgoszcz Municipal Social Services (Miejski Ośrodek Pomocy Społecznej) informed the applicant that: “(...) According to the applicable legislation the Director [of Social Services] issued a decision declining your request for assistance. It appears from your file that the total income of your family amounts to PLN 1,924.54 and is above the threshold set in Article 4(1) of the Social Security Law. Despite the fact that you have faced high costs for the purchase of drugs, the social services – because of limited resources designated for that purpose – declined your request (...). It should also be mentioned that it is possible to approach a certified doctor – through the Social Security Board – in order to change a degree of invalidity, which may result in the grant of a nursing benefit.” On 31 August 1999 the Ministry of Health and Social Services advised the applicant about the legislation concerning the refund of drugs. The Ministry’s letter was in the following terms: “The Kujawsko-Pomorski Health Insurance Fund correctly informed you in a letter of 14.07.[99] that there were no legal possibilities of refunding the expenses you incurred for purchasing drugs. Rilutek is listed in the register of drugs used in chronic illnesses (...) for a payment of 30% [of the price]. That drug is refunded at the rate of 70% and the Health Insurance Fund pays such a part of the price. ... As Rilutek continues to be a very heavy financial burden for patients, the Pharmacy Department has started to make efforts to decrease the rate at which it has to be paid for by patients, so that it becomes available free of charge. The matter has been transferred to specialists ... The end of this work concerning the change of registers is foreseen for the fourth quarter of the year. However, any decrease in the rate at which [the drug] has to be paid for by patients depends on the financial resources available to the Health Insurance Funds.” On 1 September 1999 the applicant’s degree of invalidity was increased from the second to the first degree. The applicant lodged with the Supreme Court (Sąd Najwyższy) a complaint concerning the decision of the Ministry of Health and Social Security but on 29 February 2000 the court informed him that no appeal was available against the Ministry’s decision. The public health service in Poland is regulated by the Law on Public Health Insurance of 6 February 1997. National Insurance Funds, which represent the interests of the insured, buy medical services from contractors. They also refund the cost of drugs in whole or in part. | 0 |
train | 001-57881 | ENG | IRL | CHAMBER | 1,994 | CASE OF KEEGAN v. IRELAND | 2 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | R. Pekkanen | 6. The applicant met his girlfriend Miss V. ("V.") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married. On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child. 7. During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988. 8. The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below). 9. On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody. 10. Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father’s rights be denied. Mr Justice Barron of the High Court stated: "I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is: (1) whether the natural father is a fit person to be appointed guardian, and, if so: (2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed. In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ... In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing." 11. After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows: "(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed? (2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?" 12. Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court’s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia: "... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married. The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case. The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ..." He concluded that: "... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better". The matter was then referred back to the High Court for the case to be decided in light of this interpretation. 13. The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships. 14. In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond. He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law". Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows: "The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated. In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused." 15. An adoption order was subsequently made in respect of the child. 16. A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court (Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated. 17. The adoption of children in Ireland is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976. Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child. 18. Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant’s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964). 19. As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows: "(1) An adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section. (2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found. ... (6) A consent may be withdrawn at any time before the making of an adoption order." 20. As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows: "(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order - (a) the applicants, (b) the mother of the child, (c) the guardian of the child, (d) a person having charge of or control over the child, (e) a relative of the child, (f) a representative of a registered adoption society which is or has been at any time concerned with the child, (g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion, (h) an officer of the Board, (i) any other person whom the Board, in its discretion, decides to hear. (2) A person who is entitled to be heard may be represented by counsel or solicitor. (3) The Board may hear the application wholly or partly in private. (4) Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of." 21. The Supreme Court has held in the leading case of the State (Nicolaou) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the "family" in Article 41 of the Constitution related only to the "family" based on marriage. 22. Section 20 of the 1952 Act provides: "20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination. (2) Subject to rules of court, a case stated under this section may be heard in camera." 23. As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows: "3. Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration." "Welfare" in relation to an infant is defined as follows in section 2 of the said Act: "‘Welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant." 24. Section 6 of the 1964 Act provided as follows: "(1) The father and mother of an infant shall be guardians of the infant jointly. (2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court. (3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court." 25. The definition of "father" under section 2 of the 1964 Act did not include the father of a child born out of wedlock. 26. The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way: "11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4): ‘(4) Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act.’ 12. The Act of 1964 is hereby amended by the insertion after section 6 of the following section: ‘6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant. (2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ...’" 27. As regards court applications for custody of an infant, the 1964 Act provided as follows: "11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper. (2) The court may by an order under this section (a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother; ..." 28. This section of the 1964 Act was amended by the 1987 Act as follows: "13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4): ‘(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.’" 29. The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10). 30. The following developments have taken place subsequent to the facts of the present case. By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is. Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings. By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is (a) named as father on the child’s birth certificate, (b) in a continuous relationship with the mother, he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application. In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption. | 1 |
train | 001-107561 | ENG | UKR | CHAMBER | 2,011 | CASE OF ZAGORODNIY v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 6-1 and 6-3;Pecuniary and non-pecuniary damage - finding of violation sufficient | Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger | 5. The applicant was born in 1962 and lives in the town of Dimitrov, Ukraine. 6. Prior to November 2000 the legal representation of defendants in criminal proceedings could be conducted only by a licensed advocate. The advocate’s rights and obligations, and the required standards of professional competence and conduct were set forth in a separate Act of Parliament (see paragraphs 39 to 42 below). Other persons, including those holding a university law degree, were excluded from providing legal representation in criminal cases. 7. On 16 November 2000 the Constitutional Court found the relevant provisions of the Code of Criminal Procedure unconstitutional and the parliament introduced relevant amendments to the Code in June 2001 (see paragraphs 37 and 38 below). 8. On 4 August 2004 the applicant was involved in a traffic accident, in which his car collided with another car. On the next day, criminal proceedings concerning the accident were instituted against the applicant. 9. On 9 November 2004 the applicant signed an agreement with Mr M. for legal representation in the above-mentioned criminal proceedings. The latter was a lawyer, who held a university degree in law and who had a private legal practice, but who was not a licensed advocate. 10. On 16 November 2004 the investigator allowed Mr M. to act as defence counsel. 11. On 5 August 2005 the Dimitrov Local Court (“the Dimitrov Court”) held a committal hearing in the case and decided to remit the case for additional investigation on the grounds that the applicant’s right to mount a defence had been breached during the pre-trial investigation. The court noted that, in accordance with Article 44 of the Code of Criminal Procedure, the right to provide legal assistance is conferred upon advocates and other legal specialists (the term used to describe degree-educated practicing lawyers who have not been called to the Bar), but the right of the latter to act as defence counsel required to be defined by a specific piece of legislation. As there was no such law authorising a legal specialist with a private practice, such as Mr M., to provide legal assistance in criminal matters, the decision of the investigator to allow such a specialist to take part in the case had been unlawful and therefore the applicant’s right to mount a defence had been violated. The court ordered additional investigation with the participation of an advocate. 12. On 10 August 2005 the applicant appealed against the decision of 5 August 2005, claiming that limiting his right to a free choice of defence counsel was contrary to the Constitution and the decision of the Constitutional Court of 16 November 2000 (see paragraph 37 below). 13. On 13 January 2006 the court rejected his appeal. 14. On 24 March 2006 the investigator decided to allow Mr O., who was a licensed advocate, to take part in the criminal case as the applicant’s defence counsel. 15. On 26 April 2006 the applicant appealed in cassation against the decisions of 5 August 2005 and 13 January 2006. 16. By letter of 3 May 2006, in reply to a request by the applicant that criminal proceedings be instituted against the relevant judge of the Dimitrov Court for alleged deliberate failure to comply with the decision of the Constitutional Court concerning the right to a free choice of defence counsel, the Donetsk Regional Prosecutor’s Office informed the applicant that the court had rightly decided to remove Mr M. from the applicant’s case because he was not a licensed advocate. 17. On 11 May 2006 the applicant asked the Dimitrov Court to remit his case for further investigation on the grounds that his right to mount a defence had been violated. 18. On the same date the court rejected his request. The court established that the applicant’s right to mount a defence had been complied with as a result of the participation of Mr O. in the additional investigation. 19. On 12 May 2006 the applicant notified the court that Mr O. was not his defence counsel and that he had seen him only once, in April 2006, when he had pointed out to the investigator that he needed defence counsel but did not wish to be represented by Mr O. because he had not been freely chosen by him. Therefore, he contested the court’s conclusion that his right to mount a defence had been complied with. 20. On 22 May 2006 the Supreme Court rejected his appeal on the grounds that decisions as to the remittal of a criminal case were not subject to appeal in cassation. 21. On 17 July 2006 the Dimitrov Court rejected a request by the applicant that Mr M. be allowed to represent him as his defence counsel because the law did not provide that a private practice lawyer could act as defence counsel in a criminal case. At the same time, the court accepted the refusal by the applicant to have Mr O. appointed as his defence counsel. 22. In July 2006 the same court returned the applicant’s appeal against the decision of 17 July 2006 without consideration on the grounds that the contested decision was not subject to a separate appeal. 23. By a decision of 6 September 2006, following another request by the applicant to institute criminal proceedings against the judge of the Dimitrov Court for alleged failure to comply with the decision of the Constitutional Court, the Dimitrov Prosecutor’s Office again refused to institute criminal proceedings. 24. On 12 March 2007 the Krasnoarmeysk Local Court rejected an appeal by the applicant against the prosecutor’s decision of 6 September 2006. The decision of 12 March 2007 was upheld by the Donestk Regional Court of Appeal on 14 August 2007. 25. During a court hearing on 13 March 2007 the Dimitrov Court examined a request from the applicant asking it to accept his dismissal of a lawyer, Mr K., who had been appointed by the court to represent him after the decision of 17 July 2006, and to appoint his wife as his representative. The court allowed his request in part. It allowed the applicant’s wife to be his defence counsel but rejected the applicant’s dismissal of Mr K. on the grounds that the applicant had complained on numerous occasions about a violation of his right to mount a defence and therefore determined that he should be legally represented. 26. On 10 April 2007 the applicant wrote a letter dismissing Mr K. He claimed that the appointed advocates, Mr O. and Mr K., had only formally represented him and had not properly defended him. He noted, however, that he did need defence counsel, although not a formally admitted one. 27. On the same date the court rejected the applicant’s dismissal letter, stating that he had claimed that he needed defence counsel. 28. On 21 March 2008 the court rejected the applicant’s request to remit the case for additional investigation. It also rejected the applicant’s dismissal of Mr K. and the applicant’s request asking that Mr M. be allowed to take part in the case again. 29. On 27 March 2008 the applicant was found guilty of a breach of traffic rules which had caused medium bodily injury and sentenced to three years’ restraint of liberty (обмеження волі). However, he was discharged from serving his sentence owing to the expiry of the statutory time-limit for the prosecution. He was also ordered to pay compensation for pecuniary and non-pecuniary damage caused to the victims. 30. The applicant appealed against that judgment, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 31. On 13 June 2008 the Donetsk Regional Court of Appeal upheld the judgment of 27 March 2008 in part. The court noted that there had been no procedural violations that would require the judgment to be quashed. At the same time, the quantum of damages had not been substantiated and therefore the court remitted this part of the case for fresh consideration in separate civil proceedings. 32. The applicant appealed in cassation to the Supreme Court, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 33. On 24 February 2009 the Supreme Court upheld the decision of the Court of Appeal. In reply to the applicant’s complaint of a violation of his right to mount a defence, the court noted: “It is not worth paying attention to the arguments [submitted in] the cassation appeal by the convict that his right to mount a defence was violated, because, in rejecting the request of the convict, the court reasonably noted that, in accordance with Article 44 of the Code of Criminal Procedure of Ukraine, only a person who is the bearer of an advocate’s licence for practice in Ukraine is allowed to act as defence counsel and M. is not the bearer of such a licence.” 34. By a judgment of 5 February 2009 of the Dimitrov Court, the applicant was ordered to pay compensation to the victims of the traffic accident for pecuniary and non-pecuniary damage caused to them. 35. On 29 April and 30 June 2009 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the judgment of 5 February 2009. 36. Relevant provisions of the Constitution read as follows: “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.” “Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel. In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.” “... A suspect, an accused or a defendant has the right to mount a defence ...” “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of a citizen ... (14) the judicial system, judicial proceedings, the status of judges, the principle of judicial expertise, the organisation and operation of the prosecution service, bodies of inquiry and investigation, the [status of] notaries, bodies and institutions [pertaining to] the execution of punishments, the fundamentals of the organisation and activities of the Bar ...” 37. In this case, the Constitutional Court decided that: “1. The provisions of Article 59 of the Constitution of Ukraine, that "everyone is free to choose his or her own defence counsel”, in terms of the constitutional application of citizen G.I. S. shall be understood as the constitutional right of a suspect, an accused or a defendant in their defence from an accusation ... in order to obtain legal aid, to choose, as his or her defence counsel, anyone who is a legal specialist and who is entitled by law to provide legal assistance [on his or her own account] or on behalf of a legal person. 2. The provisions of part 2 of Article 59 of the Constitution of Ukraine that "in Ukraine, advocacy acts to ensure the right to mount a defence against an accusation ..." shall be understood as one of the constitutional guarantees, giving a suspect, an accused or a defendant the opportunity to exercise his or her right to freely choose, as defence counsel in criminal proceedings, an advocate, that is, a person who has the right to provide advocacy. 3. The following shall be considered not to be in conformity with the Constitution of Ukraine (unconstitutional): - a provision of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine which limits the right for a suspect, an accused or a defendant to freely choose as his or her own defence counsel, apart from an advocate, another legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person; ... 4. The provisions of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine ... deemed to be unconstitutional, lose their force from the day that this decision by the Constitutional Court has been rendered. 38. Relevant provisions of the Code read as follows: “Defence counsel is the person who, in accordance with the procedure prescribed by law, shall be authorised to protect the rights and legitimate interests of a suspect, an accused, a defendant, a convict or an acquitted person, and to provide them with necessary legal assistance in criminal proceedings. Persons bearing a licence to exercise the right of advocacy in Ukraine and other legal specialists, who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person shall be allowed to act as defence counsel ... The powers of defence counsel to participate in a case shall be confirmed: ... (2) for an advocate who is not a member of the Bar Association by an agreement, for other legal specialists who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person by an agreement or by the authority of the legal person ...” 39. Section 2 of the Act provides that, in addition to having a university degree in law, an advocate must pass special qualification exams, obtain an advocate’s licence and be sworn in as an advocate of Ukraine. 40. Sections 6 and 7 set forth the professional rights and obligations of the lawyer, including those in respect of evidence gathering and restrictions on representation. 41. Section 9 of the Act sets out the provisions for advocate-client confidentiality and section 10 sets forth the privileges enjoyed by the advocate in carrying out his professional activities, including the prohibition on the search and seizure of the advocate’s professional papers without his consent and the special procedure for instituting criminal proceedings against him. 42. Section 13 of the Act provides for special qualifications and disciplinary boards that assess the professional competence of advocates and deal with any disciplinary matters in the event of a breach of the requirements of the Act or other relevant legislation. 43. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “In order to ensure the correct and uniformed application by the courts of the legislation that ensures the right of a suspect, an accused, a defendant, a convict or an acquitted person to mount a defence, the Plenary Supreme Court decides: 5. The powers of defence counsel to participate in the case should be confirmed: ... (c) for any other legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person – by the documents specified in the specific legislation which confers on these persons the right to participate in criminal proceedings as defence counsel, as well as by a contract or through the authority of the legal person; ... In deciding whether a legal specialist has the authority to conduct the defence in a criminal case, it should also be established by exactly what law the right to participate in criminal proceedings as defence counsel was conferred on him or her. This should be recognised as the proper practice of the courts, which, in the absence of a specific piece of legislation, do not allow such specialists to conduct the defence in criminal cases ...” | 1 |
train | 001-75747 | ENG | RUS | ADMISSIBILITY | 2,006 | YEREMENKO v. RUSSIA | 3 | Inadmissible | Christos Rozakis | The applicant, Ms Lyubov Grigoryevna Yeremenko, is a Russian national who was born in 1949 and lives in Taganrog. She was represented before the Court by Ms I. Trofimova, a lawyer practising in Taganrog. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant moved from Chechnya to the Rostov Region due to military hostilities in Chechnya. She left her flat and other property in Chechnya. In December 1999 the Rostov Regional administration approved payment of compensation for the lost housing. The compensation was paid to the applicant in March 2001. The applicant considered that the value of the compensation had significantly decreased because it had taken the administration almost two years to pay it. She sued the Ministry of Finance of the Russian Federation for the damage caused by the delay in payment of the compensation. On 5 August 2002 the Justice of the Peace of the 2nd Circuit of the Leninskiy District of Rostov-on-Don granted the applicant’s action and awarded her 22,268.31 Russian roubles (RUR, approximately 715 euros). That judgment was upheld on appeal by the Leninskiy District Court of Rostov-on-Don on 13 September 2002 and the applicant sent a writ of execution to the Ministry of Finance on 23 October 2003. On 25 December 2004 the Ministry of Finance transferred the judgment debt to the applicant’s bank account. However, five days later, the bank returned the sum to the Ministry of Finance because the applicant had closed her account. On 23 March 2005 the applicant sent a registered letter to the Ministry of Finance informing it of her new bank account. As it follows from the acknowledgment of receipt, the applicant’s letter reached the Ministry of Finance on 4 April 2005. On 16 August 2005 the judgement debt was paid to the applicant. In August 2005 the applicant sued the Ministry of Finance for RUR 11,377.85 (approximately EUR 326) as compensation for the damage caused by depreciation of the value of the judgment debt as a result of non-enforcement from July 2002 to July 2005. On 19 September 2005 the Justice of the Peace of the 2nd Circuit of the Leninskiy District of Rostov-on-Don granted the applicant’s action and awarded her RUR 10,169.71 (approximately EUR 293). The judgment of 19 September 2005 was not appealed against and became final on 30 September 2005. Three days later the Leninskiy District Court issued the applicant with a writ of execution. On 11 October 2005 the applicant submitted the writ of execution to the Ministry of Finance and on 24 December 2005 she received the money. | 0 |
train | 001-23983 | ENG | CZE | ADMISSIBILITY | 2,004 | HORČÍKOVÁ v. THE CZECH REPUBLIC | 4 | Inadmissible | null | The applicant, Mrs Dagmar Horčíková, is a Czech national who was born in 1959 and lives in Prague 6. She was represented before the Court by Mr O. Choděra, a lawyer practising in Prague 1. The respondent Government were represented by their Agent, Mr V. Schorm. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 January 1998 the applicant lodged an action with the Prague 5 District Court (obvodní soud) against a private entrepreneur, seeking the payment of CZK 29,858 (EUR 913.23). The action reached the court on 30 January 1998. On 9 February 1998 the District Court invited the applicant to pay the court fees, which he did. The proof of this payment was notified to the District Court on 19 February 1998. On 24 February 1998 the court requested an excerpt from the Register of Trades (živnostenský rejstřík) concerning the defendant's business activities, which was submitted on 10 March 1998. On 20 March 1998 the applicant's claim was sent to the defendant. On 10 April 1998 the Prague 5 District Court found that the defendant had his permanent address within the Prague 6 district and, on 4 August 1998, it transferred the action, for territorial reasons, to the Prague 6 District Court. By a payment order (platební rozkaz) of 25 August 1998, the District Court ordered the defendant to pay the sum claimed by the applicant, including the default interest. According to the Government, the payment order was issued on 28 August 1998. The defendant did not appeal and the order became effective on 23 September 1998. On 9 November 1998 the applicant requested the execution of the payment order by means of the sale of the defendant's movable property. The applicant's request was notified to the District Court on 12 November 1998. By letter of 18 November 1998, notified, according to the applicant, on 22 December 1998, the District Court invited the applicant's lawyer to submit his power of attorney and to pay the court fees. The power of attorney and proof of payment of the fees reached the court on 28 and 29 December 1998 respectively. On 30 December 1998 the District Court ordered the execution of the payment order. On 11 January 1999 the order was notified to the applicant's lawyer who, on 29 March 1999, and upon the District Court's request, returned it for rectification of the date from which the default interest had to be paid to the applicant. On 30 March 1999 the applicant's lawyer urged the court to continue with his client's proceedings. On 6 April 1999 the court rectified the payment order which, on 9 April 1999, was served on the applicant. On 8 June 1999, 9 May and 20 September 2000 a bailiff unsuccessfully attempted to serve the execution order on the defendant, and to draft a list of movable property belonging to him. In the meantime, on 12 April and 13 September 2000, the applicant's lawyer had requested the court to enforce the execution order. During the period from 29 September 2000 to 8 January 2001, the defendant repeatedly attended the District Court and paid the amount due in several instalments. On 7 February 2001 the District Court remitted the whole sum of CZK 61,000 (EUR 1,865.73) to the applicant. In the meantime, on 24 October 2000, the bailiff had again unsuccessfully tried to contact the defendant at his permanent address. On 28 February 2001 the District Court remitted the defendant's outstanding payment of 1,811 CZK (EUR 55.39) to the applicant. In his letter of 4 February 2003 addressed to the Registry, the applicant's lawyer stated, without providing further details, that his client had received the totality of the amount due in the summer of 2001. | 0 |
train | 001-82420 | ENG | DEU | ADMISSIBILITY | 2,007 | VAN HARN v. GERMANY | 4 | Inadmissible | Snejana Botoucharova | The applicant, Mr Jan van Harn, is a Netherlands national who was born in Heteren in 1943 and lives in Ooij, the Netherlands. He is represented before the Court by Mr S. Nicolai, a lawyer practising in Wesel, Germany. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant works as a lorry driver. On 8 August 2001 he failed, in an inspection by an agent of the Federal Office for Goods Traffic (Bundesamt für Güterverkehr – hereinafter called Federal Office), to present documentation as to whether he had driven his lorry between 2 August and 7 August 2001. The protocol of that inspection was drawn up in German, contained the applicant’s comments and was signed by him. The protocol further noted that he had paid a security (Sicherheitsleistung) of 100 Dutch Guilders. On 25 September 2001 the Federal Office issued a regulatory fine order (Bußgeldbescheid) against the applicant, stating that he had committed a regulatory offence (Ordnungswidrigkeit). It held that the applicant had violated section 8 no. 1 (a) in conjunction with section 4 (1) sentence 1 of the crew regulations (Fahrpersonalverordnung). The Federal Office imposed a fine of 500 Deutschmarks (250 euros). The applicant was served the regulatory fine order on 29 September 2001. The fine order was written in German and included an instruction about his available legal remedies (Rechtsbehelfsbelehrung) in German. According to that note the applicant had the right to lodge an objection with the Federal Office within two weeks after the serving of the decision. On 3 October 2001 the applicant took notice of the regulatory fine order and sent it to his legal insurance company (Rechtsschutzversicherung) afterwards. The latter received the fine order on 12 October 2001 and forwarded the regulatory fine order to the applicant’s legal counsel on 15 October 2001. On 18 October 2001 the applicant’s legal counsel received the regulatory fine order and accompanying documents and lodged an objection with the Federal Office on the same day. On 29 November 2001 the Federal Office informed the legal counsel that the objection had been lodged outside the statutory time-limit. On 6 December 2001 the legal counsel requested the reinstatement of the proceedings (Wiedereinsetzung in den vorherigen Stand). He argued that according to the general terms and conditions of the legal insurance company the applicant had been required to send the regulatory fine order first to the insurance company instead of sending it directly to his legal counsel. Hence he could not be held responsible for the time it took the Netherlands Postal Service to deliver his mail. The applicant submitted an according affirmation in lieu of an oath, but he presented neither a copy of the general terms and conditions of his legal insurance company nor any proof for the actual period of time it had taken his letter to reach his legal insurance company. On 4 January 2002 the Federal Office rejected the applicant’s objection as inadmissible for having been lodged out of time. Furthermore, the Federal Office rejected the applicant’s request for reinstatement of proceedings. It held that the period of time for the delivery of his mail was contrary to all life experience and that the general terms and conditions of his legal insurance company did not justify the delay. On 17 January 2002 the applicant requested the review by court (Antrag auf gerichtliche Entscheidung). Invoking Article 6 § 3 (a) of the Convention, the applicant argued that the regulatory fine order should have been served in a language he understood. Therefore, the decision had not been effectively served (wirksam zugestellt). In this respect the applicant referred to instruction no. 181 of the “Instructions on Criminal Procedure and Administrative Fine Procedures” (Richtlinien für das Straf- und Bußgeldverfahren) which stipulates that if the recipient does not have a sufficient knowledge of the German language, all documents have to be served with a translation into a language he understands (see “Relevant domestic law and practice” below). Furthermore, the applicant drew the court’s attention to the decision of the Federal Constitutional Court decision of 10 June 1975 (see “Relevant domestic law and practice” below.) On 29 January 2002 the Cologne District Court confirmed the Federal Office’s decision for the following reasons. It held that the Federal Office had not been obliged to provide a translation of its regulatory fine order and the instructions about the available legal remedies, because Article 6 § 3 (a) of the Convention was only applicable to criminal proceedings. It denied its applicability to proceedings relating to regulatory offences (Ordnungs-widrigkeitenverfahren). Furthermore, the court recalled that an affirmation in lieu of an oath was not sufficient in such proceedings, because it could only be qualified as a simple declaration. The applicant then lodged a constitutional complaint with the Federal Constitutional Court arguing that his right to be heard by a court (Article 103 of the German Basic Law) had been infringed, because he had not been granted reinstatement of the proceedings. The applicant repeated that Article 6 § 3 (a) of the Convention had been applicable to his case. On 7 October 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without providing any reasoning. “No. 181 I... II Summons, arrest warrants, penal orders and other court decisions are to be served to a foreigner, if he does not have sufficient knowledge of the German language, with a translation into a language he understands. ... No. 296 Nos. 182 through 189 apply analogously to administrative fine proceedings “ Section 44 “If a person was prevented from observing a time-limit through no fault of his own, he shall be granted reinstatement of the proceedings upon his motion. ... Section 45 (1) The motion for reinstatement of the proceedings shall be filed with the court at which the time-limit should have been observed, within one week after the reason for non-compliance no longer applies. To observe that time-limit it is sufficient to file the motion in a timely fashion with the court that will decide on that motion. (2) The facts justifying the motion shall be demonstrated (glaubhaft machen) at the time the motion is filed or during the proceedings upon that motion. The omitted act shall subsequently be undertaken within the time limit for filing the motion. Where this is done, reinstatement may also be granted without an application being filed.” In its decision (see no. 2 BvR 1074/74, Decisions of the Federal Constitutional Court (BVerfGE), vol. 40, pp. 95 et seq.) the Federal Constitutional dealt with the following case. A Turkish national, who could neither read nor write German, was served a penal order. It included instructions about his available legal remedies written in German. Having problems finding a translator, he missed the statutory time-limit for lodging an objection. His request for reinstatement of the proceedings was rejected. The Federal Constitutional Court held that the applicant’s right to be heard under Article 103 of the German Basic Law had been violated. It found that the applicant, lacking sufficient knowledge of the German language, had been unaware of the statutory time-limit for lodging an objection. Therefore, his lack of understanding of the instructions about his available legal remedies was the reason for missing the time-limit. It followed that the applicant had to be treated as if he had never received instructions about his available legal remedies. The Federal Constitutional Court concluded that as a consequence for future cases, reinstatement has to be granted, if the recipient of a penal order (Strafbefehl) or a regulatory fine order missed the time-limit for lodging an objection, because he did not understand the instructions about his available legal remedies. | 0 |
