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train | 001-101992 | ENG | GEO | ADMISSIBILITY | 2,010 | BAGHATURIA v. GEORGIA | 4 | Inadmissible | András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Mr Tengiz Baghaturia, is a Georgian national who was born in 1953 and lives in Tbilisi. He was represented before the Court by Ms Sophio Japaridze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of a private housing cooperative (“the cooperative”). Under an agreement of 30 May 1999, the cooperative undertook to deliver to the applicant, in exchange for a monetary contribution, a refurbished apartment of 200 square metres on the first floor of a block of flats which was to be constructed in the centre of Tbilisi. On 12 December 2003 the construction of the block was terminated, but the cooperative refused to fulfil its contractual obligation vis-à-vis the applicant, excluding him from the membership. The applicant then sued the cooperative, claiming the property title to a flat corresponding to the conditions stipulated in the agreement of 30 May 1999 (“the disputed flat”). He also sought an injunction barring the cooperative from registering the flats in the newly constructed block, pending the resolution of his dispute. In an interlocutory decision of 16 December 2003, the Vake-Saburtalo District Court in Tbilisi allowed the applicant’s request for an injunction, ordering the Land Registry to attach all the flats in the block, pending the final determination of the dispute. However, that decision was overturned, on the basis of the cooperative’s appeal, by the same District Court on 17 September 2004. The attachment record was consequently deleted from the Land Registry, and the flats in the block were immediately distributed, with property rights, among the members of the cooperative. The applicant then appealed against the decision of 17 September 2004, and on 26 November 2004 the Tbilisi City Court delivered another interlocutory decision, confirming the initial attachment order of 16 December 2003. The decision of 26 November 2004 became binding. On 16 February 2005 the applicant brought a court action against the competent bailiffs from the Tbilisi enforcement office and the Land Registry, requesting those authorities to enforce the interlocutory decision of 26 November 2004 and to pay him damages for the delay in its enforcement (“the action of 16 February 2005”). Initially, the Didube-Chughureti District Court on 8 April 2005 dismissed the action of 16 February 2005 as manifestly ill-founded. However, the applicant appealed, explaining that the essence of his claim was to restore the situation which had existed prior to the lifting of the attachment order on 17 September 2004. During the appellate proceedings, the applicant further specified that he aimed at the annulment of those records in the Land Registry which had confirmed the distribution of the flats between the cooperative members on the first floor of the block. In addition, the applicant dropped his claim for damages. On 5 December 2005 the Tbilisi Court of Appeal allowed the applicant’s appeal against the decision of 8 April 2005, ordering the Land Registry and the bailiffs to annul the cooperative members’ property titles to the flats located on the first floor of the block. In its decision, the appellate court duly noted that the applicant had withdrawn his claim for damages. As neither the applicant nor the respondent authorities lodged a cassation appeal against the decision of 5 December 2005, it became binding and, as disclosed by the case file, was later enforced by the authorities. In a judgment of 12 February 2004, the Vake-Saburtalo District Court allowed the applicant’s civil action on the merits, ordering the cooperative to transfer the disputed flat to the applicant’s ownership. The judgment of 12 February 2004 was fully upheld by the Tbilisi Regional Court and the Supreme Court of Georgia on 4 November 2004 and 5 May 2005 respectively, becoming binding on the latter date. On 10 June 2005 the Tbilisi City Court issued to the Tbilisi enforcement office a writ for the enforcement of the judgment of 12 February 2004. On 21 June 2005 the bailiff from the Tbilisi enforcement office, who became in charge of the applicant’s case, proposed to the cooperative to abide voluntarily by the judgment of 12 February 2004. The President of the cooperative, Mr G., replied, on the following day, that all the flats on the first floor of the block had already been alienated to third parties. On 7 July 2005 the bailiff again requested the cooperative to abide by the judgment of 12 February 2004, on pain of the initiation of criminal proceedings against Mr G. under Article 381 of the Criminal Code. The reiterated proposal was left unanswered by the debtor, and on 7 August 2005 the bailiff transmitted the case to an investigative unit of the Ministry of Justice, the agency in charge of enforcement proceedings, for more drastic measures. Consequently, on 23 August 2005 a criminal case was opened against Mr G. for the obstruction of the enforcement. On 19 July 2006 the applicant complained to the Enforcement Department of the Ministry of Justice (“the Enforcement Department”), about the bailiff’s failure to recover the judgment debt of 12 February 2004. The applicant noted that, after the records of the third parties’ property titles to the relevant flats had been removed from the Land Registry, there was no impediment to the transfer of the disputed flat to his ownership. In a letter of 7 August 2006, the Enforcement Department informed the applicant of the measures which had been undertaken to compel the cooperative to abide by the judgment of 12 February 2004. The authority also invited the applicant, in the light of the difficulties associated with the transfer of the disputed flat, to consider the possibility of an adjustment in the modalities of the enforcement, as envisaged by the relevant enforcement legislation. That proposal was left unanswered by the applicant. Subsequently, an extensive exchange of correspondence, bearing on the method and various factual details of the possible transfer of the disputed flat to the applicant, took place between the bailiff and Mr G. However, those negotiations yielded no result, and on 2 August 2007 the Tbilisi City Court ordered, within the framework of the criminal proceedings, Mr G.’s dismissal from the post of President of the cooperative. On 22 August 2007 the bailiff requested all the members of the cooperative to reach an agreement on the transfer of the disputed flat to the applicant, on pain of the initiation of criminal proceedings under Article 381 of the Criminal Code against each of them. On 19 October 2007, brokered by the bailiff, Mr G. made a friendly settlement proposal to the applicant. Notably, the former President of the cooperative expressed his readiness to cede his own apartment free of charge to the applicant, in exchange for the latter’s waiver of any further claims over the disputed flat. The applicant did not accept that proposal. According to the case file, the judgment of 12 February 2004 has not been enforced to date. The non-enforcement of a binding judgment or the obstruction of its enforcement by, inter alia, executives of a corporation or other organisation was a criminally liable offence, prescribed by Article 381 of the Criminal Code. Pursuant to section 18 of the Enforcement Proceedings Act of 16 April 1999, an appeal against any procedural decision, action or omission of an agent of the enforcement authority (bailiff) lay to a court. Pursuant to Articles 207-209 of the General Administrative Code, the State could be sued for the harm done by an action or omission of any public servant. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary. Article 1005 § 1 of the Civil Code stated that damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State. | 0 |
train | 001-102133 | ENG | ALB | CHAMBER | 2,010 | CASE OF MISHGJONI v. ALBANIA | 4 | Violation of Art. 6-1;Violation of Art. 13+6-1 | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 7. The applicant was born in 1972 and lives in Vlore. 8. In 1996 the applicant was appointed a judge at the Vlora District Court. In December 2001 a disciplinary inquiry was opened against her by the inspectors of the High Council of Justice (“HCJ”). On the basis of the results of this inquiry, the prosecutor's office was asked to open a criminal investigation against the applicant. The investigation was opened on 12 January 2002. This resulted in the applicant being suspended from work on the same day. 9. On 26 April 2002 the prosecutor discontinued the criminal investigation for lack of evidence. However, on 15 July 2002 the HCJ, during the applicant's absence on sick leave, dismissed her on account of flagrant violations of professional discipline. The records of previous HCJ meetings indicated that the applicant had been summoned on several occasions to appear before it. However, she was on extended sick leave because of depressive neurosis. The HCJ continued the proceedings in absentia. 10. On 22 July 2002 the applicant challenged the HCJ's decision of 15 July 2002 by filing an appeal with the Supreme Court, which was competent to determine issues of both fact and law. On 18 November 2002 the Supreme Court Joint Benches rejected the appeal. 11. The applicant's subsequent constitutional complaint to the Constitutional Court was accepted on 12 November 2004. The Constitutional Court found violations of Article 42 of the Constitution and Article 6 of the Convention given the in absentia proceedings. It quashed both decisions (of the Supreme Court Joint Benches and the HCJ) and remitted the case for re-examination to the HCJ. 12. In response to the applicant's request for reinstatement at the Vlora District Court, the President of the District Court replied on 23 December 2004 that he was not competent to consider her request. 13. On 28 December 2004 the applicant filed a request for reinstatement with the HCJ. She requested that the HCJ re-hear her case in accordance with the Constitutional Court's decision. 14. On 24 October 2008 the HCJ decided to dismiss the applicant on account of flagrant violations that seriously discredited the position and image of a judge. The applicant appealed to the Supreme Court Joint Benches. 15. On 6 February 2009 the Supreme Court Joint Benches quashed the HCJ decision of 24 October 2008. It found that the proceedings relating to the disciplinary measure had taken too long and as a result the said measure could not produce any effect and was therefore invalid (masa disiplinore e marrë tej një afati të arsyeshëm ndaj kësaj gjyqtareje është e paefektshme dhe konsiderohet e pavlefshme ... Prandaj vendimi i KLD-së duhet të shfuqizohet). 16. On 27 February 2009 the applicant was reinstated as a judge at the Vlora District Court. 17. Following the discontinuance of the criminal proceedings on 26 April 2002, the applicant requested the HCJ and the Minister of Justice on 30 April 2002 to pay her salary arrears for the period during which she was suspended from her duties. 18. On 10 April 2003 the applicant, relying on sections 27 and 38 of the Judiciary Act, lodged an application with the Vlora District Court requesting the payment of salary arrears from 12 January 2002 to 15 July 2002 and consequential damages. On 13 February 2004 the Vlora District Court (“the District Court”) decided in favour of the applicant. It found that since the criminal proceedings had been discontinued, the applicant should be paid salary arrears for the period between 12 January and 15 July 2002 in accordance with section 27 of the Judiciary Act. On an unspecified date the President of the Vlora District Court appealed the decision. 19. On 5 November 2004 the Vlora Court of Appeal quashed the District Court's judgment. It relied on the HCJ's decision of 15 July 2002, by which the applicant had been dismissed from work (see paragraph 9 above). It found that as long as no decision had been taken on the applicant's reinstatement, she could not benefit from salary arrears. 20. On 4 December 2004 the applicant filed an appeal with the Supreme Court. She argued that the Court of Appeal had incorrectly applied the domestic law and had not given sufficient reasons in its decision. 21. On 21 October 2005 the Supreme Court dismissed the applicant's appeal finding that it did not contain any lawful grounds of appeal in accordance with Article 472 of the Code of Civil Procedure (“CCP”). 22. On 26 October 2006 the applicant appealed to the Constitutional Court, relying on the same arguments as before the Supreme Court. She also alleged that the domestic courts lacked impartiality in the examination of her case. 23. On 3 July 2007 the Constitutional Court, sitting as a bench of three judges, dismissed the appeal as manifestly ill-founded. Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or in the event of criminal charges brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “The Constitutional Court shall determine: ... (f) Final complaints by individuals alleging violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 147 “1. The High Council of Justice is composed of the President of the Republic, the Chairman of the Supreme Court, the Minister of Justice, three members elected by the Parliament and nine judges of all levels who are elected by the National Judicial Conference. ... 4. The High Council of Justice decides on the transfer of judges as well as their disciplinary responsibility pursuant to the law. 6. A judge may be removed from office by the High Council of Justice for commission of a crime, mental or physical incapacity, acts and behaviour that seriously discredit the position and image of a judge or professional inefficiency. The judge has the right to complain against this decision to the Supreme Court, which decides by Joint Colleges.” 24. This law governs the overall membership, organisation, functioning and responsibilities of the HCJ, which is chaired by the President of the Republic. Among its chief tasks, the HCJ decides on the appointment and dismissal of judges in respect of courts of first instance and courts of appeal. The law also governs the conduct of disciplinary proceedings against judges. According to the law, it is incumbent upon the Minister of Justice to inspect courts of first instance and courts of appeal. The Minister submits requests for disciplinary proceedings to be taken against judges to the High Council of Justice, which takes a decision thereon. An appeal against the decision of the HCJ may be lodged with the Supreme Court within 10 days from the notification thereof. 25. Section 19 of the HCJ Act stipulates that the Chairman decides on the time and date of its meetings, which should take place at least once every two months. 26. Section 27 of the Judiciary Act provides that a judge shall be suspended from work when a criminal investigation is initiated against him, until a final decision is taken. In the event the judge is acquitted of the charges by a final court decision, the judge is entitled to resume his position and to full remuneration since the time he was suspended from work. 27. Section 38 provides that a judge is entitled to obtain the official journals, legal periodicals and bulletins free of charge. 28. Chapter V of the Judiciary Act governs the disciplinary responsibility of judges. Section 40 provides that judges bear responsibility for breaches of discipline and the commission of acts or behaviour that seriously discredit them personally and the authority of justice. Section 42, which listed dismissal from work as one of the measures to be taken against a judge for breaches of discipline, was rescinded by the Constitutional Court's decision No.3, dated 20 February 2006. 29. Article 324–333 regulate the adjudication of administrative disputes. Article 324 provides that a party may bring an action before a court with a view to challenging the administrative body's refusal to adopt an administrative act. 30. Article 472, in so far as relevant, reads as follows: “Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...” Article 81 – Execution of decisions “1. The Constitutional Court's judgments are binding. 2. The execution of the Constitutional Court's judgments is ensured by the Council of Ministers by virtue of respective State administration bodies. 3. The Constitutional Court may assign another body responsible for the execution of its judgment and, as necessary, the method of its execution. 4. The persons who do not enforce or prevent the enforcement of the Constitutional Court's judgments, when their action does not constitute a criminal offence, are liable to a fine (...) imposed by the President of the Constitutional Court, whose decision is final and constitutes an executive title.” | 1 |
train | 001-58841 | ENG | GBR | CHAMBER | 2,000 | CASE OF KHAN v. THE UNITED KINGDOM | 1 | Violation of Art. 8;No violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. On 17 September 1992 the applicant arrived at Manchester Airport on a flight from Pakistan. On the same flight was his cousin, N. Both men were stopped and searched by customs officials. N. was found to be in possession of heroin with a street value of almost 100,000 pounds sterling. He was interviewed and then arrested and charged. No drugs were found on the applicant. He too was interviewed, but made no admissions. He was released without charge. On 26 January 1993 the applicant visited a friend, B., in Sheffield. B. was under investigation for dealing in heroin. On 12 January 1993 the installation of a listening device on B.'s premises had been authorised by the Chief Constable of South Yorkshire on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs. It was not expected or foreseen that the applicant would visit the premises. Neither B. nor the applicant was aware of the aural surveillance equipment which had been installed by the police. 10. By means of that device the police obtained a tape recording of a conversation, in the course of which the applicant admitted that he had been a party to the importation of drugs by N. on 17 September 1992. The applicant was arrested on 11 February 1993. Again he made no admissions when interviewed, but subsequently he and N. were jointly charged with offences under the Customs and Excise Management Act 1979 and the Misuse of Drugs Act 1991 and committed for trial. 11. The trial took place in December 1993. The applicant pleaded “not guilty”. The applicant admitted that he had been present at the Sheffield address and that his voice was one of those recorded on the tape. It was admitted on behalf of the Crown that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property. Thereupon, the trial judge conducted a hearing on the voir dire (submissions on a point of law in the absence of the jury) as to the admissibility in evidence of the conversation recorded on the tape. The Crown accepted that without it there was no case against the applicant. 12. The trial judge ruled that the evidence was admissible. Following an amendment to the indictment, the applicant was re-arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. On 14 March 1994 the applicant was sentenced to three years' imprisonment. 13. The applicant appealed to the Court of Appeal on the ground that the evidence ought to have been held to be inadmissible. On 27 May 1994 the Court of Appeal dismissed the applicant's appeal against conviction but also certified, as a point of law of general public importance, the question whether evidence of tape-recorded conversations, obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers, was admissible in a criminal trial against the defendant. 14. On 4 October 1994 the Appeal Committee of the House of Lords granted the applicant leave to appeal from the decision of the Court of Appeal dismissing his appeal against conviction. On 2 July 1996 the House of Lords dismissed the applicant's appeal. The House of Lords noted that the question before it gave rise to two separate issues, the first being whether evidence of the taped conversations was admissible at all and the second whether, if admissible, it should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). As to the former issue, the House of Lords held that there was no right to privacy in English law and that, even if there were such a right, the common-law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person's privacy. As to the latter issue, it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The judge's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in Article 8 did not mean that the trial would be unfair. On the facts, the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8, were not such as to require the exclusion of the evidence. Lord Nolan, giving the opinion of the majority of the House, added: “The sole cause of this case coming to your Lordship's House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain from other comment because counsel for the respondent was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament.” 15. The applicant was discharged from prison on 11 August 1994. His release was on licence until 12 May 1995. 16. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. 17. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. 18. The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings. 19. The Police Complaints Authority was created by section 89 of PACE. It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges. 20. Section 78(1) of PACE provides as follows: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” 21. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1999. | 1 |
train | 001-90779 | ENG | POL | CHAMBER | 2,009 | CASE OF ROMUALD KOZLOWSKI v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 4. The applicant was born in 1947 and lives in Mieścisko. He is a retired police officer who had formerly been employed in the Civil Militia (Milicja Obywatelska). In 1974 the applicant had been dismissed from service for a disciplinary offence. He was rehired by the Police in 1991. He retired in 1994. 5. On 27 September 1993 the applicant brought a civil action against the State Treasury for compensation on the grounds that in 1974 he had been unlawfully dismissed from his post at the Civil Militia and banned from working there until 1990. In addition the applicant claimed that he had not been hired by the new police services immediately after the change of the political regime, as he should have been, but only in April 1991. 6. The applicant sought compensation, which comprised damages for lost earnings from 1974 to 1990, for lost earnings and benefits from 1990 to 1991, and for alleged moral suffering due to the loss of employment. 7. On 9 November 1993 the Poznań Regional Court (Sąd Wojewódzki) rejected the claim on the ground that the civil court did not have jurisdiction over a dispute arising out of an employment relationship between a civil servant and the State (niedopuszczalność drogi sądowej). 8. As a result of an interlocutory appeal by the applicant, on an unspecified date the Poznań Court of Appeal (Sąd Apelacyjny) quashed that decision and remitted the case to the Poznań Regional Court. 9. On 10 August 1995 the Poznań Regional Court rejected the claim on the ground of lack of jurisdiction. 10. On 6 March 1996 the Poznań Court of Appeal quashed that decision and remitted the case indicating that the applicant's claim was of a civil character as it had arisen out of relations between a civil servant and the State which were of an administrative and legal character rather than from a bond of special trust and loyalty between the two. 11. On 4 November 1997 the Poznań Regional Court dismissed the applicant's claim. 12. On 25 February 1998 the Poznań Court of Appeal quashed the first-instance judgment in the part concerning the claim for compensation for lost earnings from 1990 to 1991 and remitted the case in this part to the lower court. 13. On 15 March 2001 the Poznań Regional Court dismissed the case. The applicant appealed. 14. It appears that on 25 April 2006 the appellate court issued an order to hold a hearing on 11 May 2006. 15. On 11 May 2006 the Poznań Court of Appeal delivered a judgment varying the judgment of the Poznań Regional Court of 15 March 2001 and ordering that the respondent pay the applicant a certain amount of compensation for lost earnings and benefits from 1990 to 1991. A cassation appeal in the case was inadmissible in law. 16. On 29 April 2006 the applicant lodged a complaint about the unreasonable length of proceedings for compensation for lost earnings and benefits from 1990 to 1991 under the Act 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”). The applicant submitted that his civil case had been pending for over twelve years. 17. On 26 July 2006 the Supreme Court discontinued the proceedings under the 2004 Act on the ground that the civil proceedings which were the subject of the complaint had meanwhile terminated. 18. The court observed that the main purpose of the complaint about the unreasonable length of proceedings was to accelerate the proceedings before a trial court. In circumstances where the proceedings which were the subject of the complaint had already terminated it was no longer necessary for the court to examine the complaint under the 2004 Act. The Supreme Court noted that the applicant had admittedly lodged his complaint under the 2004 Act while the civil proceedings in question were still pending. Nevertheless, the appellate hearing, which turned out to be final, had been scheduled prior to the applicant's complaint. That, in the Supreme Court's opinion, constituted a decisive argument for holding that the proceedings under the 2004 Act ought to be discontinued without a ruling on the merits. 19. 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 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 | 001-111626 | ENG | POL | CHAMBER | 2,012 | CASE OF CIESIELCZYK v. POLAND | 4 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1957 and lives in Tarnow. 6. On 16 July 2003 a television station, S.Tar TV Malopolska Telewizja Kablowa (hereafter “S.Tar TV”), and two individuals, Mr G. J. and Mr J. R., lodged with the Tarnow District Court (Sąd Rejonowy) a private bill of indictment against the applicant, charging him with several counts of defamation. 7. On 24 May 2004 the Tarnow District Court found the applicant guilty of five offences of defamation under Article 212 of the Criminal Code and acquitted him of the remaining charges. The applicant was ordered to pay a fine of 2,000 Polish zlotys (PLN), PLN 500 to a charity, and to reimburse the private prosecutors PLN 1,000 for the costs of the proceedings. 8. The court found him guilty of damaging the good name of S.Tar TV in that, between April 2002 and July 2003, through a means of mass communication, namely the Internet portal www.uczciwosc.org.pl, and by sending letters to the Tarnow Regional Prosecutor, the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji), the Minister of Justice, Bishop W. Sworc, and priests from several Tarnow parishes, he had made untruthful statements, in particular that S.Tar TV had been broadcasting pornographic material. 9. Secondly, the applicant was found guilty of disseminating, on the above-mentioned Internet site, inaccurate information about one of the journalists working for S.Tar TV, Mr G. J., which had debased the victim in the eyes of the public and had undermined public confidence in him: public confidence was necessary for his profession. The court referred to statements published by the applicant to the effect that the victim had “lacked objectivity and closely collaborated with the incompetent President of Tarnow, Mr M. Bień, and his political godfather, the Civic Platform’s Member of Parliament, Mr A. Grad.” 10. Thirdly, the applicant was convicted of disseminating, through the same Internet site, information to the effect that Mr J. R., another journalist employed by S.Tar TV, had provided viewers with inaccurate information, implying that the applicant had been pushing for the dismissal of the Tarnow President. 11. The fourth charge on which the applicant was convicted consisted of making statements during a session of the Tarnow Municipal Council, in full knowledge that the session was being broadcast by S.Tar TV, which were inaccurate and damaging to the station’s good name. The statements in question included allegations that the station had been presenting one-sided information on city issues and had received money from the local authorities to present information in support of the latter’s “official line”. 12. Finally, the applicant was found guilty of disseminating inaccurate information aimed at debasing Mr G. J. and undermining public confidence in him, by stating, in the presence of 100 people, that he had been responsible for manipulation of the media and was one of the greatest manipulators of cable television. 13. The applicant was acquitted of the charge of making statements during a session of the Tarnow Municipal Council, which was broadcast by S.Tar TV, claiming that it was not objective and behaved in a totalitarian manner. The applicant was also acquitted of the charge that he had disseminated a leaflet entitled ‘Demonstration in Tarnow’” in which he made inaccurate statements to the effect that S.Tar TV had obtained a substantial sum of taxpayers’ money following an agreement with the city council. 14. On 14 September 2004 the applicant lodged an appeal against the judgment. 15. On 19 November 2004 the Tarnow Regional Court (Sąd Okręgowy) allowed the appeal in part. The court acquitted the applicant of three charges of defamation of S.Tar TV and Mr J. R. However, the court agreed that the applicant had defamed Mr G. J. on two occasions, namely during the demonstration and on his Internet site. The court further decided to conditionally discontinue the proceedings for a probationary period of one year, as it had established that the guilt and social danger of the act committed by the applicant were not significant. The court ordered the applicant to pay PLN 500 to a charity and the private prosecutor’s costs in the proceedings, in the amount of PLN 1,420. In setting the payment the court took into account the fact that the applicant had no previous convictions and had regard to his financial standing. 16. The appeal court considered that the nature and context of the statements regarding S.Tar TV had not exceeded the boundaries of permissible criticism. The court found that the applicant had acted in the public interest, that his statements were not defamatory and that they did not therefore constitute an offence under the Criminal Code. As regards the applicant’s conviction for defamation of Mr J. R., the court quashed it and considered that there had been no evidence of an offence. 17. With regard to the part of the judgment which it upheld, concerning the defamation of Mr G. J., the court established that on 11 April 2003 the applicant had organised a demonstration against corruption, incompetence and poverty, which involved about 200 people. During the demonstration he pointed at Mr G. J., a journalist working for S.Tar TV, who was filming the event. The description of the subsequent events as established by the Regional Court and the latter’s conclusions, read: ...“[the applicant pointing at Mr G. J.] described him in the following words: ...’this is the person responsible for manipulation’... ‘this person is called [Mr G. J.] [and] is one of the greatest information manipulators of cable TV’... ‘down with [him] (precz)!’...Some time later, on [his Internet site] there appeared a notice about the demonstration which included the following statements: ... ‘during the demonstration local journalists, including Mr G. J. from Tarnów cable TV, on account of [the latter’s] lack of objectivity and tight collaboration with the incompetent President of Tarnow, Mr M. Bień, and his political godfather the Civil Platform’s MP, Mr A.Grad, was booed (“wygwizdany”) by Tarnow inhabitants... These were the statements which [the victim] considered defamatory. The legal analysis of these statements and the circumstances in which they were made allow the conclusion that the [applicant’s] behaviour fulfilled the criteria of the offence set out in Article 212 §§ 1 and 2 of the Criminal Code. In the Regional Court’s assessment it is beyond doubt that the term ‘manipulation’ has a highly negative connotation in the common understanding (in the Polish reality this is also caused by the negative experiences of the mass media before 1989).With regard to the process of transmitting information, this term means either telling direct untruths or presenting events in such a way as to make it impossible to see them as they are in reality – which also [amounts to telling] untruths. The same is true with regard to the term “collaboration”, which means direct cooperation with an imposed authority, and is linked with servility and being at the latter’s disposal... Thus, to make a charge against a journalist of participating in manipulation or collaboration with the city’s authorities, or directly calling him an ‘information manipulator’ and stating that he was booed on account of his lack of objectivity, could indisputably debase him in the eyes of the public and undermine the public confidence necessary for his profession. Society expects from the mass media and their representatives independence, objectivity, and a true description of those events which are interesting to the public. In conclusion, it is established that [the applicant’s] behaviour was verbally aggressive, had features typical of a personal attack, and was obviously aimed at debasing Mr G. J. in the estimation of those present at the demonstration....” 18. The court also dismissed the applicant’s submissions that his statements were a value judgment. It considered that even if they could be considered value judgments, they were not in any event supported by facts. The court established that the basis of the applicant’s statement was events which had taken place during the applicant’s campaign for the post of Tarnow’s President, which had its epilogue in the Regional Court’s decision of 25 October 2002. The latter court found that S.Tar TV, but not Mr G. J., had made inaccurate statements regarding the applicant. During the election campaign S.Tar TV had broadcast a debate between the candidates; however, every time the applicant took the floor a notice appeared to the effect that the applicant had not given permission for his views to be presented to the voters; this was not true. In reality, the applicant had not agreed to the particular conditions for his presentation as proposed by S.Tar TV. However, Mr G. J. was merely a camera operator and had no influence on the station’s policy or on the broadcasting of the inaccurate information about the applicant. 19. The Regional Court considered therefore that the applicant should have limited himself to the comment that Mr G.J. “was a representative of the institution which had transmitted inaccurate information”. 20. On 16 December 2004 the Tarnow Municipal Council dismissed the applicant from his post as Vice-President of the Municipal Council. The Council considered that the applicant had been involved in unworthy conduct damaging its image by, in particular, insulting other people and constantly fighting and stirring up conflict. The Council referred to several court cases in which the applicant had been involved. 21. Article 212 of the 1997 Criminal Code provides: “§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year. § 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years.” § 4. The prosecution takes place under a private bill of indictment.” 22. In so far as relevant, Article 213 § 2 provides: “Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2.” | 0 |
train | 001-60614 | ENG | TUR | CHAMBER | 2,002 | CASE OF ULKU EKINCI v. TURKEY | 3 | Preliminary objections dismissed (non-exhaustion of domestic remedies, six month period);No violation of Art. 2 with regard to killing of applicant's husband;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Gaukur Jörundsson | 10. The applicant's husband Yusuf Ekinci, was born in Lice (south-east Turkey) and was a member of a well-known Turkish family of Kurdish origin. He was a practising lawyer and a member of the Ankara Bar. During his studies, he worked for the Turkish Workers Party (Türkiye İşçi Partisi) and was a member of the Eastern Revolutionary Cultural Grouping (Doğu Devrimci Kültür Ocakları). On that latter account, he was arrested in May 1971. He spent six months in prison, but was finally acquitted. Following his acquittal, he took no further active part in politics. 11. On 24 February 1994, at about 6.30 p.m., Yusuf Ekinci left his office in the central part of Ankara to drive in his private car to his home located in a different part of the town. Before he left his office, he spoke to several persons including the applicant who had telephoned him at about 5 p.m.. He gave his office assistant Güngör S.E. a lift. As the applicant's husband had just enough petrol to get home, he dropped Güngör S.E. off somewhere on the way. 12. When Yusuf Ekinci failed to return home, the applicant and Güngör S.E. inquired at local hospitals and police stations in the course of the evening, but were unable to obtain any information about his whereabouts. As the applicant was concerned that her husband had met with the same fate as Behçet Cantürk from Lice – who had disappeared a month previously and whose body had been found soon after – she telephoned around midnight Mehmet Kahraman, the State Minister responsible for Human Rights and a friend of the family, and asked him for help. The first thing Mr Kahraman said was: "This cannot have been done to Yusuf ...", which frightened the applicant even more. 13. On 25 February 1994, at about 2 a.m. and 7.30 a.m. respectively, the applicant received two anonymous telephone calls. No one spoke on the other end of the line. During the second call, the applicant could hear the sound of typewriters. At about 9.30 a.m. the telephone rang again. When the applicant answered, a woman said, "I am the depths of hell", and then put the receiver down. 14. Later that day, at about 12.30 p.m., road workers found the body of Yusuf Ekinci along the E-90 TEM highway in Gölbaşı on the outskirts of Ankara, i.e. 1.5 kilometres from the Doktorlar Sitesi neighbourhood and 1 kilometre in the direction of Eskişehir. They informed the police. Yusuf Ekinci had been shot and killed. His car was found at a distance of 1 to 2 kilometres from the place where his body was found. The petrol tank was empty. 15. On the same day, the Gölbaşı public prosecutor opened a criminal investigation into the death of Yusuf Ekinci. 16. According to the applicant, the buttons of Yusuf Ekinci's coat were done up when his body was found. His identity documents, a small quantity of cash and his spectacles were missing. His ring and a valuable watch were returned to the applicant by the police. 17. On a sketch map drafted by a police officer, dated 25 February 1994, it is recorded that eight bullets were found directly next to the head of Yusuf Ekinci. 18. In the police report on the finding of Yusuf Ekinci's body, dated 26 February 1994, it is recorded that no weapon and no empty cartridges were found near to or within a radius of 500 metres from the body, and that his car was found at a distance of about 2.5 kilometres from the spot where the body was found. 19. An autopsy on Yusuf Ekinci was carried out on 26 February 1994. He was identified by his paternal cousin, Ahmet Murat İ. It was concluded that he had died of bullet wounds to the head and chest. The autopsy report does not include any indication of the estimated time of death. In the autopsy report, 11 bullet entry wounds, 7 bullet exit wounds and 1 bullet graze wound were recorded. In the course of the autopsy 2 deformed bullets and 2 bullets which were not deformed were removed from his body. These bullets were described as having blue painted tips and a diameter of probably 9mm. The bullets were given to the prosecutor in whose presence the autopsy was conducted. A blood sample was taken for examination for traces of alcohol, stimulants and depressants. 20. In a ballistics report of the Central Criminal Police Laboratory (Merkez Kriminal Polis Laboratuarı) of Ankara, dated 28 February 1994, it is recorded that six Parrabellum type bullets of 9 mm calibre as well as three outer layers of the same type and bullet calibre were submitted for a ballistics examination in relation to the killing of Yusuf Ekinci. As to the findings of the examination, the report states that all bullets examined had been fired from the same weapon, and that these bullets did not bear any resemblance to any other bullets previously examined by the Laboratory. The report further states that it could not be confirmed nor excluded with absolute certainty, given the lack of adequate comparative material, that these bullets had been fired from a Uzi weapon of Israeli make. The bullets, however, were found to be of Israeli make. The report further states that the items examined were being archived under code nr. 4155. 21. On 3 March 1994, the typewriter that Yusuf Ekinci used in his office was examined by the Central Criminal Police Laboratory. The examination of the typewriter ribbon disclosed only a petition concerning a compensation case. 22. According to a supplementary autopsy report of 12 April 1994, no traces of alcohol, stimulants or depressants had been found in Yusuf Ekinci's body. 23. Between 25 February and 1 March 1994, the police took statements from fourteen persons, including the applicant. 24. In a statement taken on 25 February 1994 by the police from Hacı M.Ö., one of the two road workers who had found the body of Yusuf Ekinci, Hacı M.Ö declared that, at 11.15 a.m., he and his colleague Akif H. had spotted the body on the banks of the highway and had informed the traffic police. They had also found a red car about one kilometre from the location of the body. They had not seen anyone in the vicinity of the body or the car. 25. In a statement taken on 25 February 1994 by the police, Akif H. confirmed the account given by his colleague Hacı M.Ö. 26. In a first statement taken on 25 February 1994 by the police from Yusuf Ekinci's assistant Güngör S.E., the latter declared that he had known Yusuf Ekinci since 1983, and that Yusuf Ekinci had dealt with compensation cases. He further stated that Yusuf Ekinci used to carry a gun whenever he travelled to another city, but that he never carried a gun in Ankara. Güngör S.E. had once asked Yusuf Ekinci what he would do if the PKK (Partiya Karkeren Kurdistan – Workers' Party of Kurdistan) demanded money from him. Yusuf Ekinci had replied that he would pay up, but that he would also inform the police. According to Güngör S.E., Yusuf Ekinci had not been involved in politics and had no connections with illegal organisations. 27. In a second statement taken by the police on the same day, Güngör S.E. stated that Yusuf Ekinci had practised law in Ankara since 1982 and that his law practice mostly dealt with compensation cases. Yusuf Ekinci had an account at the Necetibey Branch of the Yapı Kredi Bank, a safe deposit box at the Yenişehir Branch of the İş Bank, and a further account at the Yapı Kredi Bank. He owned nine apartments and two cars, and had two offices. According to Güngör S.E., Yusuf Ekinci had no enemies. He had no knowledge of anyone ever having threatened Yusuf Ekinci. 28. Güngör S.E. further stated that, in 1989 or 1990, Behçet Cantürk had started to call Yusuf Ekinci. Their first meeting took place in the office of Vekin A. Subsequent meetings were held in the office of Zeynel C., and over dinner with others in the S. Restaurant in Çankaya. They also had meetings in Behçet Cantürk's office in İstanbul. 29. In 1992, Yusuf Ekinci had been involved in the case of Behçet Cantürk's nephew, Reşit Cantürk, who had been accused of carrying guns without a licence. Yusuf Ekinci had attended the funeral of Behçet Cantürk. Since the latter's funeral, there had been no further contacts between Yusuf Ekinci and the Cantürk family, but Yusuf Ekinci had asked his brother Tahsin Ekinci, who was also a lawyer as well as a member of the Executive Committee of the political party DEP (Demokrasi Partisi), whether there was any news about the killing of Behçet Cantürk. 30. Güngör S.E. further stated that, on 24 February 1994, he and Yusuf Ekinci had gone to the Palace of Justice. After their return to the office, Yusuf Ekinci had a meeting with his cousin Murat İ. In the afternoon, Yusuf Ekinci received telephone calls from the applicant, the husband of a niece, as well as from his son and his sister. Güngör S.E. had not found these calls suspicious. At about 5.45 p.m., he left the office together with Yusuf Ekinci, who gave him a lift. The applicant called him at about 9.30 p.m., wondering where Yusuf Ekinci was. Suspecting a traffic accident, Güngör S.E. checked with several police stations located on the way to Yusuf Ekinci's home, but with no success. 31. At around 11 p.m. Güngör S.E. went to the applicant's house, where he found the applicant, Mansure Ö., and friends of the applicant's daughter. Nadire İ. arrived later. The persons present then started to speculate on Yusuf Ekinci's whereabouts. According to Nadire İ., he could have been kidnapped by the PKK, and there might be a connection with Behçet Cantürk. According to others, he could have been kidnapped by the MİT (Milli İstihbarat Teşkilatı – National Intelligence Organisation) or by counter-guerrilla agents. 32. Güngör S.E. later left the house to check with a police station and a hospital, but without any success. He returned to the applicant's house the next morning at around 9.30 a.m. At around 10 a.m., there was a telephone call from the police inviting the applicant to come to the police station. The applicant refused to go. Güngör S.E. and Özlem B. went to the police station where they were told that Yusuf Ekinci had been found dead. 33. In a first statement taken on 25 February 1994 by the police from Yusuf Ekinci's secretary Özlem B., the latter declared that Güngör S.E. had called her on 25 February 1994 asking her whether Yusuf Ekinci had contacted the office. The public prosecutor Ali Rıza had called that morning asking her whether she had any information about Yusuf Ekinci. She replied that she did not. He then asked whether anything unusual had occurred. Güngör S.E. arrived at the office later and together they went to the police. She never witnessed anyone threatening Yusuf Ekinci. She further declared that Güngör S.E. and Yusuf Ekinci had been very close; she initially thought that Güngör S.E. was Yusuf Ekinci's son. 34. In a second statement taken by the police from Özlem B. on 26 February 1994, Özlem B. declared that Yusuf Ekinci's law practice mostly dealt with compensation cases and that Nadire İ. was a client. She further declared that on 25 February 1994 Güngör S.E. had come to the office and had told her that Yusuf Ekinci had disappeared. He instructed her to take Yusuf Ekinci's notebooks and mobile telephone. They then went to the police headquarters, to the department dealing with disappearance cases. She did not know who Behçet Cantürk was, but she had seen this person's address in a notebook used by Yusuf Ekinci's previous secretary. 35. In a statement taken by the police on 27 February 1994, the applicant declared that in 1979 she and her husband had moved from Diyarbakır to İstanbul and in 1982 to Ankara. Her husband had practised law in these three cities. She further stated that, since 1970, her husband had not been involved in politics and that his law practice dealt mainly with civil law cases. She further related what had happened when her husband had failed to return home on 24 February 1994, referring among other things to the anonymous telephone calls she had received. She did not remember anyone having threatened her husband. Her husband had never said anything about having been threatened. 36. In a statement taken by the police on 27 February 1994 from Ahmet Ö., the witness declared that he was running an estate agency together with Orhan D. He had met Yusuf Ekinci in March 1993 in the office of Zeynel C., who was one of Yusuf Ekinci's clients. Yusuf Ekinci, who had recently become involved in buying and selling property, had been interested in buying a plot in Gölbaşı. Ahmet Ö. had no information about Yusuf Ekinci's death. 37. In a statement taken on 27 February 1994 by the police, Orhan D. confirmed the account given by his business partner Ahmet Ö. 38. In a statement taken by the police on 27 February 1994 from Hüdayi D., a doorman at the applicant's residence, the witness declared that he had observed nothing suspicious about Yusuf Ekinci and had seen no strangers coming to or leaving Yusuf Ekinci's home. 39. The statement taken by the police on 27 February 1994 from Mehmet I., another doorman at the applicant's residence, was similar to the one given by his colleague Hüdayi D. 40. In a statement taken by the police on 27 February 1994 from Vetin A., a business man and a hometown friend of Yusuf Ekinci, the witness declared that he used to see Yusuf Ekinci quite often and that the latter's brothers were involved in politics. He confirmed that Yusuf Ekinci and Behçet Cantürk knew each other and that the three of them had had several restaurant dinners together. He saw Yusuf Ekinci for the last time at Behçet Cantürk's funeral in Ankara. 41. In a statement taken on 28 February 1994 from Mansure Ö., a friend of the applicant's family, the witness confirmed that she and others had been in the applicant's house on the evening of 24 February 1994. She denied that anyone present that evening had mentioned the possibility that Yusuf Ekinci had been kidnapped by the PKK, MİT or counter-guerrilla agents. 42. In a statement taken on 28 February 1994 from Nadire İ., another friend of the applicant's family, she confirmed that she along with others had been in the applicant's house on the evening of 24 February 1994. She denied having said that Yusuf Ekinci had been kidnapped by the PKK, MİT or counter-guerrilla agents. 43. In a statement taken by the police on 28 February 1994 from Ahmet Murat İ., a paternal cousin of Yusuf Ekinci, he declared that he had visited Yusuf Ekinci in his office on 24 February 1994 at 2 p.m., and that Yusuf Ekinci used to deal with compensation cases against the State. 44. In a statement taken by the police on 1 March 1994 from Zeynel C., a hometown friend and client of Yusuf Ekinci, the witness declared that Yusuf Ekinci and Behçet Cantürk had twice met in his office and that the three of them had dined together on one occasion. He did not know what had been discussed between Yusuf Ekinci and Behçet Cantürk during their meeting in his office. He did know that Yusuf Ekinci had been dealing with a tax case related to Behçet Cantürk and with another case involving a relative of Behçet Cantürk. Zeynel C. further stated that he had been a personal friend of Behçet Cantürk, but that they had had no business dealings with each other. He added that, in 1990, he had bought a hotel on behalf of a company from Mehmet Hankozat “who was Cantürk's man”. He had paid 25% of the purchase price to Behçet Cantürk and 25% to Mehmet Hankozat. He had been unable to pay the remaining 50% of the purchase price. 45. In a statement taken by the police on 21 March 1994 from Ağa Ç., the latter gave a detailed description of how he had bought his apartment from Yusuf Ekinci on 15 October 1991. 46. On 28 February 1994, the Gölbaşı public prosecutor, who was in charge of the investigation, informed the National Turkish Bank Association that Yusuf Ekinci had been killed and that his bank accounts should be examined. The public prosecutor requested the Bank Association to take the necessary measures without giving any further specifications. 47. By letter of 3 March 1994, the police informed the Gölbaşı public prosecutor that Yusuf Ekinci had a safe deposit box at the İş Bank and requested the public prosecutor to seek judicial permission to open this box in order to verify its contents. On 4 March 1994, the public prosecutor recorded that this request had been turned down. 48. On 9 March 1994 the National Turkish Bank Association informed the public prosecutor that, pursuant to Article 83 of the Act on Banking (Bankalar Kanunu), information about private bank accounts was secret and, therefore, the prosecutor's request of 28 February 1994 could not be granted. 49. By letter of 16 May 1994, the Gölbaşı public prosecutor asked the District Police Headquarters to be kept informed of any developments in the investigation into the killing of Yusuf Ekinci until 25 February 2009, i.e. when a prosecution in relation to the killing would become statute-barred. 50. By letters of 25 June, 25 August, 25 October 1994, 25 February 1995 and 25 October 1995, the Commissioner of the Gölbaşı local police station informed the District Police Headquarters that the enquiries in relation to the identification of the perpetrator(s) conducted so far had proved unsuccessful, that they were still being actively sought and, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation. 51. On 8 November 1994, in reply to a request for information about the investigation filed by the applicant on the same day, the Gölbaşı public prosecutor informed the applicant that the investigation was still continuing. 52. On 26 February 1996, referring to a letter of the Ministry of Foreign Affairs, the Ankara deputy chief public prosecutor asked the Gölbaşı public prosecutor for information about the investigation. 53. On 28 February 1996 the Gölbaşı Provincial Police Headquarters transmitted copies of documents related to the investigation – obtained from the Ankara Police Headquarters – and the ballistics report of 28 February 1994 to the Gölbaşı public prosecutor, in response to the latter's oral instructions. 54. On 7 March 1996, the Gölbaşı public prosecutor informed the Ankara chief public prosecutor that the investigation of the killing of Yusuf Ekinci was still being pursued 55. In a letter of 7 March 1996, the Gölbaşı public prosecutor informed the Ankara chief public prosecutor that, as in his statement of 26 February 1994 Güngör S.E. had mentioned that Murat İ. was related to Yusuf Ekinci, Ahmet Murat İ. was to be summoned in order to clarify whether or not Yusuf Ekinci had a relative named Murat İ. 56. On the same day, the Gölbaşı public prosecutor requested the Ankara Police Headquarters to send him the six Parrabellum type 9 mm calibre bullets and the three outer layers of the same type and bullet calibre that had been examined by the Central Criminal Police Laboratory and subsequently archived under code nr. 4155 (see § 20 above). 57. In a brief statement given on 8 April 1996, Ahmet Murat İ. declared that Yusuf Ekinci did not have a relative named Murat İ. 58. On 6 November 1996, the applicant requested the Gölbaşı public prosecutor for a ballistics comparison of the weapons found in the Susurluk accident (see §§ 92-93 below) and the weapon used in the killing of her husband. 59. On 11 November 1996, the Gölbaşı public prosecutor instructed the İzmir District Criminal Police Laboratory to compare the weapons found in Susurluk with the weapon used in the killing of Yusuf Ekinci. 60. In a report of the İzmir District Criminal Police Laboratory, dated 20 November 1996 and sent to the Gölbaşı public prosecutor on 21 November 1996, it is recorded that a ballistics examination had established that the bullets used in the killing of Yusuf Ekinci had not been fired from the six 9 mm. calibre weapons found on 3 November 1996 in Susurluk. 61. In an article published in the daily newspaper “Radikal” on 5 December 1996, the journalist İsmet Berkan wrote: “It all dates back to early 1992. At that time the Turkish Chief of Staff's office made radical changes in its strategy in the fight against the outlawed PKK. The military units, which used to take action only after PKK attacks had taken place by engaging in hot pursuit, started to be organised as a guerrilla force. Now they were taking preemptive action. This change soon started to bear fruit. The PKK no longer had the initiative. Now the PKK was on the run with the soldiers at its heels. The PKK gradually withdrew from the centres of population where it had been staging attacks, taking refuge in the mountains. But Turkey's “active fight” against terrorism was continuing. This time, the logistic support for the PKK in the mountains began to diminish through village evacuations. The PKK had been greatly weakened, and seemed to be on the verge of being “finished off”. But the change in the strategy was not limited to a “low-intensity conflict” in the region. It was decided that a “more active” drive was required to dry up other sources of terrorism too. In this way, with a little effort, this job would be “finished off next spring”. This would take the form of a two-pronged effort. Terrorists would be caught – or killed if necessary – before they actually staged attacks. And the persons who provided the terrorists with material or moral support would be equated with the terrorists themselves. This change in strategy was put on the agenda of the National Security Board at the end of 1992. A National Security Board document, which the author of this column was allowed to see, contains the chart of the organisation that was to be created for this purpose, as well as the names of the persons who would take part in it. These names included Abdullah Çatlı. The others taking part in the organisation included policemen belonging to the "special teams", soldiers and some of Çatlı's friends. Initially, the proposed tactics did not meet with the approval of the National Security Board. Turgut Özal, at that time the President of Turkey, and Eşref Bitlis, at that time the Commander of the Turkish Armed Forces, both opposed the State taking action in co-operation with fugitives <from justice>. I guess this is pure coincidence, but first General Bitlis and then Özal died, the former in an accident and the latter due to a heart attack. Süleyman Demirel became President and Tansu Çiller the Prime Minister. Initially, Çiller was quite mild on the south-east issue. She was talking about the Basque model and, with good intentions, having discussions with the opposition leaders on the issue. But after a short time she underwent a change. She became more hawkish than all of the other hawks, declaring, “This <the PKK> will either be finished or it will be finished”. It was obvious that she was convinced that it would end soon. As there was no one around to raise objections any longer, the issue was again submitted to the National Security Board. And this new technique of struggle was approved in the autumn of 1993. The organisation, call it “Gladio” or "special organisation," was founded by a decision taken by the National Security Board. According to figures released at that time, Turkey was spending more than $8 billion annually on the fight against the PKK. No doubt the PKK was also spending a lot in its fight against Turkey. Calculations made in the higher State echelons indicated that the PKK's war budget was no less than $3 billion. In the autumn of 1993, the year in which Çiller became Prime Minister, the PKK had two main sources of income: 1. money obtained through narcotics and extortion. 2. donations collected in Europe. First the income from the European channel was cut off. At first, Germany and then France closed down the associations connected with the PKK and prevented them from collecting funds. In both countries the PKK went underground. But there was also the income from drug trafficking. Here, the “special organisation” had to become active. We all remember that during those days Çiller was saying “We will dry up the PKK's sources of income”. Behçet Cantürk, Savaş Buldan, Yusuf Ekinci, Hacı Karay, Adnan Yıldırım, Medet Serhat and Ömer Lütfü Topal. All of them were figures involved in drug trafficking in one way or another. None is alive today. They were either involved in drug trafficking on behalf of the PKK or had to pay extortion money. In either case the PKK was getting income. All of these people are now dead. The daily newspaper Özgür Ülke was a PKK mouthpiece. The PKK leader Öcalan had a column in the paper, using the pen name, “Ali Fırat”. The head office and the branch offices of that daily have been bombed. It is being claimed that the İstanbul police caught the bombers but had to release them in line with “orders received from high up”. This article has been written entirely on the basis of a document which I was not permitted to photocopy. I was not permitted either to take notes. I just had a chance to read it quickly. I wish that this piece of “news”, the truth of which I measure by considering a lot of other things, proves to be false. Naturally, I have no doubt that it will be denied immediately. I just hope that those who will be denying it will be telling the truth.” 62. On 6 December 1996, the applicant informed the Gölbaşı public prosecutor that, given the articles published on 5 and 6 December 1996 in the daily newspaper “Radikal”, the journalist İsmet Berkan held information and documents in relation to the killing of her husband. 63. On the same day, the Gölbaşı public prosecutor Ali Rıza O. asked the Ankara public prosecutor to take a statement from İsmet Berkan. 64. In a brief statement taken by a public prosecutor on 1 January 1997, İsmet Berkan declared that he had no information as to who killed Yusuf Ekinci or how he was killed. He had only commented, in the atmosphere created by the Susurluk incident, that Yusuf Ekinci might have been killed by the “Susurluk gang”. 65. On 31 January 1997, the Gölbaşı public prosecutor requested the Turkish Parliamentary Susurluk Investigation Commission (Susurluk Araştırma Komisyona) to provide him with a copy of the statement given in the course of the investigation conducted by this Commission by İbrahim Şahin, the deputy head of the Special Operations Department (Özel Harekat Dairesi Başkan Vekili). 66. On the same day and acting upon the applicant's request of 27 January 1997, the Gölbaşı public prosecutor requested the Turkish Telecommunications Directorate to identify the origin of the anonymous telephone calls received by the applicant on 25 and 26 February 1994. 67. By letter of 7 February 1997, the Telecommunications Directorate informed the public prosecutor that it was technically impossible to identity these telephone numbers. 68. On 28 March 1997 and referring to İsmet Berkan's newspaper article of 5 December 1996, the Gölbaşı public prosecutor requested the National Security Council (Milli Güvenlik Kurulu) to provide him with the document referred to in the newspaper article, i.e. the National Security Board document that İsmet Berkan had been allowed to see and which contained the chart of the organisation that had been created as well as the names of its members. He explained that this document could be of relevance to the investigation into the killing of Yusuf Ekinci. 69. In a letter of 8 April 1997 to the Gölbaşı public prosecutor, the National Security Council denied the existence of the document referred to in the article written by İsmet Berkan. 70. By letters of 26 June and 25 October 1995, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the enquiries in relation to the identification of the perpetrator(s) conducted so far had proved unsuccessful, that they were still actively being sought and that, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation. 71. In January 1998, the Prime Minister received the report he had commissioned on the Susurluk affair (see §§ 92-93 and §§ 100-102 below), according to which Behçet Cantürk had been killed on the instructions of an unspecified Turkish security organisation (“Türk Emniyet Teşkilatı”) on the basis of a decision to eliminate about 100 businessmen suspected of involvement in financing the PKK, and whose names were set out in a nondisclosed list referred to in a public statement made on 4 November 1993 in İstanbul by the former Prime Minister, Ms Tansu Çiller. 72. On 26 February 1998, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the enquiries conducted so far in relation to the identification of the perpetrator(s) had proved unsuccessful, that they were still actively being sought and that, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation. 73. On 20 May 1998 the Gölbaşı public prosecutor requested the Ankara public prosecutor to identify, summon and take statements from the road workers and petrol station staff who had been on duty at the time of the incident. 74. In a statement taken on 3 June 1998, Atilla C., the manager of a petrol station on the TEM highway, stated that he had been the manager of this petrol station for 13 years and that the employees on duty at the material time no longer worked there. It does not appear from the record of this statement whether or not he was asked for the names of the former employees. 75. In a statement taken on 16 June 1998 from Ümit T., a traffic police officer who had been on duty on the TEM highway on the day of the incident date, Ümit T. stated that he could not remember anything about the incident. Too much time had passed since then. 76. In a statement taken on the same day from the traffic police officer Şevket Y., he stated that he did not recall anything about the incident. He considered that it was probable that Yusuf Ekinci's body had been found when he was not on duty. Similar statements were taken on 16 June 1998 from the traffic police officers Abdullah G. and Osman Y. 77. In a statement taken on 16 June 1998 from Sezgin S., a traffic police officer who had been on duty at the relevant time, Sezgin S. declared that he arrived at the scene of the crime after having heard the message on the police radio. The body had been lying in a ditch. He had not inspected the wounds on the body. The victim's car had been located at a distance of about 15 or 20 metres from the body. He left the scene after the arrival of the police officers from the Criminal Bureau. 78. In a statement taken on 16 June 1998 from Arif İ., a traffic police officer on duty on the day of the incident, Arif İ declared that he arrived at the scene of the crime after having heard the message on the police radio. He had seen a dead body lying in a ditch. He had seen bullet wounds to the right and left cheek. The victim's car had been located at a distance of 20 or 25 metres from the body. He left the scene of the crime when police officers from the Criminal Bureau arrived. 