train | 001-72544 | ENG | POL | CHAMBER | 2,006 | CASE OF HULEWICZ v. POLAND | 4 | Violations of Art. 5-1;Non-pecuniary damage - financial award | null | 8. The applicant was born in 1974 and lives in Lębork, Poland. 9. In the evening of 12 November 1996 the applicant was arrested on suspicion of attempted extortion committed earlier on that day. 10. On 14 November 1996 the Lębork District Court (Sąd Rejonowy) detained him on remand until 12 February 1997. It observed that the evidence obtained so far indicated that there was a great likelihood that the offence in question had been committed by the applicant. Further, it noted that the victim of the crime gave detailed testimony which he confirmed during the confrontation with the applicant. The placing of the applicant in detention was also justified by the severity of the anticipated penalty and the risk of the applicant’s going into hiding and attempting to influence witnesses. With regard to the risk of going into hiding, the District Court emphasised that in connection with the second set of proceedings (see below), the police had been looking for the applicant for over a month before his arrest. The applicant appealed against the detention order. 11. On 25 November 1996 the applicant requested his release. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision on the applicant’s detention and rejected his application for release. On unspecified dates in November 1996 the Lębork District Prosecutor heard testimonies from a number of witnesses. 12. On 21 January 1997 the investigation was terminated. On 30 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and the three co-accused persons. The applicant was charged with attempted extortion. 13. On 12 February 1997 the President of the Lębork District Court fixed the date of the first hearing for 8 May 1997. On 14 April 1997 the applicant’s lawyer requested the trial court to adjourn the hearing scheduled for 8 May 1997, since on the same day he had to attend a hearing in another case. On 18 April 1997 the court informed the applicant’s lawyer that it did not find any compelling reasons to adjourn the hearing. 14. A hearing scheduled for 8 May 1997 was adjourned due to the absence of the co-accused B.C. and the lawyers for the applicant and B.C. The trial court fixed the dates of the subsequent hearings for 17 June and 1 July 1997. 15. At the hearing of 17 June 1997 the applicant’s lawyer requested the applicant’s release. The trial court dismissed the request, considering that the grounds originally given for the applicant’s detention were still valid and that there were no new circumstances which would justify the termination of the detention. The trial court decided to adjourn the trial until 28 August 1997. 16. The hearing fixed for 28 August 1997 was adjourned until 9 October 1997. On 12 September 1997 the District Court ordered that the co-accused B.C. be detained on remand, considering that his behaviour clearly jeopardised the proper conduct of the proceedings. 17. On 7 October 1997 the trial court heard three witnesses. A hearing scheduled for 9 October 1997 was adjourned until 13 November 1997. On that date the District Court heard one witness and decided to close the trial. The applicant’s lawyer requested that his client be released. 18. On 14 November 1997 the Lębork District Court delivered its judgment. It convicted the applicant as charged and sentenced him to three years’ imprisonment and a fine. It also dismissed a request for the applicant’s release. The applicant appealed. 19. On 6 February 1998 the Slupsk Regional Court amended the first-instance judgment in favour of the applicant by reducing the sentence of imprisonment to one year and a half. 20. On 12 November 1996 the applicant was arrested on suspicion of acts of extortion committed at the beginning of October 1996. 21. On 14 November 1996 the Lębork District Court ordered that the applicant be detained on remand until 13 January 1997. The court considered that the evidence obtained so far in the investigation, in particular through the testimony of witnesses, revealed a great likelihood that the applicant had committed the offence with which he had been charged. It also pointed to the severity of the anticipated penalty and the risk that the applicant would go into hiding and attempt to induce witnesses and the victim to change their testimonies. 22. On 18 November 1996 the applicant requested to be released or to have his detention replaced by a more lenient preventive measure. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision of 14 November 1996. 23. On 7 January 1997 the Lębork District Court prolonged the applicant’s detention until 12 February 1997, referring to the necessity to carry out certain investigative measures. 24. On 13 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and three co-accused persons. The prosecutor asked the trial court to hear eleven witnesses. 25. On 10 February 1997 the President of the District Court fixed the dates of the hearings for 25 and 27 February 1997. On 13 February 1997 the applicant’s lawyer requested the trial court to postpone the hearing scheduled for 25 February 1997, since on that date he had to attend another hearing. 26. At the hearing held on 25 February 1997 the court heard the co-accused R.G.-D. Subsequently, the latter’s lawyer resigned, obliging the court to adjourn the hearing until 25 March 1997. 27. At the hearing of 25 March 1997 the trial court heard one of the co-accused and some witnesses. Subsequently, the District Court decided that the charges brought in the case should be characterised as armed robbery and that it did not have jurisdiction to hear the case due to the gravity of the charges. Accordingly, the case was transmitted to the Słupsk Regional Court, sitting as a court of first-instance, and registered under no. II K 25/97 on 8 April 1997. 28. On 21 April 1997 the applicant filed an application for release. On 23 April 1997 the Słupsk Regional Court dismissed the application. It relied on the great likelihood that the applicant had committed the offence at issue. The Regional Court emphasised the severity of the penalty likely to be imposed on the applicant. It further referred to the need to ensure the proper conduct of the proceedings, which concerned four co-accused persons. The court rejected as irrelevant the applicant’s argument that his detention in the present case “duplicated” the detention order made in the first set of proceedings. Lastly, the court considered that there were no circumstances which would justify the termination of the applicant’s detention pursuant to Article 218 of the Code of Criminal Procedure. 29. On 9 May 1997 the Regional Court refused to join case no. II K 77/97 (the first set of proceedings) to the present one. It considered that the three co-accused persons were different in each case and that the applicant was the only accused person to face charges in both sets of proceedings. 30. The court held hearings on 5 and 6 November 1997. On 5 November 1997 the applicant again requested his release. On the following day the applicant was released but continued to be detained in the framework of the first set of proceedings. 31. On 5 December 1997 the trial court held a hearing and delivered a judgment. It sentenced the applicant to one year’s imprisonment. The judgment became final on 24 June 1998. 32. On 28 January 2000, upon the applicant’s request, the Słupsk Regional Court issued a cumulative judgment (wyrok łączny) sentencing the applicant to a cumulative penalty of one year and ten months’ imprisonment (kara łączna) for the convictions contained in the judgments of 6 February 1998 (delivered in the course of the first set of proceedings) and of 5 December 1997 (delivered in the course of the second set of proceedings). The applicant appealed. On 11 May 2000 the Gdańsk Court of Appeal (Sąd Apelacyjny) upheld the judgment. 33. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997, which entered into force on 1 September 1998. 34. The 1969 Code of Criminal Procedure listed detention among the so-called “preventive measures” imposed by a prosecutor (which also included, inter alia, bail and police supervision). After 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) detention on remand could be imposed, pursuant to Article 210 § 3, only by a court. 35. Article 209 of the Code of Criminal Procedure set out the general grounds for the imposition of preventive measures. That provision, as it stood at the relevant time, provided: “Preventive measures may be imposed in order to ensure the proper conduct of the proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 36. Article 217 § 1 of the Code defined grounds for detention on remand. At the relevant time, that provision read: “Detention on remand may be imposed if: (1) there is a reasonable risk that an accused person will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) there is a reasonable risk that an accused person will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of the proceedings by any other unlawful means.” 37. The 1969 Code set out a margin of discretion for deciding whether to maintain a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the idea that detention on remand, the most severe among the preventive measures, should not be imposed if more lenient means were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied if the basis therefor has ceased to exist or if new circumstances have arisen which justify ending a given measure or replacing it by a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; it shall not be imposed if bail or police supervision, or both, are considered adequate.” Finally, Article 218 provided: “If there are no special reasons to the contrary, detention on remand shall be ended, in particular, if: (1) it may seriously jeopardise the life or health of the accused, or (2) it would entail excessively burdensome effects for the accused or his family.” 38. Article 214 of the 1969 Code, in the version applicable at the material time, stated, in so far as relevant: “An accused may at any time apply to have a preventive measure quashed or altered. ...” 39. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set any time-limits for detention on remand in court proceedings; it did so only for the investigation stage. Article 222(3) of the 1969 Code, in the version applicable after 4 August 1996, provided, in so far as relevant: “The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.” 40. At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996 the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. However, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention – which had originally been prolonged by a court for a fixed period at the investigation stage – being continued either for an unlimited period or until a first-instance judgment was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial even in the absence of any further judicial decision. 41. It was only on 6 February 1997 that the Supreme Court, referring to the historical background of the amended criminal legislation, mentioned the practice of keeping an accused person in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling related to the Code as amended with effect from 4 August 1996, where Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its Resolution no. I KZP 35/96 the Supreme Court replied – in the affirmative – to the question of whether, after the lodging of a bill of indictment with the competent court, that court was obliged to issue a decision prolonging the detention on remand which had, meanwhile, exceeded the period fixed (or prolonged) at the investigation stage. The relevant parts of the resolution read as follows: “Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings. Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings. Before the amendment, the legislation was based on the idea that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now the starting-point is that a suspect (and an accused person) should not be detained indefinitely, as long as a first-instance judgment is not rendered. Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because ‘detention of limited duration’ had become ‘detention of unlimited duration’. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.” In its further Resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that: “If the case in which detention on remand was ordered has been referred to a court with a bill of indictment and the period of detention previously fixed has expired, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.” Referring to its ruling of 6 February 1997, it also stressed that: “... the ratio legis of the amendments to the criminal legislation is based on the concept that a suspect (accused person) should in no case be detained indefinitely until the first-instance judgment is rendered in his case... It should be noted that, from the point of view of procedural safeguards for an accused person, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings...” | 1 |
train | 001-114133 | ENG | ROU | ADMISSIBILITY | 2,012 | DANILIUC v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Dumitru-Aurel Daniliuc, is a Romanian national who was born in 1967. He is currently detained in Arad Maximum Security Prison. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 2. By a final judgment of 15 January 2003 the Arad County Court convicted the applicant of aggravated murder and sentenced him to life imprisonment. He was imprisoned in Arad Maximum Security Prison. 3. The applicant lodged his first application with the Court on 23 August 2003; however, his file was destroyed because he had not submitted a complete application pack by the required time-limit. 4. The applicant lodged a second application with the Court on 24 January 2006 alleging that he had sent the first application pack by the required time-limit as instructed by the Court’s letter of 17 September 2003, but that the Arad Prison authorities had failed to post his letter. 5. According to the information submitted by the applicant, the food provided by the Arad Prison authorities was insufficient, poorly cooked, failed to include certain food groups (meat, milk, sweets and fruit), was lacking in nutritional value, and was served in unhygienic conditions. Moreover, he did not have adequate access to drinking water because the supply was repeatedly cut off. 7. On 22 January 2008 the applicant submitted five statements by fellow inmates in support of his application, which generally back up his complaints concerning the quality of the food and lack of adequate access to drinking water. 8. In a letter of 28 September 2011 the applicant informed the Court that his phone problem had been solved and that he now had daily access to phone conversations. 9. According to the information submitted by the Government, the Arad Prison was connected to the public water network and was permanently supplied with drinking water. 10. Between 26 and 31 January 2007 the applicant was hospitalised in Jilava Prison Hospital because he was suffering from gastritis. Upon his discharge from the prison hospital he was recommended a diet suitable for his gastritis. He was given a special diet until October 2009, when this was modified to take into account the applicant’s medical condition of dystrophia which led to the wasting of his muscles. 11. The applicant’s daily diet contained 4,000 calories and included all the food groups. The food was varied and was not cooked in the same way all the time. The quality of the ingredients was checked on a daily basis by the prison’s governor, a doctor and a representative of the prisoners. 12. The prison had two rooms fitted with two and three phones, respectively. From March 2007 the phones were fitted with booths in order to preserve the confidentiality of the phone conversations. The prison wardens charged with the surveillance of the prisoners’ phone conversations had a duty to record the numbers dialled by the prisoners in a report and then to visually supervise the prisoners during the phone conversations. 13. From 2009 the Arad Prison was fitted with an electronic phone system and twenty-one phones were installed in all the detention areas. The prisoners were granted the right to use the phones on a daily basis under visual supervision. 14. On an unspecified date in 2004 the applicant brought proceedings against Arad Prison seeking a court order to force the prison authorities to provide him with copies of his prison file. 15. By a final judgment of 18 November 2004 the Arad County Court allowed the applicant’s action in part and ordered the prison authorities to provide him with copies of the covering notes of his prison file, on the ground that these contained notes made by the authorities concerning the applicant, including how much of a danger he was considered to be. The court held, with regard to the other documents contained in the file, that according to the applicant’s own statements he had already been allowed access to them and had been provided with copies. Finally, the court dismissed his request for copies of the photographs contained in the file, stating that they were photographs taken on his arrival at the prison and that he had insufficient justification for being given them. 16. On 10 April 2006, the applicant brought proceedings against the Arad Prison authorities seeking a court order to force them to stop the illtreatment he alleged he was being subjected to. He argued that, among other things, the food was insufficient and of poor quality and that he had been repeatedly taken before the domestic courts in restrictive handcuffs and chains. He also asked to be taken to a specialist for a medical examination and argued that the confidentiality of his phone conversations was not being respected in so far as his conversations could be overheard by other prisoners and the wardens and the fact that he had been compelled to inform the prison authorities of the phone numbers he wished to call prior to dialling the numbers. 17. On 19 September 2006 the applicant brought proceedings against the Arad Prison authorities seeking a court order to force them to take him for an ophthalmological examination. He argued that as a result of the poor living conditions, in particular the thick metal grille obstructing natural light from entering the “metal cage” he was living in, he had partially lost his eye sight. 18. By a final judgment of 9 November 2006 the Arad County Court allowed in part the action brought by the applicant against the Arad Prison authorities on 10 April 2006 and ordered them to ensure the confidentiality of the applicant’s phone conversations. The domestic court held that according to Article 9 § 1 of Emergency Ordinance no. 56/2003, phone conversations were to be treated as confidential. However, according to witness statements, the applicant’s conversations had taken place in a room fitted with three phones and no phone booths, in the presence of two prison wardens and other prisoners. Consequently, the prison wardens and the other prisoners present in the room might have been able to overhear the applicant’s conversations. 19. The court dismissed the remainder of the applicant’s complaints. It held that, although this was a complaint not regulated by Ordinance no. 56/2003, according to the information submitted by the Arad Prison authorities the daily diet provided to the applicant had contained 2,855 calories and had been of good quality. The applicant had not substantiated his claim that he had asked the prison medical staff to take him to be examined by a specialist. The witnesses heard by the court in respect of the applicant’s claim of being tightly handcuffed and chained were unable to report on the applicant’s individual situation and, in any event, the prison authorities reported that his restraint was prescribed by paragraph 12 (4) of Ministry of Justice Order no. 2964/C/1999, which was applicable in his case. Finally, the fact that the prison authorities had limited the duration and number of the applicant’s phone conversations did not breach any of the applicant’s rights - a practice that was allowed by Ordinance no. 56/2003. 20. By a final judgment of 14 December 2006 the Arad County Court dismissed the action brought by the applicant against the Arad Prison authorities on 19 September 2006 on the ground that his claims were unsubstantiated. The applicant’s prison medical file did not contain any record that he was suffering from eye problems or that he had requested to see a specialist physician. Moreover, the metal grille fitted to the window was closed only during the night, between 7.30 p.m. and 7.30 a.m., and the room was fitted with a 120 cm neon light which was kept on even during the day when the grille was open. 21. On 8 November 2006 the applicant brought proceedings against the prison authorities, seeking to obtain a court order to stop the prison wardens from recording the phone numbers he called and from limiting the number of his phone calls. Moreover, he demanded that the metal grill (fitted one metre from the door and window of his cell) be removed on the ground that this prevented natural light from entering the room, made it impossible for him to open the window, and caused him to live in a metal cage. 22. On 23 November 2006 the applicant brought proceedings against the Arad Prison authorities seeking to be declassified from the “maximum security” regime under which he was detained. 23. By a final judgment of 15 January 2007 the Arad District Court dismissed the applicant’s action of 23 November 2006 on the grounds that the seriousness of his crime and his conduct did not justify his declassification from the “maximum security” regime. 24. By a final judgment of 26 February 2007 the Arad District Court dismissed the applicant’s action of 8 November 2006 on the ground that the requirement to pre-register the phone numbers the applicant was calling and the limitation on the number of phone calls he could make pursued a legitimate aim and did not interfere with the requirement of confidentiality of private phone conversations. This measure was put in force in order to deter the applicant from committing new crimes and the authorities were able to keep a record of the number of calls made by each prisoner and the individuals he had telephone contact with. Further, this was the only way each prisoner could be allowed access to phone calls given the limited number of available phones. The court also dismissed the applicant’s action seeking the removal of the metal grille fitted in his cell, on the ground that the grille served as a deterrent against escape. However, the court ordered the Arad Prison authorities to enforce a schedule for the opening of a door fitted in this grille facing the window so that the applicant could air the room. The court held that the door of the grille should be open at least between 7 a.m. and 7 p.m. during the winter and between 7 a.m. and 9 p.m. during the summer. 25. On 31 July 2007 the applicant brought proceedings against the Arad Prison authorities, seeking a court order to force them to provide him with full copies of Ministry of Justice Orders nos. 144/C/2002 and 1852/C/2006. 26. By a final judgment of 31 January 2008 the Arad District Court dismissed the applicant’s action of 31 July 2007 on the ground that the orders requested by the applicant were not mentioned in Article 43 § 1 of Law no. 275/2006 as being among those documents which were required to be made available to prisoners, and that they did not concern the applicant directly. The orders regulated the functioning of the special security measures in maximum security prisons and the applicant had not provided a reason why he needed full copies of such documents, particularly since he had already been provided with copies of the excerpts from the said orders which did concern him directly. 27. On 23 May and 23 June 2006 the applicant complained to the National Prison Administration that although he had not been classified as a highly dangerous inmate, he had been restrained each time he was taken before the domestic courts. He claimed that the prison guards intentionally tightened the restraints in order to cause him physical suffering. Moreover, he argued that his living conditions, in so far as the metal grille fitted to his room was concerned, did not comply with the acknowledged European standards for prisoners. 28. In two letters, nos. B21113 and B21128, the National Prison Administration informed the applicant that his living conditions and the methods used by the prison wardens to restrain him complied with the provisions of the Romanian Ministry of Justice Order no. 2964/C/1999, which set out the rules for prisoners serving life sentences, and provided him with the relevant excerpts from the said order. Moreover, the applicant was informed that, as of 6 March 2006, he was no longer classified as a “highly dangerous” prisoner. 29. On 11 October and 1 November 2006, relying on the provisions of the Criminal Code of Romania (the Criminal Code), the applicant brought proceedings against three employees of Arad Prison, namely P.L., M.N. and A.P., for unlawful interference with his correspondence. 30. On an unspecified date in 2006, again relying on the provisions of the Criminal Code, the applicant brought proceedings against E.S.P. and S.T., prison wardens at Arad Prison, for unlawful censorship and interception of his phone conversations. The applicant complained that the serial number of the phone card he had used and the numbers he had dialled had been registered in a phone record book and that the confidentiality of his conversations had been breached in so far as his phone conversations had been conducted on at the same time as other prisoners who were using the other two phones available in the room. 31. On 8 January 2007 the applicant brought proceedings against the head of Arad Prison for abuse of power. He argued that on 7 January 2007 the head of the prison had not allowed him to phone his family and he had stated that the applicant could phone his family only on certain dates. Lastly, the prison authorities had breached the confidentiality of his phone calls because he had been forced to disclose the phone numbers he was calling. 32. By a final judgment of 21 May 2007 the Arad County Court dismissed the applicant’s action against E.S.P. and S.T. on the ground that no unlawful act had been committed by the prison wardens The court held that E.S.P. and S.T. had performed their lawful duty and ensured that all prisoners had access to the phones at least once a week, in compliance with the applicable legal provisions. The fact that the applicant had been compelled to register, in a phone record book, the serial number of the phone card he was using and the numbers he wished to dial did not amount to censorship of his phone conversations. 33. By a final judgment of 25 July 2007 the Arad County Court dismissed the proceedings brought by the applicant on 11 October and 1 November 2006 against P.L., M.N. and A.P. on the ground that no unlawful act had been committed. The court held that P.L. had mistakenly cut an opening of 2 cm in envelope no. 11216 before he realised that it was addressed to the applicant. However, the envelope had not been further opened and no one had been able to see or copy its contents. Moreover, the applicant had not raised any objections or complaints in respect of this damage at the time he was handed the envelope by M.N. and A.P. 34. By a final judgment of 18 October 2007 the Arad County Court dismissed the applicant’s action of 8 January 2007 on the ground that no unlawful act had been committed by the governor of Arad Prison. It held that the Arad District Court had already examined the applicant’s complaints concerning the restriction of his phone rights to certain dates and his duty to disclose the numbers he wished to dial and had found it lawful. Moreover, the applicant had not indicated any emergency that would have justified his demand for access to the phone on a particular date. 35. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Emergency Ordinance No. 56/2003, Law No. 275/2006 and reports of the European Committee for the Prevention of Torture, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 22-23, 29 April 2008); Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007); and Coşcodar v. Romania ((dec.) no. 36020/06, §§ 1112, 9 March 2010). 36. Section 12 of the Ministry of Justice Order no. 2964/C/1999 provides that restraints must be used in respect of prisoners serving a life sentence when they are transferred from the prison, appear in public or attend hearings before domestic courts. 37. Article 43 § 1 of Law no. 275/2006 provides that, immediately following their imprisonment, prisoners are to be provided with copies of Laws nos. 544/2001, 275/2006 and the rules governing the enforcement of the said laws, copies of the orders and the relevant sections of the Romanian Criminal Code and the Code of Criminal Procedure concerning the execution of prison sentences, and copies of the prison rules and guidelines. 38. Section 6 of the Ministry of Justice’s Order no. 4622/2003 and the National Prison Administration’s decision no. 81800/2007 oblige the prison wardens to move away from the prisoner after they have witnessed him dialling the number he has registered in advance, in order to ensure the privacy of the phone conversation. | 0 |
train | 001-105728 | ENG | ROU | ADMISSIBILITY | 2,011 | MARCHIS AND OTHERS v. ROMANIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | The applicants, Mr Ioan Marchiş, Mr. Gheorghe Glodean and Mr. Ion Buftea are Romanian nationals who were born in 1950, 1957 and 1970 respectively and live in Strâmtura. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. The facts of the case, as submitted by the parties, may be summarised as follows. 1. In 2001 a private individual, B.P., started the construction of a residue-collecting basin in order to carry out the production of alcohol. The 10,000 litre capacity basin was located in the centre of the village of Strâmtura, a few hundred metres from the applicants’ windows and close to a supermarket, school, church and the town hall. 2. According to the information submitted by the Government, the residue-collecting basin was located 1 km from the first applicant’s property and 300 m from the second applicant’s property. The third applicant had a property 30 m from the basin, but during the period within which the distillery operated he did not live there. 3. B.P. started the production of alcohol without obtaining the necessary authorisations. Therefore, the mayor of the village imposed two fines on him for this breach. 4. On 27 March 2002 the Baia Mare Environmental Protection Inspectorate granted an environmental permit for the operation of the distillery, although they had initially dismissed BP’s request for authorisation. In granting the permit, the issuing authority imposed on the beneficiary an obligation not to cause discomfort in the area and interdicted him from releasing residues directly into the village’s water supply. 5. On 30 March 2002 the mayor of Strâmtura authorised the operation of the distillery. 6. In 2002 the applicants lodged a civil action with the Maramureş District Court, seeking to obtain the cancellation of the environmental permit granted to B.P. They contended that the operation of the distillery in the centre of their village, close to the school and church, had caused discomfort – not only to them, but also to other inhabitants of the village, had affected their health and had polluted the water passing through the village. They added that the residue-collecting basin was very close to the houses of the second and the third applicants, making their lives intolerable. They contended, in particular, that they had not been able to open their windows because of the smell and because of the countless flies that had been attracted by the residues collected in the basin. 7. By a judgment rendered on 9 December 2002, the Maramureş County Court dismissed their action on the grounds that the environmental permit had been lawfully granted. It stated that a public meeting had been organised by the mayor and that eighty people had attended it. It considered the applicants’ allegations concerning the insufficient number of attendees at the meeting to be unsubstantiated, noting that the law did not require a specific type of public meeting, consultation of the population or a minimum number of attendees at a public meeting. With regard to the location of the distillery in the centre of the village, the court noted that all the competent authorities had considered that the operation of the distillery would neither disturb its neighbours nor affect the environment. 8. The applicants filed an appeal on points of law, claiming, inter alia, the absence of consent from neighbours located in close proximity to the distillery. On 28 May 2003 the Cluj Court of Appeal dismissed the appeal on points of law filed by the applicants, stating that according to Law no. 453 of 18 July 2001, the consent of neighbouring proprietors was only necessary in the event of construction of new buildings or measures being taken that were necessary for their protection. It noted that the written consent of the inhabitants living in the region had been obtained, being mentioned in a minute drafted by the mayor of the village on 14 March 2002. 9. The applicants continued to submit complaints regarding the allegedly illegal and damaging activities of the distillery to all competent authorities. 10. Consequently, a review was carried out by the Prefect’s office (Corpul de control al Prefectului) on 2 July 2002. It concluded that the matters mentioned in the applicants’ complaints were not substantiated. 11. According to a letter dated 15 December 2003, the Maramureş County Council informed the first applicant that in November 2003 the Maramureş Public Health Department had cancelled an environmental health permit required for the operation of the distillery. Furthermore, from the documents submitted by the applicant it appears that on 5 December 2003 the same authority had imposed a fine on the owner of the distillery for nonobservance of the obligations established for the operation of the distillery. 12. Based on the same source of information, it also appears that the tax authorities imposed a substantial fine on the distillery owner and ordered that the distillery’s activities be ceased starting from 15 June 2004. 13. The Government submitted that the functioning of the distillery had ceased in 2005. 14. Provisions of domestic law relevant to the present case are to be found in Tătar v. Romania (no. 67021/01, ECHR 2009... (extracts)). | 0 |
train | 001-105013 | ENG | SRB | ADMISSIBILITY | 2,011 | NIKAC v. SERBIA | 4 | Inadmissible | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | 1. The applicant, Mr Gavrilo Nikač, is a Montenegrin national who was born in 1932 and lives in Tivat. He was represented before the Court by Ms D. Kisjelica, a lawyer practising in Herceg Novi. The Government of the State Union of Serbia and Montenegro and, subsequently, the Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. Once the banking and monetary systems were on the verge of collapse, the SFRY took emergency measures including legislative restrictions on the repayment of foreign-currency deposits to individuals. Following the dissolution of the SFRY, the statutory guarantees were taken over by the successor States. 4. In April 1992 the Republic of Serbia and the Republic of Montenegro proclaimed the Federal Republic of Yugoslavia (“FRY”), the legal predecessor of the State Union of Serbia and Montenegro (which was itself proclaimed in February 2003). In June 2006 Montenegro declared its independence, while the Republic of Serbia remained the sole successor of its predecessor’s states. 5. In a series of specific acts adopted in the 1990s, 2001 and 2002, the FRY accepted to convert the foreign currency deposited in these banks, including the bank here at issue, prior to 18 March 1995 into a “public debt” and then went on to set the time-frame and the amounts to be paid back to their former clients (initially by 2012 and then by 2016). According to the law of 2002, the said public debt should be the debt of the Republic of Serbia and the Republic of Montenegro, respectively, proportionally based on the total amount of savings deposited by the bank’s clients with a registered residence in each of the republics (see paragraph 27 below). The said laws also explicitly provided that foreign currency related judicial enforcement proceedings against the banks in question were to be discontinued (see paragraphs 25 and 28 below). 6. On a number of separate occasions in the 1970s the applicant deposited a significant amount of his foreign currency savings with the Slavija Bank, a State-owned bank based in Belgrade. 7. In 1982 the said bank refused to release the applicant’s funds. 8. On 3 February 1992 the applicant issued legal proceedings, seeking that his foreign currency deposits be released together with the interest stipulated. (At the time, the bank in question was already restructured and renamed as the “Belgrade Bank - main branch Slavija Bank”.) 9. On 1 June 1992 the First Municipal Court in Belgrade ruled in favour of the applicant and ordered the bank to pay him 26,526.42 US Dollars (“USD”), 270.29 German Marks (“DEM”) and 324.06 Austrian Schillings (“ATS”), together with the interest due and the legal costs. 10. On 29 September 1992 this judgment was upheld on appeal by the District Court and thereby became final. 11. On 14 December 1992 and 25 January 1993, the applicant sent two separate letters to the bank in question requesting payment within a period of 15 days, pursuant to the final judgment of the First Municipal Court. 12. Having apparently received no response, on 2 June 1993 he instituted formal enforcement proceedings before the Fourth Municipal Court in Belgrade. 13. On 4 June 1993 the Fourth Municipal Court adopted an enforcement order against the respondent bank and, on 1 September 1993, rejected the bank’s complaint against it. 14. On 12 August 1994 the Government of the Federal Republic of Yugoslavia allegedly adopted a decision instructing the courts not to enforce judgments against banks in cases concerning foreign currency savings. 15. On 10 October 2001 the Commercial Court in Belgrade opened insolvency proceedings (stečajni postupak) in respect of the “Belgrade Bank - main branch Slavija Bank”. 16. On 8 July 2002 the applicant sent three separate letters to the Government of the Federal Republic of Yugoslavia, the Yugoslav Central Bank and the Government of the Republic of Serbia, requesting that the judgment against the bank in question be enforced. 17. On 18 July 2002 the Yugoslav Central Bank responded by stating that, in a series of Acts adopted in the 1990s, 2001 and 2002, the State accepted to convert the foreign currency deposits in a number of failed banks, including the Slavija Bank, into a “public debt”, and then went on to set out the time-frame and the amounts to be paid back to their former clients. It further noted that the said Acts provided that any judicial enforcement proceedings instituted with respect to the banks in question were to be discontinued (obustavljeni). 18. On 3 June 2004 the applicant filed another enforcement request with the Fourth Municipal Court. 19. On 4 June 2004 he sent a letter to the Supreme Court of Serbia, requesting enforcement of the final judgment adopted by the First Municipal Court. 20. On 3 September 2004 the Fourth Municipal Court suspended the enforcement proceedings (prekinuo izvršni postupak) and, in so doing, held that the reason for this was the opening of a separate insolvency procedure in respect of the bank in question by the Commercial Court on 10 October 2001. 21. The applicant subsequently filed two complaints against this decision with the Fourth Municipal Court, on 14 September 2004 and 8 November 2004 respectively, requesting an “explanation” as to why the judgment in question “was not enforced prior to the opening of the said insolvency proceedings”. 22. There is no information in the case file that, following the adoption of the relevant legislation, the applicant had requested the conversion of the foreign currency savings deposited with the Slavija Bank into the public debt either from the respondent State or Montenegro, the country of his habitual residence. 23. Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with the “authorised banks” before 18 March 1995, including explicitly the deposits in the bank at issue in the present case (Slavija Bank), were to become public debts. 24. Under Article 10, the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame. 25. Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.” 26. This Act repeals the Act described above. It modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually. 27. Article 3 states that the said public debt shall be the debt of the Republic of Serbia and the Republic of Montenegro, respectively, proportionally based on the total amount of savings deposited by the bank’s clients with a registered residence in each of the republics (“srazmerno visini devizne štednje građana čije je prebivalište na teritoriji tih republika”). 28. Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.” 29. This Act has also been in force since 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the saver’s above-described status. 30. Articles 1, 2 and 3 provide that this Act shall regulate the reimbursement of foreign-currency savings deposited by individuals residing in Montenegro with the authorised banks based outside Montenegro, which funds were then further deposited with the National Bank of Yugoslavia (Narodna banka Jugoslavije). 31. Article 8 provides that Montenegro shall honour this debt by 2017, and specifies the amounts, plus 2% interest, to be paid annually in euros. | 0 |
train | 001-5533 | ENG | ITA | ADMISSIBILITY | 2,000 | SCHETTINI AND OTHERS v. ITALY | 4 | Inadmissible | Vitaliano Esposito | The applicants are Italian nationals; their names, year of birth and places of residence are set out in the annex. The first applicant is a secondary school teacher and also a member of the directive board of an independent trade union open to employees of public schools, called “School basic committees” (Comitati Base della Scuola - hereinafter referred to as “Cobas”).The other applicants are secondary school teachers who are also members of the said trade union. The applicants are all represented by Mr. Ascanio Amenduni, a lawyer practising in Bari. The respondent Government are represented by Mr Vitaliano Esposito, Co-Agent. The facts of the present case, as submitted by the parties, may be summarised as follows. On 1 December 1994 a decree was issued by the Ministry for Civil Service which set out, pursuant to Article 47 paragraph 2 of Law Decree no. 29 of 3 February 1993, the trade unions which were considered under Article 8 of Presidential Decree no. 395 of 23 August 1988, to be the “most representative” (sindacati maggiormente rappresentativi) of the school compartment and were accordingly admitted to take part in the collective bargaining. Cobas was not amongst these trade unions. On 11 May 1995 the three most representative trade unions and ARAN - the Agency for the representation of public administrations in negotiations (see below) entered into a collective labour agreement (contratto collettivo) on terms of employment and work conditions of public school teachers. Cobas, which, as well as other excluded trade unions, disagreed with the content of the collective agreement, embarked on a number of protest actions such as demonstration, strikes and occupations of schools. They also organised an informal referendum, whereby the majority expressed its discontent with the adopted agreement. Subsequent to these events, on 23 June 1995 a new collective agreement was concluded, which included certain amendments urged by the dissenting trade unions. On 4 August 1995 the Court of Audit endorsed the collective agreement, which thus acquired legal force erga omnes, i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining. Framework Law on Civil Servants no. 93 of 29 March 1983 (legge quadro sul pubblico impiego n. 93/83), hereinafter referred to as “the Law”, divided civil servants into eight categories called “compartments”. Each compartment was regulated by its own “compartment collective agreement” (contratto collettivo compartimentale). Section 6 of the Law regulated the system of collective bargaining. The procedure can be summarised as follows. At least eight months prior to the expiry of the collective agreement, negotiations were opened between, on the Government’s side, a governmental delegation set up for each compartment and, on the employees’ side, the most representative trade unions on the national level. Certain other trade unions (the most representative on the compartment level) could be allowed to participate, whereas single employees were excluded from the negotiations. Once an agreement was reached, within thirty days the Council of Ministers would have, after verifying whether the agreement is in accordance with the relevant legislation and with the estimated budget for the following years, to endorse the agreement, which would then be signed by the parties. Within sixty days from the date of the signature, the collective agreement would have to be enacted in the form of a Decree issued by the President of the Republic, after approval by the Council of Ministers. The Presidential Decree was to be endorsed by the Court of Audit (however, in practice, the Court of Audit carried out this task prior to the verification by the Council of Ministers). At this stage the agreement would be valid erga omnes. The collective agreement, in the form of a Presidential Decree, would be published in the Official Gazette and enter into force on the day after its publication. It would be valid for a period of three years from its entry into force. Article 8 of Presidential Decree no. 395 of 23 August 1988 set out the criteria for determining the degree of representation of the trade unions in each compartment. These criteria were: a) the percentage of proxies for paying contributions which the trade union is given by the workers (consistenza associativa); b) the percentage of votes obtained in the elections of different administrative organs; c) the presence and importance of the trade union’s bodies in the compartment. Law Decree no. 29 of 3 February 1993 assimilated civil servants (including employees in public schools) to private employees, thus making ordinary labour law applicable to their employment contracts. Framework collective compartment agreements are to be entered into; an Agency for the representation of public administrations in negotiations (Agenzia per la rappresentanza negoziale delle pubbliche amministrazioni - ARAN) was created and placed under the supervision of the Presidency of the Council of Ministers. Under Article 47, the degree of representation of trade unions was to be determined in an agreement between the President of the Council of Ministers and the trade unions. The relevant Presidential Decree could be appealed to the administrative courts by those trade unions which were considered not to be representative enough, through an expedited procedure. Article 47 was abrogated by Presidential decree No. 316 of 28 July 1995. Decree 396/97 introduced new criteria for determining the real degree of representation of workers in trade unions with a view to selecting the trade unions to be admitted to the collective bargaining. Pursuant to the new Article 47bis of Decree 29/93, workers must be represented by trade unions whose degree of representation in the relevant compartment is at least 5%, which percentage is calculated on the basis of the average between the percentage of proxies for paying contributions the trade union was given by the workers (dato associativo) and the percentage of votes it obtained in the personnel elections (dato elettorale). The new procedure for negotiating collective agreements is as follows. Before commencing the collective bargaining, instructions (atti d’indirizzo) are issued by the Department Sections (comitati di settore) of the Public Administrations. Negotiations are then carried out by the trade unions and the ARAN. Once a draft agreement has been reached, the ARAN submits it to the Department Section of the relevant compartment, which, within five days, has to express its opinion thereon. Upon the Section’s favourable opinion, the following day ARAN submits the calculation of the prospective costs to the Court of Audits which, within fifteen days, must certify its compatibility with the budget. In case the Court of Audits does not issue its decision within the said time-limit, its approval is considered as given. Upon the Court of Audit’s explicit or implicit approval, the President of ARAN signs the agreement, which acquires legal force erga omnes, i.e. in respect of all employees of the compartment, including those whose trade unions were not admitted to the collective bargaining. Upon the Court of Audit’s negative decision, ARAN must try, if possible, to reduce the prospective costs, otherwise the negotiations are reopened. The collective agreement can be challenged before the administrative courts by the trade unions which participated in the negotiations to the extent that it does not correspond to what had been agreed upon. It can also be challenged by the dissenting trade unions insofar as their dissenting opinions have not been taken into consideration. Each employee can appeal to the regional administrative courts against any decision directly affecting him/her, which is taken in the enforcement of the collective agreement. | 0 |
train | 001-107117 | ENG | ISL | ADMISSIBILITY | 2,011 | H. v. ICELAND | 4 | Inadmissible | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Ms H., is an Icelandic national who was born in 1982. She was represented before the Court by Mr Atli Gíslason and Mrs Jóhanna Katrín Magnúsdóttir, lawyers practising in Reykjavík. The Icelandic Government (“the Government”) were represented by Mrs Björg Thorarensen as their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 November 2002 the applicant attended a birthday party with some friends and had dinner with her father in Reykjavík. After dinner she and her father went to a bar in Reykjavík, where they stayed for some time. Her father bought her a beer, which she left on a table and lost sight of when she was dancing. The applicant submitted that the next thing she could remember was having woken up covered in blood, lying next to an unknown man (“J.”) in an unknown house. She did not know how she had ended up injured in his bed. She had panicked and had left as soon as she could. On the same morning, 9 November 2002, the applicant went to the Emergency Reception Centre for Victims of Rape and Sexual Abuse at the National and University Hospital, which took blood and urine samples and carried out an examination. The examining medical doctor, Mrs K.A., completed a “Forensic examination report” (file no. 916), dated 9 November 2002. This was a detailed form specifically tailored to instances of “Sexual incident/Sexual assault”, with boxes to be completed under a number of headings and sub-headings. Under the heading “Description of the Offence”, it appeared that the “Scene” was “unclear”, that the “Attacker” was “unknown”, that the occurrence of “Threats” was “Not known”, that it was “Not known” whether she had been “Forced to take drugs/alcohol” and whether “Violence” had occurred. Thereafter, the following information was rendered under the heading “Patient’s account”: “[...] She remembers little of what happened after going inside [the bar], but remembers being out on the dance floor. She does not remember having met anyone she knows, or anyone else apart from her father. She had drunk 1 bottle of white wine and 2 beers since 7 o’clock in the evening. Then she remembers nothing until 10 o’clock this morning when she woke up in a strange house on [R]. She was wearing only a short skirt and a bra. Two men lived in the house who she said had been very decent towards her. They had wrapped her in a duvet and blanket. They said they had found her lying in her own blood down in town. They had taken her home and attended to her, and were going to contact a doctor. [...]” The report further gave details on “Evidence taken on examination”, “Pelvic examination, Gynaecological examination”, “Injuries and other evidence” (which described injuries to her vulva, knee and legs, supported by drawings and photographs), “Conditions of clothing” and Physical examination”. Then, under the title “Conditions of examination”, Dr K.A. observed: “A young woman whose face is swollen from crying. She is evidently undergoing great suffering. She remembers very little of the past night, but has given a clear and coherent description of what she does remember. She makes a good impression and is cooperative. She is very credible. She complains of tenderness and pain in her lower body and has difficulty urinating.” Under the heading “Patient’s account of events” was listed a series of questions regarding notably the “Attacker’s sexual conduct”, in respect of which “Don’t know” was marked for each question, “Yes” or “No” being the other options. Under the heading “Physician’s conclusion”, the form set out detailed requirements as to the contents of the assessment. The examining doctor concluded: “A girl of twenty who has come to the Emergency Centre for Victims of Rape and Sexual Abuse and thinks she was raped last night. She has blood stains on the inside of her thighs and her lower body is tender. She woke up this morning in a strange house wearing only a bra and a short skirt. She had drunk alcohol of her own free will during the evening. She remembers virtually nothing of what happened during the night. Examination has shown that she has injuries to her genitals. She has haematoma [2x1cm] on the r. labia majora and a long tear [5 cm] in the labial fold with a flap that has been torn up from the skin. Evidently caused by very rough sexual intercourse. Photographs and drawings are enclosed. Samples were taken from the vulva and vagina for semen tests and a Chlamydia sample was taken, but due to tenderness it was not possible to take more samples. She also has grazes on her knees and legs, and scratches; it is not clear how these were caused. [...]” Under the heading “Release of physician’s report to the police”, it is stated that Detective Inspector S.K.R. had received the evidence and the physician’s report on 13 November 2002. On 12 November 2002 the applicant was again examined by Dr K.A., who completed a report on the same date, entitled “Follow-up Appointment I”. It listed a number of questions concerning the “Emotional state and shock reactions that have become more pronounced or appeared for the first time since the attack”. It noted, inter alia, a fear of meeting the attacker by chance, concentration problems due to obsession about the incident and sleeplessness. The report further noted that she had admitted to having given false information when she first came to the Centre; she knew the identity of the man in question and said he had been lying beside her, naked, when she woke up on 9 November 2002. Apparently, this follow-up report of 12 November 2002 was received together with the initial report of 9 November 2002 by Detective Inspector S.K.R. on 13 November 2002. In the meantime, on 10 November 2002 at 9.16 p.m. the applicant lodged a complaint against J. with the police. Interviewed by Detective Inspector S.K.R, she stated that at around 2.30 a.m. she had gone to the bar and continued: “Dad bought himself a beer and I had a few sips of it. Then he bought me a beer in a glass. I hadn’t felt much alcoholic effect before I drank from the beer that Dad bought me. After that I was dancing on the dance-floor of [the bar]. I remember putting my beer down a few times when I went to urinate; on one occasion I put it down by a small bar counter next to the dance-floor. I lost sight of my beer glass a few times. The last thing I remember from that evening is that I was dancing on the dance-floor. I remember Dad was watching me, and I remember that suddenly it was as if lots of people were on the dance floor, but there had not been many people there while I was dancing at the beginning of the evening. The next thing I remember was that I woke up in a house I didn’t recognise, in a bed I didn’t recognise and beside a man I didn’t recognise. I was wearing only a skirt and a bra. I felt immediately something was wrong. I wrapped the duvet [...] around me and went out of the room; I saw that the man was naked. I looked at a clock on the bedside table and saw that it was about 10 o’clock.” The applicant further recounted that on her way to the bathroom, she had noticed “a telephone table with a phone on it”. When she had found the bathroom she had gone in and discovered that she had blood on her thighs. She had been unable to urinate. She had examined her lower body and seen the injuries to her genitals. Her knees had also been bruised and she had had scratches on and below her knees. The applicant stated: “Then I went into the hallway again and phoned my mother.” The applicant had started crying and J. had come out of the bedroom. “He asked me who I was phoning, and I told him and I asked him where I was; then he asked me if I was leaving and I told him I had to go home to my daughter.” The applicant had asked her mother to pick her up and she had then gone looking for her clothes. She had asked J.: “Wasn’t I wearing any clothes when I came here?” to which J. had replied: “No.” The applicant had said: “Surely I didn’t come here like this?” and J. had replied “Yes you did,” and grinned. The applicant had put on a t-shirt belonging to J., her jacket and her boots and gone out. She stated: “I couldn’t find my mobile phone, and he offered to phone it. I gave him my phone number, and he phoned [...]”. At the same time J. had been putting on his outdoor clothes, getting ready to leave along with an older man. They had seemed to be leaving together and J. had told the applicant where he worked. The applicant’s stepfather had picked her up. When she had got home her mother had noticed that something had happened and asked the applicant, who had shown her the injuries. Her mother had telephoned the emergency service and then taken the applicant to the Emergency Reception Centre for Victims of Sexual Offences. The applicant stated that she had not told the doctor during her consultation that she had woken up next to this man. She had been in denial that he could have done this to her. She further stated that she had been in deep shock and afraid of pressing charges. She had been very cold, shivered, cried a lot and had much pain from her physical injuries. The applicant had then pointed out: “[The applicant] says she wishes to state that she is absolutely certain that she did not go home with this man of her own free will. She wishes to state that she has only had close relationships with two men in her life, one of them being the father of her child. She says she has never experienced a ‘blackout’ when drinking alcohol. She says she has never abused alcohol. She says she considers it likely that something was put in the beer she drank last at [the bar]. She says she can tolerate drinking a considerable amount of alcohol before feeling the effects. Also, she does not think it normal that she would not have woken up when suffering her injuries.” The applicant continued by affirming that when she had woken up she had felt as if a heavy weight was pressing down on her and that she was paralysed. She had also had a headache. She intended to press charges and to demand that the perpetrator be punished and she reserved the right to demand compensation at a later stage. Her interview ended at 11.44 p.m. The applicant was assisted by an officially appointed lawyer throughout the criminal investigation. On 11 November 2002 at 4.55 p.m. the police questioned J. He was informed of the charges against him and invited to comment on them. He stated: “I went out alone to enjoy myself last Friday night. I had drunk about eight cans of beer and felt the strong affect of the alcohol. Between one and two o’clock I went to the bar [...]. There I got talking with a man, an Icelander, who was sitting at a table. I sat with him and we started talking about this and that. After I had been sitting there with him for some time a girl came to the table and it turned out that she was this man’s daughter. I started looking into her eyes and I thought I felt some sort of current between us. The next thing I knew we were inside the women’s toilet in [the bar] and had started kissing. Then we went out onto the dance-floor and danced for a bit. I thought this girl was about as drunk as I was. But I don’t remember having seen her drink anything alcoholic while we were there. Then we went back together to the women’s toilet and started kissing again. While we were kissing, a doorman came into the toilet and threw me out of it, and out of [the bar].” J. stated that he had waited outside for a short while and then the applicant had come out and they had taken a taxi to J.’s house. The next morning she had given J. her phone number so he could phone her again. He had tried to phone her the next day when he had found her underpants and her top but no one had answered. At this point, at 5.40 p.m., the questioning stopped for a moment while the police took J. to the technical division where he was photographed and his fingerprints taken. DNA samples were also taken. The questioning continued at 6.01 p.m. During this part of the questioning J. was asked direct questions and was presented with the applicant’s testimony. J. was asked why he had asked the applicant to go home with him. He replied that he had wanted to have sex with her but that had not happened as he had thought she was menstruating. J. stated that it was not true that she had woken up dressed in a skirt and a bra and he had been naked. She had been naked and he had been wearing his underpants. About the applicant’s statement that she had had “blood all over her thighs”, J. stated that it could have been so; he had seen blood on the front of her thighs before going to sleep. When presented with the applicant’s detailed account of her injuries, bruises and scratches J. replied that he knew nothing about it. When invited to comment on the applicant’s rendering of her observations about her clothing and his statements in reply, J. stated that he did not remember having said what she indicated. J. was told that the applicant had said that she had given him “her mobile phone number so that [he] could phone it there and then and [sic] she could hear it ring so that she could find it.” J. stated that she had given him his phone number so that he could phone her later, that he did not remember her phone number but that he had it saved in his phone. J. was further asked to comment on the applicant’s statement that “she remember[ed] nothing from about half past two” in the morning until she had woken up beside him at 10 a.m. J. stated that he knew nothing about that. J. was then asked whether he had given the applicant “any sort of drug”, to which he replied: “Certainly not.” He was asked whether he had taken drugs recently and he stated that he had not. When asked whether he had “assault[ed the applicant] sexually,” he stated that he had not. When asked whether he had contacted her after the morning of 9 November, he stated that he had tried to phone her the day before the questioning [10 November] because he had found her clothes but no one had answered. J. further stated that he did not understand the case and that he had no further statements. His defence lawyer requested that he be asked whether he had seen the applicant having any contact with other men at the bar, apart from J. and her father. J. stated that he had seen her talking to some other men while they had been dancing. He further stated that he had been quite drunk at the time. On the same date, at 7.05 p.m., the police carried out a search of J.’s home. J. gave them underwear and a T-shirt belonging to the applicant. The police found no further evidence during the search but stated in the search report that the room had appeared to have been recently cleaned. J.’s grandmother had told the police that she had cleaned the room the day before and changed the bedclothes. She could recall that there had been bloodstains on the bedclothes that she had taken off from the bed. On 12 November 2002 the police interviewed the applicant’s father. He stated that he and the applicant had gone to the bar at around 2.30 a.m. He had bought beers for them and they had sat down at a table and talked. The applicant had gone to the dance floor to dance with some people she appeared to know. He had seen a young man putting his arms around the applicant while she had been talking on the phone and he had embraced her. It had appeared as if she had not approved of this and that she had not known the man at all. The applicant’s father had told the man [J.] that he was her father and that this was not “gentlemanly behaviour”. The man had taken it well and sat down at the table with him. J. had repeatedly expressed his feelings towards the applicant. J. had invited the applicant to dance and she had gone with him to the dance floor. They had danced for a short time and then J. had come to take his jacket, which he had left by the table. At around 5 a.m. the applicant’s father had noticed that she was gone. He had waited for about an hour and then he had gone, taking her phone, which she had left on the table, with him. On 13 November 2002 the police interviewed Mr S., the doorman at the bar on the night in question, who had stated: “I was working at [the bar in question] on the night in question; I work there sometimes as a doorman. I remember that [x], the son of the owner of [the bar], came to me and said that there was a man and a woman in the men’s toilet having intercourse. This happens quite often, and when it does we doormen put a stop to it. I went into the men’s toilet and saw straight away that there were two people in one of the toilet cubicles. I knocked a few times because I could hear that there was more than one person in the toilet cubicle. After a little while I asked if there was more than one person in there. A man then answered me and said ‘Wait a moment, there’s been a slight accident.’ Then I knocked again and asked the man to open the door, and I tried to open it myself but I couldn’t. Then I told the man again to open it, and after about 5-10 minutes the man opened the door. Then I saw that there was a woman and a man inside; the woman was about 22 years old, blonde, about 170 cm tall and wearing glasses; her hair was in a pony-tail and reached down just below her shoulders; the man was small and stocky. I saw straight away that there was a lot of blood in there, both on the walls and on the toilet itself, that is, on the seat and the cistern. I also saw blood on the floor. I saw that the woman had quite a lot of blood on her hands, but I didn’t see any blood on him. I offered to call an ambulance or the police for them, but the man himself turned this down. The woman did not say anything. I then showed her into the women’s toilet so she could wash herself, and I ordered him out into the hall to begin with. I think it was about five o’clock at this stage. I thought it must have been menstrual blood. Then I went out front and told the doorman, [Sn], about the blood and that something had been going on inside. [S] then told the owners of [the bar] about it. After a short time I then went into the women’s toilet to see about this girl, but when I went in there she wasn’t anywhere near the washbasins. Some girls who were in there indicated to me that there was someone inside one of the toilet cubicles. I went over to the cubicle and knocked, and then I heard that there was more than one person inside the cubicle. This was the largest cubicle in the women’s toilet. They opened the door to me, and I saw that the man had come to her and she was sitting on the toilet. She still had blood on her hands. I didn’t think the man was very drunk; I even thought he was completely sober. On the other hand I thought she was very drunk. I had seen her earlier in the evening and noticed that she was rather drunk. I took the man outside and asked the doormen not to let him in again. The man didn’t show any resistance to this. Then I went back into the women’s toilet, and the woman had come out of the cubicle and was washing her hands. I asked her if she would like to call an ambulance or the police, but she just shook her head. I saw that she was in a really bad state, so I went with her out to the door to the street and told her to take a taxi and go home. I didn’t see her again that night. I think this all happened between 04:30 and 05.00. I remember she went outside several times during the evening to get fresh air. I recognise this woman, as she comes regularly to [the bar].” On different dates between 12 and 18 November 2002 the police photographed and analysed the applicant’s skirt, T-shirt and underwear, in order to identify stains of blood and other organic substances, notably by DNA tests, as well as the bruises on her arms and legs. This information was compiled in a report dated 19 November 2002. The police requested that tests be carried out on the samples for alcohol and drugs, with specific tests for drugs that could impair judgment. These were samples that had been taken from the applicant when she came to the Emergency Reception Centre on 9 November 2002 as described above. The Pharmacology and Toxicology Laboratory issued the results in a report dated 16 December 2002: “Ethanol was found to be present in a concentration of 0.62‰ in the blood and in a concentration of 1.78‰ in the urine. Amphetamines, benzodiazepine compounds, cannabinoids, cocain and morphine drugs were not present in measurable quantities in the urine. Gamma-hydroxybutyric acid was not present in measurable quantities in the urine. A standard drug scan of the urine did not detect any drugs that can be found using that method. The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.” The samples taken from the applicant at the Emergency Reception Centre were sent to a forensic laboratory for analysis. The assessment from the University Pathology Laboratory, dated 26 November 2002, includes the following statement: “According to the foregoing, no sperm cells were detected, [...] nor was there any indication of the presence of semen in the samples taken from the plaintiff or on her clothing (underpants and skirt).” On different dates between 12 November 2002 and 3 January 2003 the police interviewed several people, mostly friends of the applicant who had met her on the night in question, and also her mother and J.’s grandmother, the grandfather having availed himself of his right not to testify. The grandmother stated, inter alia, that when she had removed the bed clothes she had noticed a bloodstain on the duvet cover and that she had not given this any further thought. She asked J. whether he had hurt himself and he had replied that he had hurt his finger. The police photographed J.’s home and the bar. The photographs were compiled in reports dated 15 November 2002 and 6 March 2003, respectively. On 18 February 2003 the police again interviewed the applicant. She was asked whether she wished to change or add anything to her previous statement. She stated that she did not. She was then confronted with the statement of her father regarding her interactions with J. on the night in question. She stated that she did not remember a man embracing her but she did remember her father standing up while she had been talking on the phone. She had been talking to her friend, G. She further stated that she did remember dancing after talking on the phone but that she did not remember dancing with J. The applicant was then confronted with the statement of the doorman S. regarding, among other things, his dealings with her and J. in the toilet. She stated that she had nothing to say about the statement, she did “not remember this happening” and referred to her earlier statement. The applicant was further confronted with parts of J.’s testimony regarding their contact in the bar. She replied that since she did not remember having seen J. at the bar she could not comment on this, and that she remembered only that the first time she had seen him was when she had woken up beside him in the morning. Lastly, she was confronted with the results of the tests of alcohol and drugs in her blood: “The only thing I have to say about this assessment is that it does not fit with the amount of alcohol I remember drinking.” On 8 April 2003 Officer S.K.R., accompanied by Officer G.P., went to Lund in Sweden, where suspect J. lived as a student, in order to question him further. Officer S.K.R. informed J. that the investigation had revealed that he had gone into the toilet in the bar twice with the applicant, first in the men’s toilet, then in the women’s toilet. Officer S.K.R. asked him when it was decided that they would go into the toilet, what had happened between them there and confronted him with specific parts of the testimony of doorman S., the applicant’s mother, and the applicant herself. J. said that they had gone into the men’s toilet together, where they had closed the door and begun kissing. They had had oral sex. J. gave a detailed account of the event from the moment they entered the toilets until they were ordered to leave by the doorman. He said that the applicant had taken her underpants off, possibly before her injuries, but had not put them on again before leaving the toilet; he had therefore collected them and put them in his pocket. She had already started to bleed between her legs. He said he had then followed the applicant into the women’s toilet, but nothing had happened between them because the doorman had been so quick to follow them in there and had thrown him out of the bar. He said he had waited outside and that the plaintiff had come out shortly afterwards and had sat down on the steps. He had called a taxi and asked the plaintiff if she was going to come home with him which she had done. In his house they had begun undressing each other, and she had been completely naked. He had seen that there was blood coming from her genitals, and he had thought she was starting her period. He denied having had intercourse with her or having moved his body as if he had been. Suspect J. was questioned about how it was possible that there was no blood on the applicant’s underwear even though she had sustained serious injuries to her genitals. J. said that before he had left the men’s toilet he had taken her underpants and put them in his pocket. When confronted with doorman S.’s statement, J. commented that he could not remember having told the doorman that there had been a slight accident, but he could remember that the applicant was bleeding between her legs, the causes for which he had ignored. Officer S.K.R. then asked J. what he had meant when he had said that there had been a slight accident, to which J. responded that he could not remember having said these words when the doorman had told him to open the door. Nor could J. remember that the doorman had offered to call an ambulance or the police. Officer S.K.R. then informed J. of the applicant’s injuries and of the assessment made by the Emergency Reception Centre for Victims of Rape and Sexual Abuse, where the applicant had been examined immediately after leaving his home, that she had received these injuries from very rough sexual intercourse. In response to this, J. denied having had sexual intercourse with the applicant either at the bar or after they had gone to his home. He could not offer an explanation regarding the injuries described to him. He said that he had lain on top of the applicant while kissing her and it was perhaps not impossible that the buttons or the zip on his trousers fly had caused the injuries. He did not remember whether the jeans he was wearing that night had buttons or a zip. On 6 August 2003 the Director of Public Prosecutions informed the applicant and J. that in view of the state of the evidence, which was insufficient for securing a conviction for rape, the case was closed. On 28 August 2003, after the applicant’s lawyer had requested under Article 114 § 1 of the Code of Criminal Procedure a written explanation of the reasons, the prosecution services replied: “The plaintiff claims that she has no memory of the events in the case, and considers that this was a consequence of ‘something having been put in the beer from which she had her last drink in [the bar],’ and not from her own consumption of alcohol. In the investigation of the case, blood and urine samples were taken from the plaintiff, and it was requested that these be tested for alcohol and for drugs which can affect judgment. No common drugs of this type were found, but the assessment by the Pharmacology and Toxicology Laboratory includes the following statement: ‘The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.’ From the description given by the doorman at [the bar], who on two occasions had to deal with the plaintiff and the accused, first in the women’s toilet and then in the men’s toilet of the bar, the only conclusion to be drawn is that the plaintiff had by then already suffered the injuries to her genitals which you mention in your letter. The plaintiff made no complaints regarding her dealings with the accused when the doorman spoke to her; this happened on two occasions, and amongst other things he offered to call an ambulance or the police, but his offer was rejected. No signs of sperm were found in the samples taken from the plaintiff, which can corroborate the statement by the accused that he did not have sexual intercourse with the plaintiff. On the other hand, he admitted that other sexual acts had taken place between them at the bar, but did not admit to further sexual acts with the plaintiff after they arrived at his home.” The applicant underwent aesthetic surgery in March 2006 on the injuries sustained to the outside of her genitals. In this connection the surgeon stated that the damage could not be repaired perfectly. He could not ascertain the causes but referred the applicant to the doctor who had examined her immediately after the incident. According to a psychologist’s statement of 10 April 2006, the applicant had many of the symptoms of stress and trauma that were common in victims of sexual violence. On 29 June 2006, almost three years after the Director of Public Prosecutions announced his decision not to prosecute, the applicant’s new representative requested that the case be reopened. In his request he stated that the investigation had been substantially flawed and that the case had not received priority attention from the police. The request was accompanied by documents testifying to the psychological treatment the applicant had undergone since the incident and certificates regarding the mental and physical consequences of the alleged rape. On 23 August 2006 the Director of Public Prosecutions rejected the applicant’s request. In his letter the Director explained the legal conditions for a case to be reopened, namely, that a case could not be reopened unless significant new evidence had come to light or was likely to come to light. He further described the evidence and the facts of the case. After describing the materials accompanying the request, he stated: “The materials accompanying the request for reopening of the case contain, first and foremost, further descriptions of [H.’s] emotional and mental state following the incidents to which the investigation materials of the case refer, as is discussed above. [H.’s] emotional and mental suffering, to which the new materials bear witness, are doubtless the consequences of what happened to her in the early hours of 9 November 2002. On the other hand, these materials are not considered as further illuminating what really happened in the dealings between her and the defendant on the night in question. From this it follows that the conditions for the reopening of the case under the third paragraph of Article 7 of the Code of Criminal Procedure [in force at the relevant time] have not been met.” On 12 September 2006 the applicant’s representative wrote a letter to the Minister of Justice marked “Confidential” in which he criticised the way the authorities had handled the case. He stated that H. had entrusted him with lodging an application with the European Court of Human Rights regarding the case, but before doing so, he considered it right to give the Minister of Justice the opportunity to examine her case and redress her position. On 6 October 2006 the Ministry replied. After describing the events of the case, the letter stated: “The scope available to the Minister of Justice to review decisions by the Director of Public Prosecutions regarding the discontinuance of a case is restricted to the condition that the decision is considered as being at variance with the law, or extraordinary in some other respect (compare with the second paragraph of Article 26 of the Code of Criminal Procedure [in force at the relevant time]). This case is not considered to be of such a type as to make it appropriate to apply this provision.” On 16 October 2006 the applicant’s representative wrote another letter to the Ministry in which he explained that the purpose of the previous letter had been twofold: to have the decision of the Director of Public Prosecutions revised and to request the Ministry to compensate the applicant for the damage she had suffered. On 28 November 2006 the Ministry informed the applicant’s representative that it had forwarded the claim for compensation to the Attorney-General in Civil Matters who was the competent authority to deal with such claims against the State. On 29 December 2006 the Attorney-General rejected the applicant’s claim with the following arguments: “In the view of the Attorney-General, no legal grounds exist for granting the aforementioned claims by your client. In this connection, reference may be made to the judgment of the Supreme Court of Iceland in case no. 178/2001. The following is taken verbatim from Section II of the judgment: ‘Under the second paragraph of Article 25 of Act no. 19/1991 [the Code of Criminal Procedure in force at the relevant time], with subsequent amendments, the Director of Public Prosecutions is the supreme authority for exercising the power of prosecution. In exercising it, he is independent of the will of the government authorities and of other parties; under the first sentence of the first paragraph of Article 26 of the same Act, the Minister of Justice monitors the exercise of the power of prosecution. The prosecution has an obligation to take measures to ensure that cases are investigated and that they are then brought to a conclusion as quickly as possible and in a manner that can be regarded as normal. Failures to meet this obligation may result in liability on the part of the civil servant involved, in accordance with the legislation and rules applying to civil servants. Actions taken by the prosecution involving specified coercive measures may also entail compensatory liability towards those against whom they are applied in accordance with the provisions of section XXI of Act no. 19/1991 or the general principles of Tort Law. This basis for action does not apply to those who suffer injury or damage caused by a criminal offender. The injured party is to have an opportunity to lodge a claim for compensation against the offender in the case, but in other respects no legal relationship exists between the injured party and the prosecution. Neither the injured party nor other parties are expected to influence individual decisions taken by the Director of Public Prosecutions in connection with the exercise of the power of prosecution; regarding such decisions, the Director of Public Prosecutions is independent in his work, as has been stated above. This applies equally to his assessment of whether any necessity exists that justifies a demand that a suspect or an accused person be subjected to coercive measures. From the foregoing it follows that an injured party cannot lodge a compensatory claim against the defendant at a later date based on the assertion that measures, or measures in addition to those that were taken by the authority for exercising the power of prosecution, were needed against the alleged offender. [...].’ The Attorney-General considers it beyond doubt that the above case-law of the Supreme Court applies to your client’s claim for compensation. With reference to this, your client’s compensation claim is rejected on the grounds that no basis can be found, either in Icelandic legislation or in case-law, for any right to compensation on the part of your client against the Icelandic State.” No judicial appeal was lodged against the Attorney-General’s above decision. At the material time Articles 194 and 196 of the Penal Code provided: Article 194 “Any person who has sexual intercourse or other sexual relations with a person by means of using violence or the threat of violence shall be imprisoned for a minimum of 1 year and a maximum of 16 years. ‘Violence’ here refers to the deprivation of autonomy by means of confinement, drugs or other comparable means.” Article 196 “Any person who exploits a person’s psychiatric disorder or other mental handicap, or the fact that, for other reasons, he or she is not in a condition to be able to resist the action or to understand its significance, in order to have sexual intercourse or other sexual relations with that person, shall be imprisoned for up to 6 years.” The Code of Criminal Procedure contained the following provisions of relevance: Article 112 “After receiving the materials in a case and establishing that the investigation is complete, the prosecutor shall consider whether or not any person is to be prosecuted. If he considers that what has been revealed is not sufficient, or likely, to result in a conviction, he shall take no action; otherwise, he shall put the case before a court as provided for under Article 116.” Article 114 § 1 “If a case is dropped under Article 112, or prosecution is discontinued under Article 113, the prosecutor who took that decision shall inform the accused person of it and also the victim, where the victim’s identity is known. Reasons for the decision shall be given if requested.” Article 76 § 3 “If an investigation against an accused person has been discontinued because the case materials are not considered to constitute sufficient evidence for an indictment, the investigation should not then be reopened against that person unless new case materials have come to light or are likely to come to light.” Article 26 § 2 “If the Minister of Justice considers the dropping of a case by the Director of Public Prosecutions to be at variance with the law, or out of the question on other grounds, he may recommend to the President of Iceland that the decision by the Director of Public Prosecutions be quashed. In such cases, the Minister of Justice shall appoint a special prosecutor to handle the case.” | 0 |
train | 001-94770 | ENG | NLD | ADMISSIBILITY | 2,009 | `BLONDJE` v. THE NETHERLANDS | 1 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | The applicant, known variously as “Blondje”, “NN cel 07” and “Nn.PI09.m.20081101.1100”, claims that he is a Dutch national who was born on an unspecified date in the Netherlands. He was represented before the Court by Mr J. Hemelaar, a lawyer practising in Leiden. On 30 October 2008 the applicant was arrested on suspicion of having committed criminal offences. Because he refused to identify himself he was detained pursuant to Article 61a of the Code of Criminal Procedure (Wetboek van Strafvordering) in order for his identity to be established. On 31 October 2008 he was released and handed over to the Aliens Police (vreemdelingenpolitie), who held him (ophouding) for the same purpose, pursuant to Article 50 §§ 2 and 4 of the Aliens Act 2000 (Vreemdelingenwet 2000). After this measure had been extended for forty-eight hours, the applicant was placed in aliens’ detention with a view to his expulsion (vreemdelingenbewaring). In the course of an interview with the Aliens Police on 3 November 2008 the applicant stated that he had Dutch nationality but that he was not prepared to show his passport or another identity document – both of which he possessed – in order to prove his nationality. On 5 November 2008 the applicant was released. The applicant lodged appeals against his detention, which were dismissed by the Regional Court (rechtbank) of The Hague, sitting in Utrecht, by a decision of 2 December 2008. On 15 January 2009 the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) declared a further appeal (hoger beroep) by the applicant inadmissible, holding that he had failed to fulfil the requirements of Article 6 § 5 of the General Administrative Law Act (Algemene Wet Bestuursrecht) by not including his name in the notice of appeal. Since neither the application form, the authority to act (which was signed “X”) nor the supporting documents contained any mention of the applicant’s name, the applicant’s representative was requested on 9 March 2009 to provide the Court with a copy of a valid identity document for his client, as required by domestic law. In his reply of 30 March 2009, the applicant’s representative informed the Court that no valid identity document was available, pointing out that the case concerned aliens’ detention and that Dutch law did not require the submission of an identity document in such cases. Moreover, in view of the applicant’s youth, there had likewise been no need or obligation for him to possess a document allowing him to cross international borders. | 0 |
train | 001-59264 | ENG | HUN | CHAMBER | 2,001 | CASE OF DALLOS v. HUNGARY | 1 | Preliminary objection dismissed (six months);No violation of Art. 6 | Giovanni Bonello | 9. The applicant is a Hungarian national, born in 1949 and resident in Vonyarcvashegy, Hungary. 10. On 25 November 1992 the Zala County public prosecutor’s office preferred a bill of indictment against the applicant, charging him with aggravated embezzlement. The public prosecutor’s office alleged that between July 1990 and May 1991 the applicant, then the managing director of a Hungarian limited liability company (“E. Kft”), had been involved in a foreign-trade commission-contract between a Dutch company and a Hungarian business partner. According to the public prosecutor’s office, the applicant had failed to transfer, on behalf of E. Kft, part of the amounts due under the contract to the Hungarian partner and had spent it for E. Kft’s own purposes, thus causing damage of some 1.4 million Hungarian forints. 11. On 30 June 1993 the Keszthely District Court convicted the applicant of aggravated embezzlement and sentenced him to one year and four months’ imprisonment and a fine, under Article 317 §§ 1 and 5 (a) of the Criminal Code. The District Court found that, in the context of a commission-contract scheme valid between July 1990 and May 1991, the applicant, acting on behalf of E. Kft, had failed to transfer part of the amounts collected from the Dutch partner to the Hungarian partner, contrary to what he should have done under the contract; in fact, he had spent it for E. Kft’s own purposes. The District Court noted the applicant’s defence that he had simply failed to pay the necessary attention to his contractual duty to transfer the amounts in question; that he had not been aware until April 1991 that the amounts in question had been available for transfer; that E. Kft’s subsequent failure to fulfil its contractual obligations had simply been due to its inability to recover some outstanding debts; and, finally, that he had entered into a verbal agreement with the Hungarian partner about the use of part of the amounts in question. However, taking into consideration the testimony of a Mr S. and of two further witnesses, the District Court was convinced that the applicant had deliberately failed to transfer the amounts in question in order to finance the activities of E. Kft. 12. The applicant appealed against the District Court’s judgment, whereas the public prosecutor’s office accepted it. In his appeal the applicant sought to be acquitted on the ground that the findings of fact in his case had been erroneous. 13. On 12 November 1993 the Zala County Regional Court upheld the applicant’s conviction and sentence, but reclassified his offence as aggravated fraud, under Article 318 §§ 1 and 5 (a) of the Criminal Code. The Regional Court held that the facts of the case, as outlined in the bill of indictment and established by the District Court, did not constitute the offence of embezzlement. However, the Regional Court was satisfied that the applicant’s conduct, namely that in the context of the transaction in question he had, on several occasions, given the Hungarian partner false information about the payments actually made by the Dutch partner, had constituted the offence of aggravated fraud. Completing the findings of fact with some further details, the Regional Court essentially relied on the contents of the case file as compiled at first instance, and in particular on the statements made by the applicant and the witness Mr S. during the first-instance hearings and on investigation documents. The Regional Court’s decision was served on the applicant on 8 December 1993. 14. The applicant and his defence counsel lodged a petition for review with the Supreme Court. He maintained that he had been convicted erroneously. He also submitted that the reclassification of his offence at second instance had run counter to Article 9 § 2 of the Code of Criminal Procedure, and had thus constituted a serious breach of procedural rules. In its observations in reply, the Attorney-General’s Office proposed that the decisions of the lower courts be upheld. 15. On 16 June 1994 the Supreme Court held a “public session” (nyilvános ülés) in the case. The Supreme Court heard addresses by defence counsel, who argued that the applicant’s liability was of a civil-law nature and requested the Supreme Court to quash, under Article 291 § 3 of the Code of Criminal Procedure, the first- and second-instance judgments and to acquit the applicant, and by the Attorney-General’s Office, proposing that the applicant’s conviction be upheld. 16. On 28 June 1994 the Supreme Court upheld the applicant’s conviction for aggravated fraud. Concerning defence counsel’s arguments about a serious breach of procedural rules, the Supreme Court observed that, while it was true that courts were bound by the factual contents of the bill of indictment, this did not apply to the legal classification of the offences. It held that the elements of fact, which – in the second-instance proceedings – had warranted the reclassification of the offence, had already been contained in substance in the bill of indictment. In reply to defence counsel’s arguments of a substantive-law character disputing the applicant’s conviction of fraud, the Supreme Court held that the applicant’s duty under the contract in question would have been to inform the Hungarian partner about his receipt of payments without delay. The decision concluded, inter alia, that the applicant, having failed to do so and, instead, having transferred the money into E. Kft’s own bank account, “... committed the offence of fraud. ... ... In this manner, the defendant secured unlawful gains for E. Kft and, to that end, had maintained from the outset [the Hungarian partner’s] deception, as a consequence of which it suffered damage in the amount of 1,440,680 Hungarian forints. This conduct of his constituted the offence of fraud, prohibited by Article 318 § 1 of the Criminal Code.” On that ground, the Supreme Court upheld the Regional Court’s decision, in accordance with Article 291 § 7 of the Code of Criminal Procedure. The Supreme Court’s decision was served on the applicant on 18 August 1994. 17. 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. 18. 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. 19. 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. 20. Article 203 § 1 requires that documents, the contents of which are regarded by the court as evidence, be read out at the hearing. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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 punishment imposed is within the limits laid down for the offence that corresponds to the classification which is correct in law. 26. According to Article 284/A § 1 (I), a petition for review in favour of the defendant may be filed by, inter alios, the defendant, the public prosecutor or defence counsel. Paragraph 2 provides a further ground for review where certain serious breaches of procedural criminal law have affected the taking of the decision in question. 27. 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. 28. According to Article 289/A § 1, the Supreme Court examines, as a general rule, the petition for review at a “session” (ülés). The attendance of defence counsel and the public prosecutor is required; the defendant must be notified of the session and, if detained, must be conveyed thereto. 29. 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, defence counsel and the defendant, inter alios, address the court. 30. 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 this will result in the acquittal of the defendant, the discontinuance of the proceedings, or the imposition of a less severe punishment. Paragraph 7 provides that if the Supreme Court dismisses the petition, it must uphold the decision challenged. 31. According to Article 317 § 1, a person who unlawfully appropriates for himself an asset in his charge, or disposes of such an asset as if it were his own, commits the offence of embezzlement. Paragraph 5 (a) provides that embezzlement committed with regard to assets of a substantial value is punishable by one to five years’ imprisonment. 32. According to Article 318 § 1, a person who deceives someone, or maintains someone’s deception, in order to make unlawful gains, commits the offence of fraud, provided that actual damage has occurred as a result of his conduct. Paragraph 5 (a) provides that fraud committed in respect of a substantial sum is punishable by one to five years’ imprisonment. | 0 |
train | 001-139383 | ENG | GBR | ADMISSIBILITY | 2,013 | P. v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant is a British national, who was born in 1987 and lives in York. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Ms A-M. Jolly of the Howard League for Penal Reform, London, and, subsequently, by Mr C. Callender, of Steel and Shamash, Solicitors London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwealth office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant’s parents were heroin addicts. He was taken into local authority care when he was still a baby and adopted. As a young adolescent he became drug dependent and involved in offending behaviour, spending increasingly long periods of time in custody. 4. In August 2005, aged 18, the applicant was sentenced to two years’ detention for a series of offences. When serving this sentence, he demonstrated serious personality problems including engaging in repetitive, serious and dangerous self-harming behaviour. In a report dated 11 October 2006, Professor Coid, a forensic psychiatrist instructed on behalf of the applicant, noted the repetitive self-harming behaviour of an “extreme and dangerous nature” and that he was at a “serious risk of suicide”. Professor Coid diagnosed a psychopathic disorder under the Mental Health Act 1983 (hereinafter “MHA 1983”). Whilst the applicant was not yet amenable to psychotherapy, Professor Coid recommended that he be transferred to hospital for assessment and treatment under section 47 of the MHA 1983. 5. From the end of 2006 to early 2007 there was no agreement between the psychiatrists as to the applicant’s diagnosis or treatment. Since he had spent much of his life in Wales, it was thought that any psychiatric hospital treatment would be in Wales so he was examined by Dr. Williams, the Director of Mental Health Services for the National Health Service (“NHS”) Trust which covered South Wales. 6. Dr. Williams stated in a three-page letter dated 23 January 2007 that, although the applicant had antisocial and borderline personality traits, he was not suffering from a psychopathic disorder and would not be amenable to psychotherapy. He also took the view that there was no evidence that the applicant would benefit from hospital treatment or that his condition would improve as a result. The applicant did not require pharmacological treatment therapy and was not likely to respond to psychological treatments. Indeed, the applicant’s history had shown that his behaviour badly deteriorated in institutions, so that a transfer to hospital would likely result in his detention in a maximum security mental health setting, which Dr. Williams was convinced would not be in the applicant’s best interests. 7. The Court of Appeal in later proceedings confirmed that this diagnosis meant that it was not possible to transfer the applicant to hospital for treatment under sections 37, 38, 47 or 48 of the MHA 1983. 8. The applicant was released on licence on 25 January 2007. 9. Between 2 March 2007 and 25 June 2008, the applicant was detained at the Young Offender Institution Feltham ( “Feltham YOI”) on remand on serious criminal charges, including robbery, and then into custody following his conviction by the Crown Court in July 2007 of false imprisonment and dangerous driving. 10. Feltham YOI received a copy of the reports of Professor Coid and Dr.Williams. The applicant was psychiatrically assessed as suitable for the Assessment, Care in Custody & Teamwork (“ACCT”) care-planning system for prisoners at risk of self-harm. This system was designed to ensure that relevant prisoners received assessment, care, supervision and treatment commensurate with an ongoing process of risk assessment by a multi-disciplinary team trained in the ACCT procedures. The ACCT system could include search provisions, restrictions on possessions, provision of accommodation specially adapted to reduce risk of self-harm, as well as interaction and monitoring appropriate to the risk. The applicant was moved within Feltham YOI depending on his health: the mental health in-patient Unit in Feltham YOI was a restrictive place of safety for periods of acute risk and he was moved to more open environments when he improved. 11. The applicant displayed, it appears from the beginning, serious and dangerous self-harming behaviour at Feltham YOI. An extract from his medical and prison records for 22-26 March 2007 is demonstrative: “22 March: medical records state that he inserted a pin in his mouth, which he removed when he calmed down. He later put a pencil in his mouth. The prison records record that he put a broken pencil in his mouth. 24 March: the medical records state that [the applicant] opened an old abdominal wound; he claimed to have inserted two staples into it. He was taken to [hospital]. He also reported that he had inserted staples underneath his right eye. Wound stitched at [hospital]. The staples on the right side of his face were not taken out as he needed an operation, as he had inserted them through his mouth. The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm. The officer asked him to hand over the screw but he declined. A note timed at 19.30 states that he continued to put staples into an open wound. At 21.00 he was told he would go to hospital. 25 March: the medical records state that he barricaded the door with a mattress. He removed a piece of the door and used it to harm himself, deepening an existing wound on his right arm causing it to bleed. He was taken to [hospital]. He was refusing meals, stating that he was on hunger strike. 26 March: the medical records state that he banged his head on the cell gate. According to the prison record, at 13.30 he was kicking the sink. When asked why, he stated that he wanted to break his foot.” 12. The records also show that the applicant inserted foreign bodies into his penis on multiple occasions, including a screw on 19 September 2007, forced a piece of glass into his urethra on 7 October 2007 and severed the tendons of both feet on 10 October 2007. The applicant inserted dirt into his self-inflicted wounds causing repeated infections. 13. The applicant claims that he attempted suicide on at least five occasions and threatened to commit suicide at other times. The Government denied that the applicant ever attempted suicide whilst at Feltham YOI. 14. On 25 October 2007 the applicant’s then representatives, the Howard League for Penal Reform, sent a “letter before claim” challenging the failure of the Secretary of State to provide a safe environment for the applicant. Noting that the applicant had over 15 surgical interventions in the past 6-7 weeks, other serious incidences of self-harm and that he had made suicide threats, they argued that the prison was not a suitable environment for him. 15. Professor Coid, instructed on the applicant’s behalf, reported on 8 November 2007, noting that the applicant’s behaviour had rapidly deteriorated since his return to custody. He confirmed his earlier view that the applicant’s condition amounted to mental illness and psychopathic disorder within the meaning of the MHA 1983, so that the applicant should be urgently transferred to a hospital for treatment under section 48 of that Act. He reiterated that the applicant was not yet amenable to psychotherapy. 16. On 19 December 2007 the Treasury Solicitor responded to the “letter before claim” of the applicant’s representatives’ noting that the applicant was in good health, that he had self-harmed less lately, that his last visit to hospital was on 3 November 2007 and that his behaviour, conduct and mood had improved allowing his transfer to a normal room. The applicant’s representatives did not take any further action at that time. 17. On 10 March 2008 Dr. Lewis, a Consultant Forensic and Child and Adolescent Psychiatrist and the in-house psychiatrist at Feltham YOI, wrote to the Specialist Commissioner of the Mental Health Services expressing concern about the applicant’s deteriorating health and requesting his transfer to a hospital. It was the opinion of the clinical team at Feltham YOI that the applicant met the criteria for antisocial and borderline personality disorder and required specialist treatment in a hospital setting. He was a prolific self-harmer, the situation having become more serious over the last months. The health services in Feltham YOI considered that they could not provide adequate care for the applicant in prison and that he required a transfer to a secure centre specialising in the treatment of personality disorders. Dr. Lewis considered, contrary to Dr. Williams, that the applicant would benefit from hospital treatment and that his history did not exclude this option, as he had only been in one psychiatric hospital setting and that was when he was very young. Since the Specialist Commissioner had indicated that she could not consider Dr. Lewis’ request without Dr. Williams’ view, Dr. Lewis requested Dr. Williams to conduct another assessment. 18. In the meantime, Dr Huckle a consultant psychiatrist, assessed the applicant at the request of the Crown Court due to sentence him (offences committed in 2007). His report dated 15 March 2008 found that the applicant was suffering from a psychopathic disorder as defined in the MHA 1983. He concurred with Professor Coid that the applicant was detainable and should be admitted to hospital for further assessment and treatment of his serious personality disorder. This could be achieved once a suitable placement was identified under section 38 of the MHA 1983 or, if sentenced to imprisonment, under section 47 of the MHA 1983. 19. Dr. Williams re-assessed the applicant as requested in March 2008. In his report of 1 April 2008 he revised his earlier opinion about the applicant’s condition and about the prospects of treatment, stating that there had been some change since he reviewed the applicant, so that he considered that a treatment trial would be worth considering (section 38 of the MHA 1983). However, Dr. Williams queried whether or not the applicant was a patient for whom his Trust (Welsh) was responsible. The applicant had indeed been born and had spent much of his life in Wales, but he had informed Dr. Williams, during his re-assessment interview in March 2008, that he had re-registered in 2007 with a medical practice in England. Enquiries confirmed this and, as a result, the applicant’s case had to be transferred to Sussex NHS Trust which had, in turn, to re-assess the applicant and, if relevant, identify an appropriate and available hospital place. 20. On 7 April 2008 Dr. Lewis followed up with another letter to the Specialist Commissioner recommending that the applicant be considered for placement in a specialist personality disorder unit. His mental health had deteriorated and his self-harming had increased whilst in prison: any delay caused by his transfer to another NHS Trust had to be kept to a minimum. 21. On 28 April 2008 the applicant’s representatives wrote to the Treasury solicitor. They recognised that the applicant’s behaviour was difficult and challenging and that staff at Feltham were seeking to put in place, within limited resources, skills and training, as safe a regime and environment as possible, but the truth was that this was insufficient to protect the applicant’s health and life. They enclosed a report dated 10 April 2008 by Dr. Bell, a consultant in intensive care and anesthesia, who had been instructed by the applicant to report on whether his self-harming behaviour was life-threatening. Dr. Bell noted that staff in Feltham YOI considered the severity and frequency of the applicant’s self-harming placed him in a “completely different category” from virtually all other self-harmers whom they had encountered. Dr. Bell’s report examined the risk posed to the applicant’s life, concluding: “9.1 The nature and pattern of self-harm inflicted by [the applicant] are clearly disquieting to any external reviewer and indicative of an extremely disturbed mindset. 9.2 His current injuries and their sequelae place him at risk of renal failure due to obstruction of the urinary tract and at constant risk of life-threatening infection from necrotizing fasciitis, urinary tract sepsis, bacterial endocarditis and deep-seated pelvic infection. The risk of these complications is enhanced not only with each new additional injury but also by the multiple retained foreign bodies within the tissues which create susceptibility to colonisation by bacteria and subsequent infection from any distant source of sepsis carried around the body by the circulation. 9.4 He is also currently at risk of losing limbs through refractory infection and the use of his penis for normal urination and sexual function. 9.5 [His] life is also in jeopardy from exsanguination with either intentional or accidental arterial damage during further self-harm. 9.6 This pattern of self-injury will predictably induce a state of chronic ill-health within a short time-frame and leave [the applicant] more vulnerable to the above complications of his injuries. The cycle will then become self-fuelling, inevitably culminating from one complication or another in [the applicant]’s death. 9.8 There also appears to be a more immediate urgency in placing [the applicant] in the short-term within a hospital environment to ensure optimal medical and nursing management of both his abdominal wound and the urinary tract foreign bodies and strictures due to scarring, which are capable of causing acute urinary tract obstruction and severe septicaemia. Such optimal management depends very much on [the applicant]’s compliance with advice and cares, and provision of appropriate psychiatric and psychological support whilst within any conventional hospital setting. The required duration of stay is not possible to calculate, [...] but the endpoint should be one of satisfactory healing of his current injuries and a greatly reduced frequency and magnitude of further self-harm with a commitment to overcoming this pattern of behaviour over the long term. The severity of the abdominal wound and urinary tract injuries, coupled with the instability of his mental health status which will predictably lead to further self-harm, would suggest that this option should be pursued within days rather than weeks.” Dr. Bell added a postscript to his report: “Since completion of this report, I have been informed by the Howard League that there has been an escalation in [the applicant’s]’s pattern of self-harm following news of his birth mother’s death. Given the extreme vulnerability of this individual to significant life-threatening complications with the level of injury at the time of my assessment, it should be apparent that the hospital-based care specified in 9.8 should be expedited as a matter of urgency.” 22. A letter of 28 March 2008 by Christian Brown, a specialist registrar in urology, was appended to Dr. Bell’s report and stated, inter alia: “Although there is currently no evidence of urethral stricture or bladder injury over a period of time, it is almost certain that he will develop a urethral stricture. ...If he continues to abuse his body in this way, it may lead to a poor bladder emptying which in turn can cause renal failure and death. While currently none of [the applicant’s]’s urological incidents have been a risk to his life, it is only a matter of time until he develops sepsis, a urethral stricture, renal failure or death. It has been the opinion of the Urology Department here...that something more definitive needs to be done for [the applicant]’s psychological care. On each occasion that his bladder is cleared of foreign bodies, it is usually only a week or two before he is readmitted having inserted something else ...” 