79. On 26 June 1998, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the investigation aimed at the identification of the perpetrator(s) of the killing of Yusuf Ekinci had, so far, proved unsuccessful, that they were still actively being sought and, if found, the victim's family would be notified. This letter does not contain any details about the modalities of the police investigation. 80. On 10 August 1998 the Ankara public prosecutor requested the Gölbaşı public prosecutor for information about the steps taken in the investigation of the killing of Yusuf Ekinci. 81. On 14 August 1998 the Gölbaşı public prosecutor informed the Ankara public prosecutor that the investigation was still continuing and, should the perpetrator(s) be found, the Ankara public prosecutor would be notified. 82. In a further statement taken on 2 December 1998 from the traffic police officer Şevket Y., the latter declared that he had no information about the killing of Yusuf Ekinci. A similar statement was taken on 4 December 1998 from Abbas Ş., another traffic police officer who had been on duty at the relevant time. 83. On 26 February 1999, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that, so far, the enquiries in relation to the identification of the perpetrator(s) of the killing of Yusuf Ekinci had proved unsuccessful, that they were still actively being sought and, if found, the victim's family would be notified. This letter does not contain any details about the modalities of the police investigation. 84. The applicant wrote two letters to the President of Turkey requesting him to order an effective investigation into the killing of her husband and to bring the perpetrators to justice. In addition, she appealed for help to the Prime Minister and to the Speaker of the Grand National Assembly. These requests remained unanswered. 85. On 28 February 1996, the brother of Yusuf Ekinci, Tarik Ziya Ekinci, and the lawyer Tahsin Ekinci wrote to the President of Turkey voicing their continuing concerns and suspicions, and complaining that the investigation into the killing of Yusuf Ekinci was inadequate. 86. In August 1997, during a Parliamentary session, the Member of Parliament Fikri Sağlar, put questions in relation to the killing of Yusuf Ekinci to the then Prime Minister Mr Mesut Yılmaz. Mr Sağlar mentioned that it was common knowledge that Yusuf Ekinci had been killed by a Uzi type weapon and that a number of these weapons destined for use by the police had gone missing. He enquired whether these weapons had been acquired by Turkey on the basis of a public tender, how many weapons had gone missing, who was responsible for the weapons and whether the ballistics characteristics of the weapons had ever been recorded. He further asked whether a ballistics comparison had been carried out between the bullets used in the killing of Yusuf Ekinci and the Uzi weapons that had gone missing from the records of the Special Police Teams. 87. In December 1997, in reply to the questions put by Fikri Sağlar, the Minister of the Interior, Murat Başesgioğlu, declared that ballistics reports had revealed that the bullets used in the killing of Yusuf Ekinci were similar to those of the Uzi weapons allegedly used by the Susurluk gang in other illegal incidents. 88. In a letter of 17 February 1998 to the Minister of Justice, Tarık Ziya Ekinci complained that the investigation into the killing of his brother was inadequate. He suggested inter alia that a team of independent investigators be formed to carry out investigation, that the case-file be transferred from the Gölbaşı public prosecutor to the public prosecutor of the Ankara State Security Court, that a ballistics examination of all the Uzi type weapons in the possession of the Special Operations Department be ordered in order to verify whether they matched the weapon used to kill his brother, and that statements be taken from road workers and petrol station staff on duty at the time when his brother was killed. 89. In a statement taken on 17 April 1998 by the police, Tarık Ziya Ekinci confirmed that he had written a letter to the Minister of Justice in relation to the killing of his brother. On 6 May 1998 the Ankara public prosecutor informed the Gölbaşı public prosecutor of the statement given on 17 April 1998 by Tarık Ziya Ekinci. 90. In 1998 the applicant allegedly succeeded in contacting an eyewitness, namely a person who had been working at a petrol station situated on the road between Yusuf Ekinci's office and his home. According to this witness, whose identity was not disclosed by the applicant, he had seen that a red Toyota – Yusuf Ekinci's car was a red Toyota – had been stopped by a police patrol car, that the police officers had taken the driver from this car and that they had searched his clothes. After about five minutes, a policeman got into the Toyota, which drove off together with the police patrol car. However, out of fear, this witness had refused to give a written statement. The account given by this witness was reported on the internet site of the daily newspaper “Hürriyet”. 91. Before the Court the applicant referred to the so-called Susurluk incident and the domestic reports that have been produced in relation to this incident. These reports have been made available to the Court in a number of other cases brought against Turkey (cf. Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions, 1998-VI, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999IV, Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III, Kılıç v. Turkey, no 22492/93, ECHR 2000III, Akkoç v. Turkey, nos. 22947/93 & 22948/93, ECHR 2000-X, and Avşar v. Turkey, no. 25657/94, ECHR 2001-VII). 92. Susurluk was the scene of a road accident on 3 November 1996 involving a truck and a car. The four passengers in the car were Mr Sedat Bucak, a member of Parliament for the conservative True Path Party and close to Tansu Çiller, Mr Hüseyin Kocadağ, the former deputy head of the İstanbul security services, Mr Abdullah Çatlı, a notorious far-right militant wanted by Interpol for drug trafficking and by the Turkish authorities for the killing of seven left-wing militants, and Ms Gonca Us, Mr Çatlı's girlfriend and a former beauty queen. All passengers, except for Mr Bucak, were killed. 93. The fact that they had been travelling together in the same car, that Abdullah Çatlı was found in possession of a licence to carry arms and a Turkish senior officials' passport, both documents signed by the Minister of the Interior Mehmet Ağar, and that various weapons of a model normally used by the police with matching silencers as well as money and drugs were found in the car had so shocked public opinion that it forced Mehmet Ağar to resign as Minister of the Interior on 8 November 1996, and led the authorities to carry out comprehensive investigations into the accident and to commission investigations at different levels. These investigations have resulted in the so-called “Susurluk Reports”. 94. In its decision No. 472 of 12 November 1996, the Turkish Grand National Assembly (Türkiye Büyük Millet Meclisi) ordered the conduct of an official parliamentary inquiry into the “relations between illegal organisations and the State and the accident in Susurluk”. A Commission was set up from among the members of Parliament. The Commission heard evidence from 54 people, whose names had been implicated in the Susurluk affair in one way or another, including Sedat Bucak, Mehmet Ağar and İbrahim Şahin. The Commission also instructed inspectors from the Ministry of Home Affairs and the Ministry of Justice to carry out investigations on its behalf. The Commission published its findings in 1997 in the “Susurluk Commission Report of the Turkish Grand National Assembly” in 1997. 95. In the concluding remarks of this Report it is stated: “...the uncontrollable forces were in collaboration with some public servants who worked for the State. The rising terrorist incidents in southeast Turkey in the nineties have also created an income-based terrorism. As to the unknown perpetrator killings, <the NCO> Hüseyin O. stated in his evidence to the Commission that 'the intelligence services used to give us a list the night before and the gunmen would go in the morning and kill those whose names were on the list'...” 96. According to an article published on 27 May 1997 in the liberal daily newspaper “Milliyet”, the answers given by the MİT in relation to the killing of Yusuf Ekinci had not been published in the Parliamentary Report. 97. The Prime Minister, in his letter no: B.02.0.MUS.1902/01236 of 19 November 1996, ordered Köksal Sönmez, the under secretary of the MİT to carry out an investigation into the allegations of the existence of an illegal organisation within the State and this organisation's activities. A report (No. 11.011.01.156/24746) was prepared and submitted to the Prime Minister on 17 December 1996. Although this report was never officially made public, its contents were leaked to the press and are currently in the public domain. 98. This Report contained statements made by Doğu Perinçek, the leader of the Workers' Party (İşçi Partisi), who alleged that Tansu Çiller has set up an organisation comprising MİT members, police officers and members of the “Grey Wolves” (Ülkücüler). This organisation, known to its about 700 members – amongst whom Tansu Çiller, her husband Özer Çiller, Mehmet Ağar, the deputy-under secretary of the MİT, Mehmet Eymur, the Director of the Special Operations Department İbrahim Şahin, and Abdullah Çatlı – as “the Special Bureau” was responsible, according to Doğu Perinçek, for the killings of many persons, including Yusuf Ekinci. 99. The Report contains one page on which information on Yusuf Ekinci's personal background and activities is set out. This pages states: “Yusuf Ekinci Son of Kamil, and born in Lice-Diyarbakır in 1942. In June 1963 he was a second year student at the Ankara University, Faculty of Law. He was known as a pro-Kurdish socialist. In December 1963 he was a member of the “youth branch” of the TIP (Türkiye İşçi Partisi - Turkish Workers Party) which was established in Ankara. He was further the editor of the “Emekçi” newspaper, the official bulletin of that party. After his graduation in April 1969, he went to Diyarbakır in order to finish his traineeship. In Diyarbakır he participated in an organised demonstration against the Law on the Protection of the Constitution. He was detained on remand in 1970 <or> 1971 and subsequently prosecuted on charges of involvement in pro-Kurdish activities in the Eastern Revolutionary Cultural Grouping (Doğu Devrimci Kültür Ocakları). As from 1972 he worked as a lawyer in Diyarbakır, where he tried to direct the Kurdish movement. In April 1971, during the 4th TIP General Assembly, he declared that he opposed the ideas of his brother Tarık Ziya Ekinci, and added that his own objective was the creation of Kurdistan and that he was a Kurdish nationalist. Since 1984 he worked as a lawyer in Ankara. In February 1990 he was expelled from the SHP (Sosyal Demokrat Halkçı Parti - Social Democrat People's Party). He became involved in establishing a Marxist party together with M. Ali Eren. He was found dead on 25 February 1994 close to the Doktorlar Sitesi neighbourhood in Gölbaşı Ankara.” 100. On 13 August 1997, Prime Minister Mesut Yılmaz, instructed Kutlu Savaş, the vice-president of the Committee for Co-ordination and Control attached to the Office of the Prime Minister, to carry out an investigation into the Susurluk affair. Savaş and his personnel studied the report prepared by the Parliamentary Commission (see §§ 94-96 above), the MİT report (see §§ 97-99 above), and they conducted their own investigation. After receiving the report in January 1998, the Prime Minister made it available to the public, though eleven pages and certain annexes were withheld. 101. 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 that 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. 102. 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 was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. The Report made reference to an individual Mahmut Yıldırım, also known as Ahmet Demir, “the Terminator” or “Yeşil” detailing his involvement in unlawful acts in the south-east and his links with the MİT: “The bombing of the newspaper Özgür Gündem in İstanbul, the killing of Behçet Cantürk, .... the trillion credits of the banks are in reality the extension of diverse aspects of the action in Ankara. ... The beginning of the Susurluk action might be hidden in a sentence of the Prime Minister at that time, Tansu Çiller. “The list with the names of the businessmen helping the PKK is in our possession.” she said. The executions began afterwards. Who decided the executions? It was inevitable that a deterioration would occur and that personal interests would replace the national interests, and in fact they did. This report perceives the Susurluk incident in that manner. (page 8) Since the struggle in the region <of eastern and south-eastern Anatolia> and the PKK attacks created an ever increasing reaction, even in the western regions, it is possible to understand and excuse some of the attitudes of martyrs, the reaction and anger of the State forces fighting the PKK, and those living in the State of Emergency Region. It is in fact inevitable. However it is necessary to detail the incidents which took place in this complicated structure and the institutions participating in this natural, albeit complicated, scenery. By doing so, it will be possible to see the country's fight with the PKK and the connection stretching to İstanbul, Ankara and the financial relationships. (page 9) ... 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, kidnap 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 the MİT may use a lowly individual... it is not an acceptable practice that MİT should have used Yeşil several times... Yeşil opened an account at the Heykel Branch of the Ziraat Bank in Ankara under the name of Ahmet Demir in order to collect extortion money. The existence of this account appeared from the State Archives. ... Yeşil, who carried out activities in Antalya under the name of Metin Günes, 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 the MIT... and they kept quiet. As a result of the State's silence the field is left open to the gangs (page 26) ... Yeşil was also associated with JİTEM, an organisation within the gendarmes, which used large numbers of protectors and confessors (page 27) Muhsin Gül (Code name Kekeç-Pepe-Metin) testified, in his statements taken between 22.07.1994 and 16.08.1994 by the Commander of the Diyarbakır Crime Squad in relation to Ahmet Demir, that the kidnapping of Bayram Kanat and the finding of his dead body ... was result of a plan of Ahmet Demir who was then working at the Diyarbakır Gendarmerie ... and that he <Muhsin Gül> had worked for the Gendarmerie from time to time. (page 35) <In his confession to the Diyarbakır Crime Squad> Musin Gül ... had stated that Ahmet Demir would say from time to time that he had personally planned and committed the murder of Behçet Cantürk and of other mafia and PKK members who had died in the same manner. (page 37) Summary information on the antecedents of Behçet Cantürk, are set out below. He was of Armenian origin ... and was born in Lice. ... In 1990 he joined certain Kurdish intellectuals and formed a group called “The National Platform”. Later they set up a company called Mesopotamia and attempted to publish a newspaper called Mesopotamia. As of 1992 he was the middleman in collecting money from drugs smugglers to hand over to the PKK. In April 1992 he brought 6 tons of base morphine and 5 tons of hashish from Pakistan to Turkey and these drugs were purchased by <six persons> and ... Behçet Cantürk collected money from these individuals on various occasions in order to give it to the PKK. (page 72) As of 1992 < Behçet Cantürk> was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate the Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking ... the Turkish Security Force Organisation (Türk Emniyet Teşkilatı) decided that he should be killed and that decision was carried out. Thus one person was removed from “the list obtained of businessmen who finance the PKK” referred to by the then Prime Minister and which list is known to have consisted of nearly 100 persons. No discussion has taken place on the question as to whether the murder of Behçet Cantürk was right or wrong, or whether it was necessary. However, inevitable questions must be asked. Who ordered the murder of Cantürk? Who can exercise such authority? Under what circumstances can this authority be exercised? Who is responsible to whom? The objection “in a State where the rule of law prevails there can be no place for these questions” is not, in our opinion, valid and is not in accordance with reality. (page 73) All of the relevant State bodies were aware of these activities and operations. ... For example, one of the common features of the murders having taken place in the İzmitAdapzarı-Bolu axis <an area between İstanbul and Ankara> is the concerted activities of the police, the gendarmerie and members of the confessor organisations in this region ... When the characteristics of the individuals killed in such actions are examined, the difference between, on the one hand, those Kurdish supporters who were killed in the region where the state of emergency had been declared and, on the other, those who were killed elsewhere lay in the financial strength the latter represented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. (page 74) <JİTEM - Gendarmerie Intelligence Service> We had the authority the execute almost everyone in Diyarbakır and its surroundings whom we suspected of being connected with the PKK. ... Instead of handing them over to the justice authorities, we adopted as a method the “unknown perpetrator killing” (“faili mesul cinayetleri”). This was what was wanted from us. We received instructions to this effect. (page 76)” 103. In an interview published on 8 February 1998 in the newspaper Turkish Daily News, the State Minister responsible for Human Rights, Mr Hikmet Sami Türk, was asked: “In the Susurluk Report it was explained that some murders, which had previously been called “mysterious”, were committed by the security forces. Did the families of the victims come to your Ministry and how did you deal with them?” Mr Türk replied: “No, they have not come to us. The number of incidents reported to us is not that high. I think that those people apply to the courts. What we look at are those that the non-governmental organisations dealt with and the letters that we received.” In response to the remark: “You say that we have to trust our government, but in the Susurluk Report, which was given to the Prime Minister Mesut Yılmaz, it is indicated that certain violent activities and unsolved crimes were committed in the name of the State.”, Mr Türk stated: “It is not possible for us to find out these kinds of things. We would get lost within some labyrinth if we tried to find them out. These are issues that must always be investigated and supervised by the State. I must add that the State must not allow illegal formations within its body.” 104. On 18 February 1998, the daily newspaper Yeniyüzyıl published an article in which it was claimed that “there existed an organisation called Çiller's Private Organisation, that Çiller ordered the <premises of> Özgür Gündem to be bombed and that F.G. was Çiller's secret partner in money laundering”. 105. Tansu Çiller and her husband Özer Çiller took a civil action for defamation against the editor and the owner of the newspaper. In the resulting judgment no. 1998/624 of 23 September 1998, the Ankara Court of First Instance (Asliye Hukuk Mahkemesi) noted that the article was based on the contents of a MİT report. Having checked the author's copy of this report, i.e. the Report No. 11.011.01.156/24746 (see §§ 97-99 above) against a copy of the original report obtained from the MİT, the court concluded that these were identical. The Court of First Instance found against Ms Çiller, holding that: “The press ... has a duty to monitor the behaviour of politicians and to inform the public of their activities ... as long as the media are informing the public of any news that is in the public interest ... this constitutes a public duty on the part of journalists which should be carried out effectively ... The defendant has proved the source of his news and therefore there has been no attack on the plaintiffs' personal integrity.” In its unanimous decision no. 1999/5030 of 31 May 1999, the 4th Chamber of the Court of Cassation (Yargıtay) rejected the appeal in cassation filed by Ms Çiller and her husband, and upheld the judgment of 23 September 1998. 106. In criminal proceedings brought against a number of persons implicated in the Susurluk affair, which have been extensively covered by the Turkish media, the İstanbul State Security Court (Devlet Güvenlik Mahkemesi) decided in a ruling of 3 May 1999 to discontinue the proceedings against Sedat Bucak and Mehmet Ağar on grounds of their immunity as elected members of parliament in the April 1999 elections. 107. In its judgment of 12 February 2001, the İstanbul State Security Court convicted, inter alia, the former deputy head of the Special Operations Department İbrahim Şahin and the former MİT official Korkut Erken of "founding and directing a gang with the aim of committing crimes" and sentenced them both to six years' imprisonment. Twelve others, including former members of Special Operation Teams and police officers, received lower sentences. In its judgment, the State Security Court stated inter alia: “Obstruction of the judicial investigation through administrative, political and legal manoeuvring worries and scares society and damages the sense of justice. ... The people who commit crimes and hide behind political, social, administrative and legal shields, and others who refuse to remove these protections ought not to forget that they too will need justice one day.” 108. On 24 October 2001, the 8th Chamber of the Court of Cassation (Yargıtay) declared the appeal in cassation filed against the judgment of 12 February 2001 founded and quashed this judgment. It held, inter alia, that the İstanbul State Security Court had unjustly rejected the defendants' request to have the proceedings conducted in camera. 109. On 11 December 2001, the Plenary Court of Cassation (Yargıtay Ceza Genel Kurulu) accepted the objection filed by the public prosecutor against the judgment of 24 October 2001. It subsequently quashed this ruling and referred the case back to the 8th Chamber of the Court of Cassation for a new decision. 110. On 23 January 2002, the 8th Chamber of the Court of Cassation rejected the appeal in cassation filed against the State Security Court's judgment of 12 February 2001. 111. The Turkish Criminal Code (Türk Ceza Kanunu), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 112. Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure (Türk Ceza Muhakemeleri Usulü Kanunu; hereinafter referred to as “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP). 113. If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). Pursuant to 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 duty shall be liable to imprisonment. 114. 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 by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient. 115. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP). 116. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts of decisions of the administration are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 117. This provision is not subject to any restriction even in a state of emergency or war. the second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus, the administration may indemnify individuals who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 118. Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. 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). | 1 |
train | 001-72631 | ENG | TUR | CHAMBER | 2,006 | CASE OF ERIKAN BULUT v. TURKEY | 4 | No violation of Art. 2;No separate issue under Art. 3 (specific incident);No violation of Art. 3 (treatment in general);Not necessary to examine Art. 6-1;No separate issue under Art. 13 | null | 8. The applicant was born in 1961 and lives in Istanbul. 9. On 26 August 1998 at about 6 p.m. the applicant was arrested in Istanbul by policemen from the Anti-Terrorism Branch of the Pendik Security Directorate on suspicion of aiding and abetting the PKK. Subsequently, the police officers carried out a search of the applicant’s office and of his flat with his permission. The same day at about 10 p.m. the applicant was examined by a doctor, who reported that there were no signs of injury on his body. The applicant was then taken to the Pendik Police Station to be interrogated. 10. On 27 August 1998 the public prosecutor verbally ordered the applicant’s release as there was no evidence against him. Consequently, at about 10.30 a.m. the applicant was handed over to the police officers from the Anti-Terrorism Branch of the Pendik Security Directorate to be released. He was initially taken to the Pendik Hospital where he was examined by a doctor, who stated that there were no signs of ill-treatment on his body. The applicant was then taken to the Pendik Security Directorate building. While he was waiting in a room with window guards, the police officers started preparing the report for his release. The applicant alleged that while he was waiting, the police officers made him drink drugged tea as a result of which he lost consciousness. According to the applicant, when he regained his consciousness, he was in the hospital. He had fallen out the window of the office which was on the fifth floor of the Security Directorate Building. The Government maintained that when the applicant was taken to an office to sign the release report, he had run and jumped out the window. According to the Government, this office, which was solely used by police officers, had no window guards. After the incident, the applicant was immediately taken to the hospital. The medical report of 28 August 1998 indicates that the applicant had several fractures. He had to stay in the hospital for three months before he recovered from his injuries. 11. The same day, the police officers prepared an incident report, drew a sketch map and took statements from eye-witnesses to the event. Police officers Mustafa Sezer, Burhanettin Tekler, Mustafa Yüksel, and İsmail Kaya Horta confirmed that the applicant had jumped out the window of the office which was on the fifth floor of the Security Directorate building. The police further took statements from Mr Ibrahim Nih and Mr Ali Aydın, two civilians, who happened to be in the same office at the time of the incident. They stated that as soon as the applicant entered the office, he had run towards the window and jumped out. 12. The applicant’s statement was taken on the same day at about 5 p.m. He confessed that he had run and jumped out the window at his own will. He stated that he had no complaints against anyone. 13. On 4 September 1998 the applicant’s representative filed a criminal complaint with the Pendik public prosecutor. In his petition, the applicant’s representative maintained that on 26 August 1998 the applicant had been subjected to ill-treatment by three police officers at the Pendik Security Directorate Building during his interrogation, before being taken to the Pendik police station to spend the night. The lawyer stated that one of the police officers was called Sezai Çetin. The applicant’s lawyer further maintained the applicant had been deliberately thrown out the window of the office situated on the fifth floor of the Security Directorate Building. 14. On 9 September 1998 the prosecutor took statements from Sezai Çetin and Ramazan Hokvan, the police officers who had arrested the applicant on 26 August 1998. They denied the ill-treatment allegations. 15. On 23 September 1998 the public prosecutor further took statements from police officers Mustafa Yüksel, Burhanettin Tekler and Mustafa Sezer, who had been on duty on the day of the applicant’s fall from the fifth floor. These officers stated that as soon as the applicant was taken to the office on the fifth floor to sign his release report, he had run towards the window and jumped out. They maintained that the applicant was very nervous and sweating. 16. On 28 September 1998 the public prosecutor took statements from the applicant and his wife. The applicant stated that he had been insulted and threatened while he was in custody at the police station. However he indicated that he had not been subjected to any physical ill-treatment. In particular, he stated that the police officer, Sezai Çetin, who was named by the applicant’s lawyer as one of the officers that had ill-treated the applicant, had in fact been very kind to him during his custody. The applicant explained that on the day of the incident, while he was waiting to be released, he drank a cup of tea and lost his consciousness. He subsequently woke up in the hospital. The applicant stated that he did not remember whether he had jumped or had been thrown out the window. 17. In her statement, the applicant’s wife explained that on 27 August 1998 at about 11 a.m. she had gone to the Pendik Police Station to visit the applicant. At first, the police officers refused to show the applicant to her. She overheard a police officer say to his superior that a liquid had been given to the applicant. She insisted, and the officers allowed her to see the applicant. According to the applicant’s wife, the applicant was lying on the floor, unconscious. 18. On 23 October 1998 the Pendik public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations. The public prosecutor concluded that the applicant had tried to commit suicide. 19. On 24 February 1999 the applicant’s representative challenged this decision before the Kadıköy Assize Court. In his petition, the lawyer stated that the applicant had been ill-treated during his custody at the police station. It was alleged that the applicant had been hosed with water, hung from his arms and subjected to electric shocks. The applicant’s representative further complained that the applicant had been deliberately thrown out the window. The applicant’s representative finally maintained that the applicant had lost his consciousness after drinking a cup of tea, which in his opinion had been drugged. 20. On 24 May 1999 the Kadıköy Assize Court, upholding the reasoning of the public prosecutor, dismissed the case. 21. On 12 July 2001 a forensic doctor attached to the Human Rights Foundation delivered a report about the applicant. Referring to the absence of a psychiatric report and a toxic examination, he concluded that the applicant had not been thoroughly examined at the hospital after his fall. He indicated that the applicant had been inscribed in a special recovery programme by the Istanbul Branch of the Foundation. | 0 |
train | 001-113555 | ENG | POL | CHAMBER | 2,012 | CASE OF KURA v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1962 and lives in Sokołόw Małopolski. 6. The applicant is a single mother and has three children. Prior to her application for an earlyretirement pension she had been employed by the same company for twenty years and paid social security contributions to the State. 7. On 19 January 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension”. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1988) suffered from chronic asthma (przewlekła astma oskrzelowa) and that she had been in need of her parent’s constant care. 9. On 29 January 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 January 2001 in the net amount of 593 Polish zlotys (PLN). 10. The Social Security Board initially suspended the payment of the pension until 1 March 2001 due to the fact that the applicant was still working on the date of the decision. The applicant resigned from her job. 11. On an unspecified date Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 16 May 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 12. On 27 May 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance. 13. The applicant appealed against the respective decisions divesting her of the right to an earlyretirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 14. On 1 August 2002 the Rzeszow Regional Court (Sąd Okręgowy) allowed the appeal and granted the applicant the EWK pension. The SSB appealed against the judgment. 15. On 19 March 2003 the Rzeszow Court of Appeal allowed the appeal and remitted the case for reconsideration. 16. On 20 November 2003 the Rzeszow Regional Court upheld the SSB’s decision of 27 May 2002 and dismissed the applicant’s appeal against it. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. 17. The applicant further appealed against the firstinstance judgment. 18. On 26 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 19. The applicant did not lodge a cassation appeal with the Supreme Court. 20. Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension. 21. The applicant submitted that after the revocation of the EWK pension she had not received any unemployment or other benefits from the State. 22. The Government submitted that between 29 August 2006 and 24 August 2009 the applicant has been intermittently employed and was receiving a salary of approximately PLN 11,000 per year. In 2010 the applicant received unemployment benefit for a few months. In addition, the Government maintained that the applicant has been receiving child support payment, apparently from the father of her children, in the amount of PLN 7,500 per year. However, it is not clear how long she has been receiving such payment. 23. The Government submitted that the applicant’s two adult children have been employed since 2006. Moreover, the child in respect of whom the applicant had been granted the EWK pension, now aged 21, started working in 2009. 24. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 25. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2022. 26. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 27. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 28. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 29. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009. 30. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows: “The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” 31. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser. 32. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 33. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. 34. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 35. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 36. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 37. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted. | 1 |
train | 001-90426 | ENG | RUS | CHAMBER | 2,009 | CASE OF ALEKSEYENKO v. RUSSIA | 3 | Violation of Art. 6-1;No violation of Art. 8;Preliminary objections dismissed (non-exhaustion of domestic remedies);Violations of Art. 8;Preliminary objection allowed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 34;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1966 and lives in the village of Trudovoy, the Rostov Region. 7. In 1996 the applicant was arrested and charged with a number of serious offences, including possession of explosives, death threats, attempted murder and murder. 8. The Rostov Regional Court examined the applicant’s case and gave judgment on 18 February 1997 acquitting him on all charges. 9. On 30 April 1997 the Supreme Court of Russia examined the first-instance judgment on appeal. The court decided that the trial court had committed serious breaches of procedure, quashed the judgment of 18 February 1997 and remitted the case for a fresh examination at first instance. 10. On 23 July 1997 the Rostov Regional Court re-examined the applicant’s case and found him guilty on all charges. He was sentenced to fifteen years’ imprisonment. The court also ordered the forfeiture of the applicant’s property. 11. An appeal by the applicant against the judgment of 23 July 1997 was dismissed by the Supreme Court of Russia on 25 December 1997. 12. On an unspecified date the Deputy Prosecutor General of the Russian Federation lodged a special appeal against the judgment of 23 July and the decision of 25 December 1997. 13. On 18 October 2000 the Presidium of the Supreme Court of Russia examined the prosecutor’s appeal. The court reopened the proceedings and partly changed the decisions in the case. In particular, the court declared the prosecution in respect of the death threats to be time-barred and changed the legal characterisation of the applicant’s criminal conduct in relation to one of the other charges. The applicant’s sentence remained unchanged. 14. The applicant and his counsel were neither notified of the hearing nor summoned to it. The prosecution was present and made submissions. 15. In letters dated 13 April 2001, 1 December 2001, 25 November 2002, 15 April 2004 and 18 May 2004 the applicant complained that he had been unable to correspond freely with the Court, other domestic authorities and his lawyers; that the authorities had not accepted sealed envelopes for dispatch; and that there had been considerable delays in forwarding correspondence to him after its receipt by the prison and in actually sending letters out after their acceptance for dispatch. 16. In their observations, the Government submitted the register of correspondence which stated that the applicant had sent out letters to various destinations on various dates. There was a short description of the content of the letters dated between 1999 and March 2000. In respect of the letters dated March 2000, it was recorded that they had been “sealed”. 17. In a letter of 25 April 2005 the applicant informed the Court that its letters of 1 February, 8 and 9 March 2005 had been forwarded to him with considerable delay. In particular, the letter of 1 February had been received by the prison on 16 February 2005, registered under the incoming number 620, and had not been forwarded to him until 3 March 2005. 18. In a letter of 20 November 2005 the applicant informed the Court that the Court’s letter of 20 June 2005 had been received by the prison on 1 July 2005 and had not been served on him until 24 July 2005. He also stated that his understanding was that his letters dated 13 January 2005 and 1, 9 and 24 February 2005 (outgoing no. A-11 dated 19 January 2005, outgoing A19 dated 2 February 2005 and outgoing A-26 dated 16 February 2005) had not been received by the Court. 19. In reply, in a letter of 18 January 2006, the Government submitted that the competent authorities had carried out an additional verification and had established one occurrence of delayed forwarding of mail from the Court to the applicant. As a result, some officials had been reprimanded. The Government denied, however, that any letters had been sent by the applicant to the Court on 13 January, 9 February and 24 February 2005. 20. In their further observations, the parties responded to the Court’s factual questions concerning the applicant’s claims in this respect and provided the following information. 21. The Government submitted that between 23 September 1998 and 1 February 2003 the applicant had served his sentence of imprisonment in penitentiary establishment UCh-398/9, the Rostov Region. As of 11 February 2003 the applicant had been serving his sentence in penitentiary establishment UCh-398-1, the Rostov Region. 22. The applicant did not contest these dates. 23. In respect of the question concerning the total number of letters received by the applicant from the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had received ten letters. These letters had been received by the prison and served on the applicant on the following respective dates: 9 and 10 July and 15 and 16 December 2004, 13 and 14 (two letters) and 29 January, 3, 16 and 17 February, 26 and 27 March (two letters), 22 and 23 April and 1 and 24 July 2005. 24. They also submitted that all the letters had been handed to the applicant in sealed envelopes and had not been censored. 25. In his further observations, the applicant submitted that during this time he had received eleven letters from the Court through the prison authority. He also alleged that all of these letters had been served on him with substantial delays. He did not submit any concrete evidence in support of the latter point. 26. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it dispatched a total of twenty-three letters to the applicant’s prison addresses, dated respectively 20 April, 2 August and 26 September 2001, 18 March, 6 September and 18 November 2002, 24 and 27 February, 19 March and 7 April 2003, 28 June and 5 July 2004, 2 September, 24 November and 1, 21 and 22 December 2004 and 18 January, 1 February, 8 and 9 March, 12 April and 20 June 2005. 27. In respect of the question concerning the total number of letters sent by the applicant to the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had sent out eleven letters. These letters had been sent by the applicant on the following dates: 7 September 2001, 20 August 2002, 14 January 2003, 30 September and 11 May 2004, and 15 and 19 January, 2 and 16 February, 12 May and 13 July 2005. 28. The Government admitted that the applicant’s letters sent out on 7 September 2001, 20 August 2002 and 14 January 2003 had been censored by the prison authorities under Article 91 of the Code of Execution of Sentences then in force. They stated, further, that there had been no censorship of the remaining letters as the relevant applicable legislation had been amended and the European Court of Human Rights had been added to the list of bodies with which a prisoner could correspond without censorship. 29. The applicant submitted that, contrary to the Government’s submission, during that period he had sent out 29 letters to the Court through the prison administration and that the prison administration had required him to hand these letters to them unsealed for censorship. The dates of dispatch were as follows: 22 January, 15 and 28 May, 26 June, 31 August, 6 October, 1 and 10 December 2001; 20 May, 15 August, 25 November 2002; 6 and 14 January, 3 March, 25 May, 20 October 2003; 13 and 23 April, 18 May, 30 September, 20 November and 29 December 2004; 15 January, 2 and 9 February, 26 July and 20 November 2005; 20 February 2006; and 15 March 2007. 30. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it received a total of eighteen letters from the applicant, dated respectively 22 January, 15 May, 31 August, 1 and 10 December 2001; 15 August, 14 October and 25 November 2002; 6 January and 20 November 2003; 15 April, 28 May, 30 September, 20 November and 21 and 30 December 2004; 25 April, 10 May and 20 November 2005; and 20 August and 1 September 2007. It is unclear whether the applicant sent these letters out directly from his prisons or through his relatives or a lawyer. 31. On 28 August 2004 the Court gave notice of the application to the respondent Government. 32. On 21 December 2004 the Court received the applicant’s letter of 20 November 2004. The letter stated that in September 2004 some officials from the Prosecutor’s Office and the Main Directorate for the Execution of Sentences of the Ministry of Justice had visited him and had forced him to sign some papers. They had allegedly wanted the applicant to withdraw his application and had told him that he would not prove anything and only make things worse. 33. In their observations, the Government included the statement by the applicant dated 12 October 2004 and addressed to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, V.I. Khizhnyak, in which he stated that he had “no complaints, claims against the prison administration” and that he had no “claims concerning the receipt and dispatch of correspondence to and from the European Court of Human Rights”. The statement was written in the applicant’s own hand. In it the applicant also said that he had made his statement without physical or psychological coercion. The statement was collected and signed on the same date by two officials: the Assistant to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, Ch., and the Head of the Registry of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, B. 34. In respect of this letter the Government submitted that on 12 October 2004 the Assistant Chief of the Correctional Department of the Ministry of Justice, Mr Ch., had had an interview with the applicant. According to the Government, the purpose of the interview had been the “clarification of some facts with a view to submitting the position of the Russian Federation Ministry of Justice on the application lodged by Mr Alekseyenko”. Mr Ch.’s explanatory note to the interview stated that he had not requested the applicant to withdraw his application to the European Court of Human Rights, and that the interview had been conducted in the correct form, without any rough, rude or degrading treatment on his part. The applicant’s explanatory note stated that he had not made any complaints or critical remarks in respect of the prison administration and that he had not been subjected to any psychological or physical pressure. 35. The Government submitted a letter from the Rostov Regional Court dated 13 October 2004 in which the Deputy President of that court had certified that neither the applicant nor his counsel had made any complaints to the competent lower courts in respect of alleged interference with correspondence. 36. The Government submitted that on 14 October 2004 Mr K. from the Regional Prosecutor’s Office had had an interview with the applicant. The applicant had made the following statement to Mr K.: “... My correspondence with the European Court of Human Rights started in January 2001 during my detention in establishment UCh-398/9 in the town of Shakhty. From that prison I sent out eight letters (22 January 2001, 15 May 2001, 28 May 2001, 31 August 2001, 1 December 2001, 10 December 2001, 20 May 2002, 15 August 2002). All the above letters were received by the addressee and I retain proof of that. There were no instances of refusal to dispatch letters from prison IK-9. However, all letters were only accepted by the administration in an unsealed form and were dispatched with considerable delay. I made attempts to send out sealed envelopes but the head of the special department returned them to me with reference to the corresponding instructions from higher authorities. Since 11 February 2003 I have been serving my sentence in UCh 398/1 of the Main Directorate for the Execution of Sentences of the Ministry of Justice. From this correctional establishment I dispatched five letters to the European Court of Human Rights (3 March 2003, 25 May 2003, 20 October 2003, 13 April 2004 and 30 September 2004). I only know that my letter of 13 April 2004 was dispatched on 11 May 2004, whilst three previous letters never reached the Court. As to the letter of 30 September 2004, I am unaware of its fate. All these letters were not accepted from me in sealed form. The authority forced me to present them unsealed. As regards the answers from the European Court, I received three whilst serving the sentence in IK1, and all were sealed. The incoming numbers of IK-1 were: 5727 of 3 August 2004, 1751 of 6 April 2004. I do not know the number of the third answer, because I did not keep it. But I remember the date of receipt – 28 June 2004. With all confidence I can state that I signed the receipt in respect of one of the answers and don’t remember in respect of the others. Whilst serving the sentence in IK-1 I received copies of three answers from the European Court. They had been forwarded from IK-9 since I had not received them there. Apart from the foregoing, I don’t have any other complaints in respect of the conditions of detention ...” 37. On 20 January 2005 the applicant was interviewed by Mr Zh., the head of the Department responsible for supervising the lawfulness of the execution of sentences at the Regional Prosecutor’s Office. The applicant confirmed that on 12 October 2004 he had had a word with Mr Ch. from the Ministry of Justice and on 14 October with Mr K. from the Prosecutor’s Office. The applicant submitted that they had not put any pressure on him whatsoever and that all explanations had been given by him voluntarily. 38. On 21 January 2005 the applicant made the following statement to Mr Zh.: “In a supplementary application form I mentioned that I had been forced to sign some papers and this was formulated in such a way that it could be understood that I had signed the documents under pressure from the representative of the prosecutor’s office and the Main Directorate for the Execution of Sentences. In fact, this did not correspond to reality because in that case I was referring to the relations that I had previously had with the prison administration, when correspondence had been dispatched with delays and the administration had requested me to withdraw the complaints and had refused to send them out. At present the administration has been replaced and many officials fired, which is why I have normal relations with the administration and have no complaints. ... I have given no explanations against my will.” 39. In their statements of 20 January 2005, Mr Ch. and Mr K. explained that they had visited the applicant to check the facts outlined in his complaints to the European Court of Human Rights and interview the persons allegedly involved and that no coercion whatsoever had been put on the applicant in connection with his application to the Court. 40. In their further observations, the Government said that the above-mentioned interviews had taken place during the check carried out by the competent bodies of the Russian Federation in connection with the request of the European Court of Human Rights dated 2 September 2004 to the Representative of the Government to clarify the applicant’s allegations. They also submitted that the difference in the applicant’s position in his statements of 12 and 14 October 2004 did not prove the alleged coercion as the applicant could have changed his position for other reasons. 41. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become operative and to have the case reviewed. 42. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment became operative and was subject to execution as of the day when the appeal (cassation) instance pronounced its judgment or, if it had not been appealed against, when the time-limit for appeal had expired. “The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not become operative on cassation appeals].” “The grounds for quashing or changing a judgment on appeal are as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) grave violation of procedural law; (iv) misapplication of [substantive] law; (v) inadequacy of the sentence in relation to the gravity of the offence and the convicted person’s personality.” 43. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review. 44. Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960 provided that a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, or remit the case for a new investigation or fresh court examination at any instance, or uphold a first-instance judgment reversed on appeal, or amend and uphold any of the earlier judgments. 45. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification too lenient, it had to remit the case for a new examination. 46. In accordance with Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in hearings before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. 47. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that Article 377 § 3 of the Code was unconstitutional in so far as it allowed supervisory review proceedings to be conducted in the absence of the defence where a special appeal against the previous decisions would, if successful, result in the worsening of the convicted person’s situation. 48. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect. 49. Article 91(2) of the Code of Execution of Sentences of 8 January 1997 (Уголовно-исполнительный кодекс) provided for censorship of prisoners’ correspondence. 50. Law no. 26-FZ of 20 March 2001 amended this Article to provide for an exception from the rule in respect of correspondence with a court, a prosecutor’s office, higher officials of the penitentiary system and the Ombudsman of the Russian Federation. A prisoner’s correspondence with his lawyer or representative could be censored in certain cases upon a reasoned decision of the director or deputy director of the prison authority. 51. Law no. 161-FZ of 8 December 2003 introduced further amendments to the Article. The European Court of Human Rights was added to the list of bodies with which the prisoner could correspond without censorship. The Law entered into force as of the date of its first official publication on 16 December 2003. | 1 |
train | 001-118583 | ENG | GBR | CHAMBER | 2,013 | CASE OF ASWAT v. THE UNITED KINGDOM | 2 | Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (United States of America) | David Thór Björgvinsson;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 12. The applicant was born in 1974 and is currently detained in Broadmoor High Security Psychiatric Hospital. 13. The applicant has been indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon. 14. On 7 August 2005 the applicant was arrested in the United Kingdom on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 following a request for his provisional arrest by the United States. 15. The Senior District Judge gave his decision in the applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied and sent the case to the Secretary of State for his decision as to whether the applicant should be extradited. 16. On 1 March 2006 the Secretary of State ordered his extradition. The applicant appealed to the High Court on the ground that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a maximum security facility such as ADX Florence and subject to special administrative measures, including solitary confinement. 17. The applicant’s appeal was heard together with that of Mr Babar Ahmad. In its judgment of 30 November 2006 the High Court rejected the appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States’ Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”. 18. The applicant and Mr Babar Ahmad applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007. 19. On 27 March 2008 the applicant was transferred to Broadmoor Hospital from HMP Long Lartin because he met the criteria for detention under the United Kingdom’s mental health legislation. 20. On 11 November 2011 the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health considered the applicant’s case and concluded, having considered the evidence from the applicant’s clinical care team, that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety. 21. In his statement to the Tribunal, Dr A. Payne, a Consultant Forensic Psychiatrist, indicated that: “[The applicant’s] insight into his illness is limited and if returned to prison he would be exposed to significant stress given the conditions of his detention, the uncertainty of his case and his potential extradition and lengthy incarceration in conditions of solitary confinement. His compliance with medication would be uncertain, particularly in the medium to long term. These factors would be likely to lead to a relapse with deterioration in his mental health and the risk of a consequent deterioration in his physical health due to poor fluid and food intake. I am therefore of the opinion that his mental disorder is of a nature that requires his detention in hospital for medical treatment and that such treatment is necessary for his own health and safety. I do not believe that there is sufficient evidence available to justify his detention on the grounds of his risk to others.” 22. Dr Claire Dillon, a Consultant Forensic Psychiatrist, indicated in a report dated 12 April 2012, that: “Mr Aswat suffers from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditory hallucinations, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. Mr Aswat’s condition is currently well controlled on amilsulpride (anti-psychotic medication). However, he has only partial insight into his illness and he would be likely to relapse if he ceased taking his medication. Mr Aswat has undertaken psychological work to enhance his understanding of his mental illness and he is able to recognise the need for professional support to manage this. In view of the lack of convictions for violent offences, Mr Aswat has not undertaken any offence-related work whilst at Broadmoor, as the decision of the European Court of Human Rights was awaited. Mr Aswat engages in occupational and vocational activities within the hospital and these, along with his attendance at the Mosque, have helped to prevent any significant deterioration in his mood.” 23. On 8 May 2012 the United States’ Department of Justice indicated that upon his arrival in the United States, the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If he did so, the trial judge would have to assess his competency before the trial could proceed. In doing so, he would rely on the reports of medical professionals and on the applicant’s full medical records, including – presumably – those relating to his transfer to Broadmoor. 24. A competency evaluation could be appealed to the United States’ Court of Appeals for the Second Circuit. The Second Circuit would need to affirm the district court’s competency determination before the trial could proceed. 25. Prior to and pending trial the applicant would not be housed in ADX Florence as this institution did not house inmates who were unsentenced and pending trial. 26. If the applicant were to stand trial and be convicted of an offence, then following sentencing the Federal Bureau of Prisons would be responsible for deciding which institution he should be housed in. Medical, psychological and psychiatric concerns would be considered by the designation team before a determination of housing could be made. If a hearing was warranted, it would be open to the applicant to present evidence and make oral statements as to why he should not be designated to ADX Florence in light of his mental health. 27. With regard to the system and standard of mental health care available within the institutions, the Department of Justice indicated that: “Mental health services range from inpatient psychiatric treatment, to residential treatment programs, to outpatient psychological and psychiatric services. As in the community, the vast majority of mental health care in the Bureau is provided on an outpatient basis at the local institution level by the Psychology Services Department working in collaboration with either a full-time or consultant psychiatrist. Mental health services in the Bureau are delivered by psychiatrists and doctorallevel psychologists. This hiring standard ensures mental health providers in the Bureau have a minimum of four years of graduate level, supervised training in the treatment of mental illnesses. ... ... ... All Bureau facilities are equipped to manage mentally ill inmates, including those with schizophrenia, as each institution employs doctoral-level psychologists and has access to psychiatric services. Many inmates with mental illnesses, including schizophrenia, are managed successfully in mainline institutions through the treatments of choice which include medication, clinical case management, and cognitive-behavioural interventions. While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility, most inmates with this diagnosis are managed and treated in other facilities. Conditions of confinement are largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change (e.g., if his mental status deteriorated). The Bureau provides a structured living environment for inmates with significant staff oversight. This environment allows for prompt identification of mental health concerns, provides immediate access to mental health professionals, and facilitates compliance with mental health treatment. All inmates confined in the Bureau are evaluated by Health Services’ staff within 24 hours of arrival. At that time, their medication regimens are reviewed and continued, as appropriate. Thus, any mental health medications the inmate may be taking would be noted and continued as appropriate, upon admission. Additionally, an inmate’s mental health status is evaluated to determine whether there is any imminent risk of self-harm or suicide and whether he or she is stable and appropriate for placement in the designated setting. If Health Services’ staff has any concerns at the time of admission, a doctoral level psychologist will be called to consult. In all cases, regardless of the outcome of the initial evaluation performed by Health Services’ staff, all new designees are seen within 14 days for evaluation by a doctoral level psychologist. This evaluation focuses on collecting a mental health history, as well as identifying any current symptoms and determining treatment needs. All inmates are classified based on their mental health treatment needs to ensure appropriate placement, treatment, and follow-up services to be provided. Psychologists are a visible presence in the institution – in the cafeteria, on the compound, and in the housing units. In addition, a psychologist is on-call 24 hours a day, 7 days a week, with a prompt response to the institution in the event of a mental health crisis. All inmates have direct access to psychological services from doctoral level psychologists. Ordinarily, these services include: crisis intervention, ongoing clinical case management of mental illnesses, brief counselling focused on a specific issue or problem, individual psychotherapy, and psycho-educational and/or therapeutic groups. Inmates may access these services through self-referral or may be referred by institution staff. In addition, all inmates who need psychotropic medication are seen regularly by a psychiatrist. On occasion, despite best efforts to work with mentally ill inmates at the local institution level, more intensive mental health services are required. In these cases, an acutely mentally ill inmate is typically referred to one of the Bureau’s Psychiatric Referral Centres for acute psychiatric care. Under Bureau policy, acute psychiatric care is defined as care, including but not limited to, crisis intervention for inmates who are persistently suicidal, homicidal, or unable to function in the institution without creating a dangerous situation due to their mental illness. These inpatient services are generally brief, with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution. Alternatively, seriously, but not acutely, mentally ill inmates may be placed in one of the Bureau’s residential mental health treatment programs, which provide longterm, intensive mental health care. The Bureau is committed to providing highquality, evidence-based residential treatment programs to all inmates in need of these services. The BOP’s Psychology Treatment Programs (PTPs) are designed using the most recent research- and evidence-based practices. These practices lead to a reduction in inmate misconduct, mental illness and behavioural disorders; substance abuse, relapse, and recidivism; and criminal activity. These practices also lead to an increase in the level of the inmate’s stake in societal norms and in standardized community transition treatment programs. Transition treatment increases the likelihood of treatment success and increases the public’s health and safety. Inmates are referred to these programs based on need and appropriateness of the program to the inmate’s security level. Decisions concerning the appropriateness of transfer to a Psychiatric Referral Centre are based on the best judgment of the treating clinicians (i.e., psychologist, staff psychiatrist, or consulting psychiatrist) and are typically dependent upon such factors as the severity of the mental illness, the specific characteristics and resources of the institution, and relevant patient variables. Inmates who are disruptive to the orderly running of the institution, but who are not mentally ill, are not generally appropriate referrals to a Psychiatric Referral Centre. In the case of schizophrenia, the treatment of choice is medication, clinical case management, and cognitive behavioural interventions, with inpatient admissions only as necessary to manage brief psychiatric emergencies, should they arise. The Bureau attempts to manage and treat the mental illnesses of all offenders in the least restrictive environment appropriate to their mental health and security needs. Therefore, an inmate’s security level would only be adjusted due to schizophrenia should behavioural issues or a psychiatric emergency warrant such an adjustment. The Bureau currently incarcerates many inmates diagnosed with schizophrenia, the majority of whom is managed and treated successfully in general population settings.” 28. The Department of Justice further indicated that if the applicant were to be detained in ADX Florence, his detention would be subject to three types of review: classification, program review, and a progress report. The Department described these reviews as follows: “Classification and Program Review refer to the procedure whereby an inmate’s case is formally reviewed by the Unit Team. These meetings are generally referred to as "team" and the inmate is present. Team meetings are intended to give staff and inmates the opportunity to discuss issues in an open format. This is the inmate’s opportunity for individual attention and he or she should be encouraged to ask questions and discuss concerns. Classification is the initial team meeting whereby a careful review of the case and inmate’s history are discussed and relevant programs are recommended. The purpose of the meeting is to define clearly for the inmate: (1) sentence information, including financial obligations; (2) educational programs; (3) security/custody levels; (4) release plans; and (5) work assignments. These programs reflect the needs of the inmate and are stated in measurable terms. Generally, initial classification occurs within four weeks of an inmate’s arrival at his designated institution. Subsequent team meetings are referred to as Program Reviews. These meetings are held at least once every six months (every three months for inmates with less than one year remaining to serve) and are conducted to monitor and evaluate the inmate’s progress in all program areas. Program participation is discussed in relation to the schedule developed at initial classification. New and/or revised goals are developed as necessary. A progress report is the principal document used by the Unit Team to evaluate the behaviour and activities of inmates. The progress report is a detailed, comprehensive account of an inmate’s case history, prepared by the Case Manager at prescribed intervals during the inmate’s confinement. Generally, the Case Manager composes the progress report with input from other unit staff, work detail supervisors, and education instructors. The progress report reflects the inmate’s past status, assesses his current status, and offers an indication of anticipated accomplishments. This could include the inmate’s continued participation in a program; and what he plans to do at the completion of the program, or if he plans to use what he has learned upon his release. Information is also provided on the inmate’s relationship with others (both staff and inmates), particularly with respect to attitude, punctuality, etc. A progress report is required, at a minimum, once every three years. At the ADX, the inmates are provided with a copy of the most current progress report. Upon request, an inmate may read and receive a copy of any progress report retained in the inmate’s central file. An ADX inmate’s status is also reviewed under Institution Supplement FLM 5321.07(1), General Population and Step-Down Unit Operations. In addition, Mr. Aswat would have access to the Bureau’s Administrative Remedy Program, which is set forth in Program Statement 1330.16, Administrative Remedy Program, and, as with any inmate of the ADX, he would be able to seek review of any issue relating to their confinement before the United States District Courts. All of these procedures have been described in detail before and are not repeated here.” 29. The Department further indicated that if designated to ADX Florence the applicant’s mental condition would be subject to regular review. Inmates designated to ADX Florence underwent a psychological intake evaluation upon arrival and could, at that time, be referred to the mental health chronic care clinic, which is an outpatient clinic with services provided by a psychiatrist. Such an inmate would be seen at least every six months by the psychiatrist, but could request to be seen more frequently. In addition, he or she could receive psychological services monthly, weekly or daily (inpatient) based upon their classification, and more frequently should a crisis situation arise. 30. In Babar Ahmad v. the United Kingdom the Court found that if convicted the applicant would face a maximum penalty of thirty-five years’ imprisonment. None of the counts imposed a mandatory minimum sentence. 31. For a general summary of the relevant domestic and international law and practice regarding extradition, detention at ADX Florence, solitary confinement and sentences, see the Court’s judgment in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 62 - 165, 10 April 2012. 32. In Babar Ahmad the Court began by re-affirming its statement in Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996V that there was no room under Article 3 for any balancing of the risk of ill-treatment on return against the danger that an applicant posed in the Contracting State. Moreover, it found that this conclusion applied equally to extradition and to all other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment prescribed by Article 3 (§§ 166 – 176). However, the Court underlined that the absolute nature of Article 3 did not mean that any form of ill-treatment would act as a bar to removal from a Contracting State; on the contrary, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity required for there to be a violation of Article 3 in an expulsion or extradition case (§ 177). 33. With regard to the facts of the case, the Government accepted that there was a real risk that the first, third, fifth and sixth applicants would be detained at ADX Florence if convicted and the Court proceeded on that basis. It found that the physical conditions there – that is, the size of the cells, the availability of lighting and appropriate sanitary facilities and so on – met the requirements of Article 3 (§ 219). Moreover, the Court did not accept that the applicants would be detained at ADX Florence simply on account of their conviction for terrorism offences. Instead, it was clear to the Court that the Federal Bureau of Prisons would apply accessible and rational criteria, and placement was accompanied by a high degree of involvement of senior officials within the Bureau who were external to the inmate’s current institution. Both this fact and the requirement that a hearing be held prior to transfer provided an appropriate measure of procedural protection. Even if the transfer process were unsatisfactory, there would be recourse to the Bureau’s administrative remedy programme and the federal courts to cure any defects in the process (§ 220). 34. Moreover, the Court further held that if the applicants were convicted the United States’ authorities would be justified in considering them to pose a significant security risk and strictly limiting their ability to communicate with the outside world. In any case, the Court found that while the regime in the General Population Unit and the Special Security Unit at ADX Florence were highly restrictive and aimed to prevent all physical contact between an inmate and others, that did not mean that inmates were kept in complete sensory isolation or total social isolation. Although confined to their cells for much of the time, a great deal of in-cell stimulation was provided through television and radio, newspapers, books, crafts and educational programming. Inmates were also permitted regular telephone calls and social visits and even those under special administrative measures were permitted to correspond with their families. Furthermore, the Court found that applicants could talk to each other through the ventilation system and during recreation periods they could communicate without impediment. In any case, the Court observed that the figures showed that there would be a real possibility for the applicants to gain entry to step down or special security unit programs. Consequently, the Court concluded that the isolation experienced by ADX inmates was partial and relative (§§ 221 – 223). 35. With regard to sentencing the Court held that an extradition would only violate Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. However, it would only be in very exceptional circumstances that the applicant would be able to demonstrate that a sentence faced in a non-Contracting State would be grossly disproportionate (§ 238). In this regard, the Court noted that an Article 3 issue would only arise in respect of a mandatory life sentence without parole and a discretionary life sentence when it could be shown that the applicant’s imprisonment could no longer be justified on any legitimate penological grounds and that the sentence was irreducible de facto and de jure (§ 242). 36. Finally, the Court considered the position of persons with mental health problems. It noted that insofar as the applicants’ complaints concerned the conditions of pre-trial detention, those complaints were manifestly ill-founded because it had not been suggested that prior to extradition the United Kingdom authorities would not inform their United States’ counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in the United States’ federal prisons was substantially different to that available at HMP Long Lartin. Moreover, there was no reason to believe that the United States’ authorities would ignore any changes in the applicants’ conditions or refuse to alter the conditions of their detention to alleviate any risk to them. The Court further found that no separate issue arose with regard to post-trial detention (§ 249). | 1 |