23. On 6 May 2008 the applicant applied for leave to take judicial review proceedings to obtain an order that he be removed from Feltham YOI. He cited the Secretary of State (responsible for Feltham YOI) and Sussex NHS Partnership Trust as defendants. At this point, the applicant had been hospitalised 90 times in the previous 15 months. 24. On 27 May 2008 Dr. Noon, a consultant forensic psychiatrist, advised the Sussex NHS Trust that the applicant suffered from a severely abnormal personality and reached a high diagnostic threshold for specific personality disorder types, which suggested that he might reach a threshold for psychopathic disorder classification. Given his background of frequent and severe self-harm, Dr. Noon concluded that it was appropriate to admit the applicant for a period of in-patient assessment under section 38 of the MHA 1983. He confirmed that a bed would be available at Ashen Hill hospital within the four-week period to which section 38 referred. 25. On 5 June 2008 the Crown Court made a hospital order under section 37 of the MHA 1983 for the applicant’s admission to Ashen Hill Psychiatric Hospital. The applicant was transferred to that hospital on 25 June 2008. He then withdrew his proceedings against the Trust. 26. On 30 June 2008 the High Court refused leave to apply for judicial review. The court considered the manner in which his claims were expressed to be strikingly unhelpful. However, since he had been transferred to hospital, his representatives confirmed that the purpose of the action was now to seek an order that there be an investigation into what had occurred, including how the relevant agencies could work better, which would serve a real public interest. The High Court considered this to be rather an afterthought to the principal claim. The applicant sought damages for a breach of Articles 2, 3 and 8 of the Convention. 27. The High Court clarified that the Secretary of State had no power under section 48 of the MHA 1983 to transfer the applicant from Feltham YOI to a hospital because, unlike section 47, it did not apply to prisoners who suffered from psychopathic disorders. 28. The High Court considered that Article 2 had not been engaged. While according to Dr. Bell’s bleak summary, the applicant would undoubtedly put his life at risk if he continued to self-harm in the way that he had, his life was not imminently at risk. Nor was it a case of a “near-death experience” such as a failed suicide attempt. 29. Likewise, there was no arguable breach of Article 3 by the Secretary of State and therefore no duty to hold an inquiry. The High Court remarked that the Secretary of State had accepted the version of events advanced by the applicant. This, supplemented by the many reports done and the records which could still be produced from Feltham YOI and the hospital, meant that there could be no doubt about the facts. There was no suggestion in the documents that the applicant’s injuries had not been promptly and skilfully treated or, indeed, that it was detention at Feltham YOI which had caused the applicant to harm himself. Had the applicant wished to complain about his treatment in detention, he could have complained under the Detention Centre Rules and onward to the Prison and Probation Service Ombudsman, who could have conducted an independent inquiry. The wider “lessons learned” objective of the action fell outside the scope of Article 3 (Banks v. the United Kingdom (no. 21387/05 (dec.) 6 February 2007). 30. In October 2008 the High Court granted leave to appeal limited to the claim that the Secretary of State should hold an inquiry. By judgment of 6 July 2009 the Court of Appeal accorded leave to apply for judicial review but dismissed the substantive application. The applicant had confirmed to his representatives that he wanted an explanation about his treatment in Feltham YOI and that an inquiry would have a wider public benefit. His representatives made a statement to the court that they were concerned about the treatment and conditions experienced by the applicant and other prisoners. 31. As regards the Article 2 complaint, the Court of Appeal considered: “40. This case is not a case of attempted suicide. [The applicant] did not attempt suicide. The medical evidence was that his self-harming, if continued, could lead to life-threatening injury or disease. His medical condition, and his actions, cannot in my judgment be assimilated to cases of suicide and near suicide. It cannot be said that there was a ‘real and immediate risk’ to [the applicant’s] life while he was at Feltham. The risk was real but not immediate.” 32. It clarified that serious injury, in the absence of a risk to life, could not give rise to any relevant duty by virtue of Article 2. There was, therefore, no necessity under Article 2 to conduct an inquiry. 33. The Court of Appeal also found that no Article 3 investigative duty could be imposed on the Secretary of State for three main reasons. In the first place, it agreed with the High Court that there was no evidence of an “arguable breach” or of a “credible assertion” of a breach of Article 3. Secondly, the exclusion of psychopathic disorders from section 48, which precluded the applicant’s transfer to hospital under that provision, was not the proper subject of an Article 3 inquiry. Thirdly, even if there had been an arguable breach of Article 3, there could be no investigative duty because all the relevant facts in the case were known. 34. In particular, the only complaint that could be made was that: “50. ... [the applicant] should have been transferred to a psychiatric hospital earlier. But, as I have pointed out, in not doing so, the Secretary of State was acting in accordance with Dr Williams’ medical opinion. The action or inaction of the executive based on medical advice of an appropriately qualified doctor, as Dr Williams was, cannot amount to a breach of Article 3. Once Dr Williams had changed his opinion, steps were taken to transfer [the applicant] to a hospital, but any delay then was attributable to Sussex NHS Partnership Trust and the need to meet the requirements of section 37...” 35. As to whether an inquiry was needed, the Court of Appeal considered the applicant’s case remarkably similar to the above-cited case of Banks v. the United Kingdom (cited above). The allegations of a breach of Article 3 could be dealt with by the combination of criminal (if relevant) and civil proceedings. Any wider interest inquiry (including to publicise the alleged lack of appropriate care for persons such as the applicant in a YOI such as Feltham) was a matter for public and political debate which fell outside the scope of Article 3 of the Convention. 36. In any event, the Court of Appeal saw no need for an investigation: “In the present case, I see no need for an investigation. The facts relating to [the applicant]’s detention in Feltham and the reasons why he was only transferred after Dr Williams’ re-assessment are known. [The applicant’s Counsel] was pressed to identify what an inquiry might reveal that was not already known. In my judgment, he was unable satisfactorily to do so. The summary of the applicant’s case, set out in the Addendum to his Grounds, does not include a formulated allegation of breach beyond the assertion that the Secretary of State was in breach of her protective obligation.” 37. In conclusion, the Court of appeal summarised its findings: “58. Article 2 was not engaged in this case, where there was no immediate risk to [the applicant]’human rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown. In the present case, all the relevant facts are known: why [the applicant] was kept at Feltham and not transferred until after Dr Williams had re-assessed him and why there was some delay thereafter.” 38. On 7 December 2009 that court refused leave to appeal. 39. On 29 June 2009 Dr. Noon submitted a psychiatric report to the Mental Health Review Tribunal in which he indicated that the applicant’s level of self-harm was “markedly better” than when he was in Feltham YOI. In January 2010 the applicant was being treated in a secure psychiatric unit. On 15 September 2010 he was assessed as being suitable for admission to Broadmoor High Security Hospital. 40. Sections 37 and 38 of the MHA 1983, as in force at the relevant time, provided that a court may, after convicting a defendant, make an order or an interim order that the individual be treated in hospital instead of sentencing him to a term of imprisonment. “37. – Powers of courts to order hospital admission... (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order... (2) The conditions referred to in subsection (1) above are that- (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either- (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act ; and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section... (4) An order for the admission of an offender to a hospital (in this Act referred to as ‘a hospital order’) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital in the event of such an order being made by the court, and for his admission to it within the period of 28 days beginning with the date of the making of such an order ; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. 38. - Interim hospital orders (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners- (a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and (b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case, the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as an “interim hospital order”) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section. ... (5) An interim hospital order- (a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order ; but (b) may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the responsible medical officer, that the continuation of the order is warranted ; but no such order shall continue in force for more than six months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the responsible medical officer to deal with the offender in some other way.” 41. Sections 47 and 48 of the MHA 1983 empower the Secretary of State to direct that an individual who is serving a sentence of imprisonment, or who is on remand, be removed to, and detained at, a hospital: “47. Removal to hospital of persons serving sentences of imprisonment, etc. (1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners- (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital (not being a mental nursing home) as may be specified in the direction ; and a direction under this section shall be known as " a transfer direction " ... (3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case. ... (5) References in this Part of this Act to a person serving a sentence of imprisonment include references- (a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings (other than an order under any enactment to which section 46 above applies) ; ... 48. Removal to hospital of other prisoners. (1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment, the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment. (2) This section applies to the following persons, that is to say- (a) persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection ; (b) persons remanded in custody by a magistrates’ court ; ... (3) Subsections (2) to (4) of section 47 above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section.” 42. Following the enactment of the Mental Health Act 2007, section 48 of the MHA 1983 has been amended to permit the power to apply to “persons suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”. 43. Young Offender Institutions (“YOI”) form part of the juvenile secure estate in the United Kingdom. YOIs are managed by the prison service and hold young offenders between the ages of 15 and 21. There are some differences between YOI and adult prison regimes: the YOI has a better staff/offender ratio; at least 25 hours of education per week; and its overall objectives are helping the detainee improve behaviour, develop practical skills and prepare for employment. 44. A prisoner can make a complaint about treatment whilst in detention under the Young Offender Institution Rules 2000 (“the 2000 Rules”). He may complain, initially, to for example, a member of staff or to the Independent Monitoring Board; he can also make a formal written complaint under Rule 8 of the 2000 Rules); and any prisoner can complain about his treatment in detention to the Prisons and Probation Ombudsman. 45. A prisoner can also bring a civil action about treatment in prison. Under the common law, the prison authorities owe a duty to take reasonable care for the safety of those in custody and, in particular, to take reasonable care to prevent a prisoner from taking his own life or harming himself deliberately, irrespective of whether the prisoner is mentally disordered or of sound mind (Commissioners of Police for Metropolis v Reeves (Joint Administratix of Estate of Martin Lynch, Dec.) [1999] UKHL 34). A medical practitioner also owes a duty of care to a person that he or she treats or assesses and that liability may arise if the standard of care falls below the standard to be expected of that practitioner in accordance with a reasonable body of medical opinion (Bolam v Friern Hospital [1957] 2 All ER 118; and Bolitho v City & Hackney Health Authority [1988] AC 232). 46. If the prisoner can prove that his conditions of confinement have caused him injury, physical or psychiatric, resulting from the alleged negligence, he may claim damages for any damage suffered. He may even claim exemplary damages in the event of oppressive, arbitrary or unconstitutional action by the servants of the government. | 0 |
train | 001-23159 | ENG | GBR | ADMISSIBILITY | 2,003 | PORTER v. THE UNITED KINGDOM | 2 | Inadmissible | Lord Justice Schiemann;Matti Pellonpää;Nicolas Bratza | The applicant, Ms Shirley Porter, is a United Kingdom national, who was born in 1930 and lives in Israel. She is represented before the Court by Mr M. Spragg, a lawyer practising in London. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a Conservative politician, was first elected to Westminster City Council in 1974. This inner London Borough covers a large part of central London, including Mayfair, Belgravia and Regent’s Park as well as some less affluent areas to the north and north-west. During the 1980’s, she was leader of the Council as well as of the majority party. As a result of the local government elections in May 1986, the overall Conservative party majority was reduced from 26 to 4. The applicant was determined that the Conservative Party would have a greater majority at the 1990 elections. With this end in view, she re-organised the party’s administrative and decision making structure and chaired the Chairmen’s Group which was to develop and promote policy. In mid-February 1987, the applicant and others in the majority identified key wards, namely eight districts which were marginal. Their intention was to develop council policies which would target marginal wards, including such housing policies as could affect the make up of the electorate of those wards. References were made inter alia to “an immediate need to socially engineer the population in marginal wards” and to an aim “to preserve local communities – but boot out certain categories”. The Council held a stock of 24,000 dwellings used for the provision of social housing. The plan which was developed involved selling Council property in strategically important areas at reduced prices to approved applicants who, it was hoped, would be more likely to vote Conservative – “designated sales”. Properties to be sold in this way were designated, then kept empty as they became available until suitable purchasers were approved. On 14 March 1987, at a meeting of the Chairmen’s Group, it was proposed to designate all Council properties in the eight marginal wards. A memorandum on 17 March 1987 from the Director of Housing advised that this would render it impossible to meet statutory obligations to the homeless and they should seek legal advice. On 24 March 1987, the City Solicitor advised the applicant that “it was fundamental that the arguments in favour of selling be soundly based and properly argued. Anything which smacks of political machinations will be viewed with great suspicion by the courts.” He also stated that “the possibility of surcharge [legal requirement to pay any financial loss to the City] exists but it will be necessary for those challenging to show wilful misconduct. This re-emphasises the need for a good argument to be constructed in favour of sale”. The same day the Chairmen’s group decided to adopt a target of 250 sales per annum in the marginal wards. On about 10 April 1987, the report commissioned by PACEC (economic consultants) however failed to provide support or professional justification for the identification of the eight key wards or for any increase in designated sales. A further paper on designated sales produced by the divisional director of housing adverted to a number of difficulties about the sales target and gave the view that it was imperative to obtain counsel’s advice. On 5 May 1987, a number of Council officers met with Queen’s Counsel. There was no contemporaneous record of his advice. A report was made to the applicant and the Chairmen’s group that evening. The independent counsel was informed that the majority group wished to target sales in marginal wards for electoral advantage. He advised that they could not lawfully sell 250 properties per annum in the marginal wards alone. He also advised that properties had to be designated for proper reasons, across the whole of the City and not in particular wards and that, in identifying properties to be designated, the same criteria had to be applied across the whole City and, ultimately, choice made without reference to anything other than those proper criteria. The Chairmen’s group agreed to target sales city-wide in order to produce the number of designated sales in marginal wards. At a meeting on 13-14 June 1987, the Chairmen’s group endorsed the target of 500 sales across the City which was intended to produce the desired number of sales. During June, an analysis was conducted in order to identify the properties that could be designated. The legal adviser to the Housing Committee repeated that it was vital that the Committee choose estates on the basis of housing and planning issues and that it would be necessary to be able to show that the list was neither arbitrary nor drawn up with reference to “improper factors”. A joint report on Home Ownership in the names of various Council officials was circulated on 26 June 1987, outlining three options on designated sales but recommending none. The third option was to designate sufficient properties to produce 500 sales per annum. 20,697 properties had been identified in the report as eligible for designation – 29% were in the eight marginal wards. Evidence was given later that the joint report had been shown to counsel who had considered that it was “judge proof”. The list of properties to be designated was not recommended by officers – it was presented by the Chairman of the Housing Committee – 74% of all eligible dwellings in the eight key wards were to be designated while only 28% of all eligible properties in other wards were designated. At the meeting of the Housing Committee on 8 July 1987, the Chairman of the Housing Committee presented Option 3 as the majority party’s preferred option. By seven votes to five, Option 3 was adopted. Following this decision, on instructions from the Chairmen’s group, monitoring reports were issued concerning the progress to achieving “sales targets” in the eight key wards. Labour members of the Opposition were questioning the sales policy with increasing vigour however, repeatedly pressing for information on the selection of wards. Between July 1987 and October 1989, some 618 dwellings were disposed of with vacant possession, sold to an approved list of purchasers, all first-time buyers, at discounts varying from 30% to 70% of the market value according to the circumstances of the purchaser. In July 1989, complaints were made by local government electors to Mr John Magill, the Council’s Auditor about the legality of the designated sales policy, inviting the Auditor to take action under sections 19 and 20 of the Local Government Act 1982. Some 28 persons were named or referred to in the objection, including the applicant, her deputy Mr Weeks, the Director of the Housing Committee and others on that Committee. In October 1989, the Auditor requested a formal response to the objections from the Council. The Council produced its response on 27 November 1989. On 5 December 1989, the Auditor asked the Council if it wished to supplement its reply in light of further objections received during November. He also asked the Managing Director of the Council to provide him with a comprehensive set of reports to the Council, its committees etc. relating to key wards strategy and designated sales and relevant correspondence on those subjects. On 20 March 1990, the Managing Director informed the Auditor that the City Council did not have a key wards strategy and that there were no Council documents under that heading. On 1 May 1990, the Council’s supplementary response was sent to the Auditor. By letter of 22 May 1990, the Managing Director informed the Auditor that the files containing papers relevant to the objections were available for inspection at City Hall. The documentation assembled was however far from complete. From June to December 1990, the Auditor carried out a review of the extensive documentation at City Hall and obtained preliminary legal advice. He requested further documentation from the Council. In December 1990, the Auditor commenced his interviews of persons involved. He was to carry out a total of 135 interviews, involving 50 individuals. From January to April 1991, the Auditor made visits to Council offices to inspect further documents and made further requests for documents. He completed his initial round of interviews in November 1992. He interviewed the applicant on 23 August 1992. Having regard to his wish to arrange interviews in a particular order, the progress of interviews was hampered by a delay on the part of some prospective interviewees in responding to requests for interviews and by the apparent reluctance of some interviewees to attend for interview. The Auditor exercised his powers under section 16 of the 1982 Act to require six individuals, including the applicant, to attend before him. The Auditor reviewed the evidence and took further legal advice. In January 1993, he began a second round of interviews, which lasted from January to July 1993. He interviewed the applicant for the last time on 23 July 1993 (a total of 12 occasions at which the applicant was represented by counsel). Having regard to information already received and in consequence of further interviews, the Auditor decided to visit a number of Council offices and to search for documents. He inspected a large number of files, locating files in a storeroom and reviewing the entire underground filing area. New documentation, previously undisclosed, was obtained. In April 1993, the Auditor became aware for the first time of handwritten notes made by the Director of Housing during meetings in the period May 1986 to October 1989. The Auditor conducted a further seven interviews in September-October 1993. The applicant and others made written submissions to the Auditor during October. On 13 January 1994, the Auditor issued “Notices to Show Cause” to ten named individuals, including the applicant. These stated that he had to consider whether to certify the sum of 21 million pounds sterling (GBP) or any other sum as due from them as being a loss or deficiency incurred by their wilful misconduct and were accompanied by a Note of his provisional findings and views (236 pages) a history of events (350 pages) and 12 other appendices (a total of over 10,000 pages) and a copy of the public statement issued by the Auditor that day to the press. In his Note, the Auditor concluded in respect of the applicant that he was provisionally minded to find her guilty of wilful misconduct. The purpose of the issuing of provisional views was to inform those at risk, the Council and the objectors of those views so that they could address such representations to the Auditor as they wished before he reached a final conclusion. He invited those concerned to indicate whether they wished an oral hearing. On the same day, the Auditor held a press conference to read out his public statement, sitting at a table on which there was a bundle of material documents. This press conference and the ensuing publicity formed the basis of later complaints that there was an appearance of bias tainting the whole inquiry. One of the persons named in the provisional findings, the Joint Vice-Chairman of the Housing Committee, Councillor Dutt, committed suicide shortly afterwards. Solicitors for the applicant applied to the Audit Commission on 19 April 1994 to replace John Magill with a new auditor. The Audit Commission refused to do so. As three parties and the Council requested an oral hearing (not the applicant), the Auditor fixed proceedings to begin on 17 October 1994. In a preliminary meeting in June 1994, the applicant applied for the Auditor to disqualify himself. Oral submissions were made on the point on 7 and 17 October 1994. On 18 October 1994, the Auditor gave written reasons for not disqualifying himself. An audit hearing took place between 19 October 1994 and 7 February 1995, involving 32 days of hearings. The applicant was represented at the hearing by leading counsel who made extensive submissions on her behalf. She did not give evidence, having no confidence in the impartiality of the Auditor. Three accountants were called on her behalf. The Auditor received further representations and evidence after the hearing. On 18 August 1995, the applicant made submissions in light of a recent House of Lords judgment on duties of local authorities to the homeless. On 17 August 1995, the Auditor circulated a revised provisional calculation of net loss and invited representations by 5 October 1995. He received representations from the objectors. The parties were informed that notification of arrangements for the issuing of his decision would be given on 21 March 1996. On 19 March 1996, the applicant requested the Audit Commission to investigate his conduct. The Auditor delayed his decision pending this complaint. On 16 April 1996, the Audit Commission refused the applicant’s request. She did not seek judicial review of this decision. On 9 May 1996, the Auditor notified his decision and issued certificates of surcharge under section 20 of the 1982 Act in respect of six individuals, the applicant, Mr Weeks (deputy leader of the Council), Councillor Hartley (Chairman of the Housing Committee), Mr Phillips (Managing Director from February 1987), Mr England (Director of Housing) and Mr Hayler (divisional Director of Housing). Each was found jointly and severally liable in the sum of GBP 31,677,064 being the amount of a loss incurred or deficiency caused by their wilful misconduct. The decision and statement of reasons ran to more than 1,100 pages. The six respondents appealed to the Divisional Court under section 20(3) of the 1982 Act. The appeal of Mr Hayler was later allowed on grounds of his ill-health. Between 29 April and 1 May 1997, the Divisional Court held a preliminary hearing on procedure. It directed inter alia: “The nature of the present hearing will be to go beyond a mere judicial review on Wednesbury grounds and look at the merits (...). The Auditor’s report and evidence will stand before us, but is open to challenge (...) ... it is for the appellants to open the appeal and to establish prima facie that there was something amiss with the Auditor’s report or certificate ... The next question is on whom ultimately the burden lies at the appeal. As we have said, initially it is for the appellants to show that something was wrong with the Auditor’s report or certificate. If this hurdle is surmounted by the particular appellant, it is, in our view, for the respondents to prove, on the material before this Court, wilful misconduct by that appellant causing identified loss. ... It should also be borne in mind that this Court will have to be satisfied to the high degree of proof on the balance of probability, which is necessary for a finding of wilful misconduct. We rule that the ultimate burden of proof on appeal will be on the respondent. ... we shall receive such evidence as we have indicated on affidavit, but we shall direct that the deponents be available to be cross-examined ...” The appeals were heard between 1 October and 4 November 1997. On 19 December 1997, the Divisional Court delivered its judgment (Porter v. Magill, 96 Knight’s Local Government Reports, p. 157). In its judgment, it commented as follows on the complexity of the proceedings: “On any view the auditor’s investigation was vast. It cost over £ 3 million. Whether Parliament contemplated so gigantic an investigation by an auditor into an objection to local authority accounts we very much doubt. In our judgment, in any future investigation of this kind it will be essential for the auditor to exercise a sense of proportion and to balance, on the one hand, the need for adequate scrutiny of the accounts and the objections to them and, on the other, the need to avoid prolonged and inordinately expensive inquiry... The auditor in this case conducted over 130 interviews with 44 people, including the appellants, each of whom he interviewed many times. The history of events is set out in detail in over 400 pages... His investigations started at the behest of electors who were members of the minority party and who on 18 July 1989 gave him written notice, under section 17(4) of the 1982 Act, of objection to the lawfulness of the council’s accounts. He gave his final decision on 9 May 1996. Including appendices, it extends to almost 2,000 pages. He examined over 6,000 pages of documents. Many thousands of pages of transcript of his interviews, the proceedings before him and the submissions made to him were generated. We rule, prior to the hearing of the appeal that the auditor’s interviews of persons other that the appellants should be treated as evidence before us. Before this court, with the assistance of all counsel to whom we are indebted, it has been possible, with the aid of comprehensive and detailed written submissions, amplified in oral argument, on behalf of all parties, to focus on the issues raised in this appeal with recourse to comparatively few of these voluminous papers. It has also been a significant feature of this appeal that, although none of the appellants chose to give evidence before the auditor, each of them has sworn a substantial affidavit for the purpose of the appeal, on which each was orally cross-examined. We have also received the written reports of expert valuers and accountants in relation to what, if any, loss the council suffered and these experts have also been orally cross-examined ... It follows that we have conducted this appeal by way of re-hearing in accordance with RSC, Ord 55, r.3. In doing so we have kept in the forefront of our minds the impairment of recollection which is the inevitable consequence of the passage of up to 11 years between the occurrence of the material events and the evidence before us. In such circumstances, the contemporaneous documents are of obvious importance. We have approached the matter by considering, in relation to each appellant, whether the auditor appears to have gone wrong in any respect and whether, having regard to the high standard of proof appropriate to the seriousness of the allegation... wilful misconduct causing loss has been shown...” Concerning the appellants’ assertions about alleged breaches of Article 6 § 1 by the procedures before the Auditor, it stated: “In our judgment, English law treats that matter as one of civil not criminal liability. The ‘penalty’ as it is described by the Third Report of the Nolan Committee on Standards in Public Life is in fact calculated by reference to the loss sustained by the council taxpayer by reason of the wilful misconduct alleged. It follows that the nature of the proceedings is compensatory and based upon the principle that those who misbehave in public office should be required to make good to the taxpayer any resulting loss. That is no different from the principle that a trustee should make good to the trust fund any loss which may result from his misconduct. If the penalty imposed were greater than the loss incurred, then different considerations might apply. But the only potential additional consequence is disqualification from office...” It took the view that the jurisdiction of the domestic courts gave the appellants the required control by a judicial body that had full jurisdiction and provided the guarantees of Article 6 § 1 and that even if what happened before the Auditor was capable of amounting to a breach of the Convention the proceedings before the courts remedied any possible unfairness. It went on to find no problems arising from the role imposed on the Auditor by legislation and that no right to cross-examine the Auditor arose outside criminal proceedings. It noted that the delay had been extreme but that having regard to the proceedings as the whole which involved an expensive and time consuming investigation and to its finding that no prejudice or resulting injustice had been shown as suffered by the appellants, there was no breach of any reasonable time requirement either. It stated as regarded the Auditor’s press conference: “We are prepared to accept that, in the light of the great public interest in this matter and the lengthy period taken by the initial investigation culminating in the provisional findings, it was appropriate for the public to be given some explanation for the time spent and some indication of the auditor’s provisional views. But, in our judgment, the press conference which took place was ill-conceived and unfortunately executed. It would have been sufficient for a press statement to have been issued, preferably by the auditor’s solicitor, saying that the complexity of the investigation accounted for its length and that, at that stage, the auditor was provisionally minded to make findings of wilful misconduct causing loss against the individuals named but that, before he reached any final decision, the individuals would have the opportunity to give evidence and make submissions to him. Instead, a televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ringbinders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing. We express the hope that, in any future, the statutory investigation of this kind, no auditor will stage any similar event, which may undermine the perception, whatever may be the reality, of the auditor’s open-mindedness. In the light of the material before us, including, in particular, the auditor’s reasons for declining to recuse himself, we accept that despite such inferences to the contrary as might have been drawn from the press conference, the auditor did have an open mind and was justified in continuing with the subsequent hearings. ...The error of judgment which we find he made, in holding the press conference as he did, did not, in our view, demonstrate bias on his part. He was at pains to stress the provisional nature of his findings and it is pertinent that in his final decision he made no finding of wilful misconduct against three persons in relation to whom he had, provisionally, been minded so to find. In any event, as with the investigation, any possible unfairness to the appellants has been cured by the hearing before us...” On the substance of the appeal, the Divisional Court found that the Auditor’s decision lacked a “sufficient analysis of the possible impact on the state of mind of the appellants, which is crucial in relation to wilful misconduct, of the legal advice received, or reported to have been received, on 5 May 1987”. It concluded itself that the decision of 8 July 1987 was substantially influenced by a wish to alter the composition of the electorate by increasing the Conservative vote in marginal wards by the sale of council properties and was therefore unlawful. It found untrue the applicant and W.’s claim that following counsel’s advice on 5 May 1987 that the designation of sales for electoral purposes was abandoned: “... in our judgment [the applicant] and W. lied to us, as they had done to the auditor, because they had the ulterior purpose of altering the electorate which they knew rendered targeting sales in marginal wards unlawful... Because [the applicant] and W. knew the targeting policy was unlawful they were content, without further enquiry... to adopt the suggestion... that it be dressed up in city-wide clothes: neither claims that this was a proper course. Their purpose throughout was to achieve unlawful electoral advantage. Knowledge of the unlawfulness and such deliberate dressing-up both inevitably point to, and we find, wilful misconduct on behalf of each of them.” The appeals of Mr England, Councillor Hartley and Mr Phillips were allowed, largely, on the basis that it was not established to the necessary standard of proof that what they said or did during the relevant time was, to their knowledge, unlawful or improper. The appeals of the applicant and Mr Weeks were dismissed and they were found to have caused loss by wilful misconduct in the reduced sum of GBP 26,462,621. Permission to appeal was refused. They renewed their applications to appeal on 2 and 30 January 1998 respectively. On 20 February and 18 June 1998 respectively, Mr Weeks and the applicant were granted leave to appeal to the Court of Appeal. The appeals were heard before the Court of Appeal between 22 and 26 March 1999. In its judgment of 30 April 