train | 001-101388 | ENG | HRV | ADMISSIBILITY | 2,010 | BALENOVIĆ v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mrs Vesna Balenović, who is of dual Croatian and Slovenian nationality, was born in 1954 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The Government of Slovenia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had been working for the joint-stock company INA – Industrija nafte d.d. (hereinafter “INA” or “the company”) from 17 June 1983 until 18 April 2001, when she was dismissed. INA was founded in 1963 and is the national oil company of Croatia. Until 17 July 2003 the State was its sole stockholder. At present 47% of INA's stocks are owned by the Hungarian oil and gas company MOL, 44% by the Republic of Croatia (represented by the Croatian Government) and 8% by various institutional and private investors. On 1 January 2001 the applicant was promoted and assigned to the job of project manager in the office of Ž.V., a member of INA's management board and its executive director for oil refining and trade. In the course of her work the applicant analysed issues relating to losses of petrol during transport from refineries to petrol stations. She came to the conclusion that in 2000 the value of petrol lost during transport was 25,872,208.97 Croatian kunas (HRK), of which only HRK 5,056,818.86 had been compensated by the hauliers. Her findings suggested that the relevant persons in INA had shown considerable laxity as regards claiming compensation for the remaining losses. On the basis of her findings, the applicant prepared a report entitled “Road Haulage Claims during 2000 in the Logistics Sector” (Reklamacije u magistralnom transportu u toku 2000. godine u Službi logistike). On 19 January 2001 the applicant informed her immediate superior Ž.V. of her findings and gave him a copy of the above-mentioned report. On 20 January 2001 INA issued a public call for tenders for haulage services by publishing in daily newspapers an “Invitation for Bids for selection of the most competitive Bidders for annual road transport of petroleum derivates by tank trucks.” On 22 January 2001 the applicant sent a letter to INA's general director, T.D., and asked for a meeting. She indicated that she would like to discuss issues relating to petrol losses during transport and attached a copy of her above-mentioned report. According to the Government, T.D. had prepared a report for the supervisory board on the losses incurred during transport and as early as 23 January 2001 the supervisory board had decided that all unjustified losses should be covered by a unilateral set-off. The set-off had taken place and the losses had been covered by summer 2001. Since the applicant received no reply to her letter of 22 January 2001, on 29 January 2001 she sent a letter to the chairman of INA's supervisory board, S.L. She met him on 8 February 2001 and discussed the issues raised in her letter to T.D. The applicant also asked S.L. to revoke the public call for tenders of 20 January 2001 for external haulage services. She suggested that, instead of outsourcing haulage services, INA should have developed its own. Given that, according to the company's balance sheet in 2000, INA had paid HRK 149,105,944.37 to various hauliers, the applicant calculated that the company could take out a loan and buy or lease 232 new vehicles – a number equal to the number of vehicles used by the outside hauliers – and repay the loan in two years. According to the applicant, S.L. considered her findings regarding the petrol losses valid but refused to do anything to revoke the above-mentioned public call for tenders. According to the Government, S.L. copied the documents received from the applicant and gave them to internal control to investigate. On 9 February 2001 the applicant again wrote to S.L. She sent him a copy of her report concerning the petrol lost during transport and again asked him to revoke the public call for tenders of 20 January 2001. On 12 February 2001 the applicant wrote another letter to the general director T.D. Adducing the same reasons as in her letter to S.L. of 9 February 2001, she invited him to revoke the above-mentioned public call for tenders of 20 January 2001 for external haulage services. The applicant also referred to her previous letter of 22 January 2001, which had remained unanswered, and the issues raised therein. She again asked for a meeting. On 13 February 2001 the applicant submitted her own bid in response to the public call for tenders for external haulage services. In so doing she asked the Commission for Public Tenders to change the business strategy of hiring external haulage companies and to accept her idea of developing INA's own vehicle fleet. On 3 April 2001 the daily newspaper Slobodna Dalmacija published an article entitled “[S.L.] covers up a crime within INA worth 40 million [German] marks” ([S.L.] prešućuje kriminal u Ini težak 40 milijuna maraka). The article suggested that INA should build up its own vehicle fleet instead of engaging outside hauliers. It was submitted that, according to the company's balance sheet, in 2000 INA had paid HRK 149,105,944.37 to various haulage companies and argued that instead of doing so it could have taken out a loan and bought or leased 232 road tankers. After repaying the loan in two years, over the following seven years INA would, by using its own vehicle fleet, have been earning 70,000,000 German marks (DEM) per year. In addition, this would have created 500 new jobs and resolved the problem of INA's redundant employees. The article also relied on the applicant's findings concerning the petrol lost during transport between refineries and petrol stations. It mentioned that the value of the lost petrol was HRK 25,872,208.97, of which only HRK 5,056,818.86 had been reclaimed from the hauliers, and stated that INA's management had done nothing or very little in order to obtain compensation for the remaining losses. The article also stated that T.D. and S.L. had turned a deaf ear to the warning by the applicant about the company's detrimental business policy. Finally, the article stated that there would be further articles on the subject. On the same page an article entitled “The problems started when I discovered manipulations” (Problemi su počeli kad sam otkrila manipulacije) was published, containing an interview with the applicant in which she raised her concerns about INA's business policy. The relevant part of the article reads as follows: “The problems started when I discovered manipulations ... I was amazed and surprised when I found out that, in spite of the information on accumulated losses, INA had published a new call for tenders for hiring external hauliers... ... Mrs Balenović spent months systematically compiling data on haulage costs within INA. What she discovered seemed to her of such enormity and significance that she attempted to discuss it with the leading figure of the national oil company, [T.D.]. When she realised that within INA nobody understood what she was saying, she sought the assistance of the Deputy Prime Minister and chairman of INA's supervisory board, [S.L.] She also turned to [I.D.], adviser to the President of the Republic, who said that her discovery was chilling. Her colleagues in the tenders commission for the selection of external companies for road haulage said that she had discovered some amazing things, but they would have to proceed as ordered by the bosses. Thus, Mrs Balenović found herself transferred from an area about which she knew a great deal, or even everything, to a fine-sounding job in another sector, in which she had no experience. Why did you decide to go public with the details of the INA's call for tenders for hiring external haulage companies? I have been working in INA's transport sector for 19 years and understand all the problems in that part of the company. During all these years, I have been monitoring and analysing business results in the field of transport. I felt terrible when I realised that INA had the production and the market, but no haulage to link these two sectors. Since all analyses show a trend of generating loss, while, at the same time, some simulations of potential business activities show that it would be much better to run business in a different way, that is, with our own vehicle fleet, I tried to demonstrate this to the company's management. Since those people did not show the slightest interest in what I was saying, and even started ignoring or marginalising me, I decided to make the only move possible which would ensure that what I was advocating would not remain at the bottom of someone's drawer. The best option What was the exact reaction of your superiors when you tried to acquaint them with the results of your analyses and ideas? I showed the first indicators to [Ž.V.], a member of the management board and Executive Director for Refining and Trade. As long as my communications were verbal, reactions were positive. I would even say I was encouraged to carry on with what I had started. That was in August last year. [Ž.V.] then said that he would not allow another call for tenders for hiring external haulage contractors to be issued, but would rather advocate development of [INA's] own fleet. Everything I told him, I visually illustrated to him as well. That means I showed him how many road tankers INA could buy for the sum paid annually to haulage contractors. It was about 100 completely new road tankers, fitted out to the most stringent ecological standards. Unfortunately, all this remained at the verbal level, and the idea of purchasing our own fleet was not developed further. Instead of issuing a call for tenders for the purchase of road tankers, on 20 January 2001 another call for tenders was published for hiring external haulage contractors for road haulage. What did you do when you saw that the call for tenders which [Ž.V.] had said would not be published was in fact published? I was amazed and surprised. I had at least expected that someone would invite me for a discussion, so that we could again examine together which option would be the best and the most economical for the company. Why did they change from being enthusiastic to ignoring you? My proposals were obviously sound and indicated that normal costs had mostly been exceeded during the time of the former management. The problems began when I insisted that my ideas should also be implemented in the areas for which the present management bears the responsibility. I showed them clearly that we had practically commenced tilting at windmills, since in some sectors we were analysing excessive costs in the past, which were still being generated today to a greater extent. Purchase of road tankers Is it not unusual for an employee of INA to submit a bid in response to a public call for tenders for hiring external haulage contractors, especially because you do not have the required road tankers available? Of course I did not have that number of road tankers. I submitted the bid solely to demonstrate that INA could itself acquire the required number of vehicles. The deadline for repayment of loans to business banks would not have been longer than three years. Since it was stated in the call for tenders that vehicles up to ten years old were required, it was clear that in the subsequent seven years, after repayment of the loan, the road tankers would only earn money. We are talking about 232 tankers. If you parked them one behind the other, the line would be three kilometres long. I waited for fifty minutes, until the call for tenders closed, and then, seeing that it was not going to be revoked, as I had asked the chairman of INA's management board [T.D.] and the chairman of the supervisory board and the Deputy Prime Minister of Croatia, S.L., to do, I decided to submit a bid which would indicate the detrimental effects of hiring external haulage contractors for road haulage. How did the Deputy Prime Minister of Croatia, S.L., react when you showed him your analyses? He said that it seemed that I had collected the data very meticulously and that they were frightening. Then I asked him what he intended to do about the public call for tenders, and he answered that it would have to go ahead. What he thought about the work I had done, the results of which I had shown him, is best illustrated by the fact that he drew my attention to a job advertisement which the Government had published for, as was written there, 'educated, capable and ambitious people'. He emphasised that my business reports were a good example of how economic crimes could be detected.” On 4 April 2001 Slobodna Dalmacija published another article, entitled “INA: 25 million kunas evaporated between refineries and petrol stations” (INA: Od rafinerije do benzinskih crpki isparilo 25 milijuna kuna). Alongside it a smaller article was published entitled: “500 new jobs lost – What Vesna Balenović proposed in her analysis, but INA did not accept” (Propalo 500 novih radnih mjesta – Što je u svojoj analizi predložila Vesna Balenović, a INA nije prihvatila). Both articles presented, inter alia, the contents of the letters the applicant had sent to T.D. and S.L. about the need and justification for developing INA's own vehicle fleet. On 5 and 6 April 2001 Slobodna Dalmacija continued to write about INA's business policy in articles entitled “INA loses 348 thousand kunas daily” (INA dnevno gubi 348 tisuća kuna) and “INA loses money on hauliers” (INA gubi novac na prijevoznicima). On 6 April 2001 the reaction of the management of INA was also published under the headline: “Lower costs with others' road tankers” (Manji troškovi s tuđim cisternama), which stated that the use of external hauliers was the usual practice in the oil industry, and that an independent auditing company, Arthur Andersen, had established that this option was cheaper for INA. In an article entitled: “Private hauliers are earning 20 thousand (German) marks per month – Vesna Balenović presents new evidence of fraud within INA” (Privatni prijevoznici zarađuju mjesečno 20 tisuća maraka – Vesna Balenović iznijela nove dokaze o malverzacijama u INI), published in Slobodna Dalmacija on 7 April 2001, the applicant openly accused INA's management for the first time of corruption and nepotism. In particular, she submitted that members of the management had had a personal interest in maintaining the current state of affairs, in which haulage services were being outsourced to the detriment of the company, because they were either receiving a commission from the hauliers or were personally involved in providing haulage services through their relatives. The article reads as follows: “VESNA BALENOVIĆ PRESENTS NEW EVIDENCE OF FRAUD WITHIN INA Private hauliers are earning 20 thousand [German] marks per month Individuals in INA's management structure are involved in a private business of transporting oil, and so are some high-ranking State officials. INA has already lost more than 25 million kunas through various machinations 'Private hauliers providing services to transport oil derivatives for INA are in collusion with INA's management, and therefore it suits all of them that this kind of public call for tenders, which has now been issued, goes ahead and is implemented', Vesna Balenović, INA's expert for economic affairs, told journalists on Friday. Balenović's claims concerning INA's economically unsound decision to hire private hauliers instead of acquiring their own road tankers to transport fuel have been published during the past few days in a series of articles in this newspaper. Balenović remains firmly of the opinion that private hauliers are paying the management hefty fees for their part in transporting derivatives for INA, claiming that a single public call for tenders 'brings in ten million marks in such fees'. Balenović goes even further in her accusations, claiming that some individuals in INA's management structure are involved in a private business of transporting oil, and she has even gone so far as to state that some high-ranking State officials were also involved. 'This does not come as a surprise if I tell you that a private haulier, in order to cover the complete costs of transporting derivatives, which include all road tankers' maintenance costs, the driver's salary and other expenses, spends around 65,907 kunas, while his net profit is between 20 and 25 thousand marks a month', claims Balenović, backing up her claims with a large number of documents. 'A private haulier working for a large global oil company like Shell will make enough money to purchase a new road tanker in about five years, while our private hauliers transporting oil for INA manage to do the same in a year. From this it is quite clear that INA is paying its hauliers too much, and that large amounts of money are flowing', said Balenović, backing up her words by documents from which it can clearly be seen that during 2000 INA paid private hauliers around 153 million kunas. Balenović suggests that if INA decided to transport derivatives using its own road tankers, along with keeping part of the profit which private hauliers are now putting in their pockets, the company would be able to use loans to purchase 232 completely new, high-quality road tankers, and pay them off within two years. She claims that a notorious theft of fuel is also going on within INA. The managers and transport organisers, in collusion with private hauliers, are holding back [the enforcement of] claims for losses during transport, so that after three years, when the statutory limitation period elapses, hauliers can not longer be liable for them. 'Through such machinations, INA has already permanently lost more than 25 million kunas', said Balenović. She then produced a series of documents which, according to her words, prove that fuel theft is also being carried out during transport by INA's own road tankers.” Lastly, on 11 April 2001 Slobodna Dalmacija published an article entitled: “Private hauliers damaged INA to the tune of twenty million kunas” (Privatni prijevoznici oštetili su Inu za dvadeset milijuna kuna) in which the business policy of INA was again called into question, as was the objectivity of the findings of the auditing company Arthur Andersen. On 18 April 2001 INA summarily dismissed (izvanredni otkaz ugovora o radu) the applicant from her job on account of her statements in the press. The relevant part of the decision reads as follows: “[It has been] established that Vesna Balenović harmed the business reputation of INA by her unauthorised statements in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001 in which she came up with a series of inexpert analyses of the company's business policy and accusations against INA's ... management, and presented the manner in which INA runs its business in an extremely negative light. Apart from the above, ... she made available to the public information on the course and content of preliminary negotiations on business cooperation, calculations of costs related to transactions involving [certain] goods and procurement of [certain] services through a public call for tenders, data on financial transactions and financial indicators, and data whose disclosure ... may be detrimental to the business interests of INA. It was further established that Vesna Balenović did not obtain authorisation to take the documents out of INA's business premises or to convey them to other persons or present them in the media as she did. It follows from the foregoing that Vesna Balenović, by acting in the manner described above, did not observe INA's [internal regulations] on business correspondence of 1 September 1998 or the [internal regulations] on business secrets of 27 February 1997, and thereby committed particularly serious breaches of the employment-related duties laid down in Rule 31 of [INA's internal employment regulations] (Pravilnik o radu): - non-performance of employment-related duties; - non-observance of instructions, decisions and other acts of the employer; - non-observance of the law, other regulations and the collective agreement; - disclosure of a business secret. ... Given that because of the [above-] mentioned particularly serious breach of employment-related duties, the continuation of the employment relationship is no longer possible, a decision has been made as stated in the operative provisions.” On 2 May 2001 the applicant lodged a request for the protection of her employment-related rights (zahtjev za zaštitu prava) in respect of the decision to dismiss her. On 14 May 2001 INA dismissed the applicant's request. On 23 May 2001 the applicant brought a civil action against INA in the Zagreb Municipal Court (Općinski sud u Zagrebu) challenging her dismissal. She sought reinstatement and salary arrears. On 10 December 2002 the court delivered a judgment dismissing the applicant's action. The relevant part of that judgment reads as follows: “... [T]he plaintiff considers that the dismissal was unlawful [inter alia] because: - ... - [she did not make the statements in the media] as the respondent's representative but as a citizen employed in a State-owned commercial company exercising her civil right and [discharging her civic] duty to protect, by appropriate statements in public, State property for the benefit of all the employees of the respondent and all Croatian citizens ... ... In the opinion of this court, irrespective of whether the plaintiff disclosed a business secret or financial or other information which does not represent a business secret, she acted contrary to the interests of the employer ..., regardless of the employer's ownership structure and the accuracy of the published information, in that she made extremely negative statements in the media, as a result of which she primarily harmed the reputation of the employer. By making public statements in this way, the plaintiff acted contrary to the [internal regulations] on business correspondence in INA ..., Rule 7 of which provides that the authority to conduct business communications and correspondence and provide information to the media lies exclusively with the general director and the director of the sector of promotional activities ..., and Rule 10 of which provides that non-observance constitutes a breach of the employee's duty, with the resultant consequences. Each of the above-mentioned breaches is, in the opinion of this court, [in itself] a sufficient reason allowing the respondent to lawfully dismiss the plaintiff ... because [she] committed particularly serious breaches of employment-related duties, as a result of which, taking into account all the circumstances and the interests of both parties, the continuation of the employment relationship is no longer possible. It is to be noted that this court cannot find a 'civic duty' in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act, which provides that the plaintiff, as a citizen, must file a criminal complaint against the perpetrator if she considers that a criminal offence has been committed. The civic duty is thereby discharged and the competent State authorities then proceed with the investigation of the criminal offence and identification of the perpetrators. It is also to be noted that the Data Protection Act, in particular section 25, provides that revealing a business secret ... in a criminal complaint or when reporting an administrative offence to the competent authority or to the supervisory authority in the exercise of one's own employment-related rights – but not to the public – is not to be treated as disclosure of a business secret.” On 11 November 2003 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the judgment delivered at first instance. In particular, the County Court held that the relevant provisions of the Labour Act protected employees from dismissal only in cases where they turned to the State authorities with a view to enforcing their rights or reporting a suspicion of corruption, but not in cases where they sought to do so through the media. The relevant part of the County Court's judgment reads as follows: “[The first-instance court] established that the plaintiff, in her public statements in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001, expressed a whole series of negative comments and serious but flippantly made allegations about the business activities and management of the respondent, and in doing so acted contrary to the interests of her employer, and jeopardised and harmed the business reputation of the respondent. ... Here it has to be mentioned that the first-instance court did not examine whether the plaintiff's comments were made competently [i.e. expertly], because that is outside the scope of this labour dispute. Those are questions relating to how a company runs its business, a matter within the exclusive competence of the management board, whereas the supervisory role is exercised by the supervisory board, and not an individual employee. In this connection it has to be noted that under section 108(2) of the Labour Act, recourse by an employee to the [competent] executive authorities does not constitute a justified reason for [his or her] dismissal. ... [U]nder section 108(3), recourse by an employee to the competent State authorities on account of a reasonable suspicion of corruption, or the filing by an employee of a criminal complaint in good faith on the grounds of that suspicion, does not constitute a justified reason for dismissal. ... [I]t follows that the law protects an employee only when applying to the competent State authorities, and not in respect of the media ... Hence, if the plaintiff wanted to inform the public of the existence of possible irregularities and illegalities in the respondent's operations, she could have done so by applying to the competent State authorities, which would then, pursuant to section 5 of the Media Act, be bound to make that information available to journalists... ... Therefore, the first-instance court correctly established that the plaintiff's unauthorised statements in the press constituted ... an important fact justifying [her dismissal]. Lastly, the plaintiff also made publicly available various financial data, data concerning the course and content of preliminary negotiations on business cooperation etc., which are mentioned in the published articles, which she was not authorised to do, and in doing so seriously breached her employment-related duties within the meaning of Rule 31 of the respondent's [internal employment regulations].” On 24 May 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed a subsequent appeal by the applicant on points of law (revizija). The relevant part of the Supreme Court's judgment reads as follows: “In the contested decision on summary dismissal of the plaintiff, ..., the respondent, as the employer, refers, as the justified reason for dismissal, to the statements by the plaintiff in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001. It was established in the proceedings that in these statements the plaintiff made: - extremely negative comments about the respondent's business activities and the management of resources, - allegations of conduct such as manipulations and machinations in the respondent's business affairs, as well as the covering up of crime on the part of the respondent's administration and management. The lower-instance courts found that this kind of behaviour on the part of the plaintiff constituted a justified reason for dismissal within the meaning of section 107, paragraph 1, of the Labour Act. ... In this case, answering the following question of principle is of decisive importance: What are the repercussions of the public statements of an employee, in which extremely negative comments about the business activities and management of resources of an employer were made, both for the employment contract and for the employment relationship between the employee and the employer? And also: What is the significance of the plaintiff's public statements in the present case? It should be noted that, in principle, public statements of this kind by an employee may have repercussions for the employment relationship, as a particularly important fact, as a result of which, while taking into account all the circumstances and interests of both parties, the continuation of employment is not possible. In this particular case, the aforementioned statements by the plaintiff evidently damaged the reputation of the respondent, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation and be trusted in the business world. Therefore, this kind of behaviour on the part of the plaintiff has significant repercussions for the employment relationship between the parties and gives the employer a justified reason for termination of the employment contract, within the meaning of section 107(1) of the Labour Act. This precisely, having regard to the given circumstances, constitutes a particularly important fact, as a result of which the continuation of employment is not possible. ... In the present case, the depiction of the employer's business activities in an extremely negative light in the media by the employee constitutes a particularly important fact of this kind, which gives the employer a justified reason for termination of the employment contract. The plaintiff's reliance on her 'civic duty' is unfounded. In this regard the assessment of the second-instance court to the effect that the plaintiff could realise her 'intention to prevent damage and protect the property of the respondent' only by turning to, and lodging a complaint with, the competent State authorities, which would have resulted in that information being available to the press and other media – and could not have served as a reason for dismissal – is correct.” The applicant then lodged a constitutional complaint against the Supreme Court's judgment, alleging infringements of her constitutional rights to equality, equality before the law, work and freedom of expression. On 18 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint. It served its decision on her representative on 6 November 2006. Replying to the applicant's argument that she had been dismissed despite the fact that she had merely been discharging her statutory duty to report criminal offences, the court noted that the applicant had filed her criminal complaint (see below) only after she had made the statements in question to the media. It further held: “As regards the complainant's criticism directed against the part of the first-instance judgment referring to the notion of a 'civic duty', the Constitutional Court points out that the part of the reasoning in which the first-instance court notes that 'this court cannot find a civic duty in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act ...' is [rather] unfortunately worded. This does not, however, affect the validity of that court's legal view regarding the 'civic duty' of the complainant as an employee, according to which the complainant – if she considered that her employer had committed a criminal offence – should, as a citizen, have filed a criminal complaint against the perpetrator, whereupon the competent State authorities would have proceeded to investigate the criminal offence and identify the perpetrators. ... The Constitutional Court notes that the complainant justifies her conduct towards the employer (that is, her statements in the media), for which the employer dismissed her, by claiming that 'she expressed her personal opinions primarily as a citizen', and as an employee in the part where she objected to the 'appropriation of State property'. The Constitutional Court notes in this connection that a breach of an employee's duties towards an employer cannot be justified by the right to express a personal opinion in the manner presented by the complainant in her constitutional complaint.” The applicant submitted that, before making her statements in the media, in the period between 8 and 14 February 2001 she had reported the irregularities she had noticed to the Zagreb police authorities, in particular to a certain Inspector J.P. On 9 May 2001 the applicant filed a criminal complaint with the Zagreb Municipal State Attorney's Office (Općinsko državno odvjetništvo u Zagrebu) against several INA executives. In particular, the applicant accused the chairman of the supervisory board, S.L., the chairman of the management board (that is, the company's general director), T.D., members of the management board Ž.V. and M.V.U., the director of wholesale trade and logistics, M.B., and the director and assistant director of retail trade, D.P. and S.M., of several criminal offences such as business misfeasance, abuse of authority in business operations and conclusion of a prejudicial contract. In doing so she repeated, in substance, her criticism concerning INA's business policy in the field of haulage raised in her previous statements to the press. On 22 September 2004 the State Attorney's Office dismissed the applicant's criminal complaint. As to the applicant's accusations that outsourcing haulage services instead of developing its own vehicle fleet was detrimental to the company and amounted to a criminal offence, the State Attorney replied that it was for INA's management to decide which business policy to adopt and found no elements of criminal liability in the existing policy, adding that the applicant's allegations simply represented her own views concerning INA's business strategy. As regards the applicant's claims concerning losses of petrol during transport from refineries to petrol stations and the alleged negligence in claiming compensation for those losses from the hauliers, the State Attorney found that they had occurred in the period before July 2000, when the director of wholesale trade and logistics had been Mr D.K. After the accused M.B. had become the director of that sector the situation had improved significantly. The relevant part of the State Attorney's decision reads as follows: “... as regards the reported individual [M.B.], who became Director of the Logistics Sector on 21 July 2000, it was established that during his term of office, INA's claims against hauliers for losses [in transport] had been settled through a set-off with freight, that is to say that the majority of claims from the previous period were successfully settled by a mutual set-off, while the amounts which were not settled in that way were subject to default interest rates. This is confirmed by the report of the Sector for Internal Audit and Control, and by other documentation collected, from which it follows that the problems concerning recovery of claims for losses [during transport] had been identified as early as 1997, although these in fact dated back to 1993, and that the problems culminated in 1998 and 1999, and at the same time, it has been established that from 2000 onwards these problems started to be resolved. ... On the basis of all the above, it is indisputable that the actions of ... [M.B.], or the actions of any other responsible persons within INA, ..., do not correspond to the [statutory] description of a criminal offence [defined in] Article 339 of the Criminal Code, or of any other criminal offence prosecutable automatically. As regards the remainder of the criminal complaint by Vesna Balenović, relating to the above-mentioned actions of ... the entire management of INA, it has been established that these allegations were unfounded. Mrs Vesna Balenović, who filed the criminal complaint, does not provide evidence or facts giving rise to a reasonable suspicion that criminal offences had been committed, but rather submits arguments for, and explains her concept of, the strategic development and business policy of INA. It is to be noted that a business policy of a commercial company cannot give rise to criminal liability in respect of its management, under the Commercial Companies Act. ... Therefore, the allegations in the criminal complaint – that INA hired external hauliers instead of investing in its own vehicle fleet – represent the complainant's vision of the development strategy of INA, rather than a description of the actions of the reported individuals, which [might amount to criminal offences]. In this connection, it is to be noted that from the document enclosed with the file outlining the development strategy of INA, which was prepared by the auditing company Arthur Andersen, it follows that, ..., INA should hire reputable hauliers for transporting derivatives, rationalise the network in order to support the wholesale and retail sectors, etc. Therefore, [hiring external hauliers] was a business decision which did not [amount to] any criminal offence. ... Having regard to all the above, I consider that: - ... - as regards the reported criminal offence provided for in Article 291 of the Criminal Code (misfeasance in business operations), it has been established, as mentioned above, that the problems of unpaid claims for losses in transport dated back to 1993 (according to the Report of the Sector for Internal Audit and Control). Therefore, the reported individuals cannot in any way be responsible for that [situation] because they joined INA in 2000. [What is more,] it has been established in this connection that from that time on they had taken numerous measures with a view to improving the situation in the transport [sector], and made the further engagement of hauliers conditional upon the set-off of earlier debts and thereby managed to settle more than two-thirds of earlier unpaid claims. - as regards the alleged commission of criminal offences provided for in Articles 292 and 294 of the Criminal Code, it should be emphasised that it has not been established that any legal entity had obtained an unlawful pecuniary gain at INA's expense, which is a statutory element of the criminal offence defined in Article 292 (abuse of authority in business operations). Nor has it been established that contracts – which the reported individuals had [allegedly] concluded and which they had [allegedly] known to be detrimental to INA – existed, which is a statutory element of the criminal offence defined in Article 294 of the Criminal Code (concluding a prejudicial contract). Having regard to all the above, the criminal complaint should be dismissed, ... and [this] decision delivered to the supervisory board of INA, given the fact that the criminal complaint was filed against members of INA's management board, so that the injured party may exercise the statutory right to take over the prosecution should it still consider that the actions of the reported individuals amount to the above-mentioned criminal offences.” The applicant then attempted to take over the prosecution as the injured party (oštećenik kao tužitelj) and on 5 November 2004 lodged a request with the investigating judge of the Zagreb County Court, asking him to open an investigation in respect of the persons designated as the accused in her criminal complaint. On 12 June 2007 the investigating judge declared her request inadmissible, finding that she was not authorised to lodge such a request because it was INA and not her who was the injured party. On 18 June 2006 the applicant appealed against that decision to a panel of the Zagreb County Court. On 5 July 2007 the panel of the Zagreb County Court dismissed the applicant's appeal and upheld the first-instance decision of 12 June 2007. On 9 March 2007 the applicant lodged her application with the Court. By letter of 18 March 2009 the applicant was informed that on 16 March 2009 the President of the First Section had decided to communicate the complaint concerning freedom of expression to the Government, who were invited to submit written observations on the admissibility and merits of the case. Enclosed was an information note in Croatian containing instructions to applicants on the proceedings after communication of an application to the Government. The relevant part of the information note reads as follows: “5. Friendly settlements: The Government are also requested to indicate their position regarding a friendly settlement of your case and to submit any proposals they may wish to make in this regard (Rule 62). The same request will be made of you when you receive their observations. There is a requirement of strict confidentiality in respect of friendly settlement negotiations under Rule 62 § 2, and any proposals or submissions in this respect should be set out in a separate document, the contents of which must not be referred to in any submissions made in the context of the main proceedings.” By letter dated 25 May 2009 the Government informed the Court that they were interested in reaching a friendly settlement with the applicant in the present case. By letter dated 8 July 2009 the Government informed the Court of their specific proposal with a view to securing a friendly settlement, and asked the Court to forward their proposal to the applicant. By letter of 16 July 2009 the applicant was notified of the Government's proposal and invited to reply to it by 15 September 2009. In their letter, dated 13 August 2009, the Government submitted that the applicant had not respected the confidentiality of friendly-settlement negotiations because on 6 August 2009 she had disclosed to the media the contents of the Government's friendly-settlement proposal. In support of their allegations, the Government enclosed a DVD containing the applicant's statements to Croatian Television and Nova TV on 6 August 2009, as well as copies of articles published in the daily newspapers Jutarnji list, Večernji list, Slobodna Dalmacija and Novi list on 7 August 2009 containing the applicant's statements to the press. By letter of 27 August 2009 the Government's letter of 13 August 2009 was forwarded to the applicant, who was also requested to comment on it and submit an explanation for the alleged breach of the confidentiality of friendly-settlement proceedings. By letter dated 11 September 2009 the applicant refused the Government's proposal for a friendly settlement. At the same time she rejected the Government's allegations that she had breached the confidentiality of friendly-settlement negotiations. The Criminal Procedure Act (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998 (corrigendum), 58/1999 and 112/1999), as in force at the material time, read, in its relevant part, as follows: Section 172 “(1) Citizens shall report criminal offences subject to public prosecution. (2) Cases in which failure to report a criminal offence constitutes a criminal offence shall be prescribed by law.” The Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997 and 27/1998 (corrigendum)), as in force at the material time, read, in its relevant part, as follows: “An officer of a legal entity in which he or she does not hold a majority share who, by knowingly violating the law or other regulations on business operations, manifestly conducts business recklessly and thereby causes considerable pecuniary damage to that legal entity shall be punished by a fine or by imprisonment not exceeding three years.” “(1) An officer of a legal entity who, with the aim of acquiring unlawful pecuniary gain for his or her own legal entity or any other legal entity: (i) creates or keeps illegal funds within the country or in a foreign State, (ii) by drawing up false deeds, balance sheets, assessments or inventories or by other false presentation or concealment of facts misrepresents the state and flow of funds and success in business operations, (iii) places the legal entity in a more favourable position by obtaining funds or other benefits which would not be granted to it under the existing regulations, (iv) in discharging its obligations in respect of budgets or funds, withholds the levies due, (v) uses the earmarked funds at his or her disposal contrary to their purpose, (vi) in some other way seriously breaches the law or business rules concerning the use and management of assets, shall be punished by a term of imprisonment of six months to five years. (2) If a considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article and the perpetrator acted with intent to acquire such gain, he or she shall be punished by a term of imprisonment of one to eight years.” “(1) Anyone who, as a representative or agent of a legal entity in which he or she does not hold a majority share, concludes a contract which he or she knows to be prejudicial to the legal entity or concludes a contract in breach of authority, thereby causing damage to that legal entity, shall be punished by a term of imprisonment of six months to five years. (2) If the perpetrator of the criminal offence referred to in paragraph 1 of this Article has accepted a bribe for so acting, he or she shall be punished by a term of imprisonment of one to ten years.” The Labour Act (Zakon o radu, Official Gazette nos. 38/1995, 54/1995 (corrigendum), 65/1995 (corrigendum), 17/2001, 82/2001, 114/2003, 123/03, 142/03 (corrigendum), 30/2004 and 137/2004 (consolidated text)), reads, in its relevant part, as follows: “The person who employs (hereinafter 'the employer') shall give a job to the employee and pay him or her for the work carried out, whereas the employee shall, pursuant to the employer's instructions given in accordance with the nature and the type of work, personally perform the job taken.” “In the employment relationship the employer and the employee shall comply with the provisions of this Act and other statutes, international agreements concluded and ratified in accordance with the Constitution and published, other legislation, collective agreements and internal employment regulations.” “An employer or an employee may give notice terminating the employment contract.” “An employer may give notice terminating an employment contract, subject to a prescribed or agreed notice period ('regular notice'), if he or she has a justified reason for doing so, in the following cases: (i) if the need for performing a certain job ceases for economic, technological or organisational reasons ('notice due to business reasons'), (ii) if the employee is not capable of duly performing his or her employment-related duties because of some permanent characteristics or abilities ('notice due to personal reasons'), or (iii) if the employee breaches his or her employment-related duties ('notice due to the employee's misconduct').” “(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period ('summary notice') if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible. (2) An employment contract may be terminated on summary notice only within fifteen days from the date when the person concerned found out about the fact on which the summary notice is based.” “(1) ... (2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal. (3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.” | 0 |
train | 001-86664 | ENG | DEU | ADMISSIBILITY | 2,008 | ROMMEL v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Otto Mallmann;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | The applicant, Mr Steffen Rommel, is a German national who was born in 1973 and lives in Grafenhainichen. The German Government (“the Government”) are represented by their Agent, Mrs A. WittlingVogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant brought proceedings in 1994 against a hospital before the Zwickau Regional Court for alleged medical malpractice which had caused complete and irreversible paraplegia (Querschnittslähmung) at the age of thirteen, claiming damages of around 1.2 million German marks (DEM). On 10 October 1995, the parties entered into a revocable friendly settlement (widerruflicher Vergleich) before the Zwickau Regional Court, according to which the hospital agreed to pay 265.000 euros (EUR) to the applicant. The applicant, who was represented by his lawyer, was not present during the conclusion of the settlement and did not revoke the settlement within the provided period of one month, i.e. until 10 November 1995. Neither did the applicant’s lawyer, although the applicant claimed that he instructed him to revoke the settlement. In 1998, the applicant brought proceedings against his former lawyer for damages. The major legal issue during the proceedings was whether the applicant had instructed the defendant to revoke the settlement. It was undisputed between the parties that the applicant had handed over a written statement to the defendant on 7 November 1995 in which he asked him to revoke the settlement. The defendant had read the statement and subsequently returned it to the applicant. In the following conversation, the defendant had asked the applicant and his mother to reconsider their decision and inform him by 8 November 1995 whether or not he should revoke the settlement. The applicant’s mother then called on 9 November 1995 the defendant’s legal office and talked to his secretary. The content of the conversation was disputed between the parties. On 14 May 1999, the Zwickau Regional Court, in a judgment on the basis of the cause of action (Grundurteil), allowed the applicant’s claim. It found that the applicant had instructed the defendant to revoke the settlement on 7 November 1995. Therefore, the time-limit set by the defendant to inform him whether or not to revoke the settlement had no legal basis. In any event, the applicant had called the defendant’s legal office on 9 November 1995 in order to explain that he did not agree with the settlement. This was also supported by a letter which the defendant had sent to the applicant on 13 November 1995. On 6 April 2000, the Dresden Court of Appeal set aside the judgment of the Zwickau Regional Court and dismissed the applicant’s claim. It found that the applicant had failed to prove that he instructed the defendant to revoke the settlement. The Dresden Court of Appeal reasoned that the applicant had given such an instruction on 7 November 1995, but that he had subsequently agreed to reconsider his decision. After having heard the applicant’s mother and the defendant’s secretary as witnesses regarding the telephone conversation on 9 November 1995, the Dresden Court of Appeal found that the applicant’s mother had not given an instruction to revoke the settlement when calling the defendant’s legal office on that day. On 26 April 2000, the applicant filed his appeal on points of law with the Federal Court of Justice. After the applicant had asked for an extension of the time-limit on two occasions, he submitted his statement of grounds for appeal (Revisionsbegründung) on 14 August 2000. The Federal Court of Justice dismissed the applicant’s appeal on points of law on 24 June 2003. On 16 September 2003, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. | 0 |
train | 001-58842 | ENG | BGR | CHAMBER | 2,000 | CASE OF VARBANOV v. BULGARIA | 1 | Preliminary objection rejected (abuse of right of petition);Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 8. The applicant is a Bulgarian national born in 1930 and living in Sofia. He is an economist, now retired. 9. On 6 October 1993 a Mr Z. lodged with the District Prosecutor's Office (Районна прокуратура) in Sofia a complaint against the applicant, stating that he was mentally ill and dangerous. The applicant and Mr Z. had been involved in disputes related to their joint business activity which had been the object of five sets of judicial proceedings between them. The applicant had apparently threatened Mr Z., stating in a letter to him that, inter alia, the only possible method of getting his money back was “the axe”, and that “a dog deserves a dog's death”. Mr Z., for his part, threatened the applicant with punishment according to medieval laws. 10. Following the receipt of Mr Z.'s complaint, the District Prosecutor's Office opened an inquiry. The purpose of the inquiry was, initially, to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill someone. On 14 October 1993 the prosecutor transmitted the file to the local police department with instructions to investigate Mr Z.'s complaint and to serve the applicant with a warning that he should cease his unlawful behaviour. On 20 October 1993, after hearing the applicant, a police officer drew up a report in which he stated, inter alia, that the applicant had repeated his threats against Mr Z., and that he appeared to have mental problems and was likely to carry out his threats. The police officer also heard a neighbour of the applicant who stated that he was a troublemaker. 11. The parties have submitted to the Court documents in respect of the applicant's mental health. A certificate issued on 18 October 1993 by a doctor at the Sofia City Psychiatric Clinic (Градски психиатричен диспансер) established that the applicant, who had requested a psychiatric examination declaring that he needed to have his capacity to make a will certified, was mentally healthy. In their report of 9 November 1995, the medical experts who examined the applicant during his confinement in a psychiatric hospital (see paragraph 26 below) concluded that he had a paranoiac psychosis, that he was aggressive and posed a threat to others. In a later certificate, issued on 4 March 1996, another doctor who had examined the applicant found that he was mentally healthy. The applicant did not have a history of psychiatric problems. 12. In February 1994 the District Prosecutor's Office instructed the local police department to inquire whether it was necessary to request, from the competent court, the applicant's compulsory psychiatric treatment under section 36 of the Public Health Act (Закон за народното здраве). 13. According to the applicant's version of the facts, in October 1993 and again in April 1994 he submitted to the prosecution authorities a copy of the certificate of 18 October 1993 which established that he was mentally healthy (see paragraph 11 above) and another document to that effect. He alleged that he had gone to the Sofia City Psychiatric Clinic on two occasions requesting to be examined, but that had been refused. 14. As it transpires from the summary of facts contained in the medical report of 9 November 1995 (see paragraph 26 below), in the course of the prosecutor's inquiry the applicant was invited on 9 May and again on 5 September 1994 by the director of the Sofia City Psychiatric Clinic to come for a psychiatric examination. It appears that the applicant received these invitations. He sent letters in reply stating, inter alia, that he would not undergo an examination unless an international commission were set up, and described the hospital as “corrupt” and as a “department of the State security police”. 15. On 27 January 1995 a prosecutor from the District Prosecutor's Office ordered that the applicant should be brought by force to a psychiatric hospital, and be kept there for twenty days to undergo a psychiatric examination. This was necessary in view of the prosecutor's intention to submit to the competent court a request for the applicant's committal for compulsory psychiatric treatment. The order also stated that it was issued pursuant to section 36 of the Public Health Act, section 22 of Guidelines no. 295/85 of the Chief Public Prosecutor's Office (Указание на Главна прокуратура) and section 4(2) of Instruction no. 1/81 of the Ministry of Public Health (инструкция на Министерство на народното здраве). It was based on the material collected in the course of the inquiry (see paragraphs 10-14 above). 16. On 30 January 1995 the prosecutor's file was sent to the psychiatric clinic in Sofia, with a copy to the local police. On 3 May 1995 the District Prosecutor's Office asked the police to explain their failure to enforce the order of 27 January 1995. On 16 August 1995 the police returned the file to the District Prosecutor's Office with the explanation that the applicant had not allowed access to his home. On 23 August 1995 the District Prosecutor's Office again transmitted the file to the police and insisted on the enforcement of the order of 27 January 1995. 17. On 31 August 1995, on the basis of the prosecutor's order of 27 January 1995, the applicant was taken from his home by the police and brought to a psychiatric hospital. The applicant underwent psychiatric examinations. He was given sedatives. The doctors also interviewed his wife, asking her questions about his past. 18. On 4 September 1995 the applicant was diagnosed as suffering from pneumonia. A treatment with antibiotics was applied. 19. On 5 September 1995 the applicant's wife submitted a complaint to the Sofia City Prosecutor's Office (Градска прокуратура). She stated, inter alia, that the manner in which her husband was treated was inhuman, that she had not been given a copy of the prosecutor's order and that she had not been allowed to visit her husband in the hospital until 2 September 1995. She asked the prosecutor to release the applicant from the psychiatric clinic. 20. On 15 September 1995 the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia. In the following days his health improved. 21. It appears that during the first few days after his transfer to the general hospital the applicant remained under the control of a psychiatrist. He was instructed not to leave the room where he had been placed and was tied to his bed during the night. The applicant stated, and the Government did not dispute, that this situation lasted until 24 September 1995, when his health started to improve. 22. On 18 September 1995 the psychiatrists who were in charge of conducting the applicant's compulsory examination at the psychiatric hospital informed the District Prosecutor's Office about the applicant's transfer and requested an extension until 20 October 1995 of “the time-limit for the forensic psychiatric report”. The request was granted orally by telephone. It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic. 23. On 11 October 1995 a regional prosecutor wrote to the applicant's wife in relation to her complaint of 5 September 1995. The letter stated only that her husband had been transferred to a general hospital and that, therefore, the district prosecutor would be given additional time to deal with his inquiry. 24. On 16 October 1995 the applicant was discharged from the general hospital and went home as “no psychiatric treatment was necessary at [that] moment”, according to a psychiatrist who had examined him. 25. In November 1995 and later again the applicant complained in respect of the events of August-September 1995 to the prosecution authorities stating, inter alia, that the district prosecutor had acted unlawfully. The complaints were examined by the Sofia City Prosecutor's Office and then by the Chief Public Prosecutor's Office, which replied by letters of 1 February and 12 June 1996 respectively that the district prosecutor had complied with the applicable procedure. The applicant also sent numerous letters to the Minister of Health, to the courts and to other institutions complaining that he had been ill-treated and that the doctors and the prosecutors wanted to kill him. He received answers from the public-health authorities reciting the sequence of events and assuring him that his suspicions were unfounded. 26. In the continuing inquiry of the district prosecutor, three medical experts, who had examined the applicant at the time when he was at the psychiatric hospital, delivered a report dated 9 November 1995 in which they recommended compulsory treatment because, inter alia, he did not understand his condition, refused any form of voluntary treatment and was extremely aggressive. 27. In January 1996 the district prosecutor submitted a request to the Sofia District Court (Районен съд) for an order committing the applicant for compulsory psychiatric treatment under section 36(3) of the Public Health Act. On 30 April 1996, after a hearing, the court dismissed the request. The applicant's and the prosecutor's ensuing appeals were rejected as being out of time. 28. According to section 36(3) to (6) read in conjunction with section 59(2), section 61 and section 62(1) of the Public Health Act, a mentally ill person can be committed for compulsory psychiatric treatment by a decision of a district court. Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry, including a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry. The Public Health Act, as in force at the relevant time, did not contain any provision expressly authorising a prosecutor to order a person to be brought by force to a hospital and detained there for the purpose of such a psychiatric examination. Under section 62(2), a prosecutor could issue an order for a compulsory examination, but only in respect of alcoholics or drug addicts. Certain powers were given to the prosecutor where the person's state of health required emergency measures. In such a situation the chief medical officer of a hospital could order a person's temporary compulsory treatment. The doctor had to inform immediately the competent prosecutor, who had to institute proceedings before the competent court (section 36(5) of the Act and section 70 of the Act's implementing regulations). According to Section 70(2) of the Act's implementing regulations, if the prosecutor refused to institute judicial proceedings, the chief medical officer had to release the patient immediately. 29. The relevant law did not provide for an appeal to a court where persons were detained for an examination in the framework of a district prosecutor's inquiry. Section 105(4) of the Public Health Act, read in conjunction with the Administrative Procedure Act (Закон за административното производство), provided for a judicial appeal, but only against orders for compulsory treatment of persons suffering from a contagious disease (section 36(2)) and against “[other orders] of the public-health authorities”, not of the prosecution authorities. 30. Instruction No. 1/81 of the Ministry of Public Health is a piece of delegated legislation. It is based on section 2 of the supplementary provisions to the Public Health Act, which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of the Public Health Act. The instruction is published in the Official Gazette. Section 4(2) of the instruction, in its relevant part, provides as follows: “... the [forensic psychiatric] examination shall be effected by the health-care authorities with the consent of the person concerned. Where the person concerned does not consent, the health-care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [person's] examination without admission to a hospital, or for the [person's] temporary committal to a psychiatric clinic for the purpose of effecting a forensic psychiatric examination.” 31. Guidelines no. 295/85 of the Chief Public Prosecutor's Office is an internal document for prosecutors in their work in cases of compulsory medical treatment. It has not been published. Sections 16 et seq. concern the steps to be taken where there has been information that a person may be liable to compulsory psychiatric or other treatment. These provisions deal with compulsory examinations and treatment of persons of unsound mind, alcoholics and drug addicts, without distinguishing between these three categories (in contrast to the provisions of the Public Health Act, where separate rules exist). According to the guidelines, following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and, if there are clear indications that a psychiatric problem is involved, to invite the person concerned for a psychiatric examination. Section 21(2) provides as follows: “In case the person concerned does not appear [for the examination] within the time-limit indicated to him, the prosecutor shall order him to be brought by force by the police (section 62(2) of the Public Health Act).” Section 22 of the guidelines provides as follows: “Upon the proposal of the chief medical officer of the psychiatric clinic the prosecutor may, on the basis of the medical documentation provided, authorise in writing the temporary internment of mentally ill persons in a specialised hospital, for a psychiatric examination (section 70 of the Public Health Act's implementing regulations). The prosecutor shall then promptly submit a request for compulsory treatment.” 32. Certain amendments to the Public Health Act were introduced in February 1997. These amendments, in paragraphs 2 to 4 of section 61, provide that a prosecutor, in the framework of his inquiry, can order the confinement in a psychiatric hospital for up to thirty days (up to three months in exceptional cases), for the purpose of a medical examination, of a person who has refused to undergo such an examination voluntarily. However, no provision allowing judicial review of the prosecutor's order was introduced. The Code of Criminal Procedure, by virtue of an amendment in force since 1 January 2000, introduced a judicial procedure for the confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought. This procedure, however, does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor's order under section 61 of the Public Health Act. | 1 |