1999, by a majority, it allowed the appeals. The majority held that, since the applicant had acted on what she believed to be correct legal advice, it was inconsistent of the Divisional Court to find that she and Mr Weeks had committed wilful misconduct while finding that the other appellants who believed that Option 3 was lawful had not shown wilful misconduct. The majority found the decision of the Housing Committee to have been lawful and any improper purpose attributable to the applicant did not render the committee’s decision unlawful and was not causative of any loss. It quashed the Auditor’s certificate. On the allegations of bias, Lord Justice Schiemann noted that the applicant’s counsel accepted that he had not shown that the Auditor was actually biased and found that the expression of provisional views was part of the procedure sanctioned by Parliament and that there was nothing to lead him to suppose that the Auditor was unfairly biased against the appellants. As regarded delay, he considered that a fair hearing was still possible notwithstanding the lapse of time which had had no effect on the reliability of the conclusions reached or the appellants’ ability to present evidence. He also noted that as regarded any implied damage, psychological or otherwise, purported to flow from the delay no claim for damages had been put forward. He was satisfied that the appellants had not been required to prove a lack of wilful misconduct but that the Auditor and Divisional Court were persuaded that the appellants had committed wilful misconduct. In respect of the argument that the appellants were unable to cross-examine the Auditor before the Divisional Court, he considered that though a tribunal’s judgment may be reversed on grounds of actual bias, there was no requirement that the tribunal submit itself to cross-examination in order to see whether an admission of actual bias could be procured. Nor was he impressed by the argument that the appellants were unfairly prevented from cross-examining the Auditor as regarded quantum. The Court of Appeal granted the Auditor permission to appeal to the House of Lords. His appeal was heard between 5 and 13 November 2001. In the House of Lords’ judgment of 13 December 2001, the Auditors appeal was allowed and the orders of the Divisional Court and the certificate of GBP 26,464,621 restored. The House of Lords concurred generally with the findings of the Divisional Court and the approach of the dissenting judge in the Court of Appeal. In his judgment, Lord Bingham found that the applicant and Mr Weeks accepted that they knew that they could not use the council’s powers for electoral advantage and that in adopting and implementing the designated sales policy both acted in a way which they knew to be unlawful. While the applicant’s counsel had argued that the applicant had acted in accordance with what they believed to be legal advice given to the council and were accordingly not guilty of wilful misconduct, he relied on the clear findings of the Auditor and the Divisional Court, who had heard the evidence, that the applicant and W. had not pursued the designated sales policy on legal advice. He noted that: “First, it is simply not true that [Mr S, the Queen’s counsel who gave the advice] was given access to all relevant information or that [the applicant] laid bare her hopes to her legal advisers. Mr S. received no written instructions and gave no written advice. There were two questions which the council should have put to him. The first was whether it was lawful to promote a policy of designating council properties for sale in marginal wards for the purpose of securing an electoral advantage for the majority party at the forthcoming council elections. That question was put to Mr S. and he answered it in the negative as he was bound to do. The second, follow-up question should have been whether, if that policy would be unlawful, the policy would become lawful, if, with the same objective, and in order to conceal the targeting of sales in marginal wards, the designated sales policy were extended across the City of Westminster. That question was never put. No-one, including [the applicant] and Mr Weeks, could have had any doubt at all what the answer would have been if it had. Mr S. was never told of the course on which the council proposed to embark or had embarked. The second weakness is found in the history of pretence, obfuscation and prevarication which surrounded the policy from May 1987 onwards. If the policy was genuinely believed to be lawful, albeit controversial, there was no need for such intensive camouflage.” As regarded the alleged inconsistency in allowing the appeal of Messrs Hartley, England and Phillips while rejecting the appeal of the applicant and Mr Weeks, Lord Bingham concurred with the unease felt by Lord Justice Robert Walker in the Court of Appeal: “It is understandable that the Divisional Court was reluctant to be excessively critical of officers, who were subject to considerable pressure from elected members... Mr Hartley’s conduct does not earn that measure of indulgence. But the Divisional Court had the advantage of hearing these three witnesses. It was rightly alert to the high standard required before a finding of this gravity could be sustained. It may very well be that Messrs Hartley, England and Phillips were fortunate to be exonerated, to the limited extent that they were exonerated. But the findings made against [the applicant] and Mr Weeks were, in truth, very strong. They were the leader and deputy leader of the council, and were respectively the prime architect and midwife of this policy. I am satisfied that no injustice was done to either of them by upholding the findings of the auditor and the Divisional Court.” Concerning the grounds of appeal raised under the Convention, Lord Hope rejected the argument that the proceedings fell under Article 6 § 1 in the criminal aspect: “I consider that the nature of the proceedings under section 20 of the 1982 Act is compensatory and regulatory, not punitive. Section 20(1) provides that the amount certifiable by the auditor, where it appears to him that a loss has been incurred or deficiency caused by wilful misconduct, is the amount of the loss or deficiency and that both he and the body in question may recover that amount for the benefit of that body. The object of the procedure is to compensate the body concerned, and the measure of the compensation is the amount of the loss suffered. In the present case the amount certified was very large, but the nature of the proceedings does not alter depending on the amount certified. No fine is involved, nor does the section provide for a penalty by way of imprisonment. Section 20(4) provides for the respondents’ disqualification from being members of a local authority. But this outcome is similar to where a trustee is removed after being found to have been in serious breach of trust, or a person is disqualified from acting as a director of a company. In my opinion measures of the kind provided for by section 20, which apply to persons having a special status or responsibility and are compensatory and regulatory rather than penal in character, lie outside the criminal sphere for the purposes of Article 6 of the Convention.” He went on to find that the applicant was nonetheless entitled to the protection offered by Article 6 § 1 concerning civil rights. To the extent that the Auditor was required by statute to act as investigator, prosecutor and judge, this problem was solved in his view by the provision of a complete rehearing by the Divisional Court which could exercise afresh all the powers of decision given to the Auditor. He agreed with the Divisional Court that the Auditor had made an error of judgment in making a statement at a public press conference. However while this created the risk of unfair reporting there was nothing in the words the Auditor used to indicate that there was a real possibility that he was biased. He noted the Auditor was at pains to point out that his findings were provisional and there was no reason to doubt this as his subsequent conduct demonstrated. Looking at the matter objectively, he did not find that it had been demonstrated that there was a real possibility of bias. As regards the complaint of unreasonable delay in the proceedings, Lord Hope (with whose judgment on the issue all the members of the House of Lords agreed) observed that the period of which complaint was made could be divided into four distinct periods: (a) that from the receipt of the original objection on 18 July 1989 to the issuing by the Auditor of his provisional views on 13 January 1994; (b) that from 13 January 1994 to the end of the audit hearing on 7 February 1995; (c) that from 7 February 1995 to the issuing by the Auditor of his decision and the certificates of surcharge on 9 May 1996; and (d) that from 9 May 1996 to the decision of the Divisional Court which was given on 19 December 1997. Lord Hope noted that no complaint had been made about any delay after that date. As to the proceedings before the Divisional Court, Lord Hope held that there was no basis whatever for the suggestion that there had been unreasonable delay at that stage. The Auditor had issued his certificate in May 1996. It was not until December 1996 that the respondents filed their evidence on the main issues. The accounting evidence was not filed until April 1997. A procedural hearing was held shortly afterwards in May 1997. The case proceeded to a hearing in the Divisional Court in October 1997, which lasted for 23 days and judgment was given on 19 December 1997. Having regard to the complexity of the issues and the volume of evidence that had to be prepared and presented, the proceedings in the Divisional Court had been concluded within a reasonable time. As to the proceedings before the Auditor, Lord Hope stated: “In my opinion the most striking feature which emerges from all the facts relating to the conduct of the investigation by the auditor is that, far from causing delay by inaction, he was constantly in action. He was seeking out information wherever it could be found, often with considerable difficulty. He was interviewing and re-interviewing many witnesses, recovering and perusing thousands of documents, calculating amounts of loss and expenditure and then gathering all this information together into a decision which eventually extended to over 2,000 pages... It has been suggested that his investigation was over-elaborate. There are comments to that effect in the Divisional Court’s judgment... But the auditor had to form his own judgment on this matter. He had to take account of the importance of the exercise to all parties, including those who were at risk of being surcharged, and he was entitled to have regard to its obvious political sensitivity. I would attach particular significance to these factors and to the fact that it has not been suggested at any stage that the auditor caused delay at any stage by inactivity. Applying the test described in Konig v. Germany ... which directs attention to the complexity of the case, the applicant’s conduct and the manner in which the matter was dealt with by the authorities, and leaving aside the question whether the [applicant and W.] can show that they were prejudiced, I would hold that the proceedings did not exceed the reasonable time requirement which Article 6 § 1 lays down. ...” On 13 December 2001, the Council made a formal demand for the applicant to pay the certified sum by 27 December 2001. On 28 December 2001, the Council issued proceedings in the High Court for the certified sum, damages and the audit fees. On the same date, the Council obtained an ex parte order freezing the applicant’s assets up to a value of GBP 33 million. She was required to file an affidavit listing her assets by 14 January 2002. The freezing order was renewed on 18 January 2002, including limited exceptions for living expenses and a reasonable sum (not exceeding GBP 20,000) for legal representation. The applicant filed a defence, denying liability to pay additional damages or audit fees. On 18 April 2002, the Council issued an application for summary judgment against the applicant. The applicant opposed the application at a hearing on 15, 16 and 30 July 2002. On 31 July 2002, the High Court issued summary judgment for payment of the certified sum and damages for breach of trust (a total sum not exceeding GBP 36,966,542). The applicant’s application for a stay pending proceedings in Strasbourg was refused. The applicant was granted leave to appeal. On 23 October 2002, the applicant was granted an extension of time in which to lodge her appeal, subject to her compliance with orders requiring her to inform the Council of the source of her current funding, to discharge outstanding sums due to the Council in respect of their costs and to provide security for costs of the appeal in the sum of GBP 20,000 by 20 November 2002. To date, the orders have not been complied with and her appeal is liable to be dismissed. Section 20 of the Local Government Finance Act 1982 provides as relevant: “(1) Where it appears to the auditor carrying out the audit of any accounts under this Part of this Act... (b) that a loss has been incurred or deficiency caused by the wilful misconduct of any person, he shall certify that... the amount of the loss or the deficiency is due from that person and ... both he and the body in question... may recover that ... amount for the benefit of that body; and if the auditor certifies under this section that any ... amount is due from two or more persons, they shall be jointly and severally liable for that sum or amount. (2) Any person who ... (b) is aggrieved by a decision of the auditor to certify under this section that a sum or amount is due from him, may ... require the auditor to state in writing the reasons for his decision (3) Any such person who is aggrieved by such a decision may appeal against the decision to the court and – (a) in the case of a decision to certify that any amount is due from any person, the court may confirm, vary or quash the decision and give any certificate which the auditor could have given ...” In the House of Lords in the present case, Lord Hope examined the jurisdiction of the courts on an appeal under section 20(3) of the 1982 Act. It was his view that any problem which may be seen to result from the fact that, where accusations of wilful misconduct were involved, the Auditor was required to act not only as an investigator but also as prosecutor and judge was resolved by the appeal provisions in section 20(3): “The court can exercise afresh all the powers of decision given to the auditor... The powers which the Divisional Court has been given by section 20(3) fully satisfy [the requirements of Article 6 (1) of the Convention]. Not only does it have the power to quash the decision taken by the auditor. It has the power to rehear the case, and to take a fresh decision itself in the exercise of the powers given to the auditor... In the case of the procedure governed by section 20(3) however a rehearing on the merits can be conducted, and this is what was done in this case.” In July 1997, Lord Nolan’s Committee on Standards in Public Life published its report “Standards of Conduct in Local Government in England, Scotland and Wales”. It recommended that the surcharge should be abolished. It took the view that it was unsatisfactory to have a procedure in which the Auditor formulated and prosecuted a case against individual councillors, judged guilt or innocence and determined the penalty. It considered that the concept of surcharge was outdated, that in practice it was in the nature of a penalty and that the procedure should be replaced by the direct involvement of the courts. It also noted the anomaly, regarded as inequitable by some, that the regime of surcharge applied only to local government and not to others in public service, finding it illogical that only those in local government should be subject to a regime for punishing misconduct which was serious but which did not involve corruption. While section 20 of the 1982 Act was re-enacted by section 18 of the Audit Commission Act 1998, this was amended in turn by section 90 of the Local Government Act 2000, which removed the power of surcharge. | 0 |
train | 001-69317 | ENG | RUS | CHAMBER | 2,005 | CASE OF BAKLANOV v. RUSSIA | 2 | Violation of P1-1 | Christos Rozakis | 8. The applicant was born in 1957 and lives in Riga. 9. In 1997 he decided to move from Latvia to Russia. He negotiated a real estate deal with a Moscow-based agent. 10. On 20 March 1997 the applicant withdrew from his bank accounts 250,000 US dollars (“USD”) in cash and asked his acquaintance, B., to deliver the money to Moscow. 11. B. arrived in the Sheremetyevo-1 airport later the same day. He failed to declare the money at the customs checkpoint and was charged with smuggling. 12. On 13 September 2000, the Golovinskiy District Court of Moscow found B. guilty of smuggling under Article 188-1 of the Criminal Code and sentenced him to two years' suspended imprisonment. With regard to the money, the court said in the operative part of the judgment: “USD 250,000, deposited with the Sheremetyevo Customs Board, are to be forfeited to the Treasury as an object of smuggling.” 13. In his appeal against the judgment, B.'s lawyer submitted that the Golovinskiy District Court had failed to indicate any legal ground for the confiscation order. He argued that the money had been included in the case-file as evidence and that no relevant law provided for its confiscation. Moreover, lawfully obtained assets were to be returned to their owners. B.'s lawyer also claimed that Article 188-1 of the Criminal Code did not provide for such a sanction as confiscation. 14. On 25 October 2000, the Moscow City Court refused the appeal. With regard to the money, the court said: “USD 250,000, which was the object of the smuggling, was rightfully forfeited to the Treasury.” 15. On 1 July 2002 a Deputy President of the Supreme Court lodged an application for supervisory review against the judgments. He claimed that the smuggled money could only be confiscated if proven to have been acquired criminally. 16. On 18 July 2002 the Presidium of the Moscow City Court refused the application on the ground that a Ruling of the Plenary Supreme Court of the USSR issued in 1978 permitted the confiscation of smuggled goods which had been attached to case-files as exhibits. 17. On 15 August 2002 the Deputy President of the Supreme Court lodged another application for supervisory review claiming, among other things, that the Ruling of 1978 was inconsistent with later superseding legislation. However, on an unspecified date the Deputy President of the Supreme Court withdrew his application. 18. Article 169-1 of the Criminal Code of 1960, as in force from 15 July 1994 to 31 December 1996, provided: “The carrying across the [State] border of considerable amounts of goods or other items ... in evasion of customs controls ... or without declaring [them] or with untrue declarations ... shall be penalised by imprisonment of up to five years ... and by forfeiture of the goods and other items carried across the border...” 18. Article 188-1 of the Criminal Code of 1996 (“CrC”) provides: “Smuggling, i.e. transportation across the customs border of the Russian Federation of considerable amounts of goods and other items ... without due customs control, or in evasion of such control, or with fraudulent use of documents or identification means, or in violation of rules of declaration, shall be penalised by imprisonment of up to five years.” 19. Article 279 of the Customs Code of 1993, as in force at the material time, provided: “Failure to declare or an inadequate declaration of goods ... carried across the customs border ... which disclose no appearance of smuggling ... shall be punished by a fine of 100 to 200 per cent of the cost of the goods which are the object of the offence, with or without their forfeiture...” 20. The Code of Criminal Procedure of 1960 (“CCrP”), in force at the relevant time, provided as follows: “Exhibits include items which served as instruments of crime, or which have retained traces of the crime, or against which the crime was directed. [Exhibits also include] criminally acquired money and other valuables earned by crime, and any other items which can help detect the crime, establish factual circumstances, reveal the guilty or refute the charges or lessen the responsibility.” “The destiny of exhibits used in criminal proceedings must be determined in a judgment..., and: 1. instruments of the crime which belong to the accused shall be confiscated and passed to a competent agency or destroyed; 2. items prohibited for circulation shall be passed to a competent agency or destroyed; 3. items of no value or use shall be destroyed or returned to interested persons or agencies if they so wish; 4. criminally acquired money and other assets shall be forfeited; other items shall be returned to their lawful owners, or, if the owners are not established, shall become the State's property. In the event of a dispute concerning the ownership of such items, the dispute shall be resolved in civil proceedings; 5. documents which serve as exhibits shall be kept in the case file as long as the case file is archived or shall be passed to interested agencies”. 21. The Ruling of the Plenary Supreme Court of the USSR no. 2 of 3 February 1978 (“the Ruling of the Supreme Court”, “the Ruling”) provides: “...With a view to ensure a uniform and correct application of laws in proceedings concerning smuggling, the Plenary Supreme Court decides [that]:... 7. In accordance with the legislation in force, smuggled items must be forfeited as exhibits...” 22. Article 243-1 of the Civil Code of 1994 (“CivC”) provides: “In cases established by law, a person may be deprived of his property without compensation pursuant to a court judgment as a sanction for a crime or other offence (confiscation)...” 23. On 10 June 1998 the Presidium of the Supreme Court exercised supervisory review of the criminal case against a certain Mr Petrenko, who had been convicted of smuggling a considerable amount of foreign currency into Russia. After conviction, the trial court returned the money – which had been included in the file as evidence – to its owner, Mr Petrenko. The Supreme Court overturned the judgment having found that the money should have been considered as an instrument of the crime and, as such, it should have been confiscated pursuant to Article 86-1 of the CCrP. 24. On 8 July 2004, the Constitutional Court held that Article 86-1 of the Code of Criminal Procedure was constitutional, even though it permitted to confiscate instruments of crime, for example smuggled money, belonging to other than the accused. In particular, the Constitutional Court said: “The rule set out in ... Article 86-1 of the Code of Criminal Procedure ... helps Russia implement its international-law obligations in criminal proceedings, does not overrule criminal laws which permit confiscation as a punishment, and, hence, allows the procedural law to regulate confiscation with regard to [international instruments on money laundering and crime control]. ... It is a [criminal] court ... who may determine the procedural status of [smuggled items] under Article 86-1 of the Code of Criminal Procedure....” | 0 |
train | 001-59207 | ENG | EST | CHAMBER | 2,001 | CASE OF TAMMER v. ESTONIA | 1 | No violation of Art. 10 | Elisabeth Palm;Gaukur Jörundsson | 8. At the material time the applicant was a journalist and editor of the Estonian daily newspaper Postimees. 9. The applicant's complaint under Article 10 of the Convention relates to his conviction by the Estonian courts of insulting Ms Vilja Laanaru in an interview he had conducted with another journalist, Mr Ülo Russak, which was published in Postimees on 3 April 1996. The interview was entitled “Ülo Russak denies theft” and was prompted by an allegation made by Ms Laanaru that Mr Russak, who had helped her to write her memoirs, had published them without her consent. The interview had the following background. 10. Ms Laanaru is married to the Estonian politician Edgar Savisaar. In 1990, when Mr Savisaar was still married to his first wife, he became Prime Minister of Estonia. Ms Laanaru, who had already been working for him, became his assistant. She continued to work with him during the following years and in 1995, when Mr Savisaar held the post of Minister of the Interior, she was one of his counsellors. 11. Ms Laanaru had been politically active in the Centre Party (Keskerakond) led by Mr Savisaar and was an editor of the party's paper. 12. In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar. As she was unwilling to place her child in a kindergarten, the child was entrusted to her parents. 13. On 10 October 1995 Mr Savisaar was forced to resign as Minister of the Interior following the discovery of secret tape recordings of his conversations with other Estonian politicians. On the same day Ms Laanaru issued a statement in which she claimed full responsibility for the secret recordings. 14. Ms Laanaru then left her post in the Ministry of the Interior and began writing her memoirs with the help of a journalist, Mr Russak. 15. In her memoirs, as recounted to Mr Russak, Ms Laanaru recalled her experiences in politics and the government. In considering the issue of the secret tape recordings she conceded that the statement she had made on 10 October 1995 was not true. According to Mr Russak, she also reflected on her relationship with Mr Savisaar, a married man, asking herself whether she had broken up his family. She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price in sacrificing her child to her career. 16. In the course of the writing, a disagreement arose between her and Mr Russak as to the publication and authorship of the memoirs. 17. On an unspecified date Ms Laanaru brought a civil action before the Tallinn City Court (Tallinna Linnakohus) for the protection of her rights as the author of the manuscript. 18. On 29 March 1996 the City Court issued an order prohibiting Mr Russak from publishing the manuscript pending the resolution of the issue of its authorship. 19. Following the court order, Mr Russak decided to publish the material collected in a different form, namely in the form of the information Ms Laanaru had given him during their collaboration. 20. Mr Russak's account of Ms Laanaru's story began appearing in the daily newspaper Eesti Päevaleht on 1 April 1996. 21. Later the same year, Ms Laanaru published her own memoirs. In her book she stated that some of the information published in the newspaper report of Mr Russak's story was incorrect, without specifying in which respect. 22. In the newspaper interview of 3 April 1996, mentioned in paragraph 9 above, the applicant questioned Mr Russak on the issue of the publication of the memoirs and asked him, inter alia, the following question: “By the way, don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage [abielulõhkuja], an unfit and careless mother deserting her child [rongaema]. It does not seem to be the best example for young girls.” [Note by the Registry: The translation of the Estonian words “abielulõhkuja” and “rongaema” is descriptive since no one-word equivalent exists in English.} 23. Following the above publication, Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “abielulõhkuja” and “rongaema”. 24. In the proceedings before the City Court, the applicant argued that the expressions used had been intended as a question rather than a statement of his opinion and that a question mark after them had been left out by mistake in the course of the editing. He denied the intent to offend Ms Laanaru and considered the expressions used as neutral. He further claimed that Ms Laanaru's actions had justified his asking the question. 25. By a judgment of 3 April 1997, the City Court convicted the applicant under Article 130 of the Criminal Code of the offence of insulting Ms Laanaru and fined him 220 kroons, the equivalent of ten times the “daily income” rate (see paragraph 31 below). In finding against the applicant, the City Court took note of the expert opinion given by the Estonian Language Institute (Eesti Keele Instituut) and of the applicant's unwillingness to settle the case by issuing an apology. It also noted that under the relevant provision of the Criminal Code liability did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant. According to the expert opinion, the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred. The word “rongaema” indicated that a mother had not cared for her child, and the word “abielulõhkuja” indicated a person who had harmed or broken up someone else's marriage. Both phenomena had always been condemned in Estonian society and this was also reflected in the language. However, the words were not improper in their linguistic sense. 26. The applicant lodged an appeal with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he argued, inter alia, that the first-instance court had failed to take into account the context of the whole article in which the two words appeared. He also disputed the qualification of his action as a crime on the grounds that he had lacked criminal intent and that the form used was not improper. He further stressed his right as a journalist freely to disseminate ideas, opinions and other information guaranteed by the Estonian Constitution and argued that the judgment of the first-instance court constituted a violation of his freedom of speech. 27. By a judgment of 13 May 1997Laanaru by stating that she did not raise her child and that she had destroyed Mr Savisaar's marriage, it would not have constituted an insult. The Court of Appeal pointed out that the Constitution and the Criminal Code expressly provided for the possibility of restricting freedom of speech if it infringed the reputation and rights of others. Despite the special interest of the press in public figures, the latter also had the right to have their honour and dignity protected. 28. The applicant lodged an appeal on points of law with the Supreme Court (Riigikohus) arguing, inter alia, that the two expressions did not have any synonyms in the Estonian language and he had therefore had no possibility of using other words. The use of a longer sentence omitting the words had been precluded by objective circumstances peculiar to journalism. 29. By a judgment of 26 August 1997, the Supreme Court's Criminal Division rejected the applicant's appeal and upheld the Court of Appeal's judgment. Its judgment included the following reasons: “I. The principle of freedom of speech, including the principle of freedom of the press provided for in Article 45 § 1 of the Constitution of the Republic of Estonia ('the Constitution') and Article 10 § 1 of the European Convention on Human Rights ('the ECHR'), is an indispensable guarantee for the functioning of a democratic society and therefore one of the most essential social values. ... According to Article 11 of the Constitution the restriction of any rights or freedoms may take place only pursuant to the Constitution; such restrictions must moreover be necessary in a democratic society and must not distort the nature of the restricted rights and freedoms. Freedom of speech, including freedom of the press, as a fundamental right may be restricted pursuant to Article 45 of the Constitution for the protection of public order, morals, the rights and freedoms of other persons, health, honour and good name. Under Article 10 § 2 of the ECHR, freedom of speech may be restricted by law also for the protection of morals and the reputation or rights of others. II. In Estonia a person has in principle the right to protect his or her honour as one aspect of human dignity by bringing either civil or criminal proceedings. According to section 23(1) of the Law on General Principles of the Civil Code, a person has the right to apply for a court order to put a stop to the besmirching of his or her honour, the right to demand rebuttal of the impugned material provided that the person defaming him or her fails to prove the truthfulness of the material and also the right to demand compensation for pecuniary or non-pecuniary damage caused by the attack on his or her honour. Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact, as only a fact can be proved to be true. However, if a person feels that his or her honour has been besmirched by a value judgment, it is impossible to prove that allegation in a legal sense. In its Lingens v. Austria (1986) and Thorgeir Thorgeirson v. Iceland (1992) judgments, the European Court of Human Rights has also taken the view that a clear distinction must be made between facts and value judgments. Since the truth of a value judgment cannot be proved, the European Court of Human Rights has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment, this constitutes a violation of the freedom of speech provided for in Article 10 of the ECHR. Therefore, a person in Estonia has in fact no possibility of protecting his or her honour through civil-law remedies if he or she has been defamed by means of a value judgment. It follows that in [such] cases ... a person can only resort to criminal-law remedies for protecting his or her honour – by initiating a private prosecution under Article 130 of the Criminal Code. In the present case, the victim has availed herself of this sole opportunity. III. The Criminal Division of the Supreme Court considers the judgments delivered by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1997 and 13 May 1997 respectively to be lawful and not subject to annulment. In response to the arguments put forward in the appeal, the Criminal Division of the Supreme Court considers it necessary to note the following. The appellant's statement that the words 'rongaema' and 'abielulõhkuja' could not be offensive to V. Laanaru since the sentence in the article which contained these words did not include the name of V. Laanaru, meaning that the words have not been used against anyone personally, is groundless and fabricated. Both the City Court and the Court of Appeal have correctly concluded that the expressions 'rongaema' and 'abielulõhkuja' have been used by [the applicant] to characterise the victim V. Laanaru (Savisaar). The Criminal Division of the Supreme Court wishes to add that in the formulation of his next argument – that it is legitimate to use the impugned expressions towards public figures – the appellant has considered V. Laanaru to be a public figure, thereby in fact invalidating his first argument. Although Article 12 of the Constitution stipulates the equality of everyone before the law, the Criminal Division of the Supreme Court does not consider it necessary to question the special interest of the press towards public figures – a principle recognised in the practice of the European Court of Human Rights. However, the Criminal Division of the Supreme Court wishes to stress that in Estonia there is no legal definition of a public figure and in the practice of the European Court of Human Rights no one has been considered a public figure for the reason that he or she is a spouse, cohabitant, child or other person close to a public figure. It must be emphasised nevertheless that it cannot be concluded from the practice of the European Court of Human Rights that the special interest of the press towards public figures means that public figures cannot be offended. On the contrary, according to the criminal laws of several countries, such as Germany, the act of offending a public figure qualifies as a crime. The public has the right to expect the press to describe the life of public figures more thoroughly than the life of ordinary people, but the public has no right to expect the honour of public figures to be degraded, especially in the press and in an improper manner. The Criminal Division does not agree with the standpoint put forward in the appeal that, since the words 'rongaema' and 'abielulõhkuja' are not vulgar or indecent, their use in referring to a person cannot be considered as degrading that person's honour and dignity in an improper manner, which is an obligatory element of the definition of the offence under Article 130 of the Criminal Code. Improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions. Besides, improper form may also be non-verbal, for example a caricature. Both the City Court and the Court of Appeal have correctly taken the view, on the basis of an expert opinion, that by using the words 'rongaema' and 'abielulõhkuja' in reference to V. Laanaru in the newspaper article [the applicant] has treated the victim in public in a defamatory and thus improper manner. The statement of [the applicant's] defence lawyer ... that the Court of Appeal had no right to prescribe which style a journalist was to use when writing a newspaper article is without foundation. Such a statement can be accepted in so far as the journalistic style does not offend or degrade human dignity. Concerning the protection of the honour and dignity of a person, the court was correct in pointing out that the idea expressed in an improper form could also be expressed in a proper form in Estonian. The argument of the appellant that the offensive expressions 'rongaema' and 'abielulõhkuja' were used due to the absence in the Estonian language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by objective circumstances peculiar to journalism, is also ill-founded. There are probably no synonyms for several vulgar and indecent expressions in Estonian. This, however, does not justify their use. Any objective circumstances inherent in the functioning of the press – such as consideration of newspaper space and information density, according to the appellant – being values whose scope is limited to a particular sphere, cannot be compared to such values as human dignity. Under Article 65 § 4 of the Code of Criminal Procedure in Appeal and Cassation Proceedings, the Supreme Court lacks competence to establish factual circumstances. Accordingly, the Supreme Court cannot reconsider the decision which the City Court and the Court of Appeal took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question. However, the Criminal Division of the Supreme Court finds it necessary to point out that the prevailing opinion in legal writing is that insult is in principle possible also in the form of a question. It is also important to stress that if the newspaper Postimees has violated the rights of the author [the applicant] and distorted his intent by an incompetent technical editing [by leaving out the question mark at the end of the two expressions] (letter of the chief editor of Postimees of 16 May 1996 in the file), it would have been possible for [the applicant] or the newspaper to remedy the damage in an out-of-court settlement by simply publishing an apology as the victim had expressed readiness to reach such a settlement. However, neither [the applicant] nor the newspaper Postimees was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult.” 30. The relevant provisions of the Estonian Constitution read as follows: “Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and good name of others.” “Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted.” 31. The relevant provisions of the Criminal Code read as follows: “The degradation of another person's honour and dignity in an improper form shall be punished with a fine or detention.” “1. A fine is a penalty which the court can impose up to a limit of nine hundred times a person's daily income. The 'daily income' rate is calculated on the basis of the average daily wage of the defendant following deduction of taxes and taking into account his or her family and financial status.” | 0 |