train | 001-154839 | ENG | AUT | CHAMBER | 2,005 | CASE OF WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH v. AUSTRIA | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient | Nicolas Bratza | 9. The applicant is the owner and publisher of the weekly magazine “Profil”. 10. In its issue 25/1998 of 15 June 1998 the applicant company published an article about Mr R., at that time a member of Parliament, and his cohabitee Mrs G. The article, with the title “Diary of an escape” and the subtitle “Report. Several myths are entwined around P. R.’s trip to Brazil. The reconstruction of a banal reality”, described the couple’s flight from Austria in April 1998 as Mr R. was suspected of having committed the offences of aggravated fraud (Betrug) and fraudulent conversion (Untreue). After an international arrest warrant had been issued, Mr R. was arrested in Brazil on 5 June 1998. At the time of the events, great public interest in the criminal proceedings against Mr R. existed. After Mr R.’s arrest, Mrs G. had given interviews on these events. The article was accompanied by a photo, which appeared on another page, showing Mrs G. standing beside Mr R. 11. The article and its context, namely a short text accompanying photos showing the couple’s hotel and a bar in Brazil, contained the following statements: “...Thus, the Lower Austrian mutation of ‘Bonnie and Clyde’ started on the last part of their trip, a four hour bus ride... (Also brach die niederösterreichische Mutation von Bonnie and Clyde zur letzten Etappe, einer vierstündigen Busfahrt...auf.) ...The first two weeks, ‘Bonnie and Clyde’ hardly ever left the hotel... (Die ersten beiden Wochen verlassen ‘Bonnie und Clyde’ das Haus praktisch nie.) ...’Bonnie and Clyde’ from Lower Austria wish to rent the Mayor’s bar... (‘Bonnie und Clyde’ aus Niederösterreich wollen die Bar des Bürgermeisters pachten.) ...’Bonnie and Clyde’ are dreaming of a decent life as pub owners... (‘Bonnie und Clyde’ träumen von einem bescheidenen Leben als Barbetreiber.)” The article, when describing the arrest of Mr R., further stated : “C. G., against whom no suspicion exists, stays behind. (Zurück bleibt C.G., gegen die nichts vorliegt.)” 12. On 20 November 1998 Mrs G. brought proceedings against the applicant company claiming compensation for defamation under Section 6 of the Media Act (Mediengesetz). Further she requested supplementary measures under the Media Act, such as the publication of the judgment. She stressed that the applicant company, by publishing the article at issue, had committed the offence of defamation under the Criminal Code (Üble Nachrede). 13. She argued that the comparison with the famous criminals ‘Bonnie and Clyde’ from the thirties, whose story was the basis of a film produced in the sixties, could have given the impression that she was also involved in the offences of Mr R. 14. On 7 April 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed Mrs G.’s claim. It found that the average reader would have understood “Bonnie and Clyde” as a synonym for a couple on the run and that it had been a pictorial description with a humorous and entertaining message. It considered that the average reader would have connected “Bonnie” with a woman who follows her partner “through thick and thin” and that the characterisation as “Bonnie” did not amount to an accusation of having participated in the offences of Mr R. 15. On 4 November 1999 the Vienna Court of Appeal (Oberlandesgericht) quashed this decision and remitted the case to the Regional Court. It observed that “Bonnie and Clyde” had been violent criminals and found that the established connection between Mrs G. and “Bonnie” created an “inherent statement of having participated in criminal acts” even though “it had been expressly stated in the article that no suspicion had existed against Mrs G.”. It, therefore, concluded that the applicant company had committed the offence of defamation under Section 111 § 1 of the Criminal Code (Strafgesetzbuch) by publishing the article at issue and stated that its finding had to be taken into account by the Regional Court in its new decision. 16. On 3 February 2000 the Regional Court sentenced the applicant company to pay compensation of ATS 20,000 (1,453.46 euros) for defamation and to reimburse Ms G.’s costs of the proceedings and ordered it to publish an extract of its judgment in its magazine. Following the Court of Appeal’s line of argument it found, referring to the above mentioned passages of the incriminated article, that: “... the well-known movie ‘Bonnie and Clyde’ described two ordinary people who make the American dream of liberty and wealth come true by stealing cars, robbing banks and killing people. (...) The reader primarily associates Bonnie with a criminal who had, together with her partner, robbed innumerable banks and had killed 14 persons within two years. (...) Nobody would have connected Bonnie only with a naive angel, who followed her partner devotedly but, rather, with a woman who would kill to assist the common purpose ‘escape’. (...) Beyond doubt the reader is forced to make a connection with capital crime. (...) The allegation of participating in criminal offences constitutes defamation within the meaning of Section 111 § 1 of the Criminal Code.” 17. On 22 March 2000 the applicant company filed an appeal and stressed, inter alia, that the incriminating passages had to be considered in connection with the article as a whole. It submitted that the article was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts. 18. On 9 August 2000 the Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision as a whole. 19. On 9 February 1999 Mrs G. applied to the Wiener Neustadt Regional Court for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company. She requested that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on the criminal proceedings against Mr R. or, in the alternative, that the applicant company be ordered to refrain from publishing her picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”. Furthermore, she requested an order for the publication of the judgment in the applicant company’s magazine. 20. She argued that the publication of her picture in connection with a report on the criminal proceedings against Mr R. violated her legitimate interests under Section 78 of the Copyright Act and that the comparison with the famous criminals “Bonnie and Clyde” could have given the impression that she had been involved in the offences of which Mr R. was accused. 21. The applicant company, in its observations, argued that the report at issue expressly mentioned that there were no criminal proceedings pending against Mrs G. and that the report was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts. Moreover, she had willingly given interviews to the media and had her pictures taken by journalists. As regards the comparison of Mrs G. with “Bonnie”, the applicant company submitted that the reader of its magazine understood “Bonnie and Clyde” as a synonym for a couple on the run and not for violent criminals. Finally, it contended that the great public interest in the events justified the publication of Mrs G.’s picture. 22. On 19 February 1999 the Wiener Neustadt Regional Court granted an interim injunction (einstweilige Verfügung). It found the measure justified as the interest in the publication of Mrs G.’s picture violated her legitimate interests. 23. On 27 April 1999 the Court of Appeal allowed the applicant company’s appeal and dismissed Mrs G.’s application. 24. On 13 September 1999 the Supreme Court (Oberster Gerichtshof) partly allowed Mrs G.’s extraordinary appeal on points of law and granted the interim injunction she had requested in the alternative, i.e. it ordered the applicant company to refrain from publishing Mrs G.’s picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”. 25. The Supreme Court observed that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests and that the publication of her picture had to be considered together with the content of the published report. The court referred further to its case-law in which it had found that the publication of the picture of a spouse of a suspect was not of any informative value and that the concerned spouse’s interest in secrecy, therefore, outweighed the interest of information. The court found, however, that in the present case Mrs G. was far more involved in the case of Mr R. than simply being Mr R.’s cohabitee or girlfriend, as she had prepared the escape with him and had finally escaped with Mr R. Therefore, the applicant company’s interest in publishing her picture in principle outweighed Mrs G.’s legitimate interests in secrecy. 26. The court then argued that the text of the article at issue, compared Mrs G. with the female partner of the violent criminals “Bonnie and Clyde” and could give the impression to the readers of the magazine that Mrs G. as “Bonnie” had been involved in the criminal offences of her partner. The Supreme Court, thus, concluded that, although it seemed that Mrs G. had consented to the publication of her picture in connection with the criminal proceedings against Mr R., her legitimate interests were violated by the publication of her photo in combination with a comparison with the criminal “Bonnie”. 27. On 2 February 2001 the Wiener Neustadt Regional Court granted a permanent injunction prohibiting the applicant company from publishing Mrs G.’s picture while comparing her and Mr R. with “Bonnie and Clyde” or while connecting her with the commission of criminal offences. 28. On 3 May 2001 the Court of Appeal dismissed the applicant company’s appeal and ordered the applicant company to pay Mrs G.’s costs of the appeal proceedings. 29. On 12 September 2001 the Supreme Court, referring to its decision of 13 September 1999, rejected the applicant company’s extraordinary appeal on points on law. This decision was served on 2 October 2001. 30. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code, as follows: “1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... 3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.” 31. Section 78 of the Copyright Act, in so far as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.” This provision has been interpreted in the Supreme Court’s case-law. In particular the Supreme Court has found that in determining whether the publication of a person’s picture violated his or her “legitimate interests” regard is to be had to the accompanying text. Where the publisher of the picture claims that there was a public interest in its publication, the courts have to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court has constantly held that there is no predominant public interest in the publication of the suspect’s picture if it has no additional independent information value. The only effect is that the intensity of such reporting is increased by attaching the suspect’s picture and, thus, making his or her appearance known to the public at large (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 32, ECHR 2000-I, with reference to MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33). | 1 |
train | 001-96406 | ENG | LTU | ADMISSIBILITY | 2,009 | RINKUNIENE v. LITHUANIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Ms Regina Rinkūnienė, is a Lithuanian national who was born in 1944 and lives in Panevėžys. On 14 September 2004 the applicant’s husband P.R. fell ill. On 15 September a doctor, V.D.S., who worked at the Aukštaičių Family Clinics, visited him at his home and prescribed him certain medication. The next days P.R.’s medical condition had not improved and he had a fever of up to 40 degrees. The applicant succeeded in contacting V.D.S. only on 20 September. In the evening of the same day P.R.’s condition substantially worsened and the medical emergency service took him to the Panevėžys hospital. On 22 September, at the applicant’s request, blood samples were taken from her husband. On 24 September P.R. was found to have septicaemia and was transferred to the intensive care unit. On 26 September 2004 the applicant’s husband died in the Panevėžys hospital. The clinical diagnosis of his death, recorded in the hospital’s documents, was sepsis. That diagnosis was not confirmed by an autopsy, since the applicant refused one. The applicant requested the State Medical Audit Inspection to appraise the quality of the medical services which V.D.S. and the Aukštaičių Family Clinics had provided to her husband. On 15 December 2004 the State Medical Audit Inspection produced an expert report (no. 1A-201-533K) which stipulated that, while treating the applicant’s husband, V.D.S. had made certain mistakes. In particular, given that P.R.’s condition was not improving, the doctor had not used all available means to establish factors which would have been important for determining the proper treatment. “That is to say, having suspected pneumonia [the doctor] did not immediately send the patient for an X-ray examination, did not assess the effectiveness of the prescribed medication, and did not send the patient to hospital, as [the applicable medical instructions] required”. Lastly, the experts noted that the head of the Aukštaičių Family Clinics had not been carrying out the Health Minister’s instructions on medical care effectively. The State Medical Audit Inspection ordered the head of the Aukštaičių Family Clinics to assure adherence to the ministerial requirements and to evaluate the doctor’s actions. On 25 January 2005 the State Medical Audit Inspection was informed that V.D.S. had received a disciplinary sanction by way of a warning. On 27 July 2005 the applicant initiated civil proceedings against the Aukštaičių Family Clinics, the Panevėžys hospital and V.D.S., alleging that the medical personnel had failed to carry out their duties properly and that this had caused her husband’s death. On 30 December 2005 the Panevėžys Regional Court ordered the Mykolas Romeris University Forensic Medical Institute (the “FMI”) to conduct a deontological examination as regards the circumstances and cause of P.R.’s death. Four experts took part in the examination. On 27 February 2006 the FMI presented its results in report no. EDM 36/06 (01). The report stipulated that P.R. had died from sepsis, noting however that the cause of death had only been established on the basis of a clinical diagnosis. Given that there was no autopsy report, the actual cause of death remained uncertain. The report also stated that, when treating the applicant’s husband, V.D.S. had acted properly and without undue delay. The experts concluded that V.D.S.’s actions had no direct causal link with the death, since the treatment she prescribed was in accordance with the patient’s condition. They also stated that applicable legislation did not empower a family doctor to compel her patient to go to hospital [against his will]. Lastly, the experts found the treatment at the Aukštaičių Family Clinics to have been appropriate to the patient’s medical condition. As regards the treatment which P.R. received at the Panevėžys hospital, the experts again found it to have been adequate, with the exception of the treatment which P.R. had received in the hospital’s intensive care unit. Yet the experts noted that it was not possible to ascertain what influence the latter had had on P.R.’s death, since no autopsy had ever been performed. In sum, there was no direct causal link between either the actions of V.D.S. or the Panevėžys hospital’s personnel and the death of the applicant’s husband. On 15 June 2007 the applicant requested the Panevėžys Regional Court to order a supplementary expert report. She noted that the two expert reports, no. 1A-201-533K and no. EDM 36/06 (01), had been contradictory. In the applicant’s view, the FMI’s experts were partial and it was necessary to create a new expert commission which would evaluate the quality, objectivity and plausibility of the two previous reports, as well as establish the actual cause of her husband’s death and whether the treatment he had received had been appropriate and effective. That commission was also to establish whether the medical personnel who had treated her late husband had breached any applicable medical instructions. By a decision of 5 July 2007, the Panevėžys Regional Court dismissed the applicant’s lawsuit as unfounded. The court’s arguments and reasoning were set out in six pages. The applicant’s lawyer took part in that hearing. Whilst noting the State Medical Audit Inspection’s report about certain defects in V.D.S.’s and Aukštaičių Family Clinics’ actions, the court nevertheless emphasised that those flaws were of an organisational character (organizacinio pobudžio) and had no causal link to the quality of medical services which were provided to P.R. The court furthermore noted that there were no grave doctors’ mistakes, which the Commission for the Assessment of Doctors’ Professional Competence would have established. Referring to the Supreme Court’s guidelines in medical negligence cases and having examined the FMI’s deontological report no. EDM 36/06 in the light of other evidence, the Panevėžys Regional Court found that report credible. It stressed that the cause of death of the applicant’s husband had only been established from clinical characteristics (pagal klinikinius požymius). Yet, as both experts had noted in their written reports and in person at the hearing, in the absence of an autopsy it had not been possible to ascertain the exact cause of death. From all the above, the court concluded that the applicant had failed to prove that the doctors had acted in breach of applicable medical norms. Neither had the applicant proved a causal link between the doctors’ actions and her husband’s death. The Panevėžys Regional Court also observed that the evidence in the case ruled out the doctors’ negligence. The court did not address the applicant’s request for a supplementary expert examination. Lastly, the Panevėžys Regional Court ordered the applicant to cover the other parties’ litigation costs in the sum of 8,089 Lithuanian litai (approximately 2,343 euros). The applicant appealed, arguing that the two expert reports were contradictory, and requested the Court of Appeal to order a new expert examination into the circumstances of her husband’s death. She also claimed that the first-instance court had ordered her to cover the other parties’ litigation costs for too high a sum. On 13 November 2007, at the hearing of the Court of Appeal, the applicant’s lawyer requested that the experts of the State Medical Audit Inspection and the FMI be summoned for questioning in open court. The Court of Appeal granted that request. The lawyer further requested that a new expert examination be carried out, arguing that the two reports were contradictory. The court decided to resolve that question after the lawyer submitted the request in writing and formulated his questions to the experts. It transpires from the record of the hearing of the Court of Appeal that on 19 May 2008 the applicant’s lawyer again requested the court to order a new expert examination. Given that other parties to the proceedings objected to that request, the Court of Appeal decided to adjourn the hearing until 22 May 2008. On 22 May 2008 the applicant’s lawyer reiterated his request for a supplementary expert report. Having considered the lawyer’s request on the spot, the chamber decided to adjourn the determination of this issue until the parties had made their final submissions. Having heard the parties’ summings-up, the Court of Appeal adjourned its decision until 5 June 2008. On 5 June 2008 the Court of Appeal dismissed the applicant’s appeal. The court acknowledged that V.D.S. had made certain errors of judgment by not exhausting all means available to diagnose P.R.’s illness, and by not consulting other doctors when his condition did not improve. Yet the appellate court found no proof that those errors had been the direct cause of P.R.’s death. The court also had regard to the FMI’s deontological report to the effect that the measures which V.D.S and the Aukštaičių Family Clinics had undertaken were adequate for the physical condition of P.R. The court noted that the FMI’s conclusions were confirmed and elaborated by four experts, who testified before both the first-instance and the appellate courts. For the latter, the applicant’s allegation that the FMI’s experts had been partial and not objective was unfounded, even though their conclusion contradicted that of the State Medical Audit Inspection. On the contrary, the court noted that those experts were well qualified, with scientific and pedagogical degrees in their respective fields of medicine. As to the treatment which P.R. had received in the Panevėžys Hospital’s intensive care unit, the Court of Appeal acknowledged that it had been inadequate. However, given that the applicant herself refused to allow an autopsy, it was not possible to establish what influence that inadequate treatment could have had on P.R.’s death. Consequently, the first-instance court was correct in not finding a causal link between the actions of the Panevėžys Hospital doctors and the death of the applicant’s husband. Lastly, the Court of Appeal found that the award of litigation costs which the applicant was ordered to pay was in accordance with the recommendations prescribed by the Ministry of Justice. The applicant lodged a cassation appeal, complaining that the lower courts had not allowed her claim for pecuniary and non-pecuniary damages. She further alleged that the first-instance and appellate courts had evaluated the evidence wrongly, that the expert examination had not been thorough and that important factual circumstances had not been established. By a ruling of 5 September 2008, the Supreme Court refused to examine the cassation appeal, noting that the applicant’s claim in respect of pecuniary and non-pecuniary damages was intrinsically related to her allegation of an erroneous examination of the factual circumstances, but the latter did not fall within the Supreme Court’s jurisdiction. The applicant submitted new cassation appeals. However, on 6 and 21 October and 27 November 2008 the Supreme Court dismissed them as lodged out of time. The Law on the Medical Practice of Physicians (Medicinos praktikos įstatymas) stipulates that a doctor who has made a grave error when practising the profession can be deprived of his or her licence. The State Medical Audit Inspection is one of the bodies which can propose that a licence be withdrawn (Article 6 §§ 1 (3) and 3). Moreover, the doctor who has breached the requirements of this law is answerable under the domestic law and regulations (Article 11). Furthermore, a special body – the Commission for the Assessment of Doctors’ Professional Competence – exists to assess the professional qualifications of doctors (Article 12). Article 3 § 2 of the Law on the Rights of Patients and Compensation for Damage to their Health (Pacientų teisių ir žalos sveikatai atlyginimo įstatymas) stipulates that patients must be accorded qualified health care. Pursuant to Article 14 § 3, the damage suffered by patients as a result of the culpable actions of a physician is to be compensated in accordance with the procedure established by the Civil Code. Article 6.263 § 2 of the Civil Code provides that any pecuniary damage caused to another person must be fully compensated by the responsible person. Article 6.250 § 2 allows compensation for non-pecuniary damage incurred due to health impairment or a deprivation of life. As regards medical negligence specifically, in the ruling of 25 April 2005 no. 3K-3-222/2005 the Supreme Court confirmed this right, specifying that, in case of a person’s death, the spouse, parents and children have the right to request compensation for non-pecuniary damage for their loss. Lastly, Article 6.264 of the Civil Code provides that an employer is liable to compensation for damage caused by the fault of employees in the performance of their service (official) duties. Article 178 of the Code of Civil Procedure stipulates that the parties must prove their claims. Pursuant to Article 185, the court evaluates the probative value of evidence according its own inner belief, basing its conclusions on a comprehensive and objective examination of the facts of the case. Unless the Code provides otherwise, no evidence has predetermined value. In its ruling No. 15 of 13 June 1997, the Supreme Court noted | 0 |
train | 001-58263 | ENG | FRA | CHAMBER | 1,998 | CASE OF F.E. v. FRANCE | 3 | Violation of Art. 6-1 (access to court);Violation of Art. 6-1 (length of proceedings);Non-pecuniary damage - financial award;Pecuniary damage - financial award | C. Russo;R. Pekkanen | 7. The applicant was born in 1971. On 27 October 1985, when he was 14, he was admitted to a clinic for a tonsillectomy. During the operation, on 29 October 1985, the surgeon, with the anaesthetist’s agreement, gave him a transfusion of three packs of fresh plasma and one ampoule of PPSB (a blood product containing coagulation factors) supplied by the blood transfusion centre of Colmar Hospital (département of Haut-Rhin). 8. Blood tests carried out on 26 November 1985 revealed anomalies in the composition of the applicant’s blood. 9. In 1987 infectious mononucleosis was diagnosed. 10. On 7 December 1988 and 27 January 1989 serological tests for the human immunodeficiency virus (HIV) gave positive results. 11. By a decision of 4 October 1991 the President of the Colmar tribunal de grande instance ordered an expert opinion. In a report of 28 February 1992 the medical expert concluded that there was a strong probability of a causal connection between the administration of the ampoule of PPSB to Mr F.E. and his infection with HIV. 12. Relying on this report, the applicant applied to the Colmar tribunal de grande instance and, by a decision of 25 May 1992, was given leave to institute civil proceedings in that court against the Fondation Saint-Marc, owners of the clinic, the Strasbourg Primary Health Insurance Office and the mutual insurance scheme of the national education service. He asked the court to rule that the Fondation Saint-Marc bore sole liability for his infection and order it to pay him full compensation for the consequences. 13. By a judgment of 26 August 1992, following a hearing on 23 June 1992, the court held that proof of a causal connection had not been established as there was still serious doubt as to the cause of the infection. It accordingly dismissed the applicant’s claim as ill-founded. 14. On 14 September 1992 the applicant appealed. In his statement of the grounds of appeal, of 28 December 1992, he assessed the damage he had sustained at 2,500,000 French francs (FRF) and asked the Colmar Court of Appeal to take note of the fact that he had applied to the Compensation Fund for Transfusion Patients and Haemophiliacs (“the Fund” – see paragraph 23 below). He pointed out that the Fund had not yet taken a decision but that the sums of compensation it had proposed were lower than those awarded by the courts. The Fund joined the proceedings on its own initiative on 10 June 1993 in order to preserve its right by subrogation to pursue a claim in the event of the Fondation Saint-Marc being declared negligent. 15. On 6 December 1994 the Colmar Court of Appeal set aside the impugned judgment. On the merits of the case, the Court of Appeal found the Fondation Saint-Marc liable in respect of the applicant’s infection and awarded him compensation in the sum of FRF 2,500,000, with the Fund being subrogated to his right to the first FRF 1,500,000 of compensation (see paragraph 24 below). It therefore ordered the clinic to pay Mr F.E. FRF 1,000,000, corresponding to that portion of the damage for which no compensation had been paid by the Fund. In response to the Fondation Saint-Marc’s argument that section 47 of the Act of 31 December 1991 (see paragraph 31 below) excluded any possibility of compensation other than that provided by the Fund, since the latter paid full compensation, the Court of Appeal ruled as follows: “Before any other analysis, reference should be made to section 47 of the Act …, subsection (III) of which provides for ‘full’ compensation to be paid by the Fund set up for that purpose in respect of damage sustained by the victims of infection by the human immunodeficiency virus (HIV) during transfusion of blood products where such transfusion has been carried out within the territory of the French Republic. However, section 47(VI) requires the victim to ‘inform the Fund of any judicial proceedings pending’ and ‘if any legal proceedings are brought’. Section 47(IX) provides: ‘The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.’ The victim’s obligation to inform the Fund of judicial proceedings pending or if legal proceedings are brought, like subrogation of the Fund ‘for an amount no higher than the sum paid out’ to the victim, show that in providing victims with an expedited compensation procedure Parliament did not intend to do away with the possibility of direct applications by the victims against any persons they considered responsible. The Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund, but was intended to prevent compensation being paid twice over (both through the obligation to provide information about pending proceedings and through subrogation of the Fund). This is all the more incontestable since, the Fund not being a ‘court’, its decisions are not binding. The documents that it requires the patients who accept its proposals to sign refer to section 47(VI) and the obligation to ‘inform it of any pending or future judicial proceedings’. In the present case, moreover, E. and co-plaintiffs all declared, in the letter they sent on 21 April 1993 to the Compensation Fund for Transfusion Patients and Haemophiliacs, that they accepted ‘for the present’ the sums proposed but made it clear that they considered them ‘insufficient’ and F.E., who formally accepted the proposal, went on to say: ‘I retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be subrogated for an amount no higher than the sums paid out, as provided in section 47 of the Act of 31 December 1991’, which shows that he always considered that full compensation had not been paid for the damage he sustained and that he therefore still had an interest giving him standing to bring proceedings. In any case, the agreement reached could not be classed as a settlement within the meaning of Article 2052 of the Civil Code. Consequently, [F.E.]’s action is admissible and his acceptance of the compensation offered by the Fund does not deprive him of standing.” 16. On 1 March 1995 the Fondation Saint-Marc gave notice of intention to appeal on points of law. It filed its statement of the grounds of appeal on 1 August. The applicant replied on 19 August 1995. By a pleading of 26 October 1995 the Strasbourg Primary Health Insurance Office lodged a third-party cross-appeal against the same judgment. The blood transfusion centre filed submissions on 2 November 1995. Mr F.E. filed additional observations on 10 January 1996 and his reply to the third-party cross-appeal on 13 February 1996. The case was allocated to the Second Civil Division of the Court of Cassation on 21 February 1996. After the reporting judge had made his report and this had been transmitted to the Advocate–General, the Division considered the case on 29 January 1997 and decided that it should be referred to the plenary court, regard being had to the Bellet judgment delivered by the European Court of Human Rights (4 December 1995, Series A no. 333-B). 17. On 6 June 1997 the Court of Cassation, sitting in plenary, quashed and annulled the judgment of 6 December 1994 without remitting the case for reconsideration. It gave the following reasons: “Having regard to section 47 of the Act of 31 December 1991 and Article 1382 of the Civil Code; Whereas these texts require the Compensation Fund for Transfusion Patients and Haemophiliacs infected with the human immunodeficiency virus (‘the Fund’) to pay victims full compensation for the damage they have sustained; whereas victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal; whereas they may obtain compensation from the ordinary courts only in respect of heads of damage for which they have not already been compensated by the Fund; Whereas, according to the impugned judgment, [F.E.] was infected with the human immunodeficiency virus when a blood product was administered to him during an operation carried out at the Fondation Saint-Marc; whereas he instituted proceedings against the Fondation Saint-Marc for compensation in respect of the specific damage caused by his infection; whereas he subsequently accepted the compensation offered by the Fund on that account; Whereas, in upholding [F.E.]’s action against the clinic, the judgment stated that the Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund and that [F.E.]’s acceptance of the compensation offered by the Fund did not deprive him of an interest giving him standing to bring proceedings; Whereas in so doing the Court of Appeal misapplied the provisions cited above; And having regard to Article 627 § 1 of the New Code of Civil Procedure; Whereas the quashing of a judgment does not imply that the case should be remitted for reconsideration; For these reasons and without finding it necessary to rule on the second ground of appeal, [The Court] quashes and declares null and void in all its provisions the judgment delivered on 6 December 1994 between the parties by the Colmar Court of Appeal; Holds that the case shall not be remitted for reconsideration.” 18. The applicant was obliged to pay back the sum of FRF 1,000,000, which had been paid to him in execution of the Colmar Court of Appeal’s judgment. 19. In the meantime, by an application of 30 December 1992, the applicant, his parents, his two sisters and his partner, who became his wife in July 1993, had asked the Strasbourg Administrative Court to order Colmar Hospital – which ran the blood transfusion centre (see paragraph 7 above) – to pay them compensation totalling FRF 4,000,000 in respect of the damage they had sustained on account of the applicant’s HIV infection. 20. By a judgment of 10 February 1994 the Administrative Court ruled that the hospital was liable in respect of the applicant’s HIV infection and deferred its decision on damages in order to give the Fund (see paragraphs 23 and 31 below) time to produce observations on the compensation claims. 21. By a judgment of 23 March 1995 the same court ordered Colmar Hospital to pay the Fund the compensation it had awarded to the applicant, his parents and his two sisters and to pay the applicant’s wife, to whom the Fund had made no award, the sum of FRF 40,000. 22. On appeal by Colmar Hospital against both judgments and by the applicant and his family against the last-mentioned judgment, the Nancy Administrative Court of Appeal, in a judgment of 27 June 1996, set aside both judgments and dismissed the claims of the applicant and his family on the ground that Colmar Hospital could not be held liable for the damage resulting from the infection. 23. On 24 November 1992, in proceedings brought concurrently with his civil and administrative actions, the applicant applied to the Compensation Fund for Transfusion Patients and Haemophiliacs, set up by the Act of 31 December 1991 (see paragraph 31 below). 24. On 19 March 1993 the Fund offered him compensation in the sum of FRF 2,000,000, of which FRF 1,500,000 were to be payable on acceptance of the proposal and FRF 500,000 if and when the onset of Aids was diagnosed. The Fund also offered compensation of FRF 150,000 for each of his parents and FRF 20,000 for each of his sisters. The compensation proposal sent to the applicant contained the following information: “At its sitting on 25 February 1993 the Compensation Board decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection, that is to say the current and future damage resulting from HIV infection, and thereafter, if applicable, from the onset of Aids. On the basis of your actual, personal and individual situation and with reference to the compensation awarded to date in similar cases, the Board has decided to offer you compensation amounting in total to FRF 2,000,000. ... If you accept this offer, you should do so by registered letter with recorded delivery... Naturally, the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained, provided, of course, that you can furnish proof of it. If this proposal is not acceptable to you, you may bring legal proceedings in the Paris Court of Appeal and have two months from notification of the present proposal in which to do so... I would draw your attention to the provisions of section 47(VI) of Law no. 91-1406 of 31 December 1991, which require you to inform the Fund of any judicial proceedings brought on account of your infection, whether pending or still to come.” 25. In a letter of 21 April 1993 the applicant and his family declared that they accepted the various sums offered, but added the following proviso: “… I consider that these sums are insufficient. I must accept them for the present in view of the financial situation in which my family and I find ourselves. Consequently, I formally accept your proposal but retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be subrogated for an amount no higher than the sums actually paid out, as provided in section 47 of the Act of 31 December 1991. …” 26. After receiving this acceptance, the Fund paid FRF 1,500,000 to the applicant, who acknowledged receipt on 11 May 1993. 27. In a report of 5 December 1991 that he laid before the National Assembly on behalf of the Cultural, Family and Social Affairs Committee, Mr Boulard, MP, indicated that a victim could seek better compensation after accepting an offer from the Fund: “That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to the Fund. Compensation by the Fund is therefore not a ‘settlement’ which precludes judicial remedies, unlike the aid granted by the public and private funds set up in 1989, but a compensation scheme based on the concept of risk and independent of any attempt to determine fault. A victim must, however, inform the Fund and the court of the various actions brought. This provision is necessary because the Fund is subrogated to the victim's rights against the person liable for the damage or against those who are, for one reason or another, under a duty to provide compensation.” 28. During the debate in the National Assembly on 9 December 1991 several speakers advocated making it possible to bring proceedings in the ordinary courts after acceptance of a compensation proposal. The official summary report of proceedings contains the following contributions: “Mr Chamard: ‘… it must remain possible to take legal proceedings.’ Mr Préel: ‘In any case, infected persons must be able to continue the proceedings they have brought against the transfusion centres. And what will happen if the sum they are awarded by the court is higher than the sum they have been paid in compensation?’ Mr Bianco, Minister of Social Affairs and Integration: ‘It is clear that the compensation proposal does not deprive victims of the right to bring proceedings, particularly for the purpose of determining liability… It would be inconceivable for acceptance of compensation offered by the Fund to bar a victim’s entitlement to a larger sum awarded by a court. Its decisions are therefore not binding and there is accordingly nothing to prevent a court from awarding additional compensation, it being understood that the Fund will be subrogated to the victim’s rights vis-à-vis the causer of the damage.’” 29. On 28 April 1994, following the Court of Cassation's judgment of 26 January 1994 in the Bellet case (see paragraph 34 below), Mr Mazeaud, MP, proposed an interpretative Act in order to remove the drafting ambiguities which had given rise to that judgment. He considered that it had interpreted the Act of 31 December 1991 in a way that achieved a result opposite to the one sought by the legislature. The bill was not passed. 30. In the opinion of 12 December 1991 that was submitted to the Senate on the bill then before it on behalf of the Committee on the Constitution, Legislation, Universal Suffrage, Regulations and General Administration, Senator Thyraud wrote, inter alia: “The bill is a response to an exceptional situation. The arrangements it proposes may be regarded as being likewise exceptional. Independently of the current investigation into the apportionment of liability, including criminal liability, the community must afford the best redress it can for the consequences of such a tragedy. ... As indicated in the introduction to this commentary, the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case-law on this matter. Simultaneously, victims’ possibility of resorting to the procedures of ordinary law, whether in the civil or administrative courts or in the criminal courts, has been preserved. However, the bill’s wording is not fully explicit on this subject, and the text before us is silent as to the possible effects of earlier court decisions on the Compensation Board's decisions, and also as to the effects of the Board's decisions on subsequent judgments of other courts. The bill does not, for example, make it possible to determine whether or not the Board’s decisions imply recognition of liability or a presumption of guilt. Similarly, it does not state whether the Board is bound by earlier decisions of the courts.” 31. Law no. 91-1406 of 31 December 1991 “making miscellaneous social-welfare provisions” set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. The distinctive feature of the system, which is based on solidarity, is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability. Section 47 provides: “I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below. II. No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for. III. Full compensation for the damage defined in subsection (I) shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board. A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the Fund. IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives. ... Victims or their heirs shall communicate to the Fund all the information in their possession. Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy. ... V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection (I) within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage... ... VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund. VII. ... VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection (V), or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal. IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim's rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons' liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence. The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection (I). In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court. X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat. XI. ... XII. The Compensation Fund's sources of revenue shall be specified in a subsequent Act. XIII. ... XIV. ...” 32. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat ruled that “the State is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985”. 33. At the request of the Paris Administrative Court in respect of the Vallée case, on which the European Court has had to rule (Vallée v. France judgment of 26 April 1994, Series A no. 289-A), the Conseil d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before the Compensation Fund. Sitting in its judicial capacity on 15 October 1993, it gave the following opinion: “1. The decree of 12 July 1993 ..., which is applicable to cases pending at the date of its publication, ... provides a solution to the problem raised by the Administrative Court. 2. ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party, when the evidence shows this to be the case, even if that party does not file submissions – on the basis of its subrogation to the rights of the victim – seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter. Accordingly, an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must, when it has been informed by one of the parties that the victim or his heirs have already received compensation for the damage complained of, deduct of its own motion such compensation from the amount payable in respect of the damage. ... Where the sum offered by the Fund has been accepted by the claimants, ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the Fund. Consequently, it is incumbent on an administrative court which has been informed that this is the case to deduct, of its own motion, the amount thus owed by the Fund from the compensation which it orders the public authority liable for the damage to pay to the victim.” 34. By a judgment delivered on 26 January 1994 in the Bellet case, the Court of Cassation (Second Civil Division) gave a ruling for the first time on the question whether a person who had accepted a proposal of compensation from the Fund still had standing to bring judicial proceedings, holding as follows: “The Court of Appeal, having found that the damage compensated by the Fund was the same as that for which compensation was being sought from the [National Blood Transfusion Foundation] and that acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the Fund fully compensated Mr Bellet, rightly concluded – on that sole ground and without infringing Article 6 § 1 of the European Convention on Human Rights, as it had been open to the victim to apply to a court to have compensation assessed for his damage – that Mr Bellet’s action was inadmissible as he lacked any interest enabling him to bring proceedings.” The Social Division of the Court of Cassation, in a judgment of 26 January 1995 (Bull. 1995, no. 42, p. 30), adopted the same reasoning. It held that acceptance of an offer from the Fund barred any subsequent appeal against a judgment refusing the victim compensation in respect of the specific damage caused by his infection. The First Civil Division followed the same line on 9 July 1996 (D-1996, 20). Criticising a judgment of the Rouen Court of Appeal, it ruled as follows: “The victim’s acceptance of a compensation proposal – which, according to the provisions of section 47(III) of the Act of 31 December 1991, constitutes full compensation for the specific damage caused by his infection – deprives him of standing to claim further compensation under the same head of damage; it follows that the Court of Appeal, which found that the non-pecuniary damage it held to have been established corresponded to the specific damage resulting from infection, did not draw the correct legal conclusions from its own findings.” After the plenary court’s judgment of 6 June 1997 in the present case, the Second Civil Division of the Court of Cassation, in a judgment of 14 January 1998 (Bull. 1998, no. 16, p. 11), followed the same line, pointing out that if a victim claimed compensation in an ordinary court under heads of damage different from those for which the Fund had paid compensation, the court concerned could not declare the action inadmissible but was obliged to rule on its merits. It ruled as follows: “Section 47 of the Act of 31 December 1991 states that the Fund provides full compensation to victims in respect of the specific damage they have sustained. Victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal. They may not obtain compensation in the ordinary courts except in respect of heads of damage for which they have not already received compensation from the Fund.” 35. Decree no. 93-906 of 12 July 1993 adds Articles 15–20 to Decree no. 92-759 of 31 July 1992 on proceedings brought in the Paris Court of Appeal under section 47 of Law no. 91-1406 of 31 December 1991 (see paragraph 31 above). It applies to all proceedings pending at the date of its publication, 17 July 1993. Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991 In order to bring the action by subrogation provided for in subsection (IX) of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991. Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings. Where the victim has accepted the offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court. The registry shall notify the parties of the information communicated by the Fund. The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened. ... The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...” | 1 |
train | 001-70186 | ENG | TUR | CHAMBER | 2,005 | CASE OF SABRI TAS v. TURKEY | 4 | Violation of Art. 5-3;Violation of Art. 6-1;Remainder inadmissible | null | 6. The applicant was born in 1964 and lives in Batman. 7. On 7 February 1993 the applicant was taken into custody in Batman by police officers from the Batman Anti-Terrorist Branch and he was held in custody until 5 March 1993. 8. On 5 March 1993 the Batman Criminal Court ordered the applicant’s remand in custody. 9. On 6 April 1993 and on 10 October 1994 the Public Prosecutor at the Diyarbakır State Security Court filed two different bills of indictment accusing the applicant of being a member of an illegal terrorist organization and undermining the integrity of the State. 10. On 5 May 1993 the State Security Court commenced the trial against the applicant and twenty-one other suspects, and prolonged the applicant’s detention. 11. On 1 December 1995, the State Security Court convicted the applicant under Article 125 of the Criminal Code, and sentenced him to life imprisonment. The charges had been brought under Articles 168 and 125 of the Criminal Code. 12. Thereafter, the Court of cassation quashed the judgment three times, remitting it to the first-instance court, which reached the same conclusions as before: – Court of Cassation decisions quashing the judgments on 9 July 1996, 31 January 2000 and 2 April 2001; – the repetitive State Security Court decisions on 11 June 1999 (after numerous hearings), 28 September 2000 (after numerous hearings in the applicant’s absence) and 31 January 2002 (also after numerous hearings). 13. On that latter date, the State Security Court convicted the applicant under Article 168/2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. He was released the same day. 14. The applicant did not appeal against this judgment. On 7 February 2002 it became final. 15. A full description of the domestic law may be found in the Demirel v. Turkey judgment (no. 39324/98, §§ 47-49, 28 January 2003). | 1 |
train | 001-58012 | ENG | DEU | GRANDCHAMBER | 1,995 | CASE OF VOGT v. GERMANY | 2 | Violation of Art. 10;Violation of Art. 11;Not necessary to examine Art. 14+10;Just satisfaction reserved | null | 8. Mrs Dorothea Vogt, a German national born in 1949, lives in Jever in the Land of Lower Saxony. 9. After studying literature and languages at the University of Marburg/Lahn for six years, during which time she became a member of the German Communist Party (Deutsche Kommunistische Partei - "DKP"), in November 1975 she sat the examination to become a secondary-school teacher (wissenschaftliche Prüfung für das Lehramt an Gymnasien). She did her teaching practice (Vorbereitungsdienst für das Lehramt) from February 1976 to June 1977 at Fulda in the Land of Hesse. In June 1977 she sat the second State examination to become a secondary-school teacher (zweite Staatsprüfung für das Lehramt an Gymnasien) and obtained a post from 1 August 1977 as a teacher (Studienrätin), with the status of probationary civil servant (Beamtenverhältnis auf Probe), in a State secondary school in Jever. On 1 February 1979, before the end of her probationary period, she was appointed a permanent civil servant (Beamtin auf Lebenszeit). 10. Mrs Vogt taught German and French. In an assessment report drawn up in March 1981 her capabilities and work were described as entirely satisfactory and it was stated that she was held in high regard by her pupils and their parents and by her colleagues. 11. After a preliminary investigation, the Weser-Ems regional council (Bezirksregierung Weser-Ems) issued an order (Verfügung) on 13 July 1982 instituting disciplinary proceedings against the applicant on the ground that she had failed to comply with the duty of loyalty to the Constitution ("duty of political loyalty" - politische Treuepflicht) that she owed as a civil servant under section 61 (2) of the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz - see paragraph 28 below). She had, it was said, engaged in various political activities on behalf of the DKP since the autumn of 1980 and in particular had stood as the DKP candidate in the 1982 elections to the Parliament (Landtag) of the Land of Lower Saxony. 12. The "indictment" (Anschuldigungsschrift) of 22 November 1983, drawn up in connection with the disciplinary proceedings, specified eleven public, political activities that the applicant had engaged in for the DKP, such as distributing pamphlets, representing the DKP at political meetings, being a party official in a constituency and standing in the federal elections of 6 March 1983. 13. On 15 July 1985 the proceedings were stayed in order to widen the investigations to include further instances of the applicant's political activity that had come to light in the meantime. 14. In a supplementary "indictment" of 5 February 1986 Mrs Vogt was accused of also failing to comply with her duties as a civil servant in that: (a) she had been a member of the "Executive Committee" (Vorstand) of the Bremen/North Lower Saxony regional branch (Bezirksorganisation) of the DKP since the end of 1983; and (b) she had taken part in and addressed the DKP's 7th party congress, held from 6 to 8 January 1984 in Nuremberg, as Chairperson (Kreisvorsitzende) of the Wilhelmshaven/Friesland local branch of the party. 15. After a further stay of proceedings on 23 June 1986, a second supplementary "indictment" was drawn up on 2 December 1986, which specified four other political activities considered incompatible with the applicant's civil-servant status, namely: (a) her candidature for the DKP in the elections to the Parliament of the Land of Lower Saxony on 15 June 1986; (b) the fact that she was still a member of the "Executive Committee" of the Bremen/North Lower Saxony regional branch of the DKP; (c) the fact that she was still Chairperson of the Wilhemshaven/Friesland local branch of the DKP; and (d) her participation in the DKP's 8th party congress from 2 to 4 May 1986 in Hamburg as a party delegate. 16. By an order of 12 August 1986 the Weser-Ems regional council notified the applicant that she had been temporarily suspended from her post, stating in particular as follows: "Although you knew the views of your superiors and the case-law of the disciplinary courts you have nevertheless, over a considerable period of time, deliberately violated your duty of oyalty. For a permanent civil servant that is anextraordinarily serious breach of duty. Civil servants, whosestatus is founded on a special relationship of trust with theState and who, by taking the oath, have vowed to uphold the lawand freedom, destroy this basis of trust, which is essential forthe continuation of their relationship with their employer[Dienstverhältnis], if they deliberately support a party whoseaims are incompatible with the free democratic constitutionalsystem. This is the position in the present case." 17. From October 1986 Mrs Vogt was paid only 60 per cent of her salary (Dienstbezüge). 18. Before the Disciplinary Division of the Oldenburg Administrative Court (Disziplinarkammer des Verwaltungsgerichts) the applicant, who by her own account has been a member of the DKP since 1972, argued that her conduct could not amount to a failure to fulfil her duties as a civil servant. By being a member of the party and carrying out activities on its behalf she had availed herself of the right of all citizens to engage in political activity. She had always carried out such activity within the law and within the limits laid down in the Constitution. Her action to promote peace within the Federal Republic of Germany and in its external relations and her combat against neo-fascism were in no way indicative of an anti-constitutional stance. The DKP, whose aims had always been wrongly alleged (but never proven) to be anti-constitutional, took part lawfully in the process of forming political opinion in the Federal Republic of Germany. Lastly, according to a report issued by a Commission of Inquiry of the International Labour Office on 20 February 1987, the institution of disciplinary proceedings against civil servants on account of their political activities on behalf of a party that had not been banned breached International Labour Organisation (ILO) Convention No. 111 concerning discrimination in respect of employment and occupation. It also violated Article 10 (art. 10) of the European Convention on Human Rights. 19. In its judgment of 15 October 1987 the Disciplinary Division dismissed applications by Mrs Vogt to have the proceedings stayed and witnesses examined. The division ordered that all the "charges" against Mrs Vogt be dropped except those concerning her membership, as such, of the DKP and of the "Executive Committee" of the Bremen/North Lower Saxony regional branch, her chairing of the Wilhelmshaven branch of the DKP and her candidature in the elections to the Lower Saxony Land Parliament on 15 June 1986. 20. On the merits, the Disciplinary Division held that the applicant had failed to comply with her duty of political loyalty and ordered her dismissal as a disciplinary measure. It granted her a sum equivalent to 75 per cent of her pension entitlement at that date, to be paid for a six-month period. The division found in the first place that neither ILO Convention No. 111 nor the recommendations made in the Commission of Inquiry's report of 20 February 1987 constituted a bar to the opening of disciplinary proceedings. It considered that active membership of a political party that pursued anti-constitutional aims was incompatible with a civil servant's duty of political loyalty. The DKP's aims, as described in the Mannheim programme of 21 October 1978 (see paragraph 22 below), were clearly opposed to the free democratic constitutional system of the Federal Republic of Germany. A party could be held to be anti-constitutional even if it had not been banned by the Federal Constitutional Court (Bundesverfassungsgericht) under Article 21 para. 2 of the Basic Law (Grundgesetz - see paragraph 25 below). Through the active role which she played within the DKP the applicant had therefore clearly supported aims that were contrary to the Constitution. The Disciplinary Division added that the rule, laid down in the first sentence of Article 48 para. 2 of the Basic Law (see paragraph 25 below), according to which no one may be prevented from taking office as a member of parliament, could not justify the applicant's standing as the DKP candidate in regional elections. This rule did not apply to measures, such as disciplinary proceedings, which initially had a different purpose and restricted the freedom to stand for election to, and to sit as a member of, parliament only as an indirect and unavoidable consequence of their implementation. The duty of political loyalty, which admittedly restricted civil servants' fundamental rights, was one of the traditional principles of the civil service and had constitutional status by virtue of Article 33 para. 5 of the Basic Law (see paragraph 25 below). It followed that this duty took precedence over the provisions of international instruments such as the European Convention. The applicant had moreover carried out her political activities despite being familiar with the case-law establishing that active membership of the DKP was incompatible with the duty of political loyalty. She must have been aware, at the latest once the Lower Saxony Disciplinary Court (Niedersächsischer Disziplinarhof) had delivered its judgment of 24 June 1985, which was published in an official education-authority circular and was brought to the attention of the applicant in person, that her conduct was in breach of her duties (pflichtwidriges Verhalten). Mrs Vogt had accordingly to be dismissed for having betrayed the relationship of trust between herself and her employer. Throughout the disciplinary proceedings she had moreover repeatedly indicated that she intended to continue her political activities for the DKP despite the warnings she had received. The fact that she had done her work satisfactorily for many years and that she had been held in high regard by her pupils and their parents alike was immaterial. The Disciplinary Division finally ordered that Mrs Vogt should be paid 75 per cent of her pension allowance for a period of six months. It did so in recognition of the fact that apart from her breach of the duty of loyalty Mrs Vogt had always performed her duties unexceptionably and enthusiastically and needed some income to be protected from immediate hardship. 21. On 18 March 1988 the applicant lodged an appeal against the above judgment with the Lower Saxony Disciplinary Court, reiterating her previous arguments (see paragraph 18 above). 