train | 001-118569 | ENG | TUR | CHAMBER | 2,013 | CASE OF MERYEM ÇELİK AND OTHERS v. TURKEY | 3 | Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary and non-pecuniary damage - award | Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. The applicants are Turkish nationals and live in the Şemdinli district of Hakkari. 6. The applicants are the close relatives of the thirteen persons who went missing (Casım Çelik, Aşur Seçkin, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın and Abdullah İnan) and one person who was allegedly killed (Kerem İnan) in July 1994, during an operation conducted by security forces in the Ormancık hamlet of the Ortaklar village, in the Şemdinli district of Hakkari. The inhabitants of Ormancık had been village guards prior to the events giving rise to the present application. The relationship between the applicants and their missing relatives is as follows: Meryem Çelik - wife of Casım Çelik; Misrihan Sevli - wife of Cemal Sevli; Emine Çelik - wife of Yusuf Çelik; Marya Çelik - wife of Mirhaç Çelik; Hamit Şengül - brother of Naci Şengül; Fatma Şengül - wife of Seddık Şengül; Besna Sevli - wife of Reşit Sevli; Hanife İzci - wife of Kemal İzci; Şakir Öztürk- brother of Hayrullah Öztürk; Kimet Şengül -wife of Salih Şengül; Hazima Çelik - partner of Hurşit Taşkın; Şekirnaz İnan - partner of Abdullah İnan; Zübeyda Uysal -partner of Aşur Seçkin; Hamayil İnan - wife of Kerem İnan. 7. According to the applicants’ submissions, on 24 July 1994 military and gendarmerie forces arrived in Ormancık. The inhabitants of the hamlet were told by members of the security forces to gather at the helicopter landing pad, which was in the main square. The men of the village were stripped naked and beaten. Two of the applicants, Emine Çelik and Zübeyda Uysal, who were pregnant at the time of the events, were also beaten when they protested against the security forces’ conduct and both eventually suffered miscarriages. Furthermore, Kerem İnan was killed by a non-commissioned gendarmerie officer, a certain F.A., when he did not obey the order to gather in the main square. 8. The security forces set fire to the houses in the hamlet. Subsequently, Cemal Sevli, Reşit Sevli, Aşur Seçkin, Salih Şengül, Yusuf Çelik, Naci Şengül and Kemal İzci were put in military vehicles by the soldiers to be taken to the military base. On the way to the base, the soldiers stopped two cars in which ten villagers were travelling. The soldiers let the four children in the cars go, but arrested Hayrullah Öztürk, Abdullah İnan, Mirhaç Çelik, Seddik Şengül, Casım Çelik and Hurşit Taşkın. The soldiers then set fire to the villagers’ cars. 9. The applicants and other villagers were forced to leave Ormancık and Turkey by the security forces. They then crossed the border into Iraq. In that respect, according to a document dated 24 July 1994, drafted and signed by members of the administrative council (including the mayor) of Ortaklar village, there was an armed clash in Ormancık on that day and all property in the hamlet was burned. The document further states that the inhabitants of Ormancık were forced to leave the hamlet soon afterwards and flee to Iraq. 10. Between 1994 and 1997, the applicants lived in the Atrush refugee camp, which had been established by the United Nations High Commissioner for Refugees, in northern Iraq. In March 1997, following the closure of the camp by the United Nations, the applicants moved to Suleymaniyeh, a city in northern Iraq. During the autumn of 1997 they finally returned to Turkey and began living in Şemdinli. 11. On an unspecified date, criminal proceedings were brought against six people who had lived in the Atrush refugee camp, including two of the applicants, Emine Çelik and Besna Sevli, who were charged with aiding and abetting members of the PKK (the Workers’ Party of Kurdistan, an illegal organisation) while living in the camp. 12. On 28 November 1997 the Van State Security Court acquitted the accused, finding that the charges against them were not proved beyond reasonable doubt. 13. In July 1998 a member of parliament, Naim Geylani, visited Şemdinli. Some of the applicants met Mr Geylani and told him that in July 1994 one person had been killed, thirteen others had disappeared and two of the applicants had suffered miscarriages following a military operation in their hamlet. Mr Geylani then requested the Human Rights Commission attached to the Turkish Grand National Assembly (“the Parliamentary Human Rights Commission”) to initiate an investigation into the applicants’ allegations. On 4 July 1998 a newspaper published an article about Mr Geylani’s request. 14. On 10 February 1999 the chair of the Parliamentary Human Rights Commission, Dr Sema Pişkinsüt, sent a letter to Mr Geylani informing him of the findings in the investigation conducted into the alleged events. She stated that in 1988 a number of people from the Ormancık hamlet of Ortaklar village had become village guards. Some of them, including Casım Çelik, Seddık Şengül, Kerem İnan and Salih Şengül (the relatives of the first, seventh, thirteenth and tenth applicants, respectively), had then made a deal with the PKK that it would not perpetrate acts of violence in the village in exchange for logistical support such as a month’s salary from each village guard, food, shelter and ammunition. In July 1994 and June 1995 the village guards had helped members of the PKK to ambush security forces. In the first incident, three members of the security forces had lost their lives and fifteen of them had been injured, and in the second incident fifteen members of the security forces had been killed. According to the report, as a result of pressure from the PKK the villagers moved to the Atrush camp in northern Iraq in July 1994. Following the closure of the Atrush camp by the United Nations, the villagers had returned to their homes in December 1997. Thirteen persons who had been involved in the illegal activities of the PKK had then surrendered to the authorities and seven of them had been put on trial after having been questioned. However, the residents of the Ormancık hamlet, particularly the women who had been questioned by the authorities on their return, had not mentioned anyone having been killed. Nor had they made any such allegations to the authorities. Consequently, it was considered that the allegations were unfounded. 15. On 6 July 1998, after having read the above-mentioned newspaper article (see paragraph 13 above), the Hakkari public prosecutor asked the Şemdinli public prosecutor to open an investigation into the allegations. 16. In August 1998 and January 1999, Meryem Çelik, Zübeyda Uysal, Misrihan Sevli, Emine Çelik, Fatma Şengül, Besna Sevli, Hanife İzci, Hamayil İnan, Kimet Şengül and Hazima Çelik made statements before the Şemdinli public prosecutor, through interpreters, as they did not speak Turkish. They all maintained that, following the security forces’ arrival at the hamlet, they had been forced to gather in the main square, whereupon the men of the village had been beaten. They stated that they did not know the reason why the security forces had come to the hamlet. They alleged that the security forces had illegally confiscated their belongings, such as money and jewellery, and had destroyed their houses. They further contended that a gendarmerie officer named Fatih had killed Kerem İnan and that seven men had been taken away by soldiers. Hamayil İnan, Kerem İnan’s wife, maintained that they could not bury his husband as they had to leave the hamlet immediately after the killing and that she had been told that Kerem İnan’s corpse had been buried where he had been killed by villagers from another hamlet. The applicants stated that the soldiers had taken six other inhabitants of Ormancık into custody while driving to the military base. The applicants maintained that they had been told that their relatives had subsequently been killed and their corpses left in the vicinity of the military base. They further alleged that a lieutenant colonel known as “Ali” had told the villagers that they were traitors and did not deserve to live in Turkey, and that they should go to live in Iraq, Iran or Syria. The inhabitants of the hamlet had then been coerced into leaving the hamlet and, subsequently, the country. They had been forced to go to Iraq by members of the PKK. Zübeyda Uysal and Emine Çelik further maintained that they had been pregnant at the time of the incident and that they had both suffered miscarriages as a result of having being beaten by the security forces. The applicants requested that those responsible for the killing of Kerem İnan and the disappearance of the thirteen other villagers be found and punished. 17. The Şemdinli public prosecutor also took statements from Lieutenant Colonel A.Ç., who had allegedly been the commanding officer of the soldiers who had gone to Ormancık, as well as from the non-commissioned gendarmerie officer, F.A. They both denied the applicants’ allegations. 18. On 11 August 1998, upon the request of the Şemdinli public prosecutor, the military forces sent a letter to the public prosecutor’s office stating that soldiers had arrested thirteen villagers and taken them to the Derecik military base. The villagers had been released after questioning. However, Aşur Seçkin had died immediately afterwards as a result of gunshot wounds received from an unknown source while trying to escape to join the PKK. 19. On 13 April 1999 the Şemdinli public prosecutor drew up a report (fezleke) in which he set out the developments in the investigation. In his report, the public prosecutor identified A.Ç. and F.A. as the “accused” and Meryem Çelik, Zübeyda Uysal, Misrihan Sevli, Emine Çelik, Fatma Şengül, Besna Sevli, Hanife İzci, Hamayil İnan, Kimet Şengül and Hazima Çelik as the “complainants”. The offences allegedly committed by the accused were defined as homicide, aggravated theft (gasp), the causing of a miscarriage, the forced evacuation of a village and the burning of vehicles. According to this report, on 24 July 1998, in the vicinity of the Ormancık hamlet, two soldiers had been killed and fourteen soldiers wounded, in an ambush set up by members of the PKK with the aid of a group of village guards from the hamlet. Subsequently, a group of soldiers under the command of Lieutenant Colonel A.Ç. and non-commissioned officer F.A. had arrived at the hamlet. The Şemdinli public prosecutor cited the allegations of the applicants who had made statements in August 1998 and January 1999 and the contents of the letter from the military forces dated 11 August 1998. The public prosecutor concluded that the Hakkari Assize Court had jurisdiction to deal with cases involving offences allegedly committed by members of the security forces and referred the investigation file to the Hakkari public prosecutor’s office with a request to punish the accused for the offences cited in the report. 20. On 22 April 1999 the Hakkari public prosecutor declined jurisdiction and sent the file to the Şemdinli District Administrative Council for authorisation to investigate the actions of the members of the security forces, pursuant to Articles 1 and 4 (b) of Legislative Decree no. 285 and the Prosecution of Civil Servants Act. 21. On 8 June 2000 the Şemdinli District Administrative Council decided not to authorise the prosecution of A.Ç. and F.A. In its decision, the Administrative Council noted that the complainants had maintained that they had not known the accused. The Administrative Council further stated that the complainants’ account of events was hypothetical and that the accused officers had not been in Ormancık on 24 July 1994 and furthermore that F.A. had never been there. 22. The decision of 8 June 2000 was not served on the complainants. However, as decisions not to prosecute made by district councils were subject to an automatic appeal to regional administrative courts at the material time, the decision was then referred to the Van Regional Administrative Court. 23. On 18 July 2000 the Van Regional Administrative Court upheld the decision not to prosecute A.Ç. and F.A. This decision was not served on the complainants. 24. On 23 October 2001 the applicants appointed Mr L. Kanat as their legal representative. 25. On 7 March 2002 Mr Kanat applied to the Şemdinli public prosecutor’s office for the case to be referred to the Şemdinli District Administrative Council, and requested information concerning the outcome of the investigation. 26. On 4 April 2002 the Şemdinli public prosecutor sent Mr Kanat a copy of the decisions of the Şemdinli District Administrative Council and the Van Regional Administrative Court. 27. On 10 September 2002 he lodged the present application with the Court. 28. On 2 November 2006 Mr Kanat submitted to the Court a letter dated 7 September 2006 from the president of the Van Regional Administrative Court, stating that review decisions of this type were not communicated to the parties. The president noted that such judgments were sent to the relevant domestic authorities, together with the investigation files. 29. On the same day, Mr Kanat also submitted a document signed by members of the Ortaklar Community Council and four witnesses, in which the latter declared that Zübeyda Uysal, Hazima Çelik and Şekirnaz İnan had been the partners of Aşur Seçkin, Hurşit Taşkın and Abdullah İnan, respectively, to whom they had been married according to Islamic traditions. 30. The relevant domestic law and practice applicable at the material time can be found in the judgment of İpek v. Turkey (no. 25760/94, §§ 92-106, ECHR 2004II). | 1 |
train | 001-87207 | ENG | GBR | CHAMBER | 2,008 | CASE OF LIBERTY AND OTHERS v. THE UNITED KINGDOM | 2 | Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom’s radio stations (at Clwyd and Chester), a link which also carried much of Ireland’s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF. 6. On 9 September 1999, having seen a television report on the alleged activities of the ETF, the applicant organisations requested the Interception of Communications Tribunal (“the ICT”: see paragraphs 28-30 below) to investigate the lawfulness of any warrants which had been issued in respect of the applicants’ communications between England and Wales and Ireland. On 19 October 1999 an official of the ICT confirmed that an investigation would proceed and added: “... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘the 1985 Act’, see paragraphs 16-33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.” 7. By a letter dated 16 December 1999 the ICT confirmed that it had thoroughly investigated the matter and was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in relation to the relevant warrant or certificate. 8. By a letter dated 9 September the applicants complained to the DPP of an unlawful interception, requesting the prosecution of those responsible. The DPP passed the matter to the Metropolitan Police for investigation. By a letter dated 7 October 1999 the police explained that no investigation could be completed until the ICT had investigated and that a police investigation might then follow if it could be shown that an unwarranted interception had taken place or if any of the other conditions set out in section 1(2)-(4) of the 1985 Act had not been met. The applicants pointed out, in their letter of 12 October 1999, that the vague, albeit statutory, response of the ICT would mean that they would not know whether a warrant had been issued or, if it had, whether it had been complied with. They would not, therefore, be in a position to make submissions to the police after the ICT investigation as to whether or not a criminal investigation was warranted. The applicants asked if, and if so how, the police could establish for themselves whether or not a warrant had been issued, so as to decide whether an investigation was required, and how the police would investigate, assuming there had been no warrant. 9. The DPP responded on 19 October 1999 that the police had to await the ICT decision, and the police responded on 9 November 1999 that the applicants’ concerns were receiving the fullest attention, but that they were unable to enter into discussion on matters of internal procedure and inter-departmental investigation. 10. On 21 December 1999 the applicants wrote to the police pointing out that, having received the decision of the ICT, they still did not know whether or not there had been a warrant or whether there had been unlawful interception. The response, dated 17 January 2000, assured the applicants that police officers were making enquires with the relevant agencies with a view to establishing whether there had been a breach of section 1 of the 1985 Act and identifying the appropriate investigative authority. The police informed the applicants by a letter dated 31 March 2000 that their enquiries continued, and, by a letter dated 13 April 2000, that these enquiries had not revealed an offence contrary to section 1 of the 1985 Act. 11. On 15 December 2000 the former statutory regime for the interception of communications was replaced by the Regulation of Investigatory Powers Act 2000 (see paragraphs 34-39 below) and a new tribunal, the IPT, was created. 12. On 13 August 2001 the applicants began proceedings in the IPT against the security and intelligence agencies of the United Kingdom, complaining of interferences with their rights to privacy for their telephone and other communications from 2 October 2000 onwards (British-Irish Rights Watch and others v. The Security Service and others, IPT/01/62/CH). The IPT, sitting as its President and Vice-President (a Court of Appeal and a High Court judge), had security clearance and was able to proceed in the light not just of open evidence filed by the defendant services but also confidential evidence, which could not be made public for reasons of national security. 13. On 9 December 2004 the IPT made a number of preliminary rulings on points of law. Although the applicants had initially formulated a number of claims, by the time of the ruling these had been narrowed down to a single complaint about the lawfulness of the “filtering process”, whereby communications between the United Kingdom and an external source, captured under a warrant pursuant to section 8(4) of the 2000 Act (which had replaced section 3(2) of the 1985 Act: see paragraphs 34-39 below), were sorted and accessed pursuant to secret selection criteria. The question was, therefore, whether “the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8 § 2 [of the Convention] because it is not ‘in accordance with the law’”. 14. The IPT found that the difference between the warrant schemes for interception of internal and external communications was justifiable, because it was more necessary for additional care to be taken with regard to interference with privacy by a Government in relation to domestic telecommunications, given the substantial potential control it exercised in this field; and also because its knowledge of, and control over, external communications was likely to be much less extensive. 15. As to whether the law was sufficiently accessible and foreseeable for the purposes of Article 8 § 2, the IPT observed: “The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3) . The Complainants’ Counsel complains that there is no ‘publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual’s telephone call is proportionate’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria. To that duty there is added the existence of seven safeguards listed by the Respondents’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee (‘JIC’) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ... It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants’ Counsel has pointed out that it appears from the Respondents’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents’ evidence, should itself be disclosed in the Code of Practice. We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards. ... [F]oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ... The provisions, in this case the right to intercept and access material covered by a s.8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck.” 16. During the period at issue in this application the relevant legislation was sections 1-10 of the Interception of Communications Act 1985 (“the 1985 Act”), which came into force on 10 April 1986 and was repealed by the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”). 17. Pursuant to section 1 of the 1985 Act, a person who intentionally intercepted a communication in the course of its transmission by post or by means of a public telecommunications system was guilty of an offence. A number of exceptions were made, the relevant one being a communication intercepted pursuant to a warrant issued by the Secretary of State under section 2 of the 1985 Act and in accordance with a certificate issued under section 3(2)(b) of the 1985 Act. 18. The Secretary of State’s power to issue a warrant under section 2 of the 1985 Act could be exercised only if he considered the warrant necessary: “(a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom.” 19. The term “serious crime” was defined by section 10(3) of the Act as follows: “For the purposes of [the 1985 Act], conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as a serious crime if, and only if – (a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or (b) the offence, or one of the offences, is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.” 20. The scope of the term “national security” was clarified by the Commissioner appointed under the 1985 Act. In his 1986 report he stated (§ 27) that he had adopted the following definition: activities “which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means”. 21. In determining whether a warrant was necessary for one of the three reasons set out in section 2(2) of the 1985 Act, the Secretary of State was under a duty to take into account whether the information which it was considered necessary to acquire could reasonably be acquired by other means (section 2(3)). In addition, warrants to safeguard the economic well-being of the United Kingdom could not be issued unless the information to be acquired related to the acts or intentions of persons outside the British Islands (section 2(4)). A warrant required the person to whom it was addressed to intercept, in the course of their transmission by post or by means of a public telecommunications system, such communications as were described in the warrant. 22. Two types of warrant were permitted by section 3 of the 1985 Act. The first, a “section 3(1) warrant”, was a warrant that required the interception of: “(a) such communications as are sent to or from one or more addresses specified in the warrant, being an address or addresses likely to be used for the transmission of communications to or from– (i) one particular person specified or described in the warrant; or (ii) one particular set of premises so specified or described; and (b) such other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.” By section 10(1) of the 1985 Act, the word “person” was defined to include any organisation or combination of persons and the word “address” was defined to mean any postal or telecommunications address. 23. The second type of warrant, a “section 3(2) warrant”, was one that required the interception, in the course of transmission by means of a public telecommunications system, of: “(i) such external communications as are described in the warrant; and (ii) such other communications (if any) as it is necessary to intercept in order to intercept such external communications as are so described ...”. 24. When he issued a section 3(2) warrant, the Secretary of State was required to issue also a certificate containing a description of the intercepted material the examination of which he considered necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State’s economic well-being (section 3(2)(b)). A section 3(2) warrant could not specify an address in the British Islands for the purpose of including communications sent to or from that address in the certified material unless- “3(3) (a) the Secretary of State considers that the examination of communications sent to or from that address is necessary for the purpose of preventing or detecting acts of terrorism; and (b) communications sent to or from that address are included in the certified material only in so far as they are sent within such a period, not exceeding three months, as is specified in the certificate.” 25. Section 3(2) warrants could be issued only under the hand of the Secretary of State or a permitted official of high rank with the written authorisation of the Secretary of State. If issued under the hand of the Secretary of State, the warrant was valid for two months; if by another official, it was valid for two days. Only the Secretary of State could renew a warrant. If the Secretary of State considered that a warrant was no longer necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State’s economic well-being, he was under a duty to cancel it (section 4). 26. The annual report of the Commissioner for 1986 explained the difference between warrants issued under section 3(1) and under section 3(2): “There are a number of differences ... But the essential differences may be summarised as follows: (i) Section 3(2) warrants apply only to external telecommunications; (ii) whereas section 3(1) warrants only apply to communications to or from one particular person ... or one particular set of premises, Section 3(2) warrants are not so confined; but (iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to issue a certificate describing the material which it is desired to intercept; and which he regards as necessary to examine for any of the purposes set out in Section 2(2). So the authority to intercept granted by the Secretary of State under Section 3(2) is limited not so much by reference to the target, as it is under section 3(1), but by reference to the material. It follows that in relation to Section 3(2) warrants, I have had to consider first, whether the warrant applies to external communications only, and, secondly, whether the certified material satisfies the Section 2(2) criteria. ... There is a further important limitation on Section 3(2) warrants. I have said that the authority granted by the Secretary of State is limited by reference to the material specified in the certificate, rather than the targets named in the warrants. This distinction is further underlined by Section 3(3) which provides that material specified shall not include the address in the British Islands for the purpose of including communications sent to or from that address, except in the case of counter-terrorism. So if, for example in a case of subversion the Security Service wishes to intercept external communications to or from a resident of the British Islands, he could not do so under a Section 3(2) warrant by asking for communications sent to or from his address to be included in the certified material. But it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) known as an overlapping warrant, in addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which requires this to be done. But it is obviously a sound practice, and wholly consistent with the legislative intention underlying Section 3(3). Accordingly I would recommend that where it is desired to intercept communications to or from an individual residing in the British Islands, as a separate target, then in all cases other than counter-terrorism there should be a separate warrant under Section 3(1), even though the communications may already be covered by a warrant under Section 3(3). The point is not without practical importance. For the definition of “relevant warrant” and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the Tribunal has power to investigate warrants issued under section 3(1) and certificates under section 3(2) where an address is specified in the certificate, it has no such power to investigate Section 3(2) warrants, where an address is not so certified.” 27. Section 6 of the 1985 Act was entitled “Safeguards” and read as follows: “(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing- (a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and (b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person. (2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely- (a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed; (c) the extent to which the material is copied; and (d) the number of copies made of any of the material; is limited to the minimum that is necessary as mentioned in section 2 (2) above. (3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2 (2) above.” 28. Section 7 of the 1985 Act provided for a Tribunal to investigate complaints from any person who believed that communications sent by or to him had been intercepted. Its jurisdiction, so far as material, was limited to investigating whether there was or had been a “relevant warrant” or a “relevant certificate” and, where there was or had been, whether there had been any contravention of sections 2-5 of the 1985 Act in relation to that warrant or certificate. Section 7(9) read, in so far as relevant, as follows: “For the purposes of this section – (a) a warrant is a relevant warrant in relation to an applicant if – (i) the applicant is specified or described in the warrant; or (ii) an address used for the transmission of communications to or from a set of premises in the British Islands where the applicant resides or works is so specified; (b) a certificate is a relevant certificate in relation to an applicant if and to the extent that an address used as mentioned in paragraph (a)(ii) above is specified in the certificate for the purpose of including communications sent to or from that address in the certified material.” 29. The ICT applied the principles applicable by a court on an application for judicial review. If it found there had been a contravention of the provisions of the Act, it was to give notice of that finding to the applicant, make a report to the Prime Minister and to the Commissioner appointed under the Act and, where it thought fit, make an order quashing the relevant warrant, directing the destruction of the material intercepted and/or directing the Secretary of State to pay compensation. In other cases, the ICT was to give notice to the applicant stating that there had been no contravention of sections 2-5 of the Act. 30. The ICT consisted of five members, each of whom was required to be a qualified lawyer of not less than ten years standing. They held office for a five-year period and could be re-appointed. The decisions of the ICT were not subject to appeal. 31. Section 8 provided that a Commissioner be appointed by the Prime Minister. He or she was required to be a person who held, or who had held, high judicial office. The Commissioner’s functions included the following: – to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2-5 of the 1985 Act; – to give to the ICT all such assistance as it might require for the purpose of enabling it to carry out its functions; – to keep under review the adequacy of the arrangements made under section 6 for safeguarding intercepted material and destroying it where its retention was no longer necessary; – to report to the Prime Minister if there appeared to have been a contravention of sections 2-5 which had not been reported by the ICT or if the arrangements under section 6 were inadequate; – to make an annual report to the Prime Minister on the exercise of the Commissioner’s functions. This report had to be laid before the Houses of Parliament. The Prime Minister had the power to exclude any matter from the report if publication would have been prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report had to state if any matter had been so excluded. 32. In his first report as Commissioner, in 1992, Sir Thomas Bingham MR, as he then was, explained his own role as part of the safeguards inherent in the 1985 Act as follows: “The third major safeguard is provided by the Commissioner himself. While there is nothing to prevent consultation of the Commissioner before a warrant is issued, it is not the practice to consult him in advance and such consultation on a routine basis would not be practicable. So the Commissioner’s view is largely retrospective, to check that warrants have not been issued in contravention of the Act and that appropriate procedures were followed. To that end, I have visited all the warrant issuing departments and agencies named in this report, in most cases more than once, and discussed at some length the background to the warrant applications. I have also discussed the procedure for seeking warrants with officials at various levels in all the initiating bodies and presenting departments. I have inspected a significant number of warrants, some chosen by me at random, some put before me because it was felt that I should see them. Although I have described ... a number of instances in which mistakes were made or mishaps occurred, I have seen no case in which the statutory restrictions were deliberately evaded or corners knowingly cut. A salutary practice has grown up by which the Commissioner’s attention is specifically drawn to any case in which an error or contravention of the Act has occurred: I accordingly believe that there has been no such case during 1992 of which I am unaware.” Similar conclusions about the authorities’ compliance with the law were drawn by all the Commissioners in their reports during the 1990s. 33. In each of the annual reports made under the 1985 Act the Commissioner stated that in his view the arrangements made under section 6 of the 1985 were adequate and complied with, without revealing what the arrangements were. In the 1989 Report the Commissioner noted at § 9 that there had been technological advances in the telecommunications field which had “necessitated the making of further arrangements by the Secretary of State for the safeguarding of material under section 6 of the [1985 Act]”. The Commissioner stated that he had reviewed the adequacy of the new arrangements. For the year 1990, the Commissioner recorded that, as a result of a new practice of the police disclosing some material to the Security Service, a further change in the section 6 arrangements had been required. The Commissioner said in the 1990 Report that he was “satisfied with the adequacy of the new arrangements” (1990 Report at § 18). In the 1991 Report, the Commissioner stated that there had been some minor changes to the section 6 arrangements and confirmed that he was satisfied with the arrangements as modified (§ 29 of the 1991 Report). In the 1993 Report, the Commissioner said at § 11: “Some of the written statements of section 6 safeguards which I inspected required to be updated to take account of changes in the public telecommunications market since they had been drafted and approved. Other statements could, as it seemed to me, be improved by more explicit rules governing the circumstances and manner in which, and the extent to which, intercept material could be copied. It also seemed to me that it would be advantageous, where this was not already done, to remind all involved m handling intercept material on a regular basis of the safeguards to which they were subject, securing written acknowledgements that the safeguards had been read and understood. These suggestions appeared to be readily accepted by the bodies concerned. They did not in my view indicate any failure to comply with section 6 of the Act.” In his first year as Commissioner, Lord Nolan reported the following on this issue of section 6 safeguards (1994 Report, § 6): “Like my predecessors, I have on each of my visits considered and discussed the arrangements made by the Secretary of State under section 6 for the purpose of limiting the dissemination and retention of intercepted material to what is necessary within the meaning of section 2. Each agency has its own set of such arrangements, and there are understandable variations between them. For example, the practical considerations involved in deciding what is necessary in the interests of national security, or the economic well-being of the United Kingdom (the areas with which the Security Service and the Secret Intelligence Service are almost exclusively concerned) are somewhat different from those involved in the prevention and detection of serious criminal offences (with which the police forces and HM Customs & Excise are almost exclusively concerned). I am satisfied that all of the agendas are operating within the existing approved safeguards under the terms of the arrangements as they stand ...” 