22. In a judgment of 31 October 1989 the Disciplinary Court dismissed Mrs Vogt's appeal and upheld the Administrative Court's judgment in all respects. It pointed out that, by carrying out activities on behalf of the DKP, the applicant had breached the duty of political loyalty that she owed in accordance with Article 33 para. 5 of the Basic Law, taken together with section 61 (2) of the Lower Saxony Civil Service Act. Under those provisions, civil servants must at all times bear witness to the free democratic constitutional system within the meaning of the Basic Law and uphold that system. They must unequivocally dissociate themselves from groups who criticise, campaign against and cast aspersions on the State, its institutions and the existing constitutional system. As a result of her activities as a member of the DKP the applicant had failed to satisfy these requirements. The DKP's political aims were incompatible with that system. The fact that the Constitutional Court had not banned the DKP did not prevent other courts from finding that the party was anti-constitutional, as the Federal Administrative Court and the Disciplinary Court itself had done convincingly in judgments of 1 February 1989 and 20 July 1989. An analysis of the still current Mannheim programme made by Mies and Gerns in their book on the DKP's methods and objectives (Weg und Ziel der DKP, 2nd edition, 1981) showed that the party, which aimed to establish a regime similar to that existing in the communist countries around 1980, continued to be guided by the principles of Marx, Engels and Lenin. Article 48 para. 2 of the Basic Law and the corresponding legislation of the Land of Lower Saxony securing the right to take office as a member of parliament did not set limits on the duty of political loyalty, since those provisions were not applicable to impediments resulting from disciplinary proceedings. The court held that the applicant's reference to Article 5 para. 1 of the Basic Law, which secured the right to freedom of expression, was not relevant as the provisions governing the civil service mentioned in Article 33 para. 5 of the Basic Law had to be regarded as general laws within the meaning of Article 5 para. 2 of the Basic Law (see paragraph 25 below). Similarly, the European Court of Human Rights had ruled that a decision by a competent authority relating to admission to the civil service did not amount to an interference with freedom of expression. The same approach applied in cases where a person had already been appointed to a permanent civil service post. Mrs Vogt's conduct had been unlawful. By holding such a senior political post within the DKP, she necessarily espoused anti-constitutional aims and had therefore to be considered to be opposed to the Constitution herself, although she proclaimed her attachment to the Basic Law. It was not possible to support both systems at the same time. Even though Mrs Vogt sought above all to achieve some of the DKP's short-term objectives such as reducing unemployment, promoting peace and eliminating so-called Berufsverbote (prohibitions on pursuing various occupations), this did not mean that her conduct was not culpable. The DKP's aims were admittedly not all anti-constitutional; some of them were compatible with the Basic Law. However, civil servants could not, as a means of furthering their own political objectives, make use of a party with anti-constitutional aims and help it to come to power. In this connection the Disciplinary Court referred to the following observations made by the Federal Administrative Court (Bundesverwaltungsgericht) in a judgment of 20 January 1987, adding that it adopted them as it was convinced that exactly the same reasoning applied to the case before it: "It is admittedly possible to accept the view of the Federal Disciplinary Court [Bundesdisziplinargericht] that the official in question does not seek to change the system of government of the Federal Republic of Germany by the use of force and that this declaration cannot be dismissed as mere 'lip-service'. It is also possible to accept his claim that he is mainly concerned with correcting what he perceives to be a discrepancy between the principles laid down in the Constitution and their application in practice in the Federal Republic of Germany and that he is profoundly sincere in his wish to establish a society that is more just, particularly in the economic sphere. However, contrary to the view taken by the Federal Disciplinary Court, this does not mean that he is entitled to see in the DKP the political grouping through which he believes he can achieve his ideal political order. It appears doubtful whether the view of the Constitution espoused by the official and described above reflects accurately the principles enshrined in the Basic Law. It is not necessary to resolve that question here. In its judgment banning the former Communist Party (KPD) (BVerfGE 5, p. 85), the Federal Constitutional Court held that not only the 'tactics of conflict' employed by the former KPD but also the different phases of the process leading to attainment of its final objective of 'socialist rule' [sozialistische Herrschaft], namely proletarian revolution by peaceful or violent means and the triumph of the working class ..., were incompatible with the free democratic constitutional system. [It] also stated that intensive propaganda and persistent unrest aimed at establishing - even if this was not to be achieved in the near future - a political regime that was clearly contrary to the free democratic constitutional system inevitably caused direct and immediate harm to that system ... The Federal Constitutional Court thus also unquestionably held that the transitional stages of this process, which were of indefinite duration [and which the party sought to impose] through intensive propaganda and persistent unrest were incompatible with the free democratic constitutional system (BVerwGE 47, pp. 365 and 374). Hence, contrary to the view taken by the Federal Disciplinary Court, the civil servant's assertion that he did not intend to change the Federal Republic of Germany's political system by violent means, which is moreover consistent with many statements made by his party, is of no legal significance (BVerwGE 76, p. 157)." The court also considered that the applicant's commitment to changing the DKP's policies could not exculpate her. The political loyalty owed by civil servants entailed a duty for them to dissociate themselves unequivocally from groups which criticised or cast aspersions on the State and the existing constitutional system. The attitude of civil servants who, even if they campaigned within the DKP for the renunciation of aims that were contrary to the Constitution, showed outside the party, through the political offices they held, that they unreservedly supported its programme and policy, was incompatible with such a duty. For as long as the DKP had not abandoned its anti-constitutional aims, civil servants' duty of political loyalty prevented them from actively working for it. This remained valid even where it was their intention to bring the party closer to democratic values. Moreover, during the disciplinary proceedings the applicant had declared her unconditional support for the DKP's aims, as set out in the Mannheim programme. Like the Administrative Court, the Disciplinary Court found that Mrs Vogt had knowingly breached her professional obligations. Although she was aware of the case-law and her superiors' views on the subject, she had continued and even stepped up her activities on behalf of the DKP. Her dismissal had therefore been justified, since a civil servant who thus persisted in breaching her duties and refusing to see reason (unbelehrbar) was no longer capable of serving the State, which must be able to rely on its servants' loyalty to the Constitution. The court added that such a breach of duty was especially serious in the case of a teacher, who was supposed to teach the children entrusted to her care the fundamental values of the Constitution. Parents, who because of compulsory education had to send their children to State schools, were entitled to expect the State to employ only those teachers who unreservedly supported the free democratic constitutional system. The State was under a duty to dismiss teachers who played an active role in an anti-constitutional organisation. The court added that a radical change in a civil servant's attitude could affect its assessment of the seriousness of professional misconduct. However, throughout the disciplinary proceedings, far from cutting down on her activities on behalf of the DKP, the applicant had in fact increased them. It followed that a more lenient disciplinary measure, aimed at persuading her to abandon her political activities within the DKP, was bound to fail. Accordingly, it was impossible to continue to employ her as a civil servant and her dismissal was inevitable. Her otherwise blameless conduct in carrying out her teaching tasks did not change the situation in any way, since the basis of trust that was essential for her to continue as a civil servant was lacking. 23. On 22 December 1989 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court. Sitting as a panel of three judges, the court decided on 7 August 1990 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success. In the Constitutional Court's view, the competent courts' analysis was based on the conviction that, by her membership of the DKP and her active role within that party, the applicant had breached her duties as a civil servant. This conclusion was well-founded and in no way arbitrary. After the commencement of the disciplinary proceedings, Mrs Vogt had herself stated that there was no point, section or part of the DKP's programme of which she disapproved, thus endorsing unconditionally the party's aims set out in the Mannheim programme. The disciplinary tribunals had been entitled to find that the DKP's aims were anti-constitutional, notwithstanding the provisions of Article 21 para. 2 of the Basic Law. Regard being had to the applicant's intractability in respect of her political loyalty, the disciplinary courts had rightly considered that the basis of trust necessary for Mrs Vogt to continue to work as a civil servant was lacking, despite the fact that she had declared herself to be in favour of a change in the party's policy and had otherwise carried out her teaching tasks in a way that was irreproachable. The applicant's dismissal had therefore not amounted to a breach of the principle of proportionality as regards her constitutional rights. Accordingly, there had been no violation of Article 33 paras. 2, 3 and 5 of the Basic Law. 24. From 1987 to 1991 the applicant worked as a playwright and drama teacher at the North Lower Saxony regional theatre (Landesbühne) in Wilhelmshaven. From 1 February 1991 she was reinstated in her post as a teacher for the Lower Saxony education authority. The Land government had beforehand repealed the decree on the employment of extremists in the Lower Saxony civil service (Ministerpräsidentenbeschluß - also known as the Radikalenerlaß - see paragraph 32 below) and had published regulations for dealing with "earlier cases" (see paragraph 33 below). 25. The following provisions of the Basic Law (Grundgesetz) are relevant to the instant case: "(1) Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. (2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour. (3) There shall be freedom of art, science, research and teaching. Freedom of teaching shall not release citizens from their duty of loyalty to the Constitution." "(1) Political parties shall take part in forming the political opinion of the people. They may be freely set up. Their internal organisation must comply with democratic principles. They must render public account of the origin of their income and their assets and of their expenditure. (2) Parties which, through their aims or the conduct of their members, seek to damage or overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality. (3) Detailed rules shall be laid down by federal laws." "... (2) All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications. (3) Enjoyment of civil and political rights, admission to the civil service and the rights acquired within the civil service shall not be contingent on religious belief. No one shall be placed at a disadvantage on account of his or her 'adherence or non-adherence' to a religious persuasion [Bekenntnis] or to an 'ideology' [Weltanschauung]. ... (5) The provisions governing the civil service must take into account its traditional principles." "No one shall be prevented from taking office as a member of parliament or from performing the duties attaching thereto. No employment contract may be terminated and no one may be dismissed from employment on this ground." 26. By virtue of section 7 (1) (2) of the Federal Civil Service Act (Bundesbeamtengesetz) and section 4 (1) (2) of the Civil Service (General Principles) Act (Beamtenrechtsrahmengesetz) for the Länder, appointments to the civil service are subject to the requirement that the persons concerned "satisfy the authorities that they will at all times uphold the free democratic constitutional system within the meaning of the Basic Law". 27. According to section 52 (2) of the Federal Civil Service Act and section 35 (1), third sentence, of the Civil Service (General Principles) Act for the Länder, "civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of the Basic Law and act to uphold it". 28. These provisions have been reproduced in the civil service legislation of the Länder, and in particular in section 61 (2) of the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz), which likewise provides that "civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of the Basic Law and act to uphold it". 29. The Lower Saxony Disciplinary Code (Niedersächsische Disziplinarordnung) contains the following relevant provisions: "Under this law, measures may be taken against: (1) officials who have breached their professional duty while having the status of a civil servant ..." "The disciplinary measures shall be: ... dismissal ..." "Dismissal shall also entail loss of the right to a salary and of pension rights ..." 30. On 28 January 1972 the Federal Chancellor and the Prime Ministers of the Länder adopted the decree on employment of extremists in the civil service (Ministerpräsidentenbeschluß) (Bulletin of the Government of the Federal Republic of Germany no. 15 of 3 February 1972, p. 142), which reiterated civil servants' duty of loyalty to the free democratic constitutional system and provided as follows: "... civil servants' membership of parties or organisations that oppose the constitutional system - and any support given to such parties or organisations - shall ... as a general rule lead to a conflict of loyalty. If this results in a breach of duty [Pflichtverstoß], it shall be for the employer to decide in each case what measures are to be taken." 31. In order to implement the decree, the Government of the Land of Lower Saxony adopted, in particular on 10 July 1972, provisions on "political activity by applicants for civil-service posts and by civil servants directed against the free democratic constitutional system". 32. Similar legislation was initially adopted in all the Länder. However, from 1979 it was no longer or only partially applied; in some Länder the relevant legislation was even repealed. In 1990, as part of their coalition agreement on the formation of a new Government for the Land of Lower Saxony, the Social Democrat and "Green" parties decided to repeal the decree on employment of extremists in the civil service; the decree was repealed by a ministerial decision of 26 June 1990. 33. On 28 August 1990 the Land government took a number of measures relating to the treatment of "earlier cases", that is to say cases of persons who had been excluded from the civil service or refused admission to it on account of their political activities. The decision made it possible - and this happened in the present case (see paragraph 24 above) - for civil servants who had been dismissed following disciplinary proceedings to be reinstated in their posts, provided that they satisfied the recruitment and qualification requirements, without, however, entitling them to compensation or to arrears of salary. 34. In a leading case of 22 May 1975 the Federal Constitutional Court clarified the special duty of loyalty owed by German civil servants to the State and its Constitution: "... The tasks of a modern State administration are as varied as they are complex and they must be accomplished in an adequate, effective and prompt manner if the political and social system is to function and groups, minorities and individuals are to be able to lead a decent life. That administration must be able to count on a body of civil servants which is united and loyal, which faithfully performs its duties and is thoroughly dedicated to the State and the Constitution. If civil servants cannot be relied upon, society and State have no chance in situations of crisis. ... It is sufficient to observe that the duty of political loyalty owed by civil servants is the core of civil servants' duty of loyalty. It does not mean a duty to identify with the aims or a particular policy of the Government in power. It means being prepared to identify with the idea of the State which the official has to serve and with the free democratic constitutional order of that State based on the rule of law and social justice. ... It cannot be in the interests of the State and society to have civil servants who are entirely uncritical. It is, however, essential that a civil servant approves the State - notwithstanding its defects - and the existing constitutional order as it is in force and that he or she recognises that they merit protection, bears witness to them accordingly and is active on their behalf. ... The duty of political loyalty - loyalty to the State and to the Constitution - requires more than an attitude which while formally correct is in fact uninterested, indifferent and, at heart, distant in relation to the State and the Constitution. It entails, inter alia, the duty for civil servants to dissociate themselves unequivocally from groups and movements that criticise, campaign against and cast aspersions on that State, its institutions and the existing constitutional system. ... [The duty of loyalty owed by a civil servant] applies to every type of appointment in the civil service, an appointment of fixed duration, an appointment on probation and an appointment subject to revocation as well as an appointment to a permanent post. Nor can there be any difference of treatment in this respect according to the nature of the civil servant's duties. ... The fact that the Federal Constitutional Court has not exercised its power to declare a party anti-constitutional does not mean that it is impossible to have the conviction - and to express that conviction - that the party in question pursues anti-constitutional aims and must therefore be challenged in the political arena. A party which for instance advocates in its manifesto the dictatorship of the proletariat or approves recourse to force in order to overthrow the constitutional system if the conditions are right, pursues anti-constitutional aims ... ..." 35. In judgments of 29 October 1981 and 10 May 1984 the Federal Administrative Court held that civil servants who played an active role in the DKP, for example by holding a post in the party or by standing as its candidate in elections, would be in breach of their duty of political loyalty, because they would necessarily be identifying with the anti-constitutional aims of that party. It followed the same line of reasoning in a judgment of 20 January 1987 (see paragraph 22 above). 36. In its report of 20 February 1987 the majority of the Commission of Inquiry of the International Labour Office concluded that "the measures taken in application of the duty of faithfulness to the free democratic basic order have in various respects not remained within the limits of the restrictions authorised by Article 1, paragraph 2, of [the Discrimination (Employment and Occupation)] Convention No. 111". It also formulated a number of recommendations. In reply to this report, the German Government maintained that the measures taken to ensure that civil servants remained loyal to the Constitution were not contrary to the relevant provisions of Convention No. 111 and that in any case the recommendations made by the Commission of Inquiry were not binding on the German State for the purposes of domestic law. | 1 |
train | 001-98012 | ENG | RUS | CHAMBER | 2,010 | CASE OF GEORGIY NIKOLAYEVICH MIKHAYLOV v. RUSSIA | 3 | Violations of Art. 6-1 | Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1944 and lives in St. Petersburg. 5. In 1979 the applicant was convicted of engaging in an illegal business activity and sentenced to four years' imprisonment. The court also ordered the confiscation of his property, namely an art collection. As part of this collection allegedly disappeared, in 1985 the applicant was convicted of fraudulent theft of State property. 6. In 1989 both judgments were quashed and the proceedings against the applicant were terminated on the ground that no criminal offence had been committed. 7. Between 1989 and 1998 the applicant unsuccessfully tried to recover his art collection. 8. In July 1998 the applicant lodged a claim with the Oktyabrskiy District Court of St. Petersburg (“the district court”) against the local departments of the Ministries of Justice, the Interior and Finance and the St. Petersburg Prosecutor's Office, seeking compensation for the pecuniary and non-pecuniary damage caused by the confiscation of his property. 9. On 22 July 1998 the district court scheduled a hearing on 1 December 1998. 10. On 1 December 1998 the district court held a hearing, acceded to the defendant's requests and postponed the proceedings until 18 May 1999. 11. On 19 February 1999 criminal proceedings were instituted against third persons for misappropriation of the applicant's art collection; on an unspecified date the applicant was granted victim status in the criminal case. 12. Between 18 May and 31 August 1999 the district court postponed hearings on four occasions at the defendants' request. 13. On 31 August 1999 the district court granted the applicant's request to hear three witnesses and postponed the hearing until 16 September 1999. 14. On 16 September 1999 the district court heard two witnesses, granted the applicant's request to summon two other witnesses and postponed the hearing until 17 December 1999. 15. On 17 December 1999 the hearing was postponed because the judge was ill. 16. On 12 January 2000 the hearing was postponed because of the applicant's absence. 17. On 20 January 2000 the district court heard two witnesses and postponed the hearing until 22 February 2000 at the applicant's request. 18. On 22 February 2000 the hearing was postponed because the judge was ill; a new hearing was scheduled on 9 June 2000. 19. Between 9 June and 17 October 2000 hearings were postponed on three occasions at the applicant's request. 20. On 17 October 2000 the hearing was postponed until 21 November 2000 pending receipt of information from other courts confirming the applicant's claims. 21. On 21 November 2000 the district court granted the applicant's application to request materials from the criminal case in which the applicant had been granted victim status in substantiation of his pecuniary damage claims; the hearing was postponed until 13 February 2001. 22. The 13 February 2001 hearing was postponed until 26 April 2001 because of the applicant's absence. 23. The 26 April 2001 hearing was postponed because of a defendant's absence. 24. On 12 July 2001 the applicant requested the district court to amend his statement of claims; the hearing was rescheduled on 20 November 2001. 25. On 20 November 2001 the hearing was postponed because of a defendant's absence and the applicant's failure to submit an additional list of his lost property. 26. On 12 March 2002 the applicant provided the district court with an additional list of his lost property; the hearing was postponed because of the defendants' absence. 27. On 10 September 2002 a hearing was postponed because of the applicant's and defendants' absence. 28. On 13 February 2003 a hearing was postponed because the defendants had not been notified of it and failed to appear. 29. On 26 February 2003 the district court held a hearing and dismissed the applicant's claim. The court orally delivered only the operative part of the judgment, without providing any reasons. 30. On 11 July 2003 the applicant appealed against the judgment of 26 February 2003. In his appeal he mentioned that the full text of the judgment had not yet been prepared and that therefore his appeal was preliminary and would be amended. 31. On the same day the applicant complained to the St. Petersburg City Court (“the city court”) that the full text of the judgment of 26 February 2003 had still not been prepared, whereas Article 199 of the Code of Civil Procedure (“CCP”) provided that a reasoned judgment was to be finalised within five days. 32. On 22 July 2003 the city court informed the applicant that Judge K. (the presiding judge in his case) was on holiday and that the full text of the judgment of 26 February 2003 would be drafted as soon as possible. 33. On 25 July 2003 the district court received the applicant's appeal. 34. On 1 September 2003 the district court dismissed the applicant's appeal on the ground of his failure to respect the ten-day time-limit prescribed by law. It mentioned that the applicant's appeal had been received on 25 July 2003, whereas the judgment had been given on 26 February 2003. 35. On 4 September 2003 the applicant was informed that the full text of the judgment had been finalised on 3 September 2003. 36. The applicant appealed against the decision of 1 September 2003. He claimed that, under Article 338 of the CCP, an appeal was to be lodged within ten days of the adoption of a final version of the judgment in issue. In his case, the final version of the judgment had been created on 3 September 2003, that is, two days after his appeal was rejected. He therefore applied for a renewal of the above time-limit. 37. On 29 October 2003 the city court rejected the applicant's appeal against the decision of 1 September 2003, having found no reason to quash it on account of a violation of Article 199 of the CCP by the district court. 38. The text of the judgment of 26 February 2003 bears a court's stamp confirming that it became final on 29 October 2003. 39. The applicant did not pursue supervisory review proceedings. 40. A court may restore a procedural term established by a federal law after its expiry if it finds that reasons for failure to comply with such a term were valid (Article 112 § 1). A request to restore the term after its expiry must be lodged with the court before which the procedural act in question should have been performed, and must be examined at a court hearing. Parties to the proceedings are to be notified of the time and place of the hearing, but their failure to attend it does not preclude the court from deciding upon the issue (Article 112 § 2). The necessary procedural act in respect of which the procedural term has expired, such as lodging a complaint, or submission of documents, must be performed simultaneously with the lodging of the request for restoration of the term (Article 112 § 3). The court's ruling on the restoration of (or refusal to restore) the procedural term may be appealed against (Article 112 § 4 as in force at the material time). 41. A judgment must be delivered immediately after the examination of a civil case. The preparation of a reasoned judgment may be postponed for not more than five days after the examination of a case; however, the firstinstance court must pronounce the operative part of the judgment at the same hearing in which the examination of the case is completed (Article 199 of the CCP). 42. An appeal in a civil case may be lodged within ten days of the delivery of a first-instance judgment in its final form (Article 338 of the CCP). 43. An appeal statement is to be returned to the appellant where (i) a judge's instructions concerning an appeal statement have not been complied with; or (ii) the term for lodging an appeal has expired, provided that restoration of the term concerned has not been requested (Article 342 § 1 of the CCP). | 1 |
train | 001-95232 | ENG | GBR | ADMISSIBILITY | 2,009 | ANDREWS v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Joseph Adesola Andrews, is a Nigerian national who was born in 1967 and lives in Lagos. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office. The applicant arrived in the United Kingdom in July 1991. He was granted leave to enter for a period of six months. In October 1991 he applied for leave to remain as a working holidaymaker. He was granted leave to remain until December 1993. In 1991 he began living with his partner, who is a British citizen. On 17 August 1993 their daughter was born. On 22 November 1993 the applicant claimed asylum. The application was refused by the Secretary of State for the Home Department on 13 May 1994 on the ground that there was no evidence to substantiate the claim. The applicant remained in the United Kingdom without leave. On 27 May 1994 he was sentenced to twelve months’ imprisonment following his conviction of three counts of burglary and a breach of a probation order. On 13 June 1994 he was sentenced to fourteen days’ imprisonment for driving whilst disqualified and driving without insurance. On 26 April 1995 the applicant and his partner married. On 27 April 1995 the applicant applied for leave to remain on the basis of his marriage to a British citizen. On 7 September 1995 he was granted twelve months’ leave to remain on the basis of the marriage. On 6 September 1996 his leave to remain expired and he made no application for an extension. On 7 September 1997 he was convicted by a Crown Court of two counts of conspiracy to defraud and was sentenced to four years’ imprisonment. On 18 August 1998 the applicant was served with notice of a decision to deport him. On 19 August 1998 his application for indefinite leave to remain as the spouse of a British citizen was refused and the Secretary of State for the Home Department made a deportation order against him. On 14 October 1998 the applicant was released from custody on licence. On 22 July 1999 he was convicted by a Magistrates’ Court for possession of a false instrument. He was sentenced to a total of fifteen months’ imprisonment. He was released on 10 March 2000. On 20 November 2000 he was sentenced to three years’ imprisonment for significant offences of dishonesty (including possession and use of a false instrument and attempting to obtain a money transfer by deception). His sentence came to an end in January 2002 but he remained in immigration detention until 25 November 2002, when he was granted bail by the Immigration Appeal Tribunal. On 4 April 2003 the applicant’s appeal against the decision to deport him was dismissed by the Immigration Appeal Tribunal, which found that in view of his criminal conduct and the separation that had already taken place between himself and his family due to his imprisonment, his deportation would not be a disproportionate interference with his right to respect for his family life. The Tribunal accepted, however, that the applicant’s wife was a United Kingdom citizen of Jamaican origin; that she would not relocate to Nigeria with the applicant if he were deported; that her mother was in poor health, requiring her to visit her three to four times each week; that she was in part-time employment in the United Kingdom; and finally, that she had not known that the applicant had no leave to remain when she married him. On 13 May 2003 the applicant made a fresh claim to remain in the United Kingdom on human rights grounds, namely Article 8. This was refused by the Secretary of State by letter dated 8 July 2003. He appealed to an Adjudicator. The Adjudicator dismissed the appeal on 17 December 2003, finding that the interference with the applicant’s family life was proportionate in view of his criminal conduct. On 22 November 2004 the Immigration Appeal Tribunal allowed the applicant’s appeal against the Adjudicator’s decision on the ground that the Adjudicator had misdirected himself on the appropriate standard of proof for a human rights claim and accordingly his determination was “fatally flawed”. The appeal was remitted to another Adjudicator to be considered afresh. On 11 February 2005 a second Adjudicator dismissed the applicant’s appeal against the refusal of his human rights claim. On 28 June 2005 his application for reconsideration was refused by a Senior Immigration Judge on the ground that the Adjudicator’s decision disclosed no error of law. On 10 October 2005 the High Court also refused the applicant’s application for reconsideration of the decision. In May 2006 the applicant’s daughter issued an application for judicial review challenging the decision to deport him. The application was based on a breach of domestic policy rather than Article 8 of the Convention. Permission was refused on the papers on 9 October 2006. An application to renew the application was made outside the seven day time-limit prescribed by the relevant rule of court. Permission was finally refused on 14 December 2007. The applicant was deported to Nigeria on 30 March 2007. Section 3(5) of the Immigration Act 1971 provides, insofar as material, as follows: “A person who is not a British citizen in liable to deportation from the United Kingdom if: - the Secretary of State deems his deportation to be conducive to the public good; ...” At the time of the applicant’s deportation, paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provided that after a minimum of three years following his deportation, the applicant would be entitled to apply to have his deportation order revoked. Revocation of the deportation order did not entitle the applicant to re-enter the United Kingdom; rather, it would entitle him to apply for admission under the Immigration Rules. Following the applicant’s deportation, paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) were amended. They now provide as follows: “390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. 391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion (i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or (ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. 392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.” | 0 |
train | 001-72692 | ENG | AZE | ADMISSIBILITY | 2,006 | BAYRAMOV v. AZERBAIJAN | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Sayyad Bayramov, is an Azerbaijani national who was born in 1956 and lives in Baku. He was represented before the Court by Mr N. Abdullayev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was an executive director of the Qayğı Small Enterprise (hereinafter the “Company”), a commercial legal entity with its headquarters in Baku. According to the Company’s articles of incorporation, its sole founder and owner was the Nizami Qayğı Association. The latter was a non-profit public association aimed at providing social and other public-benefit assistance to the population. The applicant was appointed as the Company’s director pursuant to a decision of the Nizami Qayğı Association, the sole shareholder in the Company. By an order of 7 December 1994, issued by the Baku City Executive Authority (Bakı şəhəri İcra Hakimiyyəti; hereinafter “BCEA”), the Company was provided with a plot of land for construction of an office building. By 1997, the Company had started the construction work on the site. However, on an unspecified date in 1997, BCEA repealed its order of 7 December 1994 and ordered the demolition of the Company’s building. The Company filed a lawsuit against BCEA, seeking compensation for damages. The Company was represented by the applicant, in his capacity of the Company’s director, and by N.I., the Company’s deputy director. By a judgment of 11 November 1997, the Economic Court held that, as a result of the building’s demolition by BCEA, the Company sustained financial damages in the amount of 70,061,250 Azerbaijani Manats (AZM). The court ordered BCEA to compensate the Company for these damages. No appeal was filed against the judgment and it entered into legal force. On 2 December 1997 the Economic Court issued a writ of execution of the judgment. Following BCEA’s failure to pay the compensation, on 18 December 1998 another writ of execution was issued. However, instead of compensating the Company in accordance with the judgment, it appears that, on 15 December 1999, BCEA provided it with another plot of land for construction of a new building. On this ground, BCEA filed an appeal with the President of the Supreme Court, asking to reopen the case due to the “discovery of new facts” and to reconsider the judgment of 11 November 1997. By a letter of 31 May 2001, the President of the Supreme Court rejected BCEA’s request. The President explained that the case could be reopened due to the discovery of new facts only if such new facts had existed at the time of examination of the case by the first-instance court, but were unknown to the court at that time. However, since the new plot of land was transferred to the Company in 1999, after the judgment of 11 November 1997 had entered into force, it could not be considered as a basis for reopening of the proceedings. Moreover, the Supreme Court’s President noted that the transfer of the new plot to the Company could not be considered as a substitute for compensation for the Company’s financial damages sustained as a result of the demolition of its first office building in 1997. Following BCEA’s continuous failure to execute the judgment, on 28 August 2001 the Local Economic Court No. 1 (1 saylı Yerli İqtisad Məhkəməsi) issued a special order, directing the Prosecutor’s Office to bring BCEA’s responsible officials under criminal liability for non-execution of the valid court judgment. On 24 November 2001 the Sabail District Prosecutor’s Office refused to institute criminal proceedings against BCEA officials, holding that there was no documentary evidence showing that the writ of execution had ever been presented directly to BCEA. On 23 July 2002 the Local Economic Court No. 1 issued a new writ of execution which was sent to BCEA through the Sabail District Bailiffs’ Office (Səbail rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları şöbəsi; hereinafter the “Bailiffs’ Office”). On 2 May 2003 BCEA notified the Bailiffs’ Office that it was impossible to comply with the judgment of 11 November 1997, because BCEA did not have sufficient funds allocated from the state budget for the purpose of compensating the Company. On 9 February 2004 the Bailiffs’ Office informed BCEA and the applicant, in his capacity of the Company’s director, that the enforcement proceedings were still pending and insisted that BCEA execute the judgment. On 3 April 2004 BCEA notified the applicant that the issue of the compensation was referred to the Ministry of Finance’s Main Finance Administration of Baku. On 15 April 2004 the Ministry of Finance informed the applicant that the issue was further referred to the Legal Department of the Ministry of Finance. Upon a petition by the Bailiffs’ Office, on 21 April 2004 the Sabail District Court imposed an administrative fine on BCEA in the amount of AZM 825,000 for failure to comply with the judgment of 11 November 1997. The applicant, in the meantime, wrote letters to the President, Constitutional Court and BCEA, complaining about the continuing nonexecution. In reply, he was again informed that the matter was under consideration by the Ministry of Finance. On 16 July 2004 the Bailiffs’ Office informed the applicant that, despite all of the efforts to ensure the enforcement of the judgment in accordance with the law, BCEA consistently failed to comply with the judgment. Finally, on 12 January 2005 the judgment was executed and BCEA transferred AZM 70,061,250 to the Company’s bank account. Article 69.2 of the Code of Civil Procedure provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of incorporation of the legal entity, or by representatives acting on the basis of a power of attorney. | 0 |
train | 001-24051 | ENG | RUS | ADMISSIBILITY | 2,004 | KATAYEVA and KATAYEV v. RUSSIA | 4 | Inadmissible | null | The applicants, Mrs Klara Khudovna Katayeva and Mr Movladin Khasanovich Katayev, are Russian nationals who were born in 1940 and 1948 respectively and live in the Republic of Adygeya. The applicants are married. The respondent Government were represented by Mr P. A. 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 a family of refugees from Chechnya. They brought a court action against authorities, claiming 92,000 US dollars for the loss of their real property left in Chechnya, including a house and a chicken farm, and 240,000 Russian Roubles (“RUR”) for the loss of their movable effects. On 23 June 1999 the Maykop Town Court of the Republic of Adygeya (“the Town Court”) dismissed the applicants’ claim in their absence, having heard the respondent authorities. The court referred to the applicants’ request to consider the case in their absence. The court found that in 1998 the authorities had paid the applicants RUR 79,676 for the loss of their real property and RUR 12,524 for the movable items left in Chechnya, which they had proved to have owned in accordance with a special governmental decree on compensation for the material losses of Chechen refugees. The court found that the applicants had proved that they had a flat of 38.4 square metres, for which they had been awarded the above sums. The court held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items. The applicants appealed against the above judgment, stating that the court had failed to assess properly the evidence in the case. On 17 August 1999 the Supreme Court of the Republic of Adygeya rejected the appeal in the absence of the applicants and in the presence of the governmental authorities, finding that the applicants had not proved the alleged pecuniary damage. The court also stated that Russian legislation provided for no right to claim non-pecuniary damage in connection with the alleged violation of property rights. On 13 January 2001 the Deputy President of the Supreme Court of Russia lodged with the Supreme Court of the Russian Federation an application for supervisory review of the case, requesting the quashing of the decisions of 23 June and 17 August 1999 on the ground, inter alia, that although the applicants had requested examination of the case in their absence, they had not been properly notified of the hearing in breach of Article 157 of the Code of Civil Procedure. This resulted in the applicants’ nonattendance, which, in turn, adversely affected the fairness of the trial. On 26 February 2001 the Supreme Court of Russia granted the application, quashed the said decisions and remitted the case for a fresh examination at first instance. On 30 January 2002 the Town Court refused to examine the applicants’ case on the ground of the applicants’ persistent failure, namely on five occasions, to appear before the court. It appears that the applicants did not appeal and the decision came into force. On 31 May 2002 the Deputy President of the Supreme Court of Russia lodged an application by way of a supervisory review, requesting the Supreme Court of the Republic of Adygeya to quash the decision of 30 January 2002 on the grounds of the court’s failure to deal properly with the applicants’ reluctance to attend the court hearings, for example by examining the case in their absence, and the court’s failure to send them a summons to appear to all known addresses and not just to one address. On 27 August 2002 the Presidium of the Supreme Court of the Republic of Adygeya granted the application, quashed the decision and remitted the case to the first-instance court for a fresh examination. On 10 October 2002 the Town Court dismissed the applicants’ claims. The court observed that on 29 July 1998 the applicants received compensation of RUR 79,676 and RUR 12,524 for the loss of their real property and for the movable items left in Chechnya. The court next held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items. Their claims were accordingly rejected. The applicants, who were duly notified of the hearing, failed to attend it. The applicants appealed against the judgment. It appears that they did not express in their appeal any concern about the first-instance court’s examination of the case in their absence. On 5 November 2002 the Supreme Court of the Republic of Adygeya rejected the appeal and upheld the judgment of 10 October 2002. It appears that neither the applicants nor the respondents attended the appeal hearing. The applicants were involved in a number of other legal disputes with the authorities concerning various social benefits, including, in particular, their claims for a new car, higher salary and pension, and index-linked savings. The domestic courts examined those claims and dismissed them as unfounded. | 0 |
train | 001-58838 | ENG | GBR | CHAMBER | 2,000 | CASE OF FOXLEY v. THE UNITED KINGDOM | 3 | Violation of Art. 8;Not necessary to examine Art. 34;Not necessary to examine Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. On 3 April 1989 the Criminal Justice Act 1988 (“the 1988 Act”) entered into force. Under the 1988 Act, trial courts were empowered to make confiscation orders aimed at removing assessed benefits obtained through the commission of offences of which a person has been found guilty. 9. On 25 June 1992 the applicant was arrested and subsequently charged and committed for trial. 10. On 3 November 1993 the Snaresbrook Crown Court convicted the applicant of twelve counts of corruption committed between 11 December 1979 and 7 August 1984, when he was employed by the Ministry of Defence as an ammunition procurement officer. The court sentenced him to four years’ imprisonment under section 1 of the Prevention of Corruption Act 1906 on each of the twelve counts, to be served concurrently. 11. The court conducted an enquiry under the 1988 Act and found that the applicant had benefited from the commission of the offences in the amount of GBP 2,092,569.20. Pursuant to section 71 of the 1988 Act, a confiscation Order was made against him in the amount of GPB 1,503,301.80, the amount at which his realisable assets was assessed. This sum was to be paid within eighteen months. In default of payment the applicant was to be imprisoned for a further (consecutive) term of three years. 12. The applicant’s appeals against his conviction and sentence, as well as in relation to the amount and basis of calculation of the confiscation Order, were dismissed by the Court of Appeal on 6 February 1995. The applicant did not dispute before the Court of Appeal that he had realisable assets in excess of GBP 1.27 million. 13. On 4 December 1995 the Bow Street Magistrates’ Court issued a summons for the commitment of the applicant to custody for default in the payment of the amount due under the confiscation Order. The hearing on whether the applicant should be committed to custody for non-payment of the confiscation Order was adjourned at the request of the Crown Prosecution Service (“CPS”) pending an investigation into alternative methods of recovery. 14. On 8 August 1996, in connection with the enforcement of the confiscation Order, Ms S.D. was appointed as Receiver to realise the applicant’s property, including any property of the applicant held by third parties. The High Court, which appointed the Receiver under section 80(2) of the 1988 Act on application by the CPS and after the applicant had been given a further opportunity to comply with the confiscation Order, ordered that the Receiver’s powers were not to be exercised until the interests of the restrained properties had been determined. 15. On 2 September 1996, following an application on behalf of the Ministry of Defence in separate civil proceedings, the applicant was declared bankrupt. Ms S.D. was appointed as the applicant’s Trustee in Bankruptcy. This appointment was independent of her appointment as Receiver. 16. Following an ex parte application by the Receiver and Trustee in Bankruptcy, Ms S.D., the District Judge at Reading County Court ordered, on 27 September 1996, that: “for a period of three months from the 27th day of September 1996 all postal packets (as defined by section 83 of the Post Office Act 1953) directed or addressed to the Bankrupt ... shall be re-directed, sent or delivered by the Post Office to [the Trustee in Bankruptcy’s address].” 17. The Order was made under section 371 of the Insolvency Act 1986 in favour of Ms S.D. in her capacity as the applicant’s Trustee in Bankruptcy. The application was based on the grounds that the Trustee in Bankruptcy was of the opinion that communications concerning remittances and useful information in respect of the applicant’s assets and liabilities which would better enable her to perform her duties might be forwarded to the applicant’s address and lost to the applicant’s estate if the Order were not made. The grounds invoked were supported by an affidavit sworn on 27 September 1996, which affirmed that it was necessary for postal packets to be intercepted immediately and without notice to the applicant to enable the Trustee in Bankruptcy properly to identify the applicant’s assets and sources of income. 18. An exception was made in the Order of 27 September 1996 for letters on which there was a specific direction, signed by the Trustee in Bankruptcy, that any such letter was to be delivered as addressed, if possible. 19. Between 27 September 1996 and 10 January 1997, a total of 71 letters addressed to the applicant were re-directed to the Receiver and Trustee in Bankruptcy. These letters included, inter alia, a letter from the Chief Inspector of the Ministry of Defence Police, two letters from the Legal Aid Board concerning civil proceedings to which the applicant was a party, a letter from the Police Complaints Authority, two letters from his legal advisers, the Legal Department of the National Council for Civil Liberties (later referred to as “Liberty”) relating to the proceedings before the European Commission of Human Rights, and affidavits and drafts made or prepared for use in the High Court in relation to the receivership proceedings. 20. Each of the letters mentioned above was copied to file before being forwarded promptly to the applicant. 21. In his letter of 28 November 1996 to the Receiver and Trustee in Bankruptcy the applicant expressed particular concern that apparently privileged material was being intercepted. On 2 December 1996 the Receiver and Trustee replied that no mail from the Police, Legal Aid, the National Council for Civil Liberties and the European Court of Human Rights would be opened in the future, as long as the sender’s names were clearly stamped on the envelopes. 22. Although the re-direction Order expired on 27 December 1996 it was only as from 18 January 1997 that the applicant began to receive his mail directly again. During that period there were two mail deliveries to the Trustee in Bankruptcy. One delivery was received on 30 December 1996, the other on 10 January 1997. The deliveries contained ten items of mail, none of which fell within the categories described above (see paragraph 19). A number of the items were however copied to file before being forwarded to the applicant. 23. On 25 February 1997 the applicant issued a summons for a stay of the receivership proceedings pending the determination of his application to the Commission. The hearing was listed for 16 June 1997 but was adjourned to 19 February 1998. On that date the High Court dismissed the application and confirmed that the receivership proceedings should continue. The applicant has not informed the Court of any subsequent developments in the receivership proceedings. 24. Section 371 of the Insolvency Act 1986 provides as follows: “1. Where a bankruptcy order has been made, the court may from time to time, on the application of the official receiver or the trustee of the bankrupt’s estate, order the Post Office to re-direct and send or deliver to the official receiver or trustee or otherwise any postal packet (within the meaning of the Post Office Act 1953) which would otherwise be sent or delivered by them to the bankrupt at such place or places as may be specified in the order. 2. An order under this section has effect for such period, not exceeding three months, as may be specified in the order.” 25. Trustees in Bankruptcy have other statutory powers, which are more stringent than the power to apply for a re-direction order but which may nonetheless need to be used, in appropriate cases, if Trustees are properly to investigate the bankrupt’s affairs for the ultimate benefit of his creditors. In particular, under section 365 of the Insolvency Act 1986 a Trustee may obtain a warrant authorising him to seize property, books and/or records falling into the debtor’s estate. Furthermore, section 366 of the Act allows the court (on application by a Trustee) to summon a variety of persons before it to give an affidavit and/or produce documents. 26. A bankrupt owes a statutory duty, pursuant to section 333 of the Insolvency Act 1986, to give to the Trustee such information as to his affairs, attend meetings with the Trustee and do such other things as the Trustee may reasonably require for the carrying out of his relevant functions. | 1 |
train | 001-96773 | ENG | TUR | CHAMBER | 2,010 | CASE OF Z.N.S. v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 3 (in case of deportation to Iran);Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 3 (substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 6. The applicant was born in 1967 and is currently held in the Kırklareli Foreigners' Admission and Accommodation Centre, in Turkey. 7. The applicant first entered Turkey on 24 September 2002 using a false passport. She began living and working in Istanbul without informing the Turkish authorities or the United Nations High Commissioner for Refugees (“the UNHCR”). 8. On 22 October 2003 the applicant applied to the UNHCR and asked to be recognised as a refugee. On an unspecified date in 2004 she was detained by the Turkish authorities and deported to Iran, where she claims to have been imprisoned for nine months and subjected to illtreatment. 9. Following her release from prison in Iran, the applicant reentered Turkey illegally on 3 February 2005. She learned that her case before the UNHCR had been closed in her absence. 10. In June 2006 the applicant was diagnosed with myomatosis of the uterus and operated in a private hospital on 5 June 2006. The medical reports, in particular the pathology results, revealed that there were no cancerous cells. 11. In the meantime, she became interested in Christianity and began attending Bible classes. On 7 September 2007 the applicant was baptised in a Protestant church in Istanbul. On an unspecified date the applicant's son, who was attending the Iranian Consulate School in Istanbul, was expelled on the ground of “conduct against the school's faith”. Some time within a year of that incident the applicant applied to the Iranian Consulate in Istanbul for a passport. While there, she was asked to complete a form stating that she was a Christian. 12. On an unspecified date at the end of 2007, the applicant applied to the UNHCR and requested that her case be re-examined. 13. On 3 May 2008 the applicant went to the Fatih police headquarters in Istanbul in order to make statements as a witness regarding a criminal offence committed by third persons. As she was found to have identity documents with different names on them, an investigation was initiated into this and she was arrested. On an unspecified date she was released. 14. On 9 May 2008 the applicant was rearrested on suspicion of infringement of visa requirements and forging official documents. According to a letter sent by the Istanbul police to the Department responsible for foreigners, borders and asylum attached to the General Police Headquarters on the same day, the applicant had stated that she did not wish to live in Iran and that she had come to Turkey in order to apply to the UNHCR. The same letter stated that the applicant had been placed in the Foreigners' Department of the Istanbul police headquarters with a view to her deportation from Turkey. 15. On 13 May 2008 the director of the department responsible for foreigners, borders and asylum attached to the General Police Headquarters requested the Istanbul police headquarters to obtain statements from the applicant regarding a number of issues, including her failure to apply to the Turkish authorities when she had applied to the UNHCR, the reason why she had made multiple entries and exits between Iran and Turkey and why she was staying illegally in Turkey. The director also requested that the possible security risks that the applicant may pose in Turkey be determined. 16. On 16 May 2008 the applicant sent another letter to the Ministry of the Interior. Referring to her medical condition, she requested urgent treatment and asked to be released and issued with a temporary residence permit pending the proceedings before the UNHCR and the Court. 17. On the same day the applicant was questioned by a police officer at the Istanbul police headquarters. She maintained, inter alia, that she had initially entered Turkey with a false passport and that she had been deported to Iran where she had spent nine months in prison. She contended that when she re-entered Turkish territory on 3 February 2005 she had immediately re-applied to the UNHCR. She noted that she was against the present government in Iran and that she and her family members had been oppressed when they lived in Iran. The applicant mentioned that she had left and reentered Turkish territory as that was the only way to renew her visa. She further contended that she had not applied to the Turkish authorities earlier as her case had been closed by the UNHCR. 18. On 20 May 2008 the applicant's statements were sent to the General Police Headquarters by the Istanbul police. 19. On 6 and 16 May and 2 June 2008, the applicant's representative lodged petitions with the Istanbul Police Headquarters and requested that his client be released and given a residence permit pending the outcome of her application to the UNHCR. 20. By a letter dated 10 June 2008, the deputy director of the Istanbul police headquarters informed the Kırklareli police headquarters that the applicant did not wish to return to her country, but wished to seek asylum, and had applied to the Court. The director reiterated that she had been held in the Istanbul police headquarters with a view to her deportation. He further maintained that the applicant should be held in the Kırklareli Foreigners' Admission and Accommodation Centre pending the outcome of the proceedings before the Court. On the same day the applicant was transferred to that facility. 21. On 18 July 2008 the Ministry of the Interior informed the applicant that her case before the Turkish authorities was suspended pending the proceedings before the Court. 22. On 29 December 2008 the applicant and her son were recognised as refugees, under the UNHCR's mandate, on religious grounds. 23. On 14 April 2009 the applicant's representative lodged a case with the Ankara Administrative Court. He requested the court to annul the decision of the Ministry not to release his client and to order a stay of execution of that decision pending the proceedings. 24. On 28 May 2009 the Ankara Administrative Court rejected the applicant's request for a stay of execution. 25. The applicant's representative appealed. On 24 June 2009 the Ankara Regional Administrative Court dismissed the appeal. 26. In his submissions to the Court dated 16 May 2008 the applicant's representative contended that, although the applicant was suffering from serious consequences of the operation she underwent in June 2006, she did not have access to a doctor in the Kırklareli Foreigners' Admission and Accommodation Centre. On 18 June 2008 he informed the Court that the applicant had been examined by a doctor, who had ordered a further medical examination. Despite this, the Ministry of the Interior did not authorise a further examination and the applicant's health was deteriorating. 27. On 27 August 2008 the applicant, with four other persons, started a “fast to the death” to protest about her placement and the physical conditions in the Centre. 28. Before the Court, the applicant maintained that the physical conditions in the Kırklareli Centre were below the minimum standards set by the European Committee for the Prevention of Torture (the “CPT”). In support of her submissions the applicant provided a number of photographs containing images of several parts of the Centre. In one room there were two bunk beds on which there were pillows and blankets. There was no bed linen on the beds. In another room there were two beds with bed linen, pillows and blankets. The photographs of the kitchen sinks and stoves showed that the latter were unusable. Another photograph showed that there were four sinks in the bathroom. Inside, the toilets were partially covered with some kind of dark substance. Photographs of the cleaning products that had labels in the Cyrillic alphabet showed that their dates had expired nine to ten years ago. 29. The applicant finally alleged that the officers who worked at the Kırklareli Centre did not treat the detainees well. In particular, she had been insulted and threatened by a police officer. 30. The Government replied that the applicant was subjected to a series of medical examinations during July 2008 at the Kırklareli State Hospital According to the documents submitted, blood tests, an abdomino-pelvic ultrasound examination and an abdominal tomography were performed on the applicant. The doctors found no pathological signs as a result of these examinations. 31. The Government denied the applicant's allegation that the physical conditions at the Kırklareli Foreigners' Admission and Accommodation Centre did not comply with the minimum standards established by the CPT. Noting that the Centre in question was not a detention facility, the Government provided photographs of a birthday party and an engagement party, both organised in the common room of the Kırklareli Centre. They further submitted photographs of an Islamic celebration (Festival of Sacrifice) organised in the garden of the Centre. 32. In their submissions dated 9 September 2009, the Government maintained that an investigation had been initiated into the actions of the police officer who had allegedly insulted the applicant in relation to the latter's complaint of ill-treatment. 33. A description of the relevant domestic law and practice may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009). 34. The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, page 41) provide, in so far as relevant, as follows: “... In the view of the CPT ... where it is deemed necessary to deprive persons of their liberty for an extended period under aliens' legislation, they should be accommodated in centres specifically designed for that purpose... Obviously, such centres should provide accommodation which is adequatelyfurnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them. ...” 35. In June 2008 Human Rights Watch visited three Admission and Accommodation Centres in Turkey, including the Centre in Kırklareli. The relevant extracts from the report entitled “Stuck in a Revolving Door”, published by Human Rights Watch on 6 November 2008, read as follows: “... The Kırklareli Gaziosmanpaşa Refugee Camp (hereafter Kırklareli) has had a long history as an actual refugee camp. In 1989 it was a safe haven for ethnic Turks fleeing Bulgaria; in 1992, a shelter for refugees from Bosnia; and in 1999, a place of refuge for Kosovar Albanians. It can no longer be described, truthfully, as a refugee camp, however. It is rather a detention centre for migrants, some of whom may indeed be refugees, but not refugees being protected from persecution, but rather refugees that Turkey is seeking to remove. At the time of Human Rights Watch's visit, Kırklareli held 174 detainees, including four women and the four-year-old child of one of the women. Although the men are locked away in a long barracks building, they were freely wandering around the outdoor grounds of the fenced-in facility during the Human Rights Watch visit. They appeared to be allowed to go outside the barracks during the afternoons. The facility is surrounded by a chain-link fence topped with barbed wire. Signs of its history as a former refugee camp are abundant in the form of old unused shelters with faded UNHCR logos and an overgrown soccer field that have not been used in many years, despite a rather comical attempt by the Kırklareli administrator to give Human Rights a guided tour intended to show that old classrooms and recreational facilities are still being used by the detainees. The women and child were housed in a separate building that the women told Human Rights Watch they had recently been asked to clean prior to a visit by another delegation. The administrator showed Human Rights Watch a large-screen television set in one of the women's private rooms, but failed to note that the TV was not plugged in and didn't work at all. Although the men are allowed to leave their barracks during most afternoons, the guards tell the women that they are not allowed to leave their building. "The door is kept open to allow the child to come and go, but we are not allowed to walk out the door," said a 25-year-old Iranian woman. Both men and women at Kırklareli complained about the poor quality and small quantity of food. A man claiming to be Burmese said, "The food is not good. It is not fit for humans, and it is not enough. Nothing happens if we complain. The guards say, 'If you don't like the food, go to the market and buy your own.'" The main complaint, however, is that the detainees are not informed how long they will remain in detention. Human Rights Watch spoke privately with a man who appeared to be an informal leader of the "Burmese" at Kırklareli. He said that the Burmese numbered 160 of the 174 detainees in the camp and that most, including him, had already been held there for nine months and had no idea how much longer they would stay there. "Just tell us what to do," he said. "Give us a sentence. If they let us leave, we will work and feed our families. Let us leave or kill us.” Even though the conditions at Kırklareli did not appear to be nearly as bad as at Edirne, tensions between detainees and guards were very high. The camp administrator told Human Rights Watch, "Despite the good conditions here, there is an enmity towards us." On the night of the day after the Human Rights Watch visit there was a riot at Kırklareli. The causes of the riot and the response of the security forces were under investigation when Human Rights Watch left the country. In the course of putting down the disturbance, Turkish security forces shot and killed one of the detainees, a young man of unknown nationality who Human Rights Watch had talked to at length. ...” 36. On 11 June 2008 around midnight a riot started in the Kırklareli Foreigners' Admission and Accommodation Centre. During the riot an asylum seeker died and another asylum seeker and two police officers were wounded. Subsequent to the riot, the Organisation for Human Rights and Solidarity for Oppressed People (Mazlum-Der), a human rights organisation based in Turkey, made a visit to the Centre in order to assess the situation there. During this visit, the Mazlum-Der interviewed persons held in the Centre, the Kırklareli governor, the director of the Kırklareli Centre and one of the officers who had been injured. The governor stated, inter alia, that the authorities were doing their best to meet the needs of the persons held in the Centre. The director also stated that they maintained good standards of living in the Centre. 37. Following the initiation of the “fast to the death” by the five persons held in the Kırklareli Foreigners' Admission and Accommodation Centre, including the applicant, on 3 September 2008 the Mazlum-Der made a second visit to the Centre in order to interview the persons on hunger strike and to observe the living conditions in the Centre. According to the report published by Mazlum-Der, they were not allowed to visit the inside of the Centre where foreign nationals were held. They could however interview the applicant and the other four persons, who maintained that there had been problems regarding the quality of food provided by the administration of the Centre, the Centre's hygiene, access to medical care and common living space. | 1 |
train | 001-92538 | ENG | GEO | ADMISSIBILITY | 2,006 | KERECHASHVILI v. GEORGIA | 1 | Inadmissible | null | The applicant, Mr Omar Kerechashvili, is a Georgian national who was born in 1940 and lives in Tbilisi. From 11 October 2004 he was represented before the Court by Mr Z. Bourdouli, a lawyer belonging to the Georgian Young Lawyers’ Association. The Georgian Government (“the Government”) were represented first by Mrs E. Gureshidze, their general representative at the Court, and after 1 September 2005 by Mrs I. Barthaïa, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 May 2000 the applicant, a civil servant employed at the Ministry of Social Security since 1974, was told that he was to be made redundant because the department in charge of disabled persons, within which he was the deputy director of the social reinsertion section, was to be reorganised after a decision to merge the Health and Social Security Ministries taken in December 1999. The applicant brought proceedings against his employer, seeking reinstatement and the sum of 1,094.91 laris (GEL) (approximately 478 euros (EUR)) for arrears of salary and unpaid bonuses. He submitted that on a number of occasions during the period 1998-2000 his salary (GEL 651.61 (approximately EUR 285)) had not been paid. In addition, he had not been paid bonuses for the third quarter of 1998, all four quarters in 1999 and two quarters in 2000 (GEL 443.30 (approximately EUR 194)). The defendant refused to reinstate the applicant but agreed that he was entitled to payment of the sum he claimed, amounting to GEL 1,094.91. On 14 September 2000, finding that the decision to make the applicant redundant had been taken in accordance with the law, the Vake-Saburtalo Court of First Instance in Tbilisi dismissed the first part of the applicant’s claim. For the rest, it decided that the ministry should pay him the sum of GEL 1,094.91. The applicant appealed, again asking for his redundancy notice to be declared null and void, and complained that the sums he was owed had not been paid to him on the day his employment was terminated, as required by Article 96 of the Labour Code. On 4 December 2000 the Civil Division of the Tbilisi Regional Court upheld the decision of 14 September 2000 in its entirety, adding that the applicant was entitled to assert his rights under Article 96 of the Labour Code. In the reasons it gave for dismissing the first part of the applicant’s claim, the Regional Court noted that the applicant, like every other civil servant made redundant at the same time, had been given sufficient notice that he was to lose his employment when the service in which he worked was closed down. It ruled that the procedure had been perfectly compliant with the requirements of section 97(1) of the Civil Service Act, whereas the applicant had refused to take up a different post the administration had offered him in exchange, as required by section 97(2) of the Act. The applicant appealed on points of law against the dismissal of his application to set aside his redundancy. As he had not contested before the Supreme Court that part of the appellate court’s judgment which concerned payment of the debt of GEL 1,094.91, it became final and enforceable on 4 January 2001 (Articles 397 and 402 § 1 of the Code of Civil Procedure). According to the applicant, the decision of 14 September 2000, as upheld on appeal on 4 December 2000, was never executed. In his appeal on points of law, the applicant submitted that the Regional Court’s interpretation of section 97(1) of the Civil Service Act was incorrect and deprived him of his rights under section 97(2). He further complained that his appeal had been heard by the Civil Division instead of the Administrative Division. On 13 April 2001 the Supreme Court held that the dispute was a labour dispute and was to be dealt with according to the rules of civil procedure. It found no breach or incorrect interpretation of the law by the Regional Court and dismissed the applicant’s appeal. Notification of the cassation judgment was dated 1 June 2001, but was served on the applicant on 13 June 2001. In a letter of 22 June 2001, the Georgian ombudswoman informed the applicant that she had referred to the Ministry of Justice his complaint of a failure to execute the decision of 14 September 2000. On 30 July 2001 the Vake-Saburtalo Court of First Instance issued the applicant with the writ of execution required to enforce execution of the decision of 14 September 2000, as upheld on appeal on 4 December 2000. On 31 July 2001 the applicant presented the writ, together with a written request for enforcement, to the competent bailiff (section 26 of the Court Orders (Enforcement Procedure) Act). The Government sent the Court copies of the writ of execution and the written request for enforcement (see “The law” below). ... | 0 |
train | 001-60953 | ENG | TUR | CHAMBER | 2,003 | CASE OF DJAVIT AN v. TURKEY | 1 | Preliminary objections rejected (State responsibility, non-exhaustion of domestic remedies);Not necessary to examine Art. 10;Violation of Art. 11;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Lucius Caflisch | 8. The applicant is a Cypriot national of Turkish origin who was born in 1950 and is a paediatrician residing in Nicosia, north of the “green line”. 9. In addition to being a critic of the Turkish-Cypriot authorities and of the Turkish military presence in the northern part of Cyprus, which he defines as “occupation”, the applicant is the “Turkish-Cypriot coordinator” of the Movement for an Independent and Federal Cyprus, an unregistered association of Turkish and Greek Cypriots founded in 1989 in Nicosia. The movement has a Turkish-Cypriot coordinating committee in the northern part of the island and a Greek-Cypriot coordinating committee in the southern part. The purpose of the Movement is to develop close relations between the two communities. To that end, it organises bi-communal meetings of a political, cultural, medical or social character. 10. The applicant is normally unable to obtain a permit from the Turkish and Turkish-Cypriot authorities to visit the “buffer-zone” or the southern part of the island in order to participate in various bi-communal meetings. Thus, between 8 March 1992 and 14 April 1998, the date of the Commission's admissibility decision, only 6 out of 46 requests for such permits were granted. Further, between 18 April 1998 and 16 October 1999 two more permits were refused, one of which, however, was granted later on. The requests that were turned down concerned, inter alia, a UNFICYP (United Nations Peacekeeping Force in Cyprus) Spring Fair at Nicosia International Airport in May 1992, a bi-communal medical seminar organised by the UNHCR (United Nations High Commissioner for Refugees) in June 1992, a meeting of the coordinating committee for the “Movement for an Independent and Federal Cyprus” at the Ledra Palace in October 1992 as well as two meetings for the reorganisation of this committee in April and July 1994, a seminar on cardiology organised by the UNHCR in June 1994, a general meeting of the New Cyprus Association in December 1997 and a number of receptions organised by the German embassy in Nicosia. Moreover, in May 1992 the above-mentioned authorities refused to allow Greek Cypriots to attend a meeting organised by the applicant in the northern part of the island. 11. The applicant claimed that the Council of Ministers of the “Turkish Republic of Northern Cyprus” (the “TRNC”) had adopted a decision prohibiting him from contacting Greek Cypriots. Reference to this decision was allegedly made in a letter dated 3 February 1992 by the Health Minister of the “TRNC” to the applicant, which reads as follows: “According to the information our Ministry has received, you were informed by the Ministry of Foreign Affairs and Defence orally and this has been a decision of the government and we have nothing to add in our capacity as the Ministry.” 12. On 7 May 1992 the applicant wrote to the Prime Minister of the “TRNC” requesting to be informed of the content of the Council of Ministers' decision referred to in the above-mentioned letter, but received no reply. 13. On 29 May 1992 he sent a letter of protest to the Foreign Minister of Turkey, which has also remained unanswered. 14. On 18 May 1994 the Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence of the “TRNC” informed the applicant that “the permission requested by [his] letter of 19 April 1994 was refused for security reasons, in the public interest and because [he had] made propaganda against the State”. 15. On 24 May 1994 the applicant wrote to the Deputy Prime Minister of the “TRNC”, asking whether the previous decision of the Council of Ministers was still in force since he was not allowed to visit the buffer-zone or cross over into Nicosia. He received no answer and on 19 July 1994 he sent a reminder, which also remained unanswered. However, the applicant claimed that, in an article published in a newspaper on 18 March 1996, the former Deputy Prime Minister (to whom he had sent the above-mentioned letters) had stated that when he had held this position he had requested an explanation by the Prime Minister as well as the President of the “TRNC” in relation to the refusal of permits, but had not received an answer. | 1 |
train | 001-98387 | ENG | POL | CHAMBER | 2,010 | CASE OF Z. v. POLAND | 4 | Violation of Art. 8 | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 6. The applicant was born in 1957 and lives in Bytom. 7. On 27 April 1996 the applicant married M.N. In November 1996 M.N. gave birth to their daughter, D.Z. 8. In 2000, following a conflict between the spouses, the applicant moved out of their place of residence. 9. On 15 May 2000 the applicant requested the Bytom District Court (Sąd Rejonowy) to regulate contact with his child. 10. On 6 July 2000 the Bytom District Court allowed the application and regulated contact with the applicant's daughter. In particular, the court granted him the right to visit his daughter on given days of each week and to spend summer holidays with her in August without the presence of the child's mother. 11. On 4 September 2000 the applicant requested the Bytom District Court to seize his daughter's passport. He reasoned his request by a reasonable fear that M.N., who had many contacts in Scandinavian countries, could try to take their daughter to Norway. It is unclear from the case file whether the request was granted. 12. On 29 September 2000, following an appeal by M.N., the Katowice Regional Court (Sąd Okręgowy) upheld the decision of the District Court of 6 July 2000. 13. The court's order was not enforced and therefore, on 8 January 2001, the applicant requested the court to impose a fine on his former wife. 14. In October 2000 the applicant's former wife and their daughter moved from Bytom to Zakopane, so the case file had to be transmitted to the court with jurisdiction there. The relevant decision was taken on 3 July 2001. However, the transfer did not take place until November 2001. 15. On an unspecified date M.N. filed for divorce. The issue of the applicant's visiting rights was therefore examined by the divorce court. 16. On 30 March 2001 the Katowice Regional Court gave a decision regulating the applicant's contact with his daughter. In particular, the court granted him the right to visit his daughter every Friday between 1 p.m. and 5 p.m. at a location other than the flat in which she lived with her mother. The applicant was also allowed to collect his daughter from kindergarten. The contact was to take place in the presence of a court officer (kurator sądowy). 17. The decision of 30 March 2001 was not complied with by the applicant's former wife, who prevented the applicant from exercising his visiting rights. 18. Between 20 April 2001 and 8 March 2002 the applicant saw his daughter on 27 occasions. A further sixteen meetings were cancelled for various reasons: eight for the daughter's failure to appear, one at M.N.'s request, three for the applicant's failure to appear and four for the guardian's failure to appear. 19. On 5 March 2002, relying on Article 1050 of the Code of Civil Procedure, the applicant requested the court to impose a fine on M.N. 20. The applicant's request was not examined by the court. 21. In the summer holiday period of 2002 the applicant's former wife moved from Zakopane to Bytom, so the Zakopane District Court transmitted the case file concerning the application for a fine to be imposed on M.N. to Bytom. 22. On 20 May 2003 the Bytom District Court gave a decision and gave M.N. one month to comply with the court order. At the same time the court conditionally imposed on her a fine of 1,000 Polish zlotys (PLN) in the event of default. 23. M.N. continued to prevent the applicant from exercising his visiting rights. 24. On 5 July 2003 the applicant again requested the court to impose a fine on his former wife. 25. In the meantime, on 23 September 2003, the Katowice Regional Court gave a new decision regulating the applicant's visiting rights. The decision was similar to the previous one, but the court additionally obliged M.N. to prepare the child to be picked up by his father on given dates (przygotowania dziecka i wydania w terminie wyznaczonym). 26. On 28 November 2003 the Katowice Regional Court granted a divorce. It also indicated the manner in which the parental authority should be exercised. The court made a residence order under which the child was to live with her mother, but the applicant was granted visiting rights, in particular the right to visit his child on given days of the week, without the presence of the mother and the right to spend one month of summer holidays, one week of winter holidays and the second day of the Christmas holidays with his daughter. The court also ordered that all decisions crucial for the child's upbringing were to be taken by both parents. 27. The judgment was not challenged by M.N. 28. M.N. still did not comply with the court order. She prevented the applicant from collecting his daughter from kindergarten (by instructing the staff not to let the applicant collect the child) and organised the child's holidays in such a way that she was abroad with her mother or grandparents for the whole two months of the summer holidays. 29. On 13 January 2004 the Bytom District Court imposed on M.N. a fine of PLN 600 for her failure to comply with the court's order as regards the applicant's visiting rights. The court also gave M.N. one month to make it possible for the applicant to exercise his visiting rights and held that, should she fail to comply with this order, another fine of PLN 800 would be imposed on her. 30. On an unspecified date M.N. appealed against this decision and, on 19 March 2004 the decision was upheld by the Katowice Regional Court. 31. However, these decisions were once more not enforced. 32. On 15 March 2004 the applicant again requested the court to impose a fine on his former wife. 33. On 26 August 2004 the Bytom District Court again ordered M.N. to pay the fine of PLN 800 and gave her one month to allow the applicant to exercise his visiting rights. The court also held that, should she fail to comply with its order, a further fine of PLN 1,000 would be imposed on her. 34. On 5 November 2004, following an appeal by M.N., the Katowice Regional Court upheld that decision. 35. The court's orders still remained unenforced. 36. On 16 November 2004 the applicant again requested the court to impose a fine on M.N. 37. On 30 March 2006 the court fined M.N. PLN 1,000. 38. On 26 May 2006 M.N. appealed against that decision. It is unclear from the case file whether the decision of 30 March 2006 was upheld by the second-instance court. 39. On 26 September 2006 the Bytom District Court again regulated the applicant's visiting rights and ordered that the contacts would take place in the Bytom Family Consultation Centre (Rodzinny Ośrodek DiagnostycznoKonsultacyjny) in the presence of a psychologist, on every first and third Monday of each month, between 3.30 p.m. and 5 p.m. 40. On an unspecified date in March 2008 the applicant requested the court to change the rules governing his contact with his daughter. 41. On 30 April 2008 the Bytom District Court gave a decision and regulated the applicant's visiting rights, ordering that contact should take place on every second and fourth Saturday of each month between 2 p.m and 5 p.m., outside the applicant's daughter's place of residence. The court also ordered M.N. not to disrupt this contact. 42. Both parties appealed against that decision. 43. On 19 September 2008 the Katowice Regional Court extended the applicant's contact with his daughter by ordering that it should take place between midday and 6 p.m. on the days specified in the Bytom District Court's decision. The court dismissed M.N.'s appeal. 44. On 6 May 2009 the Bytom District Court gave a decision and ordered M.N. to fulfil an obligation imposed on her in the Bytom District Court's decision of 30 April 2008 and the Katowice Regional Court's decision of 19 September 2009 under pain of a fine in the amount of PLN 500. 45. The applicant made several attempts to contact his daughter but, according to his submissions, the doors of the apartment where she lives were locked. 46. On 20 July 2009 the applicant requested the Bytom District Court for assistance in establishing the current address and place of residence of his daughter. 47. M.N. submitted to the court a medical certificate indicating that she would not be able to appear before the court in person until 2 January 2010. 48. According to the applicant, he is deprived of any contact with his daughter. 49. On an unspecified date M.N. tried to have criminal proceedings instituted against the applicant. She accused him of having sexually abused their daughter. According to an expert's opinion the testimony of D.Z had been influenced by a third party. The proceedings against the applicant were discontinued. 50. The relevant domestic law concerning the enforcement of a parent's visiting rights is set out in the Court's judgment in the case of P.P. v. Poland, no. 8677/03, § 69-74, 8 January 2008. 51. According to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parents' contact rights refuses to comply with it, contact decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to enforcement of court decisions on parental rights or contact rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8). “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.” If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation. 52. Article 1052 of the Code of Civil Procedure provides as follows: “In one decision the court may impose a fine not exceeding 1,000 Polish zlotys (PLN) unless the fine had been already imposed three times and this had proved ineffective. The total amount of fines in the same case may not exceed PLN 100,000 (...).” 53. Article 1053 of the Code of Civil Procedure in its relevant part provides as follows: “The court, while imposing a fine, shall at the same time impose an arrest in case the fine is not paid. One day of arrest shall be equivalent to between five and one hundred and fifty zlotys of fine. The total duration of arrest in the same case shall not exceed six months.” 54. On 28 August 2008 the Supreme Court, in reply to a legal question asked by the Wrocław Regional Court, adopted a resolution (III CZP 75/08) which read as follows: “Decisions regulating contact between parents and a child, ordering the parent who has the custody of the child to put the child in the disposal of the other parent and ordering the other parent to return the child (to accompany the child back), are enforced in the proceedings regulated in Article 5981 and subsequent of the Code of Civil Procedure” 55. Article 5986 of the 1964 Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides that if a person who is ordered to return a child does not comply with the court's order, the court will instruct the guardian to forcibly remove the persons concerned (przymusowe odebranie osoby). 56. Under Article 59810, “Upon a request of a court-appointed guardian, the police are obliged to help him or her to carry out the forcible removal of [a minor].” 57. Article 59811 § 1 provides as follows: “If forcible removal of [a minor] is hindered because that person is in hiding or because other action is taken with the aim of stopping the enforcement of the order, the court-appointed guardian shall inform a prosecutor.” 58. Pursuant to 59812, “§ 1 The court-appointed guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of the child is not damaged and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function. § 2 If the well-being of [a minor] would be placed at risk as a result of the removal, the guardian shall stop the enforcement of the order until the risk is over, unless by stopping the enforcement, the person would be placed at greater risk.” | 1 |
train | 001-58202 | ENG | FRA | CHAMBER | 1,998 | CASE OF LE CALVEZ v. FRANCE | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | C. Russo;John Freeland | 6. On 22 August 1980 Mr Jean-Marie Le Calvez was recruited to the New Caledonian Civil Service as an agricultural technician. He became established on 12 October 1981. 7. Further to a request made by the applicant on 7 April 1986, the High Commissioner of the Republic in New Caledonia (“the High Commissioner”) decided on 3 July 1986 to grant him leave of absence for one year from 1 October 1986. That decision was taken in accordance with Article 95 of Decree no. 1065 of 22 August 1953 embodying the New Caledonian Civil Service Code (see paragraph 44 below). By a decision of 2 June 1987 the applicant was, at his own request, given a further two years’ leave of absence from 1 October 1987, and that period was extended until January 1990. 8. On 26 December 1989 the Minister of Agriculture and Forestry placed Mr Le Calvez, at the latter’s request, on secondment (détachement) for a period of five years commencing on 1 February 1990. He was assigned first to the Agriculture and Forestry Office for the département of Côtes d’Armor and then, from 1 February 1991, at his own request, to the Regional Plant Protection Department at Brest. 9. After the Joint Administrative Committee of Agricultural Technicians issued an opinion on 28 May 1991 recommending that the applicant should not be retained in that department, the Minister of Agriculture informed him that he had decided to terminate his secondment to the corps of State technicians and to request his reinstatement as a technician in the New Caledonian agricultural service. 10. By an order of 2 July 1991 the Minister terminated the secondment with effect from 1 August 1991. 11. In a letter of the same day the High Commissioner invited the applicant either to rejoin his original department or to request leave of absence. 12. On the previous day, that is to say 1 July 1991, the applicant had been declared unfit for work by a doctor and had sought sickness benefit from the Civil Service Insurance Scheme (Mutualité Fonction Publique), which sent him a letter on 7 October 1991 in the following terms: “... we confirm that we are unable to pay you sickness benefit for the period of absence from work due to illness that has been prescribed for you from 30 July 1991 to 26 October 1991. This is because you are an established civil servant. Sickness benefit for persons in that category is paid by the authorities...” That same month the insurers sent a letter to the Ministry of Agriculture confirming that the applicant had been absent from work owing to illness since 1 July 1991. They pointed out that as his service with the Ministry had been terminated with effect from 1 August 1991, the applicant ought to be able to claim compensation, either through the civil service or through the social-security scheme for civil servants. 13. Earlier, on 9 August 1991, Mr Le Calvez had informed the relevant authorities that he did not wish to return to New Caledonia before the Rennes Administrative Court ruled on an application he had made to have the order of 2 July 1991 quashed (see paragraph 19 below). 14. As a result, the High Commissioner, in a decision of 16 September 1992, sent the applicant on leave of absence, initially for a period of one year from 1 August 1991 to 31 July 1992, which was renewed from year to year and ended on 20 March 1995. 15. On 30 October 1992 the Occupational Counselling and Rehabilitation Board (COTOREP) of the Employment Office for the département of Finistère refused the applicant disabled-worker status and accordingly ruled that he was fit for work. 16. On 21 December 1994 the High Commissioner wrote to the applicant in the following terms: “Please find enclosed two certified copies of the decision to keep you on leave of absence from 1 August 1994 to 20 March 1995 inclusive, at which point you will have used up all your entitlement to nine years’ leave of absence under Article 96 of Order no. 1065 of 22 August 1953. We have sent your application for reinstatement to the organisations likely to have a vacant budgetary post available that would allow you to be reinstated...” 17. On 31 July 1991 the applicant applied to the Rennes Administrative Court for a stay of execution of the order of 2 July 1991 terminating his secondment. 18. On 16 October 1991 the Administrative Court dismissed that application on the ground that the harm that would result from execution of the order was not such as to justify ordering a stay. The Conseil d’Etat upheld that decision on 7 October 1992. 19. The applicant had also applied to the Rennes Administrative Court on 31 July 1991 to quash the decision of 2 July 1991. 20. On 8 June 1994 the Administrative Court dismissed that application on the following grounds: “... Termination of the secondment Firstly, section 137 bis of Law no. 84-821 of 6 September 1984, as inserted by section 38 of Law no. 85-1221 of 22 November 1985, provides: ‘Notwithstanding any provision to the contrary in the special rules governing civil servants subject to Law no. 84-16 of 11 January 1984 making provisions governing the civil service or in the special rules on local government staff and posts covered by Law no. 84-53 of 26 January 1984 making provisions relating to local government service, civil servants who are members of the New Caledonian Civil Service may be seconded to departments and posts in central or local government authorities of a level equivalent to those to which they belong and may be appointed to them permanently’. While these provisions allow civil servants from New Caledonia to be seconded and to be appointed to equivalent departments in central or local government service, they nevertheless do not derogate from the principle that secondment may be terminated... Secondly, it is clear from the documents in the case file that, having been informed by letter of 11 June 1991 of the decision to terminate the secondment ..., the Government’s delegate in New Caledonia asked the applicant ... to say whether he wished to be given leave of absence or to be reinstated in his original department. It follows that Mr Le Calvez cannot validly argue that his reinstatement was refused after the leave of absence that had allegedly prevented his reinstatement earlier or that his original department had not agreed to that measure. Lastly, the documents in the case file do not show that the decision to terminate his secondment was taken for reasons other than the interests of the service or was the result of an error of judgment. Refusal of appointment Although the decision in issue terminating his secondment must be regarded as also constituting a decision not to appoint him, the applicant cannot validly maintain that the authorities were obliged to appoint him pursuant to section 137 bis of the Law of 6 September 1984, since those provisions, as explained above, create no obligation on the part of the original department. …” 21. On 6 July 1994 the applicant appealed against that decision of the Rennes Administrative Court to the Nantes Administrative Court of Appeal. 22. The Minister of Agriculture lodged a pleading on 15 November 1994, to which the applicant replied on 1 December 1994. 23. In a judgment of 14 May 1998 the Nantes Administrative Court of Appeal affirmed the judgment of the court below. 24. Meanwhile, in an application registered at the Rennes Administrative Court registry on 31 May 1991, the applicant had informed that court that he “consider[ed] himself to be the victim of moral, intellectual and professional defamation and would like legal advice”. 25. On 8 June 1994 the Administrative Court gave the following judgment: “In his application Mr Le Calvez seeks an order quashing the decision of 28 December 1990 to transfer him to Brest. That decision was taken following a request by Mr Le Calvez on 10 December 1990. Furthermore, the only grounds put forward by the applicant relate to the unlawfulness of the decision of 2 July 1991 terminating his secondment and are ineffective [against] the decision of 28 December 1990. It follows from the foregoing that the application must be dismissed.” 26. In the meantime, on 30 June 1992, the applicant had sent the High Commissioner a letter – to which he received no reply – requesting “information on his administrative position” and payment of sickness benefit and compensation for loss of salary with effect from 1 August 1991. He argued that he had been obliged by ill health to be absent from work since August 1991 and was entitled to sickness benefit under the Social Security Code. 27. On 15 July 1992 Mr Le Calvez lodged an application with the Rennes Administrative Court to quash the High Commissioner’s implicit refusal to pay him sickness benefit and compensation for loss of salary. 28. On 1 April 1994 the applicant was granted legal aid. 29. The High Commissioner lodged a defence, which was registered at the court registry on 11 July 1994 and served on the applicant’s lawyer on 12 September. In his defence the High Commissioner submitted: “... Since July 1991 Mr Le Calvez has regularly sent the territory’s administrative authorities notifications of extensions of absence from work due to illness (almost fifty have been received to date). With a letter of 3 January 1994 he sent his department a medical certificate in which Dr Roswag certified that he would not be able to return to his post in New Caledonia for health reasons... At the end of his period of secondment Mr Le Calvez chose, for personal reasons, not to return to New Caledonia. The territory’s administrative authorities have regularised his position by sending him on leave of absence, in accordance with the provisions of the Local Government Service Code, with effect from 1 August 1991. Civil servants who are on leave of absence do not normally receive any salary and are no longer entitled to benefit under the social-security scheme for civil servants. Accordingly, Mr Le Calvez cannot claim any remuneration or any benefit. ...” 30. On 16 January 1995 the Ombudsman, to whom the case had been referred, advised that he had been informed by the New Caledonian authorities that they had no vacant post for the applicant. As to the question of paying sickness benefit to the applicant during his illness, he wrote: “... I have been informed that he was not entitled to paid sick-leave as the Ministry of Agriculture did not have to remunerate Mr Le Calvez after 1 August 1991. The New Caledonian authorities, who had been obliged to send him on compulsory leave of absence, could not pay him a salary either. For my part, I have to record that a friendly settlement, taking into account the considerations of fairness that I put to those to whom I have spoken, has been prevented by a strict application of the relevant regulations.” 31. The applicant’s lawyer lodged a pleading on 26 January 1995. 32. On 1 March 1995 the Rennes Administrative Court dismissed the application on the following grounds: “Mr Le Calvez, an agricultural technician in the agricultural service of the New Caledonian Civil Service, was seconded to the Ministry of Agriculture and Forestry for a five-year period commencing on 1 February 1990. By a decision of 2 July 1991 the Minister of Agriculture and Forestry terminated his secondment with effect from 1 August 1991. In a letter of 2 July 1991 the Government’s delegate, the High Commissioner of the Republic for New Caledonia, invited Mr Le Calvez to inform him within eight days whether he wished to be given leave of absence or to be reinstated in his original department. As he did not return to New Caledonia, it was decided on 16 September 1992 to send him on one year’s leave of absence as from 1 August 1991 to 31 July 1992 inclusive, a period which was extended by decisions of 23 February and 21 October 1993. Mr Le Calvez’s application must be regarded as being for an order quashing the implied refusal of the Government’s delegate, the High Commissioner of the Republic for New Caledonia, to pay him sickness benefit and compensation for loss of salary for the period commencing on 1 August 1991. Although from July 1991 onwards Mr Le Calvez sent the New Caledonian administrative authorities a succession of notifications of absence of work due to illness, the documents in the case file do not show that he was given sick-leave or that he had been given leave of absence for health reasons. In the circumstances Mr Le Calvez cannot validly rely on Articles L. 721-1 and D. 712-12 of the Social Security Code or on Articles 70 and 71 of the Local Government Service Code and is not entitled to claim any compensation in respect of salary or any benefit under the social-security scheme for civil servants.” 33. On 14 March 1995 the applicant appealed against that judgment to the Nantes Administrative Court of Appeal. 34. The Minister for Overseas Departments and Territories lodged a pleading on 11 April 1995 in which he indicated that the High Commissioner of the Republic for New Caledonia was the person who had responsibility for the matters before the court. 35. On 25 April 1995 the applicant wrote to the President of the Nantes Administrative Court of Appeal asking for his two pending cases to be joined (see paragraphs 21 and 33 above). He explained that all his job applications had been unsuccessful and that it was not possible for him to be reinstated in his original department as there was no vacant budgetary post in New Caledonia. He added that if he was granted financial assistance, he would be able to go to New Caledonia in order to find out what the possibilities of reinstatement or redeployment were. 36. On 17 July 1995 the Administrative Court of Appeal registered the High Commissioner’s defence, in which he submitted: “... while Mr Le Calvez’s application includes some factual submissions, for the most part irrelevant to the present case, it does not on the other hand contain any legal submissions... At the end of his period of secondment Mr Le Calvez chose, for personal reasons, not to return to New Caledonia. The territory’s administrative authorities regularised his position by sending him on leave of absence, in accordance with the provisions of the Local Government Service Code, with effect from 1 August 1991. Civil servants who are on leave of absence do not normally receive any salary and are no longer entitled to benefit under the social-security scheme for civil servants. Accordingly, Mr Le Calvez cannot claim any remuneration or any benefit. His application for an order quashing the authorities’ refusal to pay him sickness benefit is therefore unfounded. …” 37. The applicant lodged a pleading on 14 August 1995. 38. In a letter of 21 December 1995 – to which he received no reply – he enquired about the progress of the proceedings before the Administrative Court of Appeal. In a letter of 22 February 1996 he again asked the President of the Administrative Court of Appeal whether it would be possible to join the two cases referred to above (see paragraph 35) and expressed concern at the length of time that the consideration of his cases was taking. The court registrar replied on 11 March 1996 that the cases were not ready for trial as the lawyer who had been assigned to represent Mr Le Calvez under the legal-aid scheme had not yet filed a pleading. 39. According to the Government, that lawyer has since been disbarred. 40. On 11 June 1996 the applicant again enquired of the President of the Administrative Court of Appeal as to the progress of the proceedings. On 17 December 1997 his new lawyer lodged a pleading. 41. On 21 January 1998 the Nantes Administrative Court of Appeal informed the applicant that a hearing would be held in the two cases in question (see paragraph 35 above) in April 1998. 42. In a judgment of 14 May 1998 the Nantes Administrative Court of Appeal affirmed the judgment of the court below. It held that because the applicant was on leave of absence, he was not, by Article 99 of the New Caledonian Civil Service Code (see paragraph 44 below), entitled to the welfare benefits claimed. Furthermore, the court added that the provisions of the Social Security Code relied on by the applicant in support of his claims, namely Articles L. 712-1 and D. 712-11 (see paragraph 46 below), did not apply in his position either, as they concerned civil servants in post. 43. On 20 May 1998 the applicant appealed on points of law to the Conseil d’Etat. 44. The provisions of Decree no. 1065 of 22 August 1953 issued by the High Commissioner and embodying the New Caledonian Civil Service Code that are applicable in the case read as follows: “A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights.” “Leave of absence shall be decided on by the head of the territory, either of his own motion or at the request of the person concerned...” “A civil servant may be compelled to take leave of absence only if he has exhausted his right to convalescence leave or extended sick-leave and is unable to resume his duties at the end of the last period. Where compulsory leave of absence follows a period of sick-leave, the civil servant shall for a period of six months receive half the salary he received when in post and all his family supplements.” “Compulsory leave of absence shall not exceed one year. It may be extended twice for the same length of time. ...” “Leave of absence may be granted at a civil servant’s request only in cases of accident or serious illness of a spouse or child or, exceptionally, after one year’s service, for personal reasons or for research or studies of indisputable general interest.” “Leave of absence at the civil servant’s request shall not exceed three years in duration. However, it may be extended twice for the same length of time.” “A civil servant who is on leave of absence at his own request shall not be entitled to any remuneration...” “A civil servant who is on leave of absence at his own request must apply for reinstatement at least two months before the expiration of the current period of leave. Reinstatement as of right is by way of appointment to one of the first three posts falling vacant where the leave of absence has not exceeded three years in duration.” 45. Leave of absence is also governed by section 72 of Law no. 84-53 of 26 January 1984 making provisions relating to local government service, which provides: “A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights. Leave of absence is either granted at the civil servant’s request or is compulsory at the end of the leave referred to in subsections (2), (3) and (4) of section 57 (sick-leave of one year, extended sick-leave of three years and additional extended leave on health grounds (congé de longue durée)). A civil servant on leave of absence who successively refuses three posts offered to him within the geographical area covered by his corps, post or service with a view to his reinstatement may be dismissed after consultation of the joint administrative committee. In other cases, if the leave of absence has not exceeded three years, one of the first three posts falling vacant in the original authority or establishment must be offered to the civil servant. …” 46. Articles D. 712-11 and L. 712-1 of the Social Security Code provide: “In the event of illness or maternity, civil servants shall receive social-security benefits in kind on the conditions and at the rates in force at the health-insurance offices to which they are affiliated…” “Civil servants in post to whom the Civil Service Code applies ... and their families shall be entitled in the event of illness, maternity, invalidity or death to benefits at least equal to those payable under the social-security system.” | 1 |
train | 001-96585 | ENG | GBR | CHAMBER | 2,010 | CASE OF GILLAN AND QUINTON v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicants were born in 1977 and 1971 respectively and live in London. 7. Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations. 8. At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes. 9. At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a photographer's jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it. 10. The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review. Prior to the High Court hearing, the Secretary of State offered the applicants a procedure which would have enabled the High Court to review in closed session, with the benefit of submissions from a special advocate, the underlying intelligence material which had been the basis for the Secretary of State's decision to confirm the authorisation (section 46 of the 2000 Act: see paragraphs 30-31 below). The applicants, however, indicated that they did not consider it necessary or appropriate to proceed in this way, since they did not intend to challenge the assessment that there was a general threat of terrorism against the United Kingdom. Instead, they contended, first, that the authorisation and confirmation in question, since they formed part of a rolling programme of authorisations covering the entire London area, were ultra vires and unlawful, since there were a number of clear indications that Parliament had intended an authorisation under section 44 of the 2000 Act (“a section 44 authorisation”) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. Secondly, the applicants claimed that the use of the section 44 authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. Thirdly, the applicants claimed that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention. 11. On 31 October 2003, the Divisional Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held that Parliament had envisaged that a section 44 authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of State were not ultra vires. Brooke LJ held as follows, in connection with the applicants' second ground of challenge: “The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism. It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power. We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that, in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed ... . But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future. ...” Finally, the court found that the powers were provided for by law and not disproportionate, given the risk of terrorist attack in London. 12. The Court of Appeal gave judgment on 29 July 2004 ([2004] EWCA Civ 1067). As to the proper interpretation of the legislation, it held that: “It is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed. We do not find it surprising that the word 'expedient' should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism. Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.” 13. The Court of Appeal did not consider it necessary to determine whether Article 5 § 1 applied, since it held that any deprivation of liberty was justifiable under Article 5 § 1(b). However it held that, if the point had to be decided, the better view was that there was no deprivation of liberty, taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another. Nor did it consider that Articles 10 and 11 applied. Although the applicants' evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration, those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the Convention and, properly used as a measure of limited duration to search for articles connected with terrorism, the stop and search power would not impinge on the rights to freedom of expression or assembly. 14. The respondent Commissioner of the Metropolitan Police had conceded that the stop and search measures amounted to interferences with the applicants' Article 8 rights, and the Court of Appeal accepted that this was the correct approach, describing section 44 as “an extremely wide power to intrude on the privacy of the members of the public”. It considered that the interference was, however, in accordance with the law, for the following reasons: “'The law' that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of 'law' in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law.” Furthermore, given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of the power could not, as a matter of general principle, be said to be disproportionate: the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred. Having regard to the nature of the arms fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, the police were entitled to decide that section 44 powers should be exercised in connection with it. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants. 15. The House of Lords, on 8 March 2006, unanimously dismissed the applicants' appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing: “1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44-47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance.” 16. The first issue before the House of Lords was as to the proper construction of the statute. The applicants had argued that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism. Lord Bingham rejected this interpretation, since the word “expedient” in the section had a meaning quite distinct from “necessary”. He continued: “14. ... But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give 'expedient' a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient 'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action. 15. The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants' challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.” 17. Lord Bingham rejected the applicants' contention that the “rolling programme” of authorisations had been ultra vires, as follows: “18. The appellants' second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ...found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as 'a special case, having vulnerable assets and relevant residential pockets in almost every borough'.” 18. On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure. However, since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested, handcuffed, confined or removed to any different place, such a person should not be regarded “as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting”. Article 5 did not, therefore, apply. 19. As to the question whether Article 8 was applicable, Lord Bingham was: “28. ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.” 20. Lord Bingham did not consider that the power to stop and search under sections 44-45, properly used in accordance with the statute and Code A, could be used to infringe a person's rights under Articles 10 or 11 of the Convention. 21. Despite his doubts as to the applicability of Articles 5, 8, 10 or 11, Lord Bingham went on to consider whether the stop and search powers complied with the requirement of “lawfulness” under the Convention, as follows: “34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided. 35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as 'law' rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.” 22. Lord Hope of Craighead agreed with Lord Bingham. In particular, he considered that the stop and search power complied with the principle of legality for the following reasons: “48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary? 49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised. 50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word 'terrorism' for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to. 51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law ... on the ground that it is arbitrary? ... 55. ... The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily. 56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality. 57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority.” 23. Lord Brown of Eaton-under-Heywood observed, inter alia: “74. Given the exceptional (although, as Lord Bingham has explained, neither unique nor particularly novel) nature of [the section 44] power (often described as the power of random search, requiring for its exercise no reasonable suspicion of wrongdoing), it is unsurprisingly hedged about with a wide variety of restrictions and safeguards. Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these. It can be used only by a constable in uniform (section 44 (1) and (2)). It can be used only to search for terrorist-connected articles (section 45(1) (a)). The person searched must not be required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves (section 45(3)). The search must be carried out at or near the place where the person or vehicle is stopped (section 45(4)). And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search (section 45(4)). Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure, and radically though it departs from our traditional understanding of the limits of police power, it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties. Nevertheless, given, as the respondents rightly concede, that in certain cases at least such a procedure will be sufficiently intrusive to engage a person's article 8 right to respect for his private life, and given too that this power is clearly open to abuse—the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer's part—the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be 'in accordance with the law.' 75. For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law (as here clearly it does in the 2000 Act); not only must that law be adequately accessible to the public (as here clearly it is—unlike, for example, the position in Malone v United Kingdom (1985) 7 EHRR 14); not only must the law be reasonably foreseeable, to enable those affected to regulate their conduct accordingly (a requirement surely here satisfied by the public's recognition, from the very terms of the legislation, that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it); but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily. 76. As I understand the appellants' argument, it is upon this final requirement that it principally focuses: this power, submits Mr Singh, is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse. True, he acknowledges, if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages (and, no doubt, to police disciplinary action). But, he submits, it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise. Assume, for example, that a police officer in fact exercises this power for racially discriminatory reasons of his own, how could that be established? There are simply no effective safeguards against such abuse, no adequate criteria against which to judge the propriety of its use. Certainly it is provided by paragraph 2.25 of Code A (a published code issued under section 66 of the Police and Criminal Evidence Act 1984) that: 'Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers'. But, say the appellants, there is simply no way of policing that instruction with regard to the exercise of so wide a random power. No way, that is, submits [counsel for the applicants], unless it is by stopping and searching literally everyone (as, of course, occurs at airports and on entry to certain other specific buildings) or by stopping and searching on a strictly numerical basis, say every tenth person. Only in one or other of these ways, the appellants' argument forces them to contend, could such a power as this be exercisable consistently with the principle of legal certainty: there cannot otherwise be the necessary safeguards in place to satisfy the Convention requirement as to 'the quality of the law' ... 77. I would reject this argument. In the first place it would seem to me impossible to exercise the section 44 power effectively in either of the ways suggested. Imagine that following the London Underground bombings last July the police had attempted to stop and search everyone entering an underground station or indeed every tenth (or hundredth) such person. Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power. That, as Lord Bingham puts it in paragraph 35 of his opinion, is not 'to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting [but rather] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.' It is to be hoped, first, that potential terrorists will be deterred (certainly from carrying the tools of their trade) by knowing of the risk they run of being randomly searched, and, secondly, that by the exercise of this power police officers may on occasion (if only very rarely) find such materials and thereby disrupt or avert a proposed terrorist attack. Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action. 78. In his 2001 review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1989 (amended as explained by Lord Bingham in paragraph 9 of his opinion) and the Northern Ireland (Emergency Provisions) Act 1996, Mr John Rowe QC said this of the power to stop and search those entering or leaving the United Kingdom with a view to finding out whether they were involved in terrorism: 'The “intuitive” stop 37. It is impossible to overstate the value of these stops ... 38. I should explain what I mean by an “intuitive stop”. It is a stop which is made “cold” or “at random”—but I prefer the words “on intuition”—without advance knowledge about the person or vehicle being stopped. 39. I do not think such a stop by a trained Special Branch officer is “cold” or “random”. The officer has experience and training in the features and circumstances of terrorism and terrorist groups, and he or she may therefore notice things which the layman would not, or he or she may simply have a police officer's intuition. Often the reason for such a stop cannot be explained to the layman.' 79. Later in his review Mr Rowe noted of the more general stop and search powers originally contained in sections 13A and 13B of the 1989 Act that 'these powers were used sparingly, and for good reason'. I respectfully agree that the section 44 power (as it is now) should be exercised sparingly, a recommendation echoed throughout a series of annual reports on the 2000 Act by Lord Carlile of Berriew QC, the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe—see most recently paragraph 106 of his 2005 report, suggesting that the use of the power 'could be cut by at least 50 per cent without significant risk to the public or detriment to policing.' To my mind, however, that makes it all the more important that it is targeted as the police officer's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever. In short, the value of this legislation, just like that allowing people to be stopped and searched at ports, is that it enables police officers to make what Mr Rowe characterised as an intuitive stop. 80. Of course, as the Privy Counsellor Review Committee chaired by Lord Newton of Braintree noted in its December 2003 report on the Anti-Terrorism, Crime and Security Act 2001: 'Sophisticated terrorists change their profile and methods to avoid presenting a static target. For example, al Qaeda is reported to place particular value on recruiting Muslim converts because they judge them to be less likely to be scrutinised by the authorities.' It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items). 81. Is such a conclusion inimical to Convention jurisprudence or, indeed, inconsistent with domestic discrimination law? In my judgment it is not, provided only that police officers exercising this power on the ground pay proper heed to paragraph 2.25 of Code A: 'The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).' Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination.” 24. The applicants also commenced a claim in the County Court on 8 September 2004 for, inter alia, damages under the Human Rights Act 1998 on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of Articles 8, 10 and 11 of the Convention, to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism. The claims were stayed pending the outcome of their appeal to the House of Lords and were finally heard in February 2007. The County Court rejected the applicants' claims and determined that the power had, in respect to each of them, been properly and lawfully exercised. The applicants did not seek to appeal against this judgment. 25. Police officers have the power to stop and search individuals under a range of legislation. For example, section 1 of the Police and Criminal Evidence Act 1984 allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items. Section 60 of the Criminal Justice and Public Order Act 1994 allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons. 26. The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign between 1992 and 1994 in and around London. Section 81 of the Criminal Justice and Public Order Act 1994 inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) in similar terms to section 44 of the 2000 Act (see paragraph 30 below), but without any requirement that the Secretary of State confirm the authorisation. The Prevention of Terrorism (Additional Powers) Act 1996 created an additional, separate power to stop and search pedestrians, under section 13B of the 1989 Act. The 1996 Act also established for the first time the confirmation procedure involving the Secretary of State. 27. In 1995 the Government asked Lord Lloyd of Berwick, a House of Lords judge, to undertake an Inquiry into the need for specific counter-terrorism legislation in the United Kingdom following the decrease in terrorism connected to Northern Ireland. The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections 13A and 13B of the 1989 Act. In his Report (Cm 3420, § 10, October 1996), Lord Lloyd noted that between February and August 1996 the police in London had carried out searches of 9,700 drivers and passengers and 270 pedestrians under sections 13A and 13B of the 1989 Act. When considering whether similar powers should be retained in any permanent counter-terrorism legislation that might be enacted, he observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented: “As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.” In the end Lord Lloyd recommended that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State's confirmation should be required in relation to each provision. Since the Police and Criminal Evidence Act Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for additional safeguards. 28. The 2000 Act was intended to overhaul, modernise and strengthen the law relating to terrorism in the light, inter alia, of Lord Lloyd's Inquiry. “Terrorism” is defined, in section 1, as follows: “(1) In this Act 'terrorism' means the use or threat of action where - (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section - (a) 'action' includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” 29. Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist. 30. Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to the requirement of reasonable suspicion. These sections provide for a three stage procedure. The first stage, under section 44, is authorisation: “44(1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search - (a) the vehicle; (b) the driver of the vehicle; (c) a passenger in the vehicle; (d) anything in or on the vehicle or carried by the driver or a passenger. (2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search - (a) the pedestrian; (b) anything carried by him. (3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism. (4) An authorisation may be given - (a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable; (b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police; (c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force; (d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable. (5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.” By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days. The existence and contents of section 44 authorisations are not within the public domain. 31. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide. 32. The third stage, under section 45, involves the exercise of the stop and search power by a police constable: “(1) The power conferred by an authorisation under section 44(1) or (2) - (a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and (b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind. (2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism. (3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves. (4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped. (5) Where - (a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and (b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2), the written statement shall be provided. (6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.” 33. These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2). 34. Sections 44-47 of the 2000 Act came into force on 19 February 2001. It was disclosed during the domestic proceedings in the present case that successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time. 35. A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document. 36. The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided: “1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop. 1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.” Paragraph 3.5 of the Code provided: “There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ...” Certain steps were required by paragraph 3.8 to be taken before the search: “3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information: (a) that they are being detained for the purposes of a search; (b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached; (c) the legal search power which is being exercised; and (d) a clear explanation of; (i) the purpose of the search in terms of the article or articles for which there is a power to search; ... (iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.” Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11: “3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained.... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances. 3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.” A record was required to be made at the time or as soon as practicable (paragraph 4.1): “4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.” 37. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once every 12 months and Lord Carlile of Berriew QC has been appointed as Independent Reviewer to prepare the annual report, inter alia. 38. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said: “No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons.” 39. In Lord Carlile's “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”, he commented on the section 44 power as follows: “67. Part 5 of the Act contains counter-terrorism powers available to the police to deal with operational situations. During 2003 these powers have become more controversial, particularly because of increased levels of protest arising from the war against Iraq. In particular, section 44 has been the cause of considerable anxiety and debate. ... 75. Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints, some from organisations and others from individuals. I cannot comment here on individual cases ... ... 79. In London there have been rolling 28 day authorisations for the whole of the area policed by the Metropolitan police and the City of London Police. I have seen detailed figures for the use of the powers in every part of that area. In some parts of London the section 44/45 powers have been used very little. In others, with obvious targets such as an airport or Parliament, there has been more extensive use, as one would expect. There is no part of London where the powers have not been used at all between the beginning of February 2001 and the end of August 2003, the period for which I have statistics. There are huge differences between the boroughs in this context: I take this to be evidence of specific operational decisions by the police. The nature of London means that a terrorist may well live in one borough, have associates in others, and have targets in yet others. Having said that, at present there is no other city with continuous section 44 authorisations. ... 