34. The 2000 Act came into force on 15 December 2000. The explanatory memorandum described the main purpose of the Act as being to ensure that the relevant investigatory powers were used in accordance with human rights. As to the first, interceptions of communications, the 2000 Act repealed, inter alia, sections 1-10 of the 1985 Act and provides for a new regime for the interception of communications. 35. The 2000 Act is designed to cover the purposes for which the relevant investigatory powers may be used, which authorities can use the powers, who should authorise each use of the power, the use that can be made of the material gained, judicial oversight and a means of redress for the individual. 36. A new Investigatory Powers Tribunal (“IPT”) assumed the responsibilities of the former ICT, of the Security Services Tribunal and of the Intelligence Services Tribunal. The Interception of Communications Commissioner continues to review the actions of the Secretary of State as regards warrants and certificates and to review the adequacy of the arrangements made for the execution of those warrants. He is also, as before, to assist the Tribunal. In addition, the Secretary of State is to consult about and to publish codes of practice relating to the exercise and performance of duties in relation to, inter alia, interceptions of communications. 37. Section 2(2) of the 2000 Act defines interception as follows: “For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system if, and only if, he – (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some of all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.” 38. Section 5(2) of the 2000 Act provides that the Secretary of State shall not issue an interception warrant unless he believes that the warrant is necessary, inter alia, in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. 39. In addition to the general safeguards specified in section 15 of the Act, section 16 provides additional safeguards in the case of certificated warrants (namely warrants for interception of external communications supported by a certificate). In particular, section 16(1) provides that intercepted material is to be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it has been certified as material the examination of which is necessary for one of the above purposes and falls within subsection (2). Intercepted material falls within subsection (2) so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which is referable to an individual who is known to be for the time being in the British Isles and has as its purpose, or one of its purposes, the identification of material in communications sent by that person, or intended for him. 40. In its Ruling of 9 December 2004 (see paragraphs 13-15 above), the IPT set out the following extracts from the Interception of Communications Code of Practice issued pursuant to s. 71 of the 2000 Act (“the Code of Practice”). Subparagraph 4(2) of the Code of Practice deals with the application for a s. 8(1) warrant as follows : “An application for a warrant is made to the Secretary of State . . . Each application, a copy of which must be retained by the applicant, should contain the following information : • Background to the operation in question. • Person or premises to which the application relates (and how the person or premises feature in the operation) . • Description of the communications to be intercepted, details of communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant. • Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate. • An explanation of why the interception is considered to be necessary under the provisions of section 5(3). • A consideration of why the conduct is to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct. • A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application. • Where an application is urgent, supporting justification should be provided. • An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act . The IPT continued: “Applications for a s. 8(4) warrant are addressed in subparagraph 5 .2 of the Code of Practice : ‘An application for a warrant is made to the Secretary of State ... each application, a copy of which must be retained by the applicant, should contain the following information : • Background to the operation in question [identical to the first bullet point in 4.2]. • Description of the communications ... [this is materially identical to the third bullet point in 4.1] . • Description of the conduct to be authorised, which must be restricted to the interception of external communications, or to conduct necessary in order to intercept those external communications, where appropriate [compare the wording of the fourth bullet in 4 .2]. • The certificate that will regulate examination of intercepted material. • An explanation of why the interception is considered to be necessary for one or more of the section 5(3) purposes [identical to the fifth bullet point in 4 .2]. • A consideration of why the conduct should be authorised by the warrant is proportionate . . . [identical to the sixth bullet point in 4 .2]. • A consideration of any unusual degree of collateral intrusion . . . [identical to the seventh bullet point in 4 .2]. • Where an application is urgent . . . [identical to the eighth bullet point in 4 .2]. • An assurance that intercepted material will be read, looked at or listened to only so far as it is certified, and it meets the conditions of sections 16(2) -16(6) of the Act. • An assurance that all material intercepted will be handled in accordance with the safeguards required by sections 15 and 16 of the Act [these last two bullets of course are the equivalent to the last bullet point in 4 .2]. ... By subparagraph 4(8), the s. 8(l) warrant instrument should include ‘the name or description of the interception subject or of the set of premises in relation to which the interception is to take place’ and by subparagraph 4(9) there is reference to the schedules required by s. 8(2) of [the 2000 Act]. The equivalent provision in relation to the format of the s. 8(4) warrant in subparagraph 5(9) does not of course identify a particular interception subject or premises, but requires inclusion in the warrant of a ‘description of the communications to be intercepted’.” | 1 |
train | 001-69167 | ENG | AUT | CHAMBER | 2,005 | CASE OF WOLFMEYER v. AUSTRIA | 3 | Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1968 and lives in Bludenz. 5. In May 2000 the Feldkirch Regional Court (Landesgericht) opened criminal proceedings against the applicant on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code. 6. On 23 November 2000 the Regional Court, after having held a trial, convicted the applicant under Article 209 of the Criminal Code and sentenced him to six months' imprisonment suspended on probation. It found that, in 1997, he had performed homosexual acts with two adolescents. 7. Upon the applicant's appeal, the Innsbruck Court of Appeal (Oberlandesgericht) requested the Constitutional Court (Verfassungs-gerichtshof) to review the constitutionality of Article 209. 8. On 29 November 2001 the Constitutional Court dismissed this request (see paragraph 22 below). 9. On 20 December 2001 the Innsbruck Court of Appeal filed a new request for review of the constitutionality of Article 209. 10. On 21 June 2002 the Constitutional Court gave a judgment holding that Article 209 of the Criminal Code was unconstitutional (see paragraph 23 below). 11. The amendment repealing Article 209 entered into force on 14 August 2002. While, according to the transitional provisions, Article 209 remained applicable in all cases in which the judgment at first instance had already been given before the entry into force of the amendment, it could no longer be applied in the applicant's case since it had been the case in point (Anlaßfall) before the Constitutional Court. 12. On 17 July 2002 the Innsbruck Court of Appeal, noting that the Constitutional Court had repealed Article 209 as unconstitutional, acquitted the applicant. This decision was served on him on 12 August 2002. 13. On 20 September 2002 the Feldkirch Regional Court dismissed the applicant's request for reimbursement of his defence costs holding that under Article 393a (3) of the Code of Criminal Procedure (Strafprozeßordnung) no right to compensation existed if the accused was not punishable on grounds which occurred after the indictment was filed. 14. On 12 November 2002 the Innsbruck Court of Appeal partly granted the applicant's appeal, awarding him reimbursement of a total amount of 1,839.38 euros (EUR) for costs and expenses. It found that the Regional Court had wrongly applied Article 393a (3) of the Code of Criminal Procedure. The applicant's case had been the case in point before the Constitutional Court leading to the repeal of Article 209 of the Criminal Code. His case had to be treated as if Article 209 had never existed. Consequently, it could not be said that he was acquitted on grounds which occurred after the indictment. 15. The court found that the applicant's defence costs including the costs relating to the proceedings before the Constitutional Court, in which the applicant, as an interested party (mitbeteiligte Partei), had made detailed submissions, had been necessarily incurred. However, the law provided that only a maximum amount of EUR 1,091 was to be reimbursed as contribution to the defence costs. In addition EUR 748,38 were awarded for cash expenses. 16. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code. 17. Article 209 of the Criminal Code, in the version in force at the material time, read as follows: “A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.” 18. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable. 19. On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see paragraph 23 below), Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002. 20. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. 21. The relevant passage of the Constitutional Court's judgment reads as follows: “The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.” 22. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code. The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations. 23. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality (Gleichheitsgrundsatz) as guaranteed by Article 7 § 1 of the Federal Constitution, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified. | 1 |
train | 001-90446 | ENG | RUS | CHAMBER | 2,009 | CASE OF KONDRASHOV 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’ names and other details are indicated in the appended table. All the applicants were members of the Russian military forces and took part in peace-keeping operations in former Yugoslavia and/or in other military missions outside the Russian Federation. 6. In 2001 they sued the military unit no. 03611 before the Ryazan Garnison Military Court for payment of outstanding daily allowance allegedly due to them on account of their military missions abroad. The court granted the applicants’ claims (see dates of the judgments and sums awarded in the appended table). The judgments were not appealed against and became binding and enforceable on the dates indicated in the appended table. 7. The judgments of 11 December 2001 were not enforced. On 6 November 2002 the Presidium of the Moscow Circuit Military Court decided, upon its President’s request for supervisory review, to quash these judgments in view of an erroneous application of material law and sent the cases for a new consideration to the Ryazan Garnison Military Court (judgments Nos. 338п/г, 339п/г and 341п/г). The applicants did not attend the hearing. It does not appear from the case-file that the applicants or their counsel had been informed of the supervisory-review proceedings or that they were able to take part in these proceedings. 8. On 9 and 10 April 2003 the Ryazan Garnison Military Court reconsidered the cases and dismissed the applicants’ claims. These judgments were upheld on appeal by the Moscow Circuit Military Court on 10 and 17 June 2003 and thus became final. 9. The judgments of 13 and 20 December 2001 in favour of S. Panchenko were enforced on 3 April 2006 and 24 April 2003 respectively. On 2 June 2006 the Ryazan Garnison Military Court partially granted this applicant’s claim for compensation of the inflation losses due to the delay in the execution of the judgment of 13 December 2001. The court awarded compensation for the inflation losses occurred between 1 January 2006 and 31 March 2006, i.e. a sum of 12 428.64 RUB instead of 124,350.48 RUB claimed by the applicant for the total delay in enforcement. 10. The relevant domestic law as in force in the material time is summed up in the Court’s judgment in the case of Ryabykh (see Ryabykh v. Russia, no. 52854/99, § 31-42, ECHR 2003IX). 11. In 2001-2005 the judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007). | 1 |
train | 001-58905 | ENG | TUR | CHAMBER | 2,000 | CASE OF AKKOC v. TURKEY | 1 | Preliminary objection rejected (estoppel);No violation of Art. 10;Violation of Art. 2 (failure to protect life);Violation of Art. 2 (inadequacy of investigation);Violation of Art. 13;Violation of Art. 3;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 10. The applicant is a former teacher and former head of the Diyarbakır branch of the Education and Science Workers Union, Eğit-Sen. On 31 October 1992 the applicant made a statement to the Diyarbakır Söz newspaper, giving an account of a meeting which had taken place on 27 October 1992 between the applicant and a delegation of Eğit-Sen and the National Education Director. The applicant stated that the teachers were verbally abused, harassed and in some cases assaulted by the police. This account was published in an article titled “Eleven teachers detained in Diyarbakır”. 11. On 14 May 1993 the Diyarbakır Provincial Education Disciplinary Committee decided, as a penalty for the statement made to the newspaper without permission, to suspend the promotion of the applicant to a higher grade of teacher for one year, pursuant to section 125/D-g of Law no. 657, which prohibited civil servants from giving information or giving statements to the press, news agencies, radio or television without authorisation. 12. The decision was confirmed by the Diyarbakır Administrative Court on 4 October 1994. The court noted that section 15 of Law no. 657 prohibited public officials from making announcements or statements relating to their public-sector work to the press and that only the officials authorised by the minister could do so. While all citizens had the right to express their thoughts and opinions within the framework of the rights under the Constitution, not all citizens had the same opportunity to exercise this right to the same degree. As stated in a decision of 14 December 1993 (1993/4214) of the Eighth Division of the Supreme Administrative Court, State officials were required to exercise their freedom of expression in a more measured manner and with more care in their statements relating to their superiors and public officials. In this case, when the applicant expressed her thoughts and the negative aspects observed by her in the continuing arguments between teachers and police officers, she was criticising and accusing the administration. Accordingly, there was no contravention of the legislation in the decision to impose a disciplinary sanction on the applicant for the actions which were contrary to the special requirements of her service. Her application to annul the decision was unanimously rejected. 13. The applicant appealed to the Supreme Administrative Court, which on 5 December 1995 sent the case back to the Administrative Court to revise only the severity of the penalty. It agreed that civil servants had to exercise their freedom of expression with greater care and sensitivity when making announcements about their superiors and public duties. Since the applicant had criticised the administration, which was in breach of the Code of Conduct, it was appropriate to impose a disciplinary sanction but, in order to achieve a fair balance between the offence and the sentence, a lighter sentence should have been imposed. 14. On 3 April 1996 the Administrative Court maintained its decision and the penalty. The applicant appealed again to the Supreme Administrative Court. 15. On 16 October 1998 the Supreme Administrative Court observed that the prohibition in section 15 of Law no. 657 related to State officials not being allowed to give statements to the press relating to their own powers, duties and responsibilities. The applicant had expounded her personal opinion on current issues not relating to her duty, exercising her right of expression and communication to others, within the framework of the freedom of thought and opinion guaranteed by the Constitution. Since this did not fall within the scope of the aforementioned section, there was no question of any disciplinary sanction being imposed. Accordingly, the procedure by which the applicant had been punished by the suspension of one year's promotion in application of section 125/D-g of Law no. 657 was unlawful and the decision of the Administrative Court was not correct. The Administrative Court's decision was consequently annulled. 16. On 17 February 1999 the Administrative Court adopted the reasoning of the Supreme Administrative Court and annulled the disciplinary sanction imposed on the applicant. 17. The applicant's husband, Zübeyir Akkoç, was of Kurdish origin and also a teacher involved in the Eğit-Sen trade union. On 13 January 1993, at about 7 a.m., Zübeyir Akkoç was shot dead on his way to work at a primary school. Ramazan Aydın Bilge, who was accompanying him, was also killed. No classic autopsy was carried out. Two gendarmes arrived at the scene of the incident, allegedly having been notified by radio. They made no attempt to discover in which direction the perpetrators had fled. They took only one statement, from Abdullah Elgören, who had helped place Zübeyir Akkoç's body in a taxi to be taken to hospital. This was notwithstanding the crowd that had gathered at the scene according to Abdullah Elgören's statement. 18. Prior to her husband's killing, and following the incident at the National Education Directorate, the applicant had received several threats over the telephone and had been harassed by the security forces. In the telephone calls, she was told: “It is your turn, we are going to kill you too.” She reported the threats to the public prosecutor but her complaints were ignored. Her husband had been detained by the police on several occasions prior to his death. When she was detained in February 1994, the applicant claimed that members of the security forces told her that they had killed her husband. 19. The public prosecutor opened a file (no. 1993/339) into the killing, classifying it as an “unknown perpetrator” killing. On 27 March 1997 the prosecutor issued an indictment against Seyithan Araz, a student, for involvement in six murders and a number of assaults. These included the killing of Zübeyir Akkoç, but not that of Ramazan Aydın Bilge. Seyithan Araz was alleged to have carried out activities for Hizbullah. In his statement of 17 March 1997, Seyithan Araz told the public prosecutor that he was not a member of Hizbullah and that the 26-page statement signed by him at the headquarters of the anti-terrorism branch of the Diyarbakır Security Directorate had been obtained through torture and that he refuted its contents. 20. On 4 June 1997 Seyithan Araz maintained his denials before the Diyarbakır National Security Court no. 4. On 14 August 1997 evidence was received from three of the victims of the assaults listed in the indictment that they did not recognise any of the defendants. On 10 December 1997 the court ordered the release of Seyithan Araz, due to the lack of any evidence justifying his continued detention. 21. On 23 September 1999 the court acquitted Seyithan Araz for lack of sufficient evidence to prove any of the charges. 22. The facts of this part of the case, in particular the events during the detention of the applicant, were disputed by the parties. The Commission took oral evidence in respect of the applicant's allegations of torture during police custody from 13 to 22 February 1994 and interference with the right of individual petition arising out of three periods of detention – 13 to 22 February 1994, 26 to 27 September 1995 and 14 October 1995. Commission delegates heard evidence from the applicant, her mother, Ramazan Sücürü (head of the anti-terrorism branch at Diyarbakır), Taner Şenturk and Hasan Pişkin (officers from the anti-terrorism branch who interrogated the applicant during the period 13 to 22 February 1994), Dr Buldağ (the doctor who signed the medical report on the applicant's release from custody) and Enver Atlı (a former headmaster taken into custody with the applicant on 26 September 1995). The public prosecutor who had seen the applicant prior to her release on 22 February 1994 had been called as a witness, but he died before the hearing took place. 23. On 13 February 1994, shortly after midnight, police officers came to the applicant's home and carried out a search. The officers took the applicant away, with her anorak pulled over her head. After a visit to a doctor, she was taken to the Diyarbakır Security Directorate, where she was held in custody at the headquarters of the anti-terrorism branch until her release on 22 February 1994. 24. During her ten days in custody, the applicant was subjected to various forms of ill-treatment, including sexual abuse and psychological pressure. She was interrogated by police officers, who accused her of being involved with the PKK (the Workers' Party of Kurdistan) and questioned her about imminent elections and whether she was a candidate. She was also asked about her application to the Commission and told that this was the same as joining the PKK in the mountains. She thought she saw a piece of paper, which was her letter of authority sent to Kevin Boyle – a lawyer practising in the United Kingdom, who has been involved in many cases brought against Turkey – with her application. 25. Over the period of her detention, the applicant was exposed to the following treatment. She was generally blindfolded when taken out of her cell; she was stripped naked on numerous occasions and, on one occasion, forced to walk a gauntlet, naked, between officers who touched her and abused her verbally; photographs were taken of her naked; on many occasions she was taken to a room where she was doused in hot and cold water, the cold water being hosed on her with such force that she could hardly stand; she was subjected to electric shocks on several occasions, a wire being attached to her toe and once to a nipple; there was an attempt to suspend her by her arms from the ceiling, which ended when a scar on her stomach was noticed; she was struck on the chin by a blow which knocked her to the ground; her cell was floodlit and loud music was played; she was handcuffed to a door for a period of two days and nights and forced to listen to the sounds of other persons being ill-treated; her hair was pulled and she was hit, including a blow to her foot with a stick. She was told that her children had been brought into detention and were being tortured. 26. On 18 February 1994 the applicant signed a statement drawn up by the police, stating that she was a member of the PKK and implicating her in various propaganda activities conducted by the PKK. The statement included the information that she had made an application to the Commission about her husband's murder. 27. On 22 February 1994 the applicant and sixteen other detainees were taken by police officers to the emergency ward of the Diyarbakır State Hospital, where Dr Buldağ signed a report stating that they had not suffered any physical blows. She described the examination as involving the doctor asking them collectively in the presence of the police if anyone had any complaints or wanted a medical examination. She stated that she requested a medical examination and showed him the injuries on her head and toe. The applicant was then taken before a public prosecutor. She told him that she had been ill-treated, showing him some of her injuries, and that she had signed a statement under pressure. He ordered her release. 28. A few days after her release, the applicant sought treatment. She had a terrible pain in her jaw. An ear-nose-throat specialist arranged for an X-ray but refused to sign a report when the applicant told him that she had been in custody. Another X-ray was taken and treatment given at the university clinic. The applicant believed that her jaw had been broken and submitted the X-rays to the Mardin Assize Court during her trial on charges relating to the PKK. These X-rays were later made available to the Commission. It was agreed by the parties that they did not disclose any fracture. 29. Following this period of detention, the applicant had a number of problems with her health. She provided the Commission with information and prescriptions relating, inter alia, to eczema on her ear, a respiratory infection and pains in her leg. On 30 October 1995 she went to the Ankara Treatment Centre of the Human Rights Foundation, in connection with the psychological problems she had been experiencing since this time. Her symptoms included loss of memory, trembling of the hands, indecision, pain and numbness in parts of her body and insomnia. A psychological examination had disclosed manifest anxiety, pessimism, inability to stand, slight impairment of attention and concentration and lack of self-confidence. Chronic post-traumatic stress disorder was diagnosed and medication (an antidepressant (fluoxetin) and an anxiolitic) was prescribed. The applicant returned for further consultations on 12 December 1995, and 12 January and 14 April 1996. On the last occasion, her complaints had diminished considerably and she was advised to continue the medication for another two months. 30. In reaching its findings, the Commission accepted the evidence of the applicant, assessing her as a lucid and convincing witness who gave the impression of being honest and credible. Her evidence was supported by that of her mother who gave evidence as to the terrible state the applicant was in on her release from custody and by the report from the Ankara Treatment Centre of the Human Rights Foundation concerning her psychological symptoms. It found the evidence of the police officers to be evasive, inconsistent and unreliable. It also found that the evidence of Dr Buldağ was unreliable, observing that the examinations of detainees in the busy emergency ward appeared to be undertaken with reluctance and were carried out cursorily, without any concern for complaints about ill-treatment. 31. On 26 September 1995 the applicant was apprehended by the police along with a friend and colleague, Enver Atlı. They were taken to a doctor and then to the Security Directorate, where she was stripped and searched. She was blindfolded and questioned about the ill-treatment she had been subjected to in 1994. It was mentioned that she had complained at the European level. She was left in a cell where it was extremely cold. Enver Atlı was also blindfolded during questioning by officers when he was asked about his relations with the applicant and whether she was a member of the PKK. They were released at about 6.30 p.m. on 27 September 1995. The release record of that date indicated that they had both been detained for investigation about membership of and activities for the PKK but that the examination established that they were not involved. 32. The Government alleged that the applicant had been detained because of the forgery of a document. However, the Commission found that there was no evidence to support this assertion. There was insufficient material to support a conclusion that she was taken into custody because of her application to the Commission. It noted, however, the lack of any concrete elements to justify her detention in respect of allegations of PKK involvement, which gave the incident the appearance of a “fishing expedition”. 33. The applicant was summoned to give a statement to the public prosecutor. Although he did not wish to see her until Monday 16 October 1995, police took her to the Security Directorate early in the morning on Saturday 14 October 1995. She remained sleeping on a sofa until a senior officer allowed her to go home in the afternoon. She returned at 9 a.m. with her mother on 16 October 1995. They were kept waiting in a locked room until the afternoon, when she was questioned by the prosecutor about a publication of the Human Rights Association. 34. On 3 May 1995 the Diyarbakır public prosecutor issued a decision of non-prosecution against two officers, Mustafa Tarhan Şenturk and Hasan Pişkin, in respect of an allegation that the applicant had been tortured in custody and that her jaw had been broken. The decision referred to the defendants' denial of the charges and to the doctor's report that the applicant bore no signs of blows on her release. Due to the absence of evidence, it was decided not to pursue the investigation. 35. The Government have since provided further information. On 25 May 1999, in a decision of non-jurisdiction, the Diyarbakır public prosecutor referred to the allegations made by the applicant that she had been tortured during interrogation. As he had no jurisdiction, he transferred the case to the Diyarbakır Provincial Administrative Council. 36. The contents of the investigation file concerning the death of the applicant's husband were provided to the Commission. Further documents concerning the proceedings against Seyithan Araz were provided to the Court. 37. The applicant lodged with the Commission a copy of the so-called Susurluk report, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 38. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 39. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The report made reference to a certain Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil”, detailing his involvement in unlawful acts in the south-east and his links with MİT (the Turkish intelligence service): “... Whilst the character of Yeşil, and the fact that he along with the group of confessors[] he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnapping, etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MİT may use a lowly individual ... it is not an acceptable practice that MİT should have used Yeşil several times ... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MİT ... As a result of the State's silence the field is left open to the gangs ... [p. 26]. ... Yeşil was also associated with JİTEM, an organisation within the gendarmerie, which used large numbers of protectors and confessors [p. 27]. In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir[] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk[] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter[] had also been planned and carried out by A. Demir [p. 37]. All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[]). Other journalists have also been murdered [p. 74][].” 40. The report concludes with numerous recommendations, such as improving coordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of confessors; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. 41. The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a parliamentary investigation commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in the south-east region and referred to information that Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings. 42. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 43. Under the Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duties is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 44. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 45. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 46. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor's authority. 47. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender's superior. 48. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 49. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 50. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 51. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). 52. The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources, containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. The CPT has issued two public statements concerning its visits to Turkey. 53. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, “Palestinian hanging”, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. Specifically, it found that officers of the anti-terrorism branch of the Diyarbakır police frequently resorted to torture and/or other forms of severe ill-treatment, both physical and psychological. On its second visit in 1991, it found no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. Torture and other forms of severe ill-treatment continued unabated at the headquarters of the anti-terrorism branch of the Diyarbakır police. On its third visit, from 22 November to 3 December 1992, the CPT delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long by 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”. 54. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegation's forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police and, in particular, of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. 55. The CPT underlined the importance of the preventive role of doctors: “Particular reference should be made to the work of doctors appointed by the State to carry out forensic tasks, a matter to which the CPT has given considerable attention in the course of its dialogue with the Turkish authorities. The present system of detained persons being routinely examined by a forensic doctor at the end of their period of police custody is, in principle, a significant safeguard against ill-treatment. However, certain conditions must be met: the forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope. If these conditions are not met – as is frequently the case – the present system can have the perverse effect of rendering it all the more difficult to combat torture and ill-treatment. A series of circulars have been issued by the Ministry of Health on this subject; in particular, a Ministry of Health Circular of 22 December 1993 – subsequently endorsed in the Minister of the Interior's instructions of 16 February 1995 – sets out the required contents of forensic certificates drawn up following the detention of persons detained by law enforcement agencies. Despite this, the great majority of forensic certificates seen by the CPT over the last three years have not met the requirements of that circular. Measures need to be taken to ensure that there is full compliance with all the above-mentioned circulars and, more generally, that doctors called upon to perform forensic tasks can carry out their work free from any interference. Further the necessary resources should be made available in order to allow the training programme for doctors called upon to perform forensic tasks – recently devised by the Ministry of Health – to be implemented throughout Turkey without delay.” 56. The CPT again stressed the need for public prosecutors to react expeditiously and effectively when confronted by complaints of torture and ill-treatment and the need for the reduction of maximum periods of police custody. 57. The CPT repeated in this report, inter alia, its concerns about the forensic examination of persons in police custody, emphasising that examination of persons in custody by a doctor can be a significant safeguard against ill-treatment, provided the doctors concerned enjoy formal and de facto independence, have a mandate which is sufficiently broad in scope and have been provided with specialised training. It had found, however, that the standard forensic medical form set out in the Ministry of Health circular of 25 January 1995 was not used in many forensic services, the doctors recording their findings on a piece of paper devoid of headings, omitting to record the allegations of the detained person and failing to draw conclusions. It recalled that it had previously stressed that it was essential for forensic certificates drawn up after examination of a detained person to contain an account of the relevant statements of the detainee, an account of the objective medical findings based on a thorough medical examination and the doctor's conclusions in light of those two elements, which should include an assessment of the degree of consistency between any allegations made and the objective medical findings. 58. It expressed the hope that generalised use of the standard forensic medical form would put an end to the collective forensic examination of groups of detained persons, an undesirable practice of which it had found some evidence during its visit. It had also noted that certain forensic examinations were conducted in the presence of the police officers who had brought the detained person and that the doctor handed an open copy of the report to these police officers. It stressed that examinations should always be conducted out of the hearing range and out of sight of the police officers, unless the doctor requested otherwise in a particular case. It welcomed the steps taken to ensure that the forensic reports be forwarded in sealed envelopes to the public prosecutor and the head of the police department concerned. | 1 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.