83. Lord Justice Brooke's judgment [in the present case: see paragraph 11 above] exactly reflects my own concerns on this front. Whilst the section 44 authorisations for the Metropolitan Police area, and for parts of Gloucestershire and neighbouring areas, at the material times were justifiable and proof from judicial review, their use gave some rise for anxiety. That anxiety arises from the contents of section 45, and the difficulty faced in real-time situations by constables confronted by complex legislative decisions. 84. Pursuant to section 45, a section 44/45 search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be 'for articles of a kind which could be used in connection with terrorism'. This calls at least theoretically for officers to pause for thought between (a) stop, (b) commencement of search, and (c) during search. If the search commences as defined in section 45(1)(a), but the officer realises at any given moment that in reality he is searching for non-terrorism articles, he should change gear into a non-[Terrorism Act 2000] search procedure. This is asking a lot of an officer who may have been briefed in short form at a testing scene. ... 86. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough. The use of section 44 authorisations elsewhere in the country has been relatively sparing. However, I would urge the Home Office and [the Association of Chief Police Officers] ... to produce new, short, clear and preferably nationally accepted guidelines for issue to all officers in section 44 authorised areas. All briefings should remind officers that, even where there is a section 44 authorisation, other stop and search powers may be judged more appropriate with some individuals stopped. Whilst agreeing with the Chief Constable of Gloucestershire that the powers are drawn widely, and with the Metropolitan Police that they have great potential utility to protect the public, in using the powers appropriate attention should be given to the important right to protest within the law.” 40. In his report on the operation of the 2000 Act in 2005 (May 2006), Lord Carlile commented: “91. In 2003 and 2004 I received many complaints, some from organisations and others from individuals, about the operation of sections 44 and 45. These and some litigation have been taken seriously by the police. As a result, I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections 43-45. 92. The crucial thing is that police officers on the ground, exercising relatively unfamiliar powers sometimes in circumstances of some stress, should have a greater degree of knowledge of the scope and limitations of those powers. Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. An incident on the 31st March 2006 at a hospital in Staffordshire yet again highlighted this. In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations. ... 95. ... [Section 44] authorisations have been used extensively in 2005, unsurprisingly in the immediate aftermath of the events of the 7th and 21st July. 96. Although available in Scotland, to date section 44 powers have never been authorised by a Scottish police force. I had anticipated that they might have been deployed for the 2005 meeting of the G8 Summit in Scotland. They were not. London apart, I doubt that there is evidence that Scotland is less at risk from terrorism than other parts of the country. This perpetuates the question of why section 44 is needed in England and Wales if it is not required in Scotland. There is no other provision specific to Scots Law to explain the difference of approach. At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes. 97. My view continues as expressed a year ago - that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. This view has not been affected by the events of July 2005. 98. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. 99. The Home Office scrutinises applications critically. It is a sound approach for them to refuse unless the circumstances are absolutely clear. 100. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough, and fairly extensive use is understandable. However, I emphasise that they should be used sparingly. Evidence of misuse, especially in an arbitrary way, will not find favour with the courts and could fuel demands for repeal. It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime.” 41. In his report on the operation of the 2000 Act in 2006 (June 2007), Lord Carlile observed: “113. My view continues as expressed in the past two years – that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. 114. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Its utility has been questioned publicly by senior Metropolitan Police staff with wide experience of terrorism policing. 115. The Home Office continues to scrutinise applications critically. I think that they could and should refuse more often. There are instances in which public order stop and search powers are as effective – and they are always more palatable to those stopped and searched. 116. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. However, I emphasise again that they should be used sparingly. They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime.” 42. In his report into the operation of the 2000 Act in 2007 (June 2008), Lord Carlile noted that the criticism of the section 44 power had increased further during the preceding year and continued: “130. I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. ...” Nonetheless, he concluded that the powers remained necessary and proportionate to the continuing terrorist threat. 43. Finally, in his report on the operation of the 2000 Act in 2008 (June 2009), Lord Carlile commented: “140. Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person's freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice; but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to 'balance' the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing. 141. Useful practice guidance on stop and search in relation to terrorism was produced during 2008 by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers [ACPO]. This guidance emphasises crucial requirement, which include that – ● These powers are exceptional ● The geographical extent of section 44 authorisations must be clearly defined ● The legal test is expediency for the purposes of preventing acts of terrorism ● Community impact assessments are a vital part of the authorisation process ● The Home Secretary should be provided with a detailed justification for a section 44 authorisation ● Chief officers must expect the Home Office to apply detailed and rigorous scrutiny in considering whether to confirm authorisations ● Leaflets should be made available to the public in an area where the power is being deployed ● Officers must keep careful records ... 146. My view remains as expressed in the past four years, but reinforced: that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas, and in relation to some sites, but not others with strikingly similar risk profiles. Where other stop and search powers are adequate to meet need, there is no need to apply for or to approve the use of the section. Its primary purpose is to deal with operationally difficult places at times of stress, when there is a heightened likelihood of terrorists gaining access to a significant location. For example, I have no criticism of its careful use at the time of a major demonstration at London Heathrow Airport: terrorists might well use the opportunity of participation in such a demonstration to enter, photograph or otherwise reconnoitre, and otherwise add to their knowledge of a potential target such as Heathrow. Nor do I criticise its use at or near critical infrastructure or places of especial national significance. 147. I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers. However, a pilot project is about to start in which the section is deployed in a different way. I shall examine that project closely. The alarming numbers of usages of the power (between 8,000 and 10,000 stops per month as we entered 2009) represent bad news, and I hope for better in a year's time. The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable. 148. I am sure that safely it could be used far less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever resulted in conviction of a terrorism offence. Its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing. 149. It should not be taken that the lesser usage of section 44 in places other than London means that such places are less safe, or more prone to terrorism. There are different ways of achieving the same end. The effect on community relations of the extensive use of the section is undoubtedly negative. Search on reasonable and stated suspicion, though not in itself a high test, is more understandable and reassuring to the public. 150. I emphasise that I am not in favour of repealing section 44. Subject to the views expressed above, in my judgment section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism.” 44. Under section 95 of the Criminal Justice Act 1991, the Secretary of State is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race. In a report published pursuant to this obligation in October 2007, “Statistics on Race and the Criminal Justice System – 2006”, the Ministry of Justice recorded that: “A total of 44,543 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34% (Table 4.6). Searches of Asian people increased from 3,697 to 6,805 (up 84%), searches of Black people increased from 2,744 to 4,155 (up 51%). Searches of people in the Other ethnic group also increased, from 1,428 in 2004/5 to 1,937 in 2005/6 (up 36%), as did searches of White people, increasing from 24,782 in 2004/5 to 30,837 in 2005/6 (up 24%). Over half of searches took place in the Metropolitan Police area and 15% in the City of London, compared to 40% and 20% respectively in 2004/5. The large increases in comparison to the 2004/5 figures may be explained, in part, by the London bombings of 7 July 2005. As with stop and searches under s.1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000. In 2005/6, 25,479 searches of vehicle occupants were made under section 44 (1) (Table 4.7). Seventy-five per cent of those searched in 2005/6 were White, 11% Asian and 8% Black. There was a slight increase in the proportion of White people searched and a slight fall in the proportion of Black people searched under this provision compared to 2004/5. Forty-six arrests of vehicle occupants in connection with terrorism resulted from section 44 (1) searches, compared to 38 in the previous year. Arrests under non-terrorism legislation following the use of this provision remained constant between 2004/5 and 2005/6 at 246. Most arrests following a section 44 (1) search were in London. This most likely reflects the increased use of the powers in London. The number of stop and searches of pedestrians under section 44(2) nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44 (2) searches compared to 24 in the previous year and five in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.” 45. In the report published the following year, in July 2008, “Statistics on Race and the Criminal Justice System – 2006/7”, the Ministry of Justice recorded that: “A total of 37,000 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2006/7 compared with 45,000 in 2005/6 and represents a decrease of 16.5% (Table 4.6). Over a third of police force areas did not record any use of this power in 2006/7. Searches decreased for all ethnic groups but the biggest fall was for Asian people (19.1%), followed by those in the White group (15.8%), those in the Other category (15.4%), and lastly Black people (13.3%). Nine areas did increase the number searched under Section 44 and this included the [Metropolitan Police] who registered an 11.3% rise. This contrasts with the City of London where there was a 69.2% fall. The proportion of Asian people searched under Section 44 in the Met police area (19.1%) exceeded the proportion of Black persons (12.5%). In 2006/7 23,000 searches of vehicle occupants were made under Section 44(1) (Table 4.7). Seventy-two per cent of those searched during this period were White, a fall of three percentage points on the previous year, 10% Black (up 2 percentage points), and 13% Asian (up 2 percentage points). Fourteen arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 46 the previous year. Four of these involved Black persons and four Asians. Arrests under non-terrorism legislation following the use of this provision have remained constant between 2004/5 and 2006/7 at 246. The number of stop and searches of pedestrians under Section 44(2) has reduced by just over 28% between 2005/6 and 2006/7 from 19,000 to 13,700. A large part of this fall can be accounted for by the decrease in the City of London from 3,149 to 425 over the two year period. The proportion of White pedestrians searched under Section 44(2) has increased since the previous year from 61% of the total to 66%. Asian people remain the highest BME group both searched (17%) and subsequently arrested in connection with terrorism (29%).” 46. The most recent report, “Statistics on Race and the Criminal Justice System 2007/8”, published in April 2009, recorded a significant increase in the use of the section 44 powers: “A total of 117,278 searches of people were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2007/08 compared with 37,197 in 2006/07 and represents an increase of 215% (Table 4.6). Just under a fifth (19%) of police force areas did not record any use of this power in 2007/08. Searches increased for all ethnic groups but the biggest rise was for Black people (322%), followed by those in the Asian group (277%), those in the Other category (262%), and lastly White people (185%). The large rise in the number of stop and searches made under the Terrorism Act largely reflects increases in the use of this power by the Metropolitan police. In 2007/08 the Metropolitan police were responsible for 87% of searches made under section 44 (1) and 44 (2) of the Terrorism Act 2000, compared to 68% of those made in 2006/07. The Metropolitan police used this power on 76,496 more occasions than in the previous year, which represents an increase of 303%. This rise is directly attributable to the robust response by the Metropolitan police to the threat of terror related networks in London since the Haymarket bomb in 2007. Tables 4.7 and 4.8 show selected police force areas, where the total number stopped and searched under s. 44 (1) & (2) of the Terrorism Act 2000 exceeded 1,000 people in 2007/08. In 2007/08, 65,217 searches of vehicle occupants were made under Section 44 (1) (Table 4.7). Sixty-four per cent of those searched during this period were White, a fall of eight percentage points on the previous year, 13% were Black (up 3 percentage points), and 16% were Asian (up 4 percentage points). Thirty-four arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 14 the previous year. Nine of these involved Black persons and 10 Asians. Arrests under non-terrorism legislation following the use of stop and search under Section 44 (1) increased to 665 from 246 in 2006/07. The number of stop and searches of pedestrians under Section 44 (2) has increased by 280% between 2006/07 and 2007/08 from 13,712 to 52,061 (Table 4.8). As previously mentioned, this large increase can be attributable to the Metropolitan police's robust response to the Haymarket bombs. The proportion of White pedestrians searched under Section 44 (2) has decreased since the previous year from 66% of the total to 61%. Asian people remain the highest BME group both searched (19%) and subsequently arrested in connection with terrorism (29%).” 47. In its Report, “Demonstrating respect for rights? A human rights approach to policing protest”, published in March 2009, the Parliamentary Joint Committee on Human Rights recommended, in connection with section 44 of the 2000 Act: “Counter-terrorism powers 86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion. Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines which note: Domestic legislation designed to counter terrorism or 'extremism' should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion. 87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations. Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat. The following comment by David Mead reflects the views of a number of witnesses: ...there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all. 88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003. Less well-known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t-shirts. 89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists. Mr North said 'terrorism is a word we ought to reserve for some kind of insurgency, or guerrilla of asymmetrical warfare'. In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that 'insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism'. 90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that 'there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them'. 91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published. He pointed out, however, that: If you have a big protest near a big power station or airport, [...] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires... 92. The new guidance on stop and search noted that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to 'search for articles of evidence that relate to terrorism' and that '[the section 44] power should be used sparingly'. In the light of the decision of the House of Lords in Gillan, which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria. The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states 'officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic.' The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that 'the requirements of the Human Rights Act 1998' should be included in the community impact assessment. Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film. 93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order of protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest.” 48. In May 2009 the Metropolitan Police published a report summarising the conclusions of their review into the use of the power under section 44 of the 2000 Act. The report stated that the “emerging findings” from the review supported a three-layered approach to the use of the power, namely that the power should continue to be available in the vicinity of sites across London of key symbolic or strategic importance, but that elsewhere, except where authorised by a specific directive, officers should only stop and search individuals using the power under section 43 of the 2000 Act, where they had grounds to suspect that the person might be engaged in a terrorism-related offence. | 1 |
train | 001-69260 | ENG | UKR | ADMISSIBILITY | 2,005 | DANILYUK v. UKRAINE | 4 | Inadmissible | null | The applicant, Ms Zoya Nikolayevna Danilyuk, is a Ukrainian national, who was born in 1955 and lives in Simferopol, Ukraine. In 1990, as a result of the Chernobyl nuclear plant disaster, the applicant and her family had to move from Korosten, which is situated 100 km from Chernobyl (a so-called “third zone of radioactive pollution”). The applicant settled in Simferopol, the Crimea. The applicant's apartment in Korosten (which she had leased from the State) is currently occupied by her son's family In 1996 the Simferpol City Executive Committee provided the applicant with an apartment in a co-operative house. The applicant paid part of the price. The applicant alleges that the apartment was in an unfit state and that she had to spend money to have it repaired. On 18 October 1999 the applicant applied to the Executive Committee for the reimbursement of the expenses incurred in acquiring the apartment, to which she was entitled as a victim of the Chernobyl disaster. By September 2000 the applicant had received, in three instalments, a total of UAH 12,629 (approximately EUR 2,000) by way of reimbursement of the cost of purchasing the apartment. In January 1999 the applicant instituted proceedings against the Ministry of Chernobyl Affairs, alleging that the sum received did not cover the amount that she had had to spend on the repair of the apartment and took no account of the effects of inflation. On 19 October 2000 the Tsentralny District Court of Simferopol rejected the applicant's claim. On 16 May 2001 the Supreme Court of the Crimea upheld this judgment. The court stated, inter alia, that the case was not a civil but a public law dispute. Therefore, the sum to be reimbursed could not be based on the actual expenses and losses of the applicant but had to be determined by the local authorities on the basis of the Law of 27 February 1991 (see the “Relevant law” below) and relevant governmental regulations. The court further indicated that, in the applicant's case, the amount of the reimbursement had been determined by the Council of Ministers of the Crimea on the basis of the method established by the Ministry of Chernobyl Affairs in accordance with the 1991 Law. The sum was calculated with reference to the value of the apartment on the date of purchase, the time of the payment of the reimbursement and other criteria. Since the applicant's costs had been reimbursed in full, the applicant had no right under domestic legislation to receive any further sum from the State. According to Articles 1 and 4 of the Law “On the Status and Social Security of the Victims of the Chernobyl Nuclear Plant Disaster” of 28 February 1991 (“the 1991 Law”), the zones of radioactive pollution are determined depending on their level of pollution. Persons living in the third zone of radioactive pollution are entitled to “guaranteed voluntary resettlement”. This means that the citizens who live in this zone are entitled to receive objective information about the level of pollution, sufficient to enable them to decide whether to continue living in this territory. If they decide to leave the area, then the authorities are obliged to create the necessary conditions for resettlement. Article 32 §§ 2 and 3 of the Law provides that persons who moved from the third zone of radioactive pollution are entitled to receive free housing with at least two options to apply for it. First, they can apply to the local authorities to obtain free municipal housing. In this case: “[the persons] are put by the organisations they work in or by executive committees of the local councils on a separate waiting list for attribution of municipal housing on the priority basis” Or second: “the executive committee of the local council, the citizens' employer as well as the citizens themselves can buy ... homes and apartments from private persons for a market price ... as well as vacant public homes or apartments for residual value” In case if persons resettling from the Chernobyl zone opt for acquiring the housing on their own (either by buying or building it) they are entitled to have their costs and expenses reimbursed to them by the State. The amount of and procedure for reimbursement are determined by the councils, based on the Law and relevant governmental regulations. | 0 |
train | 001-57992 | ENG | BEL | CHAMBER | 1,996 | CASE OF C. v. BELGIUM | 3 | No violation of Art. 8;No violation of Art. 14+8 | null | 6. The applicant, a Moroccan citizen born in 1955, is currently resident in Morocco. 7. In 1966 he came to live in Belgium with his parents, his brother and his three sisters, who were all Moroccan nationals. Between 1988 and 1991 the sisters adopted Belgian nationality. Two of them later left Belgium for Luxembourg. The applicant's father died in Morocco in 1989. 8. Mr C. lived in Brussels with his family in a house which they owned. After leaving school he trained as a mechanic. From 1984 onwards he worked for the family business as a taxi driver. 9. On 17 October 1985, in Morocco, he married a Moroccan woman who came to live with him in Belgium. Mrs C. gave birth to a son on 10 August 1986. On an unknown date Mr C. divorced his wife in Morocco. She then went back to live there. On 10 July 1991 the Kenitra Court of First Instance (Morocco) took formal note of the fact that Mrs C. had waived her right to custody of the child, who returned to Belgium after his father's release (see paragraph 13 below) and lived with his paternal grandmother. Since May 1992 he has apparently been living with one of his aunts in the Grand Duchy of Luxembourg. 10. On 6 April 1988 the Brussels Criminal Court convicted the applicant of criminal damage and sentenced him to two months' imprisonment, suspended for three years, and a fine of sixty times 400 Belgian francs (BEF). 11. Following the seizure of 17.2 kilograms of cannabis, the same court sentenced Mr C. on 14 December 1988 to seven years' imprisonment and a fine of sixty times BEF 1,000 for unlawful possession of drugs and conspiracy. On 30 June 1989 the Brussels Court of Appeal reduced the term of imprisonment to five years. On 28 July 1988, in the course of the judicial investigation, a deputy police superintendent at Ixelles had drawn up the following report on the applicant: "[Mr C.] is of good conduct in the district. He has notbrought himself to his neighbours' attention through anyimmoral behaviour. His main social contacts are with personsof Moroccan origin. He is known as a taxi driver and works for ... company, whose registered office is in Ixelles ...His average monthly net salary is BEF 25,000. He apparentlyhas no other source of income. He lives in the house whichhis parents own. He occupies one room and pays no rent. Asregards dependants, he was formerly married to [R. S.] andhad a son from that union. The above persons no longer livein Belgium but in Morocco. He has to pay BEF 2,000 per monthto his wife in maintenance. He is hard-working and gives hisemployer complete satisfaction." 12. According to a questionnaire filled in by the authorities at Forest Prison on 24 June 1988, the applicant is said to have claimed to be able to speak Arabic, French and Spanish. 13. Mr C. was released on parole on 23 May 1991. His son, who had been living with his mother while Mr C. was in prison, joined him in Belgium in July 1991 (see paragraph 9 above). 14. A royal order of 25 February 1991, which was served in March 1991, required the applicant to leave Belgium, on the following grounds: " Whereas [Mr C.] has been found guilty of causing criminaldamage, for which he was sentenced on 6 April 1988, in ajudgment which has become final, to 2 months' imprisonmentand a fine of 400 francs, the term of imprisonment beingsuspended for 3 years; Whereas he has been found guilty, as principal or jointprincipal, of possessing and dealing in prohibited drugs,namely 17.2 kilos of cannabis, aggravated by the fact thatthis offence also constituted participation in the principalor secondary activities of a criminal organisation, for whichoffences he was sentenced on 30 June 1989, in a judgmentwhich has become final, to 5 years' imprisonment and a fineof 1,000 francs; Whereas, accordingly, by his personal conduct, he hasseriously prejudiced public order;" In reaching the above decision the Minister of Justice had declined to follow the advice of the Aliens' Office, which had suggested that Mr C. should not be deported but served with a warning. 15. On 13 September 1990 the Advisory Board on Aliens had expressed the opinion that deportation was warranted, on the following grounds in particular: "[Mr C.] was married to a compatriot but is now divorced. Achild was born of this marriage in 1986 and lived for a timewith his mother in Morocco. He is apparently now with her inthe Netherlands ... There is nothing to suggest that the serious threat posed byMr C.'s behaviour has been removed. Were the deportation of an alien to be held to constituteinterference with the exercise of his right to respect forhis private and family life, within the meaning of Article 8of the European Convention for the Protection of Human Rightsand Fundamental Freedoms (art. 8), such interference would belegitimate in the present case, being in accordance with thelaw and, in the applicant's case, in view of the seriousnessof the threat posed by his presence in Belgium, necessary inthe interests of public safety and the prevention of disorderand crime." 16. On 21 May 1991 the applicant asked the Conseil d'Etat to quash the deportation order, but on 7 October 1992 the Conseil d'Etat dismissed this application on the following grounds: "The applicant's first ground of appeal is that there hasbeen a breach of the Minister of Justice's circular of8 October 1990 and Article 8 of the Convention for theProtection of Human Rights and Fundamental Freedoms (art. 8),in that the Minister and the Advisory Board on Aliens failedto take account of the fact that he had been living inBelgium since 1966, that his mother and sisters also livedthere, and that he no longer had any links with Morocco,whose language he did not speak. The Minister undertook in his circular not to deport an alienwho had been settled in the country for more than ten yearsunless he had been sentenced to a term of imprisonment offive years or more. He reserved the power to deport thealien in certain circumstances. The Minister examined thecircumstances in this case and had valid grounds to concludethat, in view of the seriousness of the facts, the applicantshould be deported, particularly in the light of the familycircumstances described by the Advisory Board on Aliens. Inso doing, he was not in breach of either his own circular orArticle 8 of the Convention (art. 8). In his second ground of appeal, the applicant alleges thebreach of Article 6 of the Constitution, of the Minister ofJustice's circular of 8 October 1990, of section 62 of theAct of 15 December 1980 on the entry, residence, settlementand expulsion of aliens and of Articles 8 and 14 of theConvention for the Protection of Human Rights and FundamentalFreedoms (art. 8, art. 14), in that the Minister unreasonablydeclined to follow the advice of his department not to deportthe applicant. The Minister's attention was drawn to the arguments of theAliens Office and the Advisory Board on Aliens. He did notexceed his powers in deciding that, in view of theseriousness of the facts, the applicant should be deported onthe ground that the protection of public order had to prevailover his personal and family interests." On 11 September 1991 the Conseil d'Etat had declared inadmissible an application by the applicant for a stay of execution, on the ground that he had failed to appear in court. 17. After his release on parole on 23 May 1991 (see paragraph 13 above) Mr C. had thirty days in which to leave Belgium; this time-limit was later extended to 25 September 1991. He complied with the order on an unknown date. 18. The Act of 15 December 1980 "on the entry, residence, settlement and expulsion of aliens", which has since been amended several times, governs the administrative status of aliens. Under section 20, second paragraph, an alien who has been granted a settlement permit may be deported "where he has seriously prejudiced public order or national security". Before such a deportation the Minister of Justice must seek the opinion of the Advisory Board on Aliens, which is composed of a judge, a lawyer and a member of an association for the protection of aliens' interests. Deportation orders are signed by the King and are subject to judicial review by the Conseil d'Etat (section 69). | 0 |
train | 001-77707 | ENG | DNK | ADMISSIBILITY | 2,006 | LAGERGREN v. DENMARK | 4 | Inadmissible | Snejana Botoucharova | The applicant, Mr Arnold Christopher Lagergren, is an American national who was born in 1970 and lives in New York. He was represented before the Court by Mr Henrik Karl Nielsen, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Peter TaksøeJensen of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant spent his childhood, youth and part of his adult life in the United States, where he was educated within the field of business economics. He arrived in Denmark on 20 December 1994 at the age of twenty-four. He married a Danish citizen on 20 May 1995 and two children were born out of marriage in 1995 and 1999, respectively. The applicant, who speaks Danish, was employed in a computer firm. The spouses separated in August 2001, and with the applicant’s consent the mother was granted custody of the children. The applicant regularly had access to the children. On 18 December 2002 the spouses divorced. In the meantime, on 4 March 2002 the applicant was arrested and charged pursuant to the Penal Code with drug offences and an armed bank robbery. The drug offences were allegedly committed during the period from 1 January to 4 March 2002 and related to 643 ecstasy pills, 69.3 grams of amphetamine and 28.5 grams of cocaine. As regards the bank robbery committed on 4 March 2002, the applicant was allegedly the instigator who, at the relevant time being 31 years old, had persuaded three younger men, respectively 17, 21 and 25 years old, to participate. The two youngest men entered the bank with a sawn-off sporting gun and the third acted as the chauffeur, while the applicant awaited them all at an appointed place. The proceeds in the amount of approximately 145,000 Danish kroner (DKK), equal to 19,500 euros (EUR), were split equally between them. The applicant pleaded guilty to the charges and was accordingly found guilty on 8 August 2002 by the City Court of Skive (Retten i Skive). He was sentenced to three years’ imprisonment and expelled from Denmark with a life-long ban on his return. As regards the expulsion order, the City Court took into account the nature and seriousness of the crime committed, the applicant’s age when he entered Denmark, the fact that he was separated and had two children in Denmark, and that his parents and two brothers lived in USA. The court found that a decision to expel the applicant would not contravene the principle of proportionality. On appeal, the judgment was upheld on 3 October 2002 by the High Court of Western Denmark (Vestre Landsret), which stated as follows: “Having regard to the character of the offences and the information concerning [the applicant’s] role in the robbery and its planning [the High Court] confirms the sentence as fixed by the City Court. Furthermore, for the reasons set out by the City Court, [the High Court] agrees with the expulsion order. Having made an overall assessment, which included [the applicant’s] ties to his home country, [the applicant’s] relationship with his children cannot imply that the expulsion is contrary to the principle of proportionality.” The applicant’s request to be granted leave to appeal against the judgment to the Supreme Court (Højesteret) was refused on 18 December 2002. Having been released on parole, with 547 days remaining of his sentence, the applicant left Denmark on 4 September 2003. The applicant submitted that while incarcerated in Denmark he had telephone contact with his children every second week and that subsequent to his expulsion they have been in weekly telephone contact. The relevant provisions of the Penal Code applicable at the time read as follows: 1. Any person who, in contravention of the legislation on euphoriant drugs, supplies such drugs to a considerable number of persons, or in return for a large payment, or in any other particularly aggravating circumstances, shall be liable to imprisonment for any term not exceeding six years. If the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the supply of such drug has otherwise been of a particularly dangerous nature, the penalty may be increased to imprisonment for any term not exceeding ten years. 2. Similar punishment shall apply to any person who, in contravention of the legislation on euphoriant drugs, imports, exports, buys, distributes, receives, produces, manufactures or possesses such drugs with the intention to supply them as mentioned in subsection 1, above. 1. Any person who, for the purpose of obtaining for himself or for others an unlawful gain, by violence or threat of immediate application of such, (i) takes or extorts from any other person a tangible object belonging to another person; or ... With regard to the level of punitive measures the Government submitted the following information, which was not disputed by the applicant: In Denmark three years of imprisonment is a very severe sentence. According to the European Sourcebook of Crime and Criminal Justice Statistic, 2003 (WODC, report no. 121, p.196), while the European countries had 139 prisoners per 100 000 inhabitants on average in 2000, the figure for Denmark was 64. The reason for this low number of prisoners is an extensive use of fines and other types of non-custodial sentences. According to figures from the yearbook on crime statistics from Statistic Denmark (Danmarks Statistik) in 2002, out of the total number of convictions for penal-code-offences, half were fines, 29 per cent were suspended sentences and other non-custodial sentences, leaving about one fifth of the sentences to be unsuspended prison sentences. The low prison rate is also a result of short prison terms. In 2002, the average length of prison sentences imposed for penal-code-offences was 7.2 months, and only 12 per cent of all prison sentences were longer than one year. Looking at the even longer prison terms from 2002, only 3 per cent — corresponding to 224 prison sentences — exceeded three years. Most of the long prison sentences are imposed for homicide and drug offences. As for armed robbery of a non-aggravated nature (section 288, subsection 1 of the Penal Code), a study has revealed that the average length of all prison sentences imposed from 1996 to 2000 was 1.7 years if the person had no prior criminal record, but had committed other offences which were included in the sentence. In 2002 the average length of all prison sentences for non-aggravated bank robbery was 2.2 years. However, most bank robbery cases involve offenders with a prior criminal record. As for supplying drugs, the length of the prison sentence is closely related to the quantity and the kind of drugs in question. Drug dealing with ecstasy, amphetamine and cocaine does not normally result in heavy measures as, for instance, heroine does. To give an example, a person charged with the sale of 600-700 ecstasy pills would most likely face a six to nine months’ The relevant provisions of the Aliens Act (Udlændingeloven) applicable at the time read as follows: 1. An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7 or 8 may be expelled if: ... (ii) the alien, for several criminal counts, is sentenced to a minimum of two years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; ... (iv) the alien is sentenced, pursuant to the Act on Euphoriant Drugs or section 191 or 191 A of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature; ... (vi) the alien is sentenced, pursuant to ... section 288 of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature. 1. An alien who has lawfully lived in Denmark for more than the last three years may be expelled if: (i) any ground given in section 22 is applicable; (ii) the alien is sentenced to a minimum of two years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; (iii) the alien, for several criminal counts, is sentenced to a minimum of one year’s imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; (iv) ... 1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: (i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years; (ii) the duration of the alien’s stay in Denmark; (iii) the alien’s age, health, and other personal circumstances; (iv) the alien’s ties with persons living in Denmark; (v) the consequences of the expulsion for the alien’s close relatives living in Denmark; (vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. 2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so. 1. As a consequence of a judgment, court order or decision ordering an alien to be expelled, the alien’s visa and residence permit will lapse, and the alien will not be allowed to re-enter Denmark and stay in this country without special permission (entry prohibition). An entry prohibition may be time-limited and is reckoned from the first day of the month following departure or return from Denmark. The entry prohibition is valid from the time of departure or return from Denmark. 2. An entry prohibition in connection with expulsion under sections 22 to 24 is given for: (i) three years if the alien is sentenced to suspended imprisonment or is sentenced to imprisonment not exceeding three months or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature or duration; (ii) five years if the alien is sentenced to imprisonment exceeding three months, but not exceeding one year, or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; (iii) ten years if the alien is sentenced to imprisonment exceeding one year, but not exceeding two years, or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; (iv) an unlimited time if the alien is sentenced to imprisonment for more than two years or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration. 3. An entry prohibition in connection with expulsion under section 22, subsection 1, (iv) to (vi) is given for a minimum of five years. 4. An entry prohibition in connection with expulsion under section 25 [danger to national security or serious threat to public order, safety or health] is given for an unlimited time. An entry prohibition in connection with expulsion under sections 25a and 25b is given for one year. 5. The police authority in charge of the arrangements for departure delivers to the alien a written notice giving the grounds for the entry prohibition and the penalty carried by non-compliance with the prohibition. 6. An entry prohibition lapses if, under the conditions mentioned in section 10, subsection 2, the person in question is issued with a residence permit under sections 6 to 9. 7. An entry prohibition given to a national of another Nordic country may be lifted at a later date where exceptional reasons make it appropriate. The Government submitted that according to practice, a visitor’s visa may be issued only in absolutely extraordinary cases to aliens who have been expelled with a permanent prohibition against re-entry. During the first two years following the departure, this may be relevant if the alien’s presence in Denmark is imperative, for example in case of acute serious illness of a spouse or a child living in Denmark and where consideration for the person(s) living in Denmark makes it appropriate to issue a visa to the expelled person. After the expiry of the two years following the departure, a visa can be issued in practice where exceptional reasons make it appropriate, for example in case of serious illness in the family living in Denmark. The applicant pointed out that the Government’s allegation of this practise was not supported by any evidence or reference to national provisions. | 0 |
train | 001-103418 | ENG | UKR | COMMITTEE | 2,011 | CASE OF MARCHENKO v. UKRAINE | 4 | Violation of Art. 6-1 | Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva | 4. The applicants were born in 1963, 1983 and 1988, respectively, and live in Makariv. Ms Lyudmyla Marchenko is the mother of the other two applicants. 5. From 1987 onwards Ms Lyudmyla Marchenko lived in a house together with Mr M., her husband, Mrs O.N., her mother in law, and Ms Svitlana Marchenko. In 1988 Ms Bozhena Marchenko was born. In 1989 Mrs O.N. acquired a property title over the said house. In 1992 Mr M. died. In 2000 Mrs O.N. concluded a deed of gift with Mr O.O. and transferred the ownership over the house to him. 6. In August 2000 Ms Lyudmyla Marchenko instituted proceedings in the Makariv Court against Mrs O.N. and Mr O.O. on her own behalf and on behalf of the other two applicants seeking division of the house and partial invalidation of the deed of gift. 7. On 20 October 2000 the court ordered a forensic examination and suspended the proceedings. 8. Having received the results of the examination on 3 May 2001, the court resumed the proceedings on 28 May 2001. 9. On 6 August 2001 the court found in part for the applicants. 10. On 31 August 2001 Mrs O.N. and Mr O.O. appealed. 11. On 12 October and 14 December 2001 the Kyiv Regional Court of Appeal returned the appeal to the first instance court due to procedural shortcomings. On 6 November and 16 December 2001 the first instance court allowed the appellants time to rectify their appeal. Finally, on 13 February 2002 the first instance court rejected that appeal without examination due to its procedural shortcomings. 12. On 21 May 2002 the court of appeal quashed that decision and remitted the case to the first instance court for a decision on the admissibility of the appeal lodged by Mrs O.N. and Mr O.O. 13. Following a decision on admissibility, on 1 July 2002 the Makariv Court sent the appeal to the court of appeal for consideration. 14. On 11 October 2002 the Kyiv Regional Court of Appeal quashed the judgment of 6 August 2001 and remitted the case to the Makariv Court for a fresh consideration. 15. On 18 April 2003 the court suspended the proceedings in the case upon the applicants' request. 16. On 22 August 2003 the Makariv Court ordered resumption of the proceedings. 17. On 13 February 2004 the court found in the applicants' favour. 18. On 10 March 2004 Mrs O.N. and Mr O.O. appealed. On 4 June 2004 the court of appeal quashed the first instance court judgment and found against the applicants. 19. On 5 July 2004 the applicants appealed in cassation. 20. On 9 November 2006 the Supreme Court rejected that appeal as unsubstantiated. 21. Out of sixteen hearings in the case four were adjourned upon the applicants' request or due to their failure to appear, four were adjourned upon the respondents' requests or due to their failure to appear, and three were adjourned due to the necessity to call a witness or to examine proof or information. | 1 |
train | 001-111957 | ENG | TUR | GRANDCHAMBER | 2,012 | CASE OF SABRİ GÜNEŞ v. TURKEY | 2 | Preliminary objection allowed (Article 35-1 - Six month period) | András Sajó;Dean Spielmann;Elisabeth Steiner;Erik Møse;Françoise Tulkens;Helen Keller;Ireneu Cabral Barreto;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Vincent A. De Gaetano | 8. The applicant, Mr Sabri Güneş, is a Turkish national who was born in 1981 and lives in İzmir. 9. He suffered a personal injury while doing his military service. He was hospitalised on 30 October 2001 and subsequently underwent several operations on his right knee. He is now permanently disabled. 10. On 7 April 2003 the applicant submitted a claim to the Ministry of Defence for compensation in respect of his permanent disability. 11. Following tacit dismissal of the claim by the administrative authorities, the applicant brought an action for damages in the Supreme Military Administrative Court on 12 August 2003 in respect of the disability suffered during his military service. He claimed 15,000 Turkish liras (TRY – approximately 9,400 euros (EUR)) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage. 12. Two expert reports ordered by the Supreme Military Administrative Court were added to the case file. The first, dated 12 March 2004, established a 5% disability. The second, dated 30 April 2004 and communicated to the applicant on 11 May 2004, assessed the applicant’s pecuniary damage at more than TRY 27,438 (approximately EUR 17,150). 13. Having held a public hearing on 7 July 2004, the Supreme Military Administrative Court delivered its judgment on the same day. It ruled in favour of the applicant and awarded him the full amount of his claim in respect of pecuniary damage, namely, TRY 15,000. It awarded him a further TRY 2,000 in respect of non-pecuniary damage. The court considered in particular that the conclusions of the expert report of 30 April 2004 were relevant and satisfied the criteria established by its case-law. 14. On 21 November 2004 the applicant applied to the Ministry of Defence for additional compensation in respect of his permanent disability. He claimed that he had only become aware of the extent of his pecuniary damage for the first time on 11 May 2004, when he received the report of 30 April 2004 assessing his pecuniary damage at TRY 27,438. 15. On 29 March 2005, following tacit dismissal of the claim by the administrative authorities, the applicant lodged a fresh claim with the Supreme Military Administrative Court for additional compensation, namely, TRY 12,438 (approximately EUR 5,600), on the basis of the expert report of 30 April 2004. He argued that he had received the expert report of 30 April 2004 on 11 May 2004, whereupon he had become aware of the true extent of the damage he had suffered. 16. By a judgment of 22 June 2005 the Supreme Military Administrative Court considered the applicant’s fresh claim to be an application to have the initial amount amended (ıslah) and dismissed it for being out of time. The court stated in particular: “The claimant has clearly sought an amendment of the initial amount. The purpose of an amendment is to rectify a procedural act. Having regard to the judgment of the Constitutional Court published in the Official Journal of 14 November 2000, we must conclude that, in civil law, injured persons are entitled to seek additional compensation once an expert report has been issued. However, in the proceedings before the Supreme Military Administrative Court, the time-limits of one year and sixty days from the date of referral to the administrative authorities apply. Under section 46(4) of the Supreme Military Administrative Court Act, the amount claimed cannot be rectified once those deadlines have passed. Consequently, this claim must be rejected for being out of time ...” One judge (out of five) expressed a dissenting opinion. He stated in particular: “The amount of damage in personal injury cases is established only upon production of an expert report. Moreover, the date on which such reports are confirmed is taken into account when calculating the time-limits for referral to the administrative authorities and for bringing an action ... The claim for additional compensation based on the expert report was lodged within the relevant time-limit because the applicant did not become aware of the extent of the damage until after that report had been issued ....” 17. On 9 September 2005 the applicant lodged an application for rectification of the judgment. 18. By a judgment of 16 November 2005, served on the applicant on 28 November 2005, the Supreme Military Administrative Court rejected that application. 19. Section 8(2) of the Administrative Procedure Act (Law no. 2577) and Article 162 of the Code of Civil Procedure provide that if the dies ad quem of a time-limit is a public holiday, that time-limit will be extended to the following working day. 20. Article 31 § 1 of the Vienna Convention, entitled “General Rule of Interpretation”, states that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” 21. The European Convention on the Calculation of Time-Limits, opened for signature on 16 May 1972 in Basle, came into force on 28 April 1983. It was drawn up with a view to establishing uniform European rules for calculating time-limits on the basis of responses obtained from governments. It applies both domestically and internationally, as clearly stated in the preamble thereto which affirms that “the unification of rules relating to the calculation of time-limits, both for domestic and international purposes”, will contribute to the attainment of greater unity between Council of Europe member States (see the explanatory report). Currently, only four of the ten signatory States have ratified that Convention. Turkey has neither signed it nor acceded to it. 22. Article 5 of that Convention provides as follows: “Saturdays, Sundays and official holidays shall count when calculating a timelimit. However, where the dies ad quem of a timelimit before the expiry of which an act shall be performed is a Saturday, a Sunday, an official holiday or a day which shall be considered as an official holiday, the timelimit shall be extended to include the first working day thereafter.” 23. Article 3 § 4 of Council Regulation (EEC, Euratom) no. 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (Official Journal no. L 124 of 08/06/1971) provides as follows: “Where the last day of a period expressed other than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day.” | 0 |
train | 001-21952 | ENG | CHE | ADMISSIBILITY | 2,001 | AY AND AY-AKGUEL v. SWITZERLAND | 4 | Inadmissible | Christos Rozakis | The applicants, Denho Ay and Besne Ay-Akguel, a married couple born in 1931 and 1939, respectively, are Turkish citizens residing in Uzwil in Switzerland. Before the Court they are represented by Mr Klaus Rüst, a legal advisor practising in St. Gallen. The applicants entered Switzerland in 1988 together with their three children and applied for asylum. The first applicant and two of the applicants’ children commenced work, whereupon, based on Section 21a of the Asylum Act (Asylgesetz) in force at the time, they were each obliged to pay, as a surety (Sicherheit) for welfare benefits obtained, 10% of their salary to a special closed account of the Federal Office for Refugees (Bundesamt für Flüchtlinge; henceforth Federal Office). On 5 April 1993 the Federal Office refused the applicants’ request for asylum, though they were permitted provisionally to remain in Switzerland. Upon the applicants’ appeal, the Swiss Asylum Appeals Commission (Asylrekurskommission) ordered the Federal Office on 27 May 1994 to accept the applicants as refugees and to grant them asylum. This, the Federal Office did on 18 July 1994. On 17 March 1994 the Federal Office prepared a final balance (Abrechnung) of the three closed accounts of the applicants and their two children. The Federal Office considered that the amounts of the three accounts totalled 6,986.90 Swiss francs (CHF), whereas the applicants had obtained welfare benefits in the amount of CHF 10,800. As a result, it informed the applicants that no money could be paid back from the account, though they would only be requested to compensate the outstanding amount of CHF 3,813.10 within the limits of the former Section 40 § 2 of the Asylum Act in force at the time. On 4 May 1995 the applicants filed an appeal with the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement, henceforth Federal Department). Therein, and in subsequent submissions, the applicants requested the Federal Office to pay them back the entire amount of the closed surety account. They claimed that their recognition as refugees was declaratory and hence had retroactive character. Thus, their status as refugees extended back to the moment when they entered Switzerland. The law only required a surety from asylum seekers, i.e. persons applying for the status of refugee, but not from refugees themselves. As the applicants had had refugee status from the outset, the amounts on the surety account should be paid out to them. The applicants also complained, inter alia, of procedural errors and that they had been discriminated against as foreigners. On 22 August 1995 the Federal Office prepared a new, amended balance of the three closed accounts of the applicants. It considered that the applicants’ children had, at the relevant time, not yet been of age for which reason they were not obliged to pay back the welfare benefits obtained, and they would receive the amounts paid into their closed accounts. In respect of the first applicant, the Federal Office considered that his account contained CHF 5,023.40 and that, after deduction of welfare benefits amounting to CHF 7,200, there remained a negative balance of CHF 2,176.60. The applicants would not, however, be obliged to pay back this amount according to Section 40 § 2 of the Asylum Act. On 20 September 1995 the Federal Office confirmed that the remaining debt (Restschuld) for the applicants arising from the welfare benefits amounted to CHF 2,176.60, though this amount would not be collected as long as the applicants had no means and the payment appeared unreasonable. The applicants’ appeal of 4 May 1995 was dismissed by the Federal Department on 19 November 1998. The decision noted that the applicants were contesting, not a particular amount, but the obligation in principle to pay back the welfare benefits out of the closed account, alleging that their recognition as refugees had retroactive effect. However, the rights under the Asylum Act only applied upon recognition of a person as a refugee. The specific obligation for persons applying for asylum to provide for a surety was not affected by the subsequent decision to award refugee status to a person. The decision continued: “(I)t must be emphasised that the lower authority was entitled, regardless of whether the status of asylum was granted, to deduct from the [first] applicant’s surety account a global sum in respect of the welfare benefits obtained both by him and his wife during the asylum proceedings. It will not depend on the applicants’ economic situation whether or not it is admissible to deduct this amount. For this reason, the lower authority did not have to undertake any investigations in this respect. The applicants have not proved lower welfare expenses and indeed do not contest the amounts to be deducted. As a result, the contested decision is lawful and the complaint must be dismissed ...” The Asylum Act in force at the relevant time provided in Sections 20a § 1 and 37 that both refugees and persons applying for such a status, were entitled to welfare benefits if they could not afford to pay for their own subsistence. According to Section 40 § 2: “if the recipient of welfare benefits subsequently obtains means which secure to him and his family an adequate subsistence, he will have to pay back the benefits to the extent that this is reasonable.” Section 21a §1 specifically concerned persons applying for the status of refugee. These persons were obliged, in addition, to provide a surety for future welfare costs. The percentage of the person’s salary to be paid would be decided by the competent cantonal authority. In practice, a surety bank account was opened, and the employer of the person concerned would directly transfer the contributions to this account. In respect of the closing of the account, Section 41 of the Asylum Act Ordinance no. 2, Asylverordnung, in force at the time) provided as follows: 1. Once the asylum proceedings have been concluded and the applicant’s residence situation in Switzerland has been settled by means of a residence permit or a provisional stay, ... the Federal Office [for Refugees] shall order the transfer to the Confederation of the amounts to be paid back for social security and implementation. 2. The Office shall furthermore order the final balance (Schlussabrechnung) and the transfer of any credit to an account mentioned by the applicant. The final balance shall be transmitted to the applicant subject to § 3. 3. If the residence situation of an applicant, who is not a refugee, has been settled by means of a provisional stay, the surety account will remain open.” | 0 |
train | 001-78233 | ENG | SVN | CHAMBER | 2,006 | CASE OF GAISCHEG v. SLOVENIA | 4 | Preliminary objection dissmissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicants were born in 1929 and 1959 and live in Maribor. 6. They are wife and son of A.G. who died in 1980 and was of German origin. 7. M.G., A.G.'s mother, who died on 3 September 1948, owned a house in the centre of Maribor. She bequeathed the house to her son K.G., who was mentally ill, in order to provide for his maintenance. In her will, M.G. acknowledged that A.G. agreed not to claim the house. After the inheritance proceedings had been terminated, K.G. became the owner of the house and A.G. got a life-long right to reside in the house. 8. At an undetermined time, K.G. was declared incapacitated due to his mental illness and was put under guardianship. In October 1949 he was sent to a psychiatric institution. On 3 November 1949 the Maribor Local Court (Okrajno sodišče v Mariboru) ordered that K.G. should remain institutionalised. 9. On 6 December 1948 K.G.'s guardian asked the Maribor Municipality whether they would be interested in purchasing the house, because K.G. had insufficient income to cover his expenses and to maintain the house. 10. On 29 August 1949 the Maribor Municipality drafted a contract for the purchase of the house and taking on the responsibility of life-long care and maintenance of K.G. The contract established that the payment for the house would also cover A.G.'s claim against K.G. originating from a loan, which was secured by a mortgage on the house. 11. On 7 April 1950 K.G.'s guardian signed the contract before the Maribor Local Court. 12. On 14 April 1950 the Maribor Municipality requested A.G. to express his agreement with the contract by way of signing it. At an undetermined time, but apparently shortly after this date, he complied with the request. 13. On 4 April 1951 K.G. died. 14. At an undetermined time, the applicants instituted non-contentious proceedings against the Maribor Municipality in the Maribor Basic Court, Maribor Unit (Temeljno sodišče v Mariboru, Enota Maribor) seeking restitution of the house. They claimed that the house was nationalised because the contract on its purchase had been closed under duress. On 1 January 1995 the Maribor Local Court (Okrajno sodišče v Mariboru) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. On 26 April 1996 the applicants lodged preliminary written submissions. On 23 May 1996 the court held a hearing and heard witnesses. On 30 January 1997 the court dismissed the applicant's request because the applicants failed to prove that the impugned contract had been made under duress. 15. On 4 April 1997 the applicants appealed to the Maribor Higher Court (Višje sodišče v Mariboru). On 13 May 1997 the court dismissed the appeal as unfounded. 16. On 4 September 1997 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 25 March 1998 the court dismissed the appeal as unfounded. The decision was served on the applicant on 27 May 1998. 17. On 11 December 2000 the first applicant appealed to the Constitutional Court (Ustavno sodišče). On 21 January 2002 the court declared the application inadmissible as out of time. 18. On 3 August 1993 there was a gas explosion in the cellar of the building where the first applicant resided, namely the house claimed by the applicants in the first set of proceedings. At the time of the explosion, the first applicant was in the cellar and sustained injuries. The liability for the explosion laid with the company MP who was responsible for maintenance of the gas pipeline in the building. 19. On 28 March 1994 the first applicant instituted proceedings against the company MP and the insurance company ZM in the Maribor Basic Court, Maribor Unit seeking damages in the amount of 7,255,000 tolars (approximately 30,000 euros) for the injuries sustained. On 7 July 1994 the court held a hearing and decided to appoint the Ljubljana University Clinic Centre to deliver an expert opinion regarding the applicant's injuries. The opinion was delivered in six months. On 19 December 1995 the court held another hearing and requested the appointed expert institution to amend its opinion. On 1 January 1995 the Maribor Distric Court (Okrožno sodišče v Mariboru) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. On 11 June 1996 the court terminated the proceedings against the insurance company following the applicant's withdrawal of the claim against this party. On 26 August 1996 the applicant submitted preliminary written observations and raised her claim. During the proceedings, the court appointed two more medical experts. At the hearing held on 5 June 1997 the court requested one of the appointed experts to deliver an additional opinion. On 16 June and 17 September 1998 the court held hearings. At the last hearing the court issued a judgment upholding the applicant's claim in part. 20. On 9 November 1998 the MP appealed to the Maribor Higher Court. On 16 November 1998 the applicant cross-appealed. At an undetermined time in 2000, the Maribor Higher Court set aside the first-instance court's judgment and remitted the case for re-examination. 21. On 1 February 2001 the first-instance court held a hearing and issued a judgment upholding the applicant's claim in part. The court awarded the applicant more damages than in its previous judgment. 22. On 27 March 2001 both parties appealed to the Maribor Higher Court. On 9 July 2002 the court allowed the appeals in part and increased the amount of damages awarded. 23. On 17 September 2002 MP lodged an appeal on points of law with the Supreme Court. On 11 December 2003 the court dismissed the appeal on points of law. 24. In the meanwhile, on 16 September 2002 the applicant instituted enforcement proceedings in the Maribor Local Court against MP for payment of the damages awarded in the Maribor Higher Judgment. On 9 January 2003 the court allowed the enforcement and the amounts due were paid to the applicant on 30 January 2003. | 1 |
train | 001-71529 | ENG | DEU | ADMISSIBILITY | 2,005 | BALLERSTEDT AND OTHERS v. GERMANY | 4 | Inadmissible | Mark Villiger | The applicants, Mr Uwe Ballerstedt, Mr Götz Dieter Lohse, Ms Antje Rink, Ms Silke Luther and Mr Hans-Dieter Lohse, are German nationals who live in Pretzien. They were represented before the Court by Mr M. Moeskes, a lawyer practising in Magdeburg. The applicants are heirs of associates of a limited partnership (Kommanditgesellschaft) which owned land in Pretzien on the territory of the former German Democratic Republic (neue Bundesländer – hereinafter called New Länder). The land comprised forests and a quarry. On 19 September 1967 the property was expropriated by the authorities of the German Democratic Republic (“GDR”) pursuant to the Reconstruction Act (Aufbaugesetz) in order to create a recreational area (Erholungsgebiet). Compensation amounting to 19,092.00 Marks of the GDR was fixed under the “Act on Compensation for Expropriation under the Reconstruction Act” (Gesetz über die Entschädigung bei Inanspruchnahme nach dem Aufbaugesetz). However, that sum was never paid out, as it was charged up against claims the State had against the limited partnership. Following German Unification the applicants requested restitution under the Property Act (see “Relevant domestic law and practice” below) on 20 October 1992. On 18 November 1993 the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen) rejected their request, stating that the requirements for restitution were not met. On 13 January 1997 the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung offener Vermögens-fragen) rejected the applicants’ opposition. Subsequently they brought an action in the Magdeburg Administrative Court. The court rejected the claim for restitution confirming that the requirements of sections 1 (1a), 1 (1b) and 1 (3) of the Property Act were not fulfilled. Firstly, the court held that section 1 (1a) of the Property Act was not applicable, as the applicants’ predecessors had been expropriated and compensated. It was irrelevant that the compensation had actually not been paid out, as section 1 (1a) of the Property Act applied only to expropriations for which no compensation was provided under GDR law. It referred to the judgment of the Federal Administrative Court of 24 March 1994 (see “Relevant domestic law and practice” below). Secondly, the court found that the requirements of section 1(1b) of the Property Act were not met. It explained that according to the Federal Administrative Court’s case-law that provision had to be interpreted restrictively. Contrary to its wording, the amount of compensation alone was not decisive. It applied only to those expropriations which had been carried out by the GDR authorities pursuant to a discriminatory State practice. As an example the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) of 28 July 1977, which had fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”. The court found no indication for such a discriminatory State practice in the present case. Lastly, the court elaborated on the requirements of section 1(3) of the Property Act. At the outset it noted that, according to the Federal Administrative Court’s case-law, “arbitrary” or “manipulative” expropriations also fall within the ambit of that provision. However, “arbitrary” or “manipulative” meant more than a mere violation of GDR law. The court recalled that an expropriation was arbitrary if there had been either no legal basis for the purpose of the expropriation under GDR law or if the GDR authorities had falsely indicated a purpose while secretly pursuing a different one. Regarding the present case, the court acknowledged that the Reconstruction Act did not, according to its wording, allow expropriations for creating recreational areas. Its purpose was rather to reconstruct or maintain housing. However, the court pointed out that the GDR authorities had applied the Reconstruction Act extensively, as had already been held by the Federal Administrative Court in its judgment of 5 March 1998 (see “Relevant domestic law and practice” below). Furthermore, the court referred to several resolutions by the Council of the District of Magdeburg (Rat des Bezirks Magdeburg) dating back to the expropriation era, which had called for the creation of additional recreational areas. The court found that the authorities then involved had, possibly wrongly, assumed that the Reconstruction Act was a blanket clause for expropriations which served important social projects. The court also referred to a GDR textbook on the Reconstruction Act in which the author indicates that the Reconstruction Act was not only used for the creation of housing, but also for other projects such as cemeteries or farm stables. The court therefore concluded that in GDR practice such expropriations under the Reconstruction Act were possible and common. It further found that the expropriation had been considered to fall within that purpose. Furthermore, the court found that the authorities had acted in accordance with the “basic ideological ideas” (ideologische Grundvorstellungen) on which the GDR legal system was based. The court therefore concluded that there was no indication of a “manipulative” or “arbitrary” expropriation within the meaning of the Property Act and refused the applicants leave to appeal on points of law. The court rejected the applicants’ complaint against the refusal of leave to appeal on points of law, confirming the lower court’s reasoning in respect of the application and interpretation of sections 1 (1a), (1b) and (3) of the Property Act. In particular, the court stressed that in GDR law and practice the Reconstruction Act was interpreted broadly. It held that even if the Reconstruction Act had not provided for expropriation in the present case, this mistake would not constitute a grave and evident violation of the principles of the Reconstruction Act. Therefore, the expropriation could not be considered arbitrary or manipulative within the meaning of section 1 (3) of the Property Act. The Federal Constitutional Court refused to admit the applicants’ constitutional complaint. “... 3. Expropriated real estate is in principle to be returned to the former owners or their heirs, having regard to the type of case specified in sub-paragraphs (a) and (b) below. (a) It is not possible to restore rights of ownership over land and buildings whose use or purpose has been altered, in particular by being dedicated to public purposes, used for housing developments, for commercial purposes or incorporated into new business units. Compensation will be paid in these cases, in so far as it has not already been made pursuant to the laws and regulations applicable to citizens of the German Democratic Republic. (b) In so far as citizens of the German Democratic Republic have in good faith acquired ownership or rights of user in rem (dingliche Nutzungsrechte) over real estate, socially acceptable indemnification (sozialverträglicher Ausgleich) is to be made to the former owners by substituting real estate (Grundstücke) of a comparable value or by paying compensation. ...” The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was also part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the unified Germany after the unification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable in order to achieve permanent legal order in Germany. The pertinent provisions read as follows. Section 1 “(1) This Act settles claims to property, (a) which was expropriated without compensation and transferred to public property (Volkseigentum); (b) expropriated for a lesser amount of compensation than citizens of the German Democratic Republic were entitled to; ...” (3) This act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings, such as abuse of power, corruption, duress or deception by the purchaser, the State authorities or third parties.” In its annotation of the bill the German Government made the following comments on the Property Act’s purpose and meaning. “... For the time after the foundation of the German Democratic Republic (7 October 1949) this Act provides for restitution, if owners were deprived of their property assets (Vermögenswerte) in a way which is incompatible with the rule of law. This Act does not intend to amend every interference with private means (Privatvermögen) which took place during the last 40 years pursuant to GDR law on the basis of a socialist economic and social order. ...” Article 19 “Administrative Acts of the German Democratic Republic which were issued before the accession takes effect remain in force. They can be revoked if they are incompatible with the rule of law of the provisions of this treaty. ...” Regarding the interpretation of section 1 (1a) of the Property Act the Federal Administrative Court held that restitution was excluded, even if the prescribed compensation, although provided under GDR law, had not been fixed, had not been paid out, had been charged up or had been withheld for other reasons by the GDR authorities. Furthermore, the court elaborated that the Property Act provided only for the revocation of certain cases of expropriations. It pointed out that the first sentence of Article 19 of the Unification Treaty stipulates that all administrative acts of the GDR authorities remain in force. Only administrative acts which were incompatible with the principle of the rule of law (rechtsstaatliche Grundsätze) and the principles of the Unification Treaty were to be revoked. The court held that the legislator had not intended to grant restitution in a case in which the compensation payment was actually not made, but only in cases in which GDR law did not provide for compensation at all. Only those expropriations reached a level of injustice that justified restitution. In a second judgment of the same day the Federal Administrative Court elaborated the following on the scope of section 1 (1b) of the Property Act. It stated that, contrary to its wording, that provision required more than just an expropriation for a lesser amount of compensation than citizens of the GDR were entitled to. The court held that section 1 (1b) had to be read in conjunction with section 1 (1a). The court said that, if the fact that compensation was fixed, but not paid out, did not entitle to restitution under section 1 (1a), it could not be that a lesser amount of compensation was in itself sufficient under section 1 (1b) to justify restitution. It followed that only those expropriations fell within the ambit of section 1 (1b) which had been conducted pursuant to a discriminatory State practice. As an example for such a discriminatory State practice the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) dated 28 July 1977 which fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”. Regarding the interpretation of section 1 (3) of the Property Act, the Federal Administrative Court held that “manipulative or “arbitrary” expropriations also fall within the ambit of that provision. However, it is not sufficient that the expropriation was unlawful under GDR law. It is necessary that the threshold of arbitrariness was crossed. The Federal Constitutional Court stated that an expropriation was arbitrary or manipulative if the GDR authorities had falsely indicated a legitimate purpose for the expropriation, but secretly pursued a different purpose. Furthermore, an arbitrary or manipulative expropriation was given if there had been no legal basis for it under GDR law. The Federal Administrative Court repeated that section 1 (3) of the Property Act demanded an examination on a case-by-case basis and required an elevated level of injustice in each case (qualifiziertes Einzelfallunrecht). Such a level of injustice was not reached if an expropriation had been conducted in accordance with GDR legal provisions and pursuant to the basic ideological ideas (ideologische Grundvorstellungen) on which those provisions were based. In this judgment the Federal Administrative Court held the following regarding the application and interpretation of the Reconstruction Act by the GDR authorities. It stated that the GDR authorities were of the view that the Reconstruction Act had a very broad scope. Expropriations for the benefit of inter alia State-owned enterprises, co-operatives, parties and mass organisations had been allowed. In the case which was decided by the Federal Administrative Court, the expropriation had been carried out for the benefit of the unified trade union (FDGB). The Federal Administrative Court doubted whether that expropriation, as a matter of principle, fell within the scope of the Reconstruction Act, but found that even if the GDR authorities had wrongly applied the Reconstruction Act, this would not constitute a grave and evident violation of the basic principles of the Reconstruction Act. Therefore, the measure in issue could not be considered an arbitrary expropriation within the meaning of section 1 (3) of the Property Act. | 0 |
train | 001-95777 | ENG | GBR | CHAMBER | 2,009 | CASE OF OMOJUDI v. THE UNITED KINGDOM | 4 | Violation of Article 8 - Right to respect for private and family life | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant, Mr Steven O. Omojudi, is a Nigerian national who was born in 1960. He currently lives in Nigeria. 5. 6. The applicant was born in Nigeria and lived there until 1982. He was educated in Nigeria and for a period he was employed by a Nigerian aviation handling company. On 9 September 1982, when he was twenty-two years old, he was granted two months' leave to enter the United Kingdom as a student. His leave was subsequently extended to 15 January 1986. In 1983 the applicant was joined by his partner, who was also a national of Nigeria. The applicant married his partner in the United Kingdom in 1987. They had three children, who were born on 11 February 1986, 28 October 1991 and 16 September 1992. The children were born in the United Kingdom and all are British citizens. The oldest child has a daughter, who is now two years old. 7. Prior to the expiry of his leave in January 1986, the applicant applied for a further extension. The following day, however, he was caught returning from the Netherlands with a British visitor's passport obtained by deception. Although he was not prosecuted for the offence, the application to extend his leave was refused. 8. On 12 March 1987 the applicant was informed of his liability for deportation. He was served with a deportation order on 31 July 1987. He attempted to appeal against the order and a second deportation order was served on 4 December 1990. The applicant appealed against the second order, but the appeal was subsequently withdrawn. 9. The applicant was convicted of theft and conspiracy to defraud on 7 March 1989. He was sentenced to four years' imprisonment. Other convictions the same day resulted in five terms of twelve months' imprisonment to run concurrently. 10. On 24 October 1995 the applicant claimed asylum by post, but on 12 January 1998 the application was refused for non-compliance. 11. On 28 September 2000 the applicant and his wife applied for leave to remain under an overstayer's regularisation scheme. On 18 April 2005 they both were granted Indefinite Leave to Remain. 12. On 19 November 2006 the applicant was convicted of sexual assault. The conviction stemmed from an incident in which the applicant, in his capacity as a housing officer, touched a woman's breast without her consent. He was sentenced to fifteen months' imprisonment, with half to be spent in custody and half on licence, and he was registered as a sex offender. The offence was considered to be particularly serious as the applicant was in a position of trust at the time it was committed. The sentencing judge described the offence as “a gross sexual intrusion into the private life of a woman by someone in a position of trust”. He reduced the sentence, however, to lessen the impact on the applicant's family and he did not recommend him for deportation. 13. The Secretary of State for the Home Department made a deportation order on 31 March 2007 on the basis that deportation was necessary for the prevention of disorder and crime and for the protection of health and morals. The applicant appealed against that decision but the appeal was dismissed on 25 July 2007. Although the judge accepted that the applicant had established a family life in the United Kingdom, and that deportation would interfere with that family life, he concluded that the measure was proportionate because the applicant remained a potential offender who posed a threat to society. The applicant sought permission to apply for judicial review, which was refused on 15 August 2007 and again on 28 November 2007. 14. The applicant subsequently was served with removal directions set for 23 January 2008. On 18 January 2008 he introduced his case with the Court and on 24 January 2008 the Court ordered that the case be notified urgently to the Government under Rule 40 of the Rules of Court. On the same day the applicant again sought permission to apply for judicial review. Permission was refused and on 25 April 2008 the appeal against this decision was dismissed at an oral hearing. The applicant was served with new removal directions and he was deported to Nigeria on 27 April 2008. 15. From 24 January 2008 until 25 April 2008 both the applicant and his representative requested the applicant's risk-assessment report from the Probation Service, initially on a weekly basis and subsequently at regular intervals. The report, however, was only disclosed on 25 April 2008. 16. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention. 17. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 18. A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that: “390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. 391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion (i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or (ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. 392. Revocation of a deportation order does not entitle the person concerned to reenter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.” | 1 |
train | 001-106785 | ENG | MLT | CHAMBER | 2,011 | CASE OF GENOVESE v. MALTA | 3 | Violation of Art. 14+8 | Geoffrey Valenzia;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | 7. The applicant was born in 1996 and lives in Hamilton. 8. The applicant was born in Scotland and his birth was registered there. He was born out of wedlock and is the son of a British mother and a Maltese father. The latter’s paternity has been determined both judicially and scientifically (see below). Mr G., the applicant’s father, of Maltese citizenship, has refused to acknowledge his son or to maintain a relationship with him. 9. On an unspecified date the applicant’s mother made a request for her son to be granted Maltese citizenship. 10. On 4 September 1996, the Malta High Commission informed the applicant’s mother that since she was not a Maltese citizen and the father of the applicant had not yet been declared to be a Maltese citizen on the applicant’s birth certificate, the applicant was not entitled to Maltese citizenship. She was informed that citizenship would be granted only if the Maltese father recognised his son on the applicant’s birth certificate. 11. Subsequently, the applicant’s mother instituted proceedings in Scotland for the Maltese man with whom she had had a relationship to be declared the applicant’s father on the applicant’s birth certificate. By a decree of an unspecified date the Scottish courts declared Mr G., a Maltese citizen, to be the applicant’s biological father. Consequently, the applicant’s birth certificate was amended to reflect the established paternity. 12. According to the Government, in the meantime the applicant’s mother was informed that even if Mr G. was judicially declared to be the applicant’s father the applicant would still not be eligible for citizenship in view of section 5(2)(b) and 17(1)(a) of the Maltese Citizenship Act, which stated that children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese. 13. Subsequently, the applicant’s mother again submitted an application under section 5(2)(b) of the Maltese Citizenship Act (see Relevant Domestic Law below) for her son to be granted Maltese citizenship. 14. On an unspecified date her application was rejected on the basis that Maltese citizenship could not be granted to an illegitimate child in cases where the illegitimate offspring was born to a non-Maltese mother and a Maltese father, in accordance with section 17(1)(a) of the Maltese Citizenship Act (see Relevant Domestic Law). Since the applicant was not born to a married couple, as a result of the application of Article 17(1)(a) any reference to the “father” in section 5(2)(b) had to be deemed to be a reference to the mother. 15. By a judgment of 27 February 2003 the Civil Court (First Hall) in Malta also declared Mr G. to be the applicant’s biological father and he was ordered to pay maintenance. 16. Pending the above judgment, in 2002, the applicant’s mother in her own name and on behalf of the applicant, as his curator ad litem, instituted constitutional redress proceedings, complaining that the said provision was discriminatory and contrary to both the Maltese Constitution and the Convention. 17. On 25 January 2006 the Civil Court, in its constitutional jurisdiction, found that the said provisions were in violation of the Maltese Constitution, because they discriminated against the applicant by depriving him of Maltese citizenship. It further abstained from taking a decision on the compatibility of the provisions with the Convention. 18. On 18 July 2006, on appeal, the Constitutional Court reversed the first-instance judgment in respect of the compatibility of the provisions with the Constitution. However, it sent the case back to the Civil Court for a determination on the compatibility of those provisions with the Convention. 19. On 4 November 2008 the Civil Court in its constitutional jurisdiction held that section 17(1)(a) of the Maltese Citizenship Act was null vis-á-vis 20. On 27 March 2009, on appeal, the Constitutional Court reversed the first-instance judgment. Noting the amendments in 2007 (see Relevant Domestic Law), it considered that its judgment had to be limited to the parameters of the application before it. It held that the right to citizenship was not a substantive Convention right. The grant or denial of citizenship would not facilitate or create obstacles to the applicant’s family life since his father categorically refused to have any contact with him. Moreover, since the Convention did not oblige a State to allow a non-national spouse to reside in its territory, it could not be said that the State was obliged to grant citizenship to a non-national. 21. The Maltese Citizenship Act, Chapter 188 of the Laws of Malta, in so far as relevant, reads as follows: Section 5 “(2) A person born outside Malta on or after the appointed day (21 September 1964) shall be deemed to have become or shall become a citizen of Malta at the date of his or her birth: (b) in the case of a person born on or after 1 August 1989, if at the date of such person’s birth, his or her father or mother is a citizen of Malta ...” Section 17 “(1) In this Act - (a) any reference to the father of a person shall, in relation to a person born out of wedlock and not legitimated, be construed as a reference to the mother of that person; ...” By means of Act X of 2007 the following subsections were added to section 5 of the Maltese Citizenship Act: “(3) A person born outside Malta on or after the appointed day who proves he is a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta shall be entitled, upon making an application as may be prescribed and upon taking the oath of allegiance, to be registered as a citizen of Malta: Provided that when the said person is a minor, any such person who according to law has authority over that minor, may submit an application for the registration of the said minor as a citizen of Malta. (4) Any ascendant as provided in subarticle (3) who dies before the 1st August 2007 and who would, but for his death, have been entitled to acquire Maltese citizenship under this article, shall be deemed to have acquired such citizenship for the purposes of subarticle (3). (5) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was alive on 1st August 2007 (for the purposes of this article referred to as "the relevant parent") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article or under article 3; so however that any such relevant parent who dies before 1st August 2010 and who would have been entitled to acquire such citizenship under subarticle (3) or under subarticle (3) of article 3 shall be deemed to have acquired such citizenship for the purposes of that subarticle. (6) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was born on or after 1st August 2007 (for the purposes of this article referred to as "the relevant parent") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article. (7) The person applying to be registered as a citizen of Malta under subarticle (3) shall be entitled to be registered as a citizen of Malta if the relevant parent dies after the 31st July, 2010 and the relevant parent had applied for and would have been entitled to be granted Maltese citizenship under this article or under article 3.” | 1 |
train | 001-104911 | ENG | POL | CHAMBER | 2,011 | CASE OF R.R. v. POLAND | 1 | Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies;victim);Violation of Art. 3 (susbtantive aspect);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | 6. The applicant was born in 1973. 7. Early in December 2001 the applicant visited Dr S.B. in a hospital in T., in the region covered by the then Małopolska Regional Medical Insurance Fund (replaced later by the countrywide National Health Fund). Having performed an ultrasound scan, Dr S.B. estimated that the applicant was in the 6th or 7th week of pregnancy. 8. On 2 January 2002, in the 11th week of her pregnancy, the applicant – who was at that time 29 years old, was married and had two children – was registered as a pregnant patient in her local clinic. 9. On 23 January and 20 February 2002 ultrasound scans were performed, in the 14th and 18th weeks of the applicant’s pregnancy. On the latter date Dr S.B. estimated that it could not be ruled out that the foetus was affected with some malformation and informed the applicant thereof. The applicant told him that she wished to have an abortion if the suspicion proved true. 10. The Government submitted that in January and February 2002 the applicant had visited Dr S.B. at a private clinic. They argued that such an institution had no right to issue a referral to any public health institution. 11. The applicant disagreed. She first submitted that at the material time Dr S.B. worked both at a public hospital in T. – where she had visited him in December 2001 and in February 2002, after the second scan – and at a non-public clinic. She further submitted that the Polish health care system was composed of so-called public health units and non-public health units. The latter, most often being first contact and basic care institutions, had financing contracts with the public National Health Fund (and had had such contracts with its predecessors, the Regional Medical Insurance Funds, at the material time). Medical services available in non-public clinics were partly financed by public funds, constituted by premiums paid by all persons covered by the universal system of health insurance. Doctors working for non-public units had the same rights and duties to provide health care to patients as doctors employed by public units, including a right to refer a patient to a public unit. 12. Subsequently, the applicant went to a hospital in T. The results of a third ultrasound scan performed in that hospital confirmed the likelihood that the foetus was suffering from some malformation. A genetic examination by way of amniocentesis was recommended by Dr O., in order to confirm or dispel this suspicion. 13. On 28 February 2002 the applicant had another ultrasound scan in a private clinic in Łódź. She had no referral from Dr S.B. and had therefore to pay for the service herself. Under the applicable laws, her expenditure could not be reimbursed. The results of that scan confirmed the likelihood that the foetus was affected with an unidentified malformation. Genetic tests were recommended again. 14. She was subsequently received by Professor K.Sz. in Łódź, a specialist in clinical genetics. A genetic test was again recommended. Professor K.Sz. recommended that the applicant should obtain a formal referral from her family doctor, S.B., to have the test carried out in a public hospital in Łódź, which was outside her region covered by the then Universal Medical Insurance Fund. Subsequently, Dr S.B. refused to issue a referral, because in his view the foetus’ condition did not qualify the applicant for an abortion under the provisions of the 1993 Act (see paragraph 66 below). 15. The Government submitted that no reference to the possibility of the foetus being affected with Edwards syndrome had ever been made. 16. The applicant disagreed. She submitted that during that visit she was told that the scan gave rise to a suspicion of either Edwards or Turner syndrome. 17. In the first week of March 2002 the applicant and her husband visited Dr S.B. during his night duty at the hospital in T. They demanded termination of the pregnancy. He refused and indicated that the results of the ultrasound scan could not be treated as a sole ground for diagnosis that the foetus was affected with severe malformation. He proposed having a panel of doctors from the same hospital review his decision. The applicant refused. 18. On 11 March 2002 the applicant was admitted to a public hospital in T., within her region covered by the National Health Insurance Fund, and requested advice. She was told that a decision on termination could not be taken at that hospital and was referred to a university hospital in Kraków, to a pathological pregnancies ward, in another region of the Fund, for further diagnosis (“w celu dalszej diagnostyki”). 19. During the applicant’s stay in the hospital in T. a hospital lawyer was asked to give an opinion with a view to ensuring that the laws on the availability of legal abortion were respected. The applicant was also told that termination of pregnancy would entail a serious risk to her life and that the two caesarean births which she had previously had constituted the most important risk factor in deciding whether she should have a genetic test at all. 20. On 14 March 2002, immediately after being discharged from the T. hospital, the applicant travelled 150 kilometres to Kraków. She went to see Dr K.R. at Kraków University Hospital. He criticised her for contemplating a termination. She was also informed that the hospital categorically refused to carry out abortions and that no abortions had ever been performed there for the last 150 years. She was also refused a genetic examination, Dr K.R. being in the opinion that it was not necessary in her case. She stayed in the hospital for three days and had another ultrasound scan performed, the results of which were inconclusive. Urine and blood tests were also performed. She was discharged on 16 March 2002. The applicant’s discharge record stated that the foetus was affected with developmental abnormalities (“wady rozwojowe płodu”). The same was stated in a medical certificate signed by Dr K.R. He recommended genetic testing in order to establish the character of the ailment. 21. On 21 March 2002 the applicant again contacted Professor K.Sz., who had examined her in February. Another ultrasound scan performed in a private clinic where Professor K.SZ. received patients confirmed the suspicion of malformation. The applicant obtained a referral from the professor to the Mother and Child Hospital in Łódź, but he informed her that he was in fact not competent to issue it. The professor told her that in order to have a genetic test carried out in Łódź, which was outside her region, she needed a referral issued by a doctor practising in her region and, in addition, an approval by a regional insurance fund, together with an undertaking that it would reimburse the costs of the test to the regional fund where the test was to be performed. The professor advised her to report to the Łódź hospital as an emergency patient, claiming that she was about to miscarry, as it was likely that she would then be admitted to that hospital. 22. Subsequently, on 22 March 2002, the applicant asked Dr K.R. for a referral. The Government submitted that Dr K.R. could not have referred the applicant for a genetic test in Kraków because neither the University Hospital nor any other hospital in Kraków carried out such tests as a routine procedure. The applicant disagreed. She submitted that Dr K.R. had told her that she would not obtain the referral for testing because if the results were positive she would want to have an abortion. 23. Afterwards, on the same day, she again unsuccessfully asked Dr S.B. for a referral to the Łódź hospital. 24. The Government submitted that the applicant had obtained from him a referral to the same Kraków University Hospital where she had already been hospitalised between 11 and 14 March. The applicant disagreed and submitted that no referral had been issued to her. The Court notes this discrepancy in the parties’ submissions and notes that no copy of that referral has been submitted to it. 25. On 24 March 2002 the applicant went to the Łódź Mother and Child Hospital. 26. The Government submitted that she had gone to the hospital with a referral issued by Professor K.Sz. 27. The applicant disagrees. She submits that she had gone to that hospital without a referral, as advised, and had been admitted as an emergency patient. 28. A genetic test (amniocentesis) was performed there on 26 March 2002, in the 23rd week of pregnancy, and the applicant was told that she had to wait two weeks for the results. 29. The Government submitted that the tests were carried out despite the fact that the applicant had not sought from the Małopolska section of the medical insurance fund any approval for financing them. 30. The applicant was discharged from the Łódź hospital on 28 March 2002. Before the results were available, on 29 March 2002 the applicant, increasingly desperate as by then she was very afraid that the foetus was suffering from severe genetic abnormalities, reported to the T. hospital, where she submitted a written request for an abortion. Dr G.S. told her that he could not take such a decision himself. He had to speak with the consultant. 31. By a letter of 29 March 2002 the applicant requested the hospital in T. to terminate the pregnancy, referring to the provisions of the 1993 Act. She requested that in case of a negative reply it should be made in writing “as soon as possible”. 32. On 3 April 2002 the applicant went to that hospital again and was told that the consultant could not see her because he was ill. The visit was rescheduled for 10 April 2002. On the same day she wrote a letter of complaint to the director of the T. hospital, submitting that she had not received adequate treatment and that she felt that the doctors were intentionally postponing all decisions in her case so that she would be unable to obtain an abortion within the time-limit provided for by law. 33. On 9 April 2002 she again requested doctors at the T. hospital to carry out an abortion. She referred to the results of the genetic tests which she had received on that date. The certificate, established by Professor K.Sz., confirmed that the karyotype indicated the presence of Turner syndrome. The certificate further read: “A chromosomal aberration and an ultrasound image were established, indicating the presence of congenital defects which can have a serious impact on the child’s normal development. Further handling of the case under the provisions of the 1993 law on termination of pregnancy can be envisaged. A relevant decision should be taken with due regard to the parents’ opinion”. The doctors in the T. hospital refused to carry out an abortion, Dr G.S. telling her that it was too late by then as the foetus was able at that stage to survive outside the mother’s body. 34. On 11 April 2002 the applicant again complained in writing to the Director of the T. hospital about the manner in which her case had been handled and about the procrastination on the part of Dr G.S. 35. In April 2002 the applicant and her husband submitted a number of complaints to various health care system institutions. In a reply from the Ministry of Health, dated 16 May 2002, it was stated that “it was impossible to establish on the basis of the available documents why the genetic tests were postponed until 28 February 2002 when the foetus had already become capable of surviving outside the mother’s body.” 36. On 29 April 2002 she received a reply from the T. hospital to her complaints of 29 March 2002 and 3 April 2002. The letter contained an account of the facts of the case and quoted provisions of the 1993 Act. No assessment of the lawfulness of the conduct of the medical staff involved was made. 37. On 11 July 2002 the applicant gave birth to a baby girl affected with Turner syndrome. 38. On 31 July 2002 the applicant requested the prosecuting authorities to institute criminal proceedings against the persons involved in handling her case. She alleged serious failure on the part of the doctors, acting as public agents, to safeguard her interests protected by law, on account of their failure to perform timely prenatal examinations. As a result, the applicant had been denied information on the foetus’ condition and, consequently, divested of the possibility to decide for herself whether or not she wished to terminate her pregnancy in the conditions provided for by law, and she had been forced to continue it. 39. On 16 December 2002 the Tarnów District Prosecutor discontinued the investigations, finding that no criminal offence had been committed. The prosecutor relied on an expert opinion prepared by the Białystok Medical University, according to which under the 1993 Act legal abortion was possible only when foetal malformation was severe. It was not possible to assess whether malformations of a foetus were severe enough to justify an abortion until the foetus was able to live on its own outside the mother’s body. It concluded that in the applicant’s case an abortion would have been possible until the 23rd week of pregnancy. The applicant appealed. 40. On 22 January 2003 the Regional Prosecutor allowed her appeal and ordered that the investigation be re-opened. Additional medical evidence was taken during the investigation. On 5 December 2003 the prosecutor again discontinued the investigation, finding that no criminal offence had been committed. 41. The applicant appealed, complaining, inter alia, that the prosecuting authorities had failed to address the critical issue of whether,, genetic tests should have been carried out in order to obtain a diagnosis of the foetus’ condition. Instead the investigation had focused on whether or not the applicant had a right to an abortion under the applicable law. 42. Ultimately, on 2 February 2004, the competent court upheld the decision of the prosecuting authorities. The court held that doctors employed in public hospitals did not have the quality of “public servantsthe criminal offence of breach of duty by a public servant. 43. On 11 May 2004 the applicant filed a civil lawsuit with the Kraków Regional Court against doctors S.B., G.S. and K.R. and against the Krakow and T. hospitals. She argued that the doctors dealing with her case had unreasonably procrastinated in their decision on her access to genetic tests and had thereby failed to provide her with reliable and timely information about the foetus’ condition. They had also failed to establish the foetus’ condition in time for her to make an informed decision as to whether or not to terminate the pregnancy. As a result of an unjustified delay in obtaining relevant information she had been divested of the possibility of exercising an autonomous choice as to her parenthood. The applicant further argued that the laws in force authorised abortion in specific situations. However, that right had been denied her as a result of difficulties in obtaining timely access to genetic tests and the lengthy delay before she had ultimately obtained such access. The applicant referred to section 4 (a) 1.2 of the 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and to Articles 23 and 24 of the Civil Code guaranteeing socalled personal rights. The applicant argued that the circumstances in which the determination of her access to genetic testing had been decided had breached her personal rights and dignity and had deeply humiliated her. No regard had been had to her views and feelings. She also claimed compensation from Dr S.B. for hostile and disparaging statements about her character and conduct which he had made in a press interview about her case. He had disclosed to the public details about her and the foetus’ health covered by medical secret and told the journalist that the applicant and her husband were bad and irresponsible parents. 44. She claimed just satisfaction in a total amount of PLN 110,000 for breach of her rights as a patient and her personal rights. She also sought a declaration that the three medical establishments were responsible in respect of future costs to be borne by the applicant in connection with her daughter’s treatment. 45. On 28 October 2004 the Tarnów District Court found S.B. guilty of having disclosed to the public, in an interview he had given to the press, information covered by medical secrecy, including the fact that she had envisaged the termination of the pregnancy. It conditionally discontinued the proceedings against him and fixed a period of probation. 46. On 19 October 2005 the Kraków Regional Court awarded the applicant PLN 10,000 against S.B., finding that in a press interview published in November 2003 he had disclosed information relating to the applicant’s health and private life in connection with her pregnancy. He had also made disrespectful and hurtful comments about the applicant’s conduct and personality. 47. The court dismissed the remaining claims which she had lodged against doctors G.S. and K.R. and against the hospitals. The courts found that the applicant’s personal and patient’s rights had not been breached by either of these doctors or the hospitals. There had been no procrastination on the doctors’ part in the applicant’s case. Under the World Health Organisation standards termination was permissible only until the 23rd week of pregnancy, whereas the applicant had reported to the hospitals concerned when she was already in the 23rd week of pregnancy, and on 11 April 2002 she had been in the 24th week. Hence, neither her right to decide about her parenthood nor her rights as a patient had been breached in such a way as to place the defendants at fault. 48. On 12 December 2005 the applicant appealed. She submitted that the right to health-related information was protected both by Article 24 of the Civil Code, providing for legal protection of personal rights, and by section 19 of the Medical Institutions Act of 1992. In her case doctors S.B., K.R. and G.S. had been of the view that genetic tests were relevant to establishing the foetus’ condition, but had not given her the necessary referral. K.R. had not been able to cite any legal basis for his refusal. G.S. had stated before the court that he had not issued a referral because the applicant had not asked for one. However, it was for a doctor with the required professional knowledge to decide what tests were called for in a given medical situation. The testimony given by the defendants had clearly shown that their conduct in the case had failed to comply with the applicable legal provisions. The doctors had tried to shift the responsibility for the way in which her case had been handled to the applicant, despite the obvious fact that the fundamental responsibility for the proper handling of a medical case lay with them as health professionals. The doctors had also been well aware, as shown by the evidence which they had given, that the applicant had been desperate, in reaction to information that the foetus might be affected with a genetic disorder. 49. The applicant submitted that the doctors’ conduct had breached the law, in particular section 2 (a) of the 1993 Act in so far as it imposed on the authorities an obligation to ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem, or of an incurable lifethreatening ailment. The applicant had therefore had such a right, clearly provided for by the applicable law, but the defendants had made it impossible for her to enjoy that right. 50. On 28 July 2006 the Kraków Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment, endorsing the conclusions of the lower court. 51. On 11 July 2008 the Supreme Court allowed her cassation appeal, quashed the judgment of the appellate court in its entirety on grounds of substance and ordered that the case be re-examined. The Supreme Court observed that the applicant’s claim was two-pronged: it was based firstly on the failure to refer her for genetic testing and, secondly, on the breach of her right to take an informed decision which resulted from this failure. 52. As to the first part of her claim, the Supreme Court observed that it was not open to doubt (and had been confirmed by an expert opinion prepared for the purposes of the criminal investigation) that only genetic testing could confirm or dispel suspicions that the foetus was affected with Turner syndrome. The doctors concerned had known of the procedure. They were obliged, under the Medical Institutions Act 1992 (ustawa o zakładach opieki zdrowotnej), insofar as it guaranteed patients’ rights, to refer the applicant for genetic testing of their own motion, without her asking for it. Under the same Act, the applicant had a legally protected right to obtain adequate information about the foetus’ health. Had the doctors had conscientious objections to issuing a referral, they should have informed the applicant thereof and referred her to another practitioner who would have referred her for the testing, in accordance with the applicable laws on the medical profession governing the relevant procedure, but they had failed to do so. 53. The procedures governing the carrying out of genetic tests and their financing by various parts of the then Medical Insurance Fund, applicable at the material time, could not be validly relied on as exempting doctors from issuing a referral, in particular as those procedures were not of a statutory character and could not be plausibly relied on to justify restricting the applicant’s rights as a patient. The obligation to refer the applicant had not, contrary to the courts’ position, ended on the date when legal abortion of a foetus affected with suspected malformation was no longer possible (that is, after the 22nd week), since there were no legal – or medical – grounds on which to automatically link genetic testing with access to legal abortion. Furthermore, at the material time there had been no temporal limitation in law on the carrying out of these tests during pregnancy. It was only in 2004 that an ordinance had been enacted under which genetic testing became available only until the 22nd week of pregnancy. 54. The Supreme Court considered that there were therefore good reasons to accept that the doctors dealing with the applicant’s case had breached her personal rights within the meaning of Article 24 of the Civil Code and her patient’s rights guaranteed by the Medical Institutions Act. They had been aware that only genetic testing was capable of determining the foetus’ genetic situation, but had still refused a referral; instead they had sent her for various tests carried out in a hospital setting which were not relevant to such a diagnosis. Moreover, the lower courts had erred in their finding that the applicant had not suffered non-pecuniary damage as a result of the doctors’ acts. Such damage had been caused by the distress, anxiety and humiliation she had suffered as a result of the manner in which her case had been handled. 55. As to the second part of the applicant’s claim, the Supreme Court observed that it transpired from the case-law of the Supreme Court (IV CK 161/05, judgment of 13 October 2005; see paragraph 80 below) that a right to be informed about the foetus’ health and to take informed decisions, in the light of that information, as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. If a child affected with a genetic problem was born as a result of failure to carry out genetic testing, a claim for just satisfaction (zadośćuczynienie) arose on the parent’s part. The lower courts had erred in that they had found that there was no adequate causal link between the doctors’ conduct in the applicant’s case and the fact that she had not had access to legal abortion. In this respect the court noted that there had been enough time between the 18th week of the pregnancy, when the suspicions had arisen, and the 22nd, when the time-limit for legal abortion had expired, to carry out genetic testing. When the tests had finally been carried out, the applicant had received the results two weeks later. The tests should therefore have been carried out immediately after the suspicions had arisen, but instead, as a result of procrastination on the part of doctors S.B., G.S. and K.R., they had ultimately been conducted much later. 56. The court finally held that the amount of PLN 10,000 to be paid by doctor S.B. for denigrating statements he had made in a 57. Hence, the judgment had to be quashed and the case remitted for reexamination in its entirety. 58. On 30 October 2008 the Kraków Court of Appeal gave a judgment. It stated, referring to the findings of the Supreme Court, that Dr S.B. had failed to refer the applicant for genetic testing as soon as the suspicions as to the foetus’ condition had arisen. He had referred her twice to the Kraków hospital, despite the fact that she had already been at that hospital and that no genetic tests had been carried out at that time. The court held that the applicant’s claim of PLN 20,000 should therefore be allowed. 59. It further amended the judgment of the first-instance court by increasing to PLN 30,000 the just satisfaction to be paid to the applicant by S.B. for breach of her personal rights in making denigrating public statements about her in the press. 60. In so far as the action was directed against the T. hospital, the court held that the applicant had not received a proper diagnosis. Dr G.S., working at the T. hospital, had not referred her for genetic testing, but only to Kraków hospital, even though he had been aware that genetic testing was not carried out there. When the applicant had eventually received the results of the tests and, relying on them, had asked G.S. on 29 March 2002 to perform an abortion, a written negative reply had been served on her a month later, namely on 29 April 2002. 61. In respect of Kraków University Hospital, the court noted that when the applicant had been admitted there on 14 March 2002, she had already had the results of the scan made by Professor K.Sz. in Łódź, which strongly indicated that the foetus was affected with Turner syndrome. In such circumstances, the hospital was under an obligation to carry out tests in order to either confirm or dispel these suspicions, but had failed to do so. Other tests had been carried out instead, concerning a possible inflammatory condition of the foetus, which were irrelevant for the diagnosis of Turner syndrome. The hospital had exposed the applicant to unnecessary stress, while the correct diagnosis had not been made. The defendants had been aware that time was of the essence in the availability of legal abortion, but had failed to accelerate their decision-taking. The hospitals were liable for the negligent acts of their employees in so far as it was their duty to provide the applicant with full information about any genetic disorder of the foetus and how it might affect its development and to do so in time for her to prepare herself for the prospect of giving birth to a child with a genetic disorder. Moreover, the doctors had failed to make any record of their refusals and the grounds for them, an obligation imposed on them by section 39 of the Medical Profession Act. 62. As Kraków University Hospital had a higher referral level, its liability was more serious as a high level of professional skill could have been reasonably expected of it. The applicant had legitimately expected that she would obtain diagnostic and therapeutic treatment of the requisite quality, whereas her case had in fact been handled with unjustifiable delays. 63. Having regard to the defendants’ failure to respect the applicant’s rights, the court awarded the applicant PLN 5,000 against T. Hospital of St. Lazarus and PLN 10,000 against Kraków University Hospital, and dismissed the remainder of her appeal. 64. Article 38 of the Constitution reads as follows: “The Republic of Poland shall ensure the legal protection of the life of every human being.” 65. Article 47 of the Constitution reads: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.” 66. The Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act, which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”. Section 2 (a) of the 1993 Act reads: “The State and local administration shall ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem or of an incurable life-threatening ailment.” 67. Section 4(a) of the 1993 Act reads, in its relevant part: “1. An abortion can be carried out only by a physician where 1) pregnancy endangers the mother’s life or health; 2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable lifethreatening ailment; 3) there are strong grounds for believing that the pregnancy is a result of a criminal act. 2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. ... 5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.” 68. An ordinance issued by the Minister of Health on 22 January 1997, on qualifications of doctors authorised to perform abortions, contains two substantive sections. In its section 1, the requisite qualifications of doctors authorised to perform legal abortions in the conditions specified in the 1993 Act are stipulated. Section 2 of the Ordinance reads: “The circumstances indicating that pregnancy constitutes a threat to the woman’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman’s condition.” 69. On 21 December 2004 the Minister of Health enacted an Ordinance on Certain Medical Services (rozporządzenie Ministra Zdrowia w sprawie zakresu świadczeń opieki zdrowotnej). An Appendix No. 3 to this Ordinance, entitled Scope of Medical Prenatal Services (...) (Zakres lekarskich badań prenatalnych (...)) read, in so far as relevant: “1. Prenatal tests are to be understood as examinations and diagnostic procedures carried out in respect of pregnant women during the first and second trimesters of pregnancy where there is an increased risk of genetic ailment or malformation, but not later than in the 22nd week of pregnancy. 2. Prenatal tests comprise: 1) non-invasive examinations [including ultrasound scans and biochemical tests [marking of serum levels in a pregnant woman’s blood]; 2) invasive tests [including biopsy of the trophoblast and amniocentesis]. 3. Prenatal tests are recommended, in particular, where ... 5) results of the ultrasound scan carried out during the pregnancy indicate an increased risk of the foetus being affected with a chromosomal aberration or other malformation.” 70. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists such a termination may be sentenced to up to three years’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act. 71. Under Article 157 (a) 1, causing physical damage to an unborn child is a criminal offence punishable by a fine, by limitation of liberty, or by imprisonment of up to two years. 72. At the relevant time, patients rights were provided for by the Medical Institutions Act 1992 (ustawa o zakładach opieki zdrowotnej). Its section 19 (2) provided that a patient had a right to obtain information about his or her condition. 73. Under section 39 of the Medical Profession Act (ustawa o zawodzie lekarza), a doctor may refuse to carry out a medical service, invoking her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical service concerned can be obtained and to register the refusal in the patient’s medical records. Doctors employed in health care institutions are also obliged to inform their supervisors of the refusal in writing. 74. Section 31.1 of the Medical Profession Act 1996 provides that physicians are under an obligation to provide to the patient, or his or her representative, comprehensible information about his or her health, diagnosis, proposed and possible diagnostic and therapeutic methods, foreseeable consequences of a decision to have recourse to them or not, and about possible results of therapy and prognosis. 75. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts, a doctor may, on his or her own initiative or at a patient’s request and if he or she finds it reasonable in the light of the requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors. 76. Articles 415 et seq. of the Polish Civil Code provide for liability in tort. Under this provision, whoever by his or her fault causes damage to another person, is obliged to redress it. 77. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom. 78. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for nonpecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...” 79. In a judgment of 21 November 2003 (V CK 167/03) the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, that is to say in circumstances provided for by section 4 (a) 1.3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal. 80. In a judgment of 13 October 2005 (IV CJ 161/05) the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, that is to say in circumstances set out by section 4 (a) 1.2 of that Act, gave rise to a compensation claim. 81. On 21 June 1990 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (90) 13 on prenatal genetic screening, prenatal genetic diagnosis and associated genetic counselling. The recommendation contains, inter alia, the following principles: “The Committee of Ministers [...] noting that in recent decades considerable progress has been achieved in detecting genetic abnormalities in the child to be born, through genetic screening and through prenatal diagnosis of pregnant women, but also noting the fears that these procedures arouse; Considering that women of childbearing age and couples should be fully informed and educated about the availability of, the reasons for and risks of such procedures; Convinced that the genetic diagnosis and screening must always be accompanied by appropriate genetic counselling but that such counselling should in no cases be of a directive nature and must always leave the woman of childbearing age fully informed to take a free decision; ... Recommends that the governments of the member States adopt legislation in conformity with the Principles contained in this Recommendation or take any other measures to ensure their implementation. "Prenatal diagnosis" is the term used to describe tests used to confirm or exclude whether an individual embryo or foetus is affected by a specific disorder. Principle 1 : No prenatal genetic screening and/or prenatal genetic diagnosis tests should be carried out if counselling prior to and after the tests is not available. Principle 2 : Prenatal genetic screening and/or prenatal genetic diagnosis tests undertaken for the purpose of identifying a risk to the health of an unborn child should be aimed only at detecting a serious risk to the health of the child. ... Principle 4 : The counselling must be non-directive; the counsellor should under no condition try to impose his or her convictions on the persons being counselled but inform and advise them on pertinent facts and choices. ... Principle 9 : In order to protect the woman’s freedom of choice, she should not be compelled by the requirements of national law or administrative practice to accept or refuse screening or diagnosis. In particular, any entitlement to medical insurance or social allowance should not be dependent on the undergoing of these tests. Principle 10 : No discriminatory conditions should be applied to women who seek prenatal screening or diagnostic testing or to those who do not seek such tests, where these are appropriate.” 82. In 2008 the Parliamentary Assembly of the Council of Europe adopted Resolution 1607 (2008) “Access to safe and legal abortion in Europe”. This resolution, in so far as relevant, reads: “1. The Parliamentary Assembly reaffirms that abortion can in no circumstances be regarded as a family planning method. Abortion must, as far as possible, be avoided. All possible means compatible with women’s rights must be used to reduce the number of both unwanted pregnancies and abortions. 2. In most of the Council of Europe member states the law permits abortion in order to save the expectant mother’s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother’s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these states, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily. 3. The Assembly also notes that, in member states where abortion is permitted for a number of reasons, conditions are not always such as to guarantee women effective access to this right: the lack of local health care facilities, the lack of doctors willing to carry out abortions, the repeated medical consultations required, the time allowed for changing one’s mind and the waiting time for the abortion all have the potential to make access to safe, affordable, acceptable and appropriate abortion services more difficult, or even impossible in practice. 4. The Assembly takes the view that abortion should not be banned within reasonable gestational limits. A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion “tourism” which is costly, and delays the timing of an abortion and results in social inequities. The lawfulness of abortion does not have an effect on a woman’s need for an abortion, but only on her access to a safe abortion. ... 6. The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way. 7. The Assembly invites the member states of the Council of Europe to: 7.1. decriminalise abortion within reasonable gestational limits, if they have not already done so; 7.2. guarantee women’s effective exercise of their right of access to a safe and legal abortion; 7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion; 7.4. lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover ...” 83. The provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine), adopted in Oviedo, Spain, on 4 April 1997, in so far as relevant, read: “Article 5 – General rule An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. ... Article 10 – Private life and right to information Everyone has the right to respect for private life in relation to information about his or her health. Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed.” 84. The Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated: “106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Nongovernmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts to 80,000 to 200,000 annually. 107. It follows from the Government’s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations, that the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.” 85. The United Nations Human Rights Committee considered the fifth periodic report of Poland (CCPR/C/POL/2004/5) at its 2240th and 2241st meetings (CCPR/C/SR.2240 and 2241), held on 27 and 28 October 2004 and adopted the concluding observations which, in so far as relevant, read: “8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned (art. 6). The State party should liberalize its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on Parental Awareness is discussed in Parliament.” 86. The Committee on the Elimination of Discrimination against Women (CEDAW), at its 37th session, held from 15 January to 2 February 2007, considered the combined fourth and fifth periodic report (CEDAW/C/POL/4-5) and the sixth periodic report of Poland (CEDAW/C/POL/6). It formulated the following concluding comments: “24. ... The Committee is concerned about the lack of official data and research on the prevalence of illegal abortion in Poland and its impact on women’s health and life. ... 25. The Committee urges the State party to take concrete measures to enhance women’s access to health care, in particular to sexual and reproductive health services, in accordance with article 12 of the Convention and the Committee’s general recommendation 24 on women and health. It calls on the State party to conduct research on the scope, causes and consequences of illegal abortion and its impact on women’s health and life. It also urges the State party to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause.” 87. The objective of the International Federation of Gynaecology and Obstetrics (FIGO) is to promote sexual and reproductive health and rights through educational research and advocacy activities. In 1991 its Ethics Committee issued a statement on Ethical Issues Concerning Prenatal Diagnosis of Disease in the Conceptus. It states that: “Prenatal diagnosis has become an established service in the care of pregnant women. Further advances, especially at the molecular level, will expand the accuracy and diagnostic scope of manifest disease in later life. Such information may lead to termination of pregnancy, genetic engineering or to adjustments in future lifestyle. There is also the potential danger of stigmatization or discrimination against the parent or the child identified as affected by some disorder or potential disorder. ... A potential benefit of prenatal diagnosis is the rejection of the diseased conceptus when requested by the woman and permitted by the law. The legal position and the likely attitude of the woman to termination of pregnancy should be ascertained in advance. Prior to undertaking diagnostic procedures, women should be counseled about the risks and benefits of the technique to be used. Such counseling should be factual, respectful of the woman’s view, and non-coercive. Consent should be obtained for the use of the procedure. Women should not be denied the availability of prenatal diagnosis because they will not agree in advance to pregnancy termination as an option. Nor should the techniques be withheld on social or financial grounds. Knowledge of prenatally diagnosed disease should not be used as justification for withholding normal medical support or services during pregnancy, at birth, or thereafter, which are desired by the parents. Equity requires that these important diagnostic services are made as widely available as possible. ...” 88. The FIGO Ethics Committee’s 1991 statement on Ethical Aspects of Termination of Pregnancy Following Prenatal diagnosis states, inter alia, that: “3. Knowledge acquired by prenatal diagnosis allows for the possibility of termination of pregnancy in those countries where this is legal. This raises serious ethical questions with regard to the degree of abnormality and the reduction in quality of life which may justify this course of action. The attitude of the parents, particularly the woman, after counseling, is of major importance in reaching a decision. It is unethical for anyone to bring pressure to bear on the couple with a view to their accepting a particular option. 4. Doctors should be aware of the desire of parents for a “perfect baby”. However, this wish is unrealistic and parents should be counselled accordingly. 5. Termination should be discouraged when the disorder is treatable and will not necessarily affect the future quality of life. 6. In enabling parents to reach an appropriate decision the primary concern should be the quality of life and the longevity of the individual. A second consideration must be the effect that the birth and life of such a child might have on the woman herself and on her family. In this regard consideration must also be given to the effect of the termination of the pregnancy on the physical and/or psychological health of the woman and her family. A third concern is the availability of resources and support for long-term care.” 89. The Committee’s 1994 statement on the Ethical Framework for Gynecologic and Obstetric Care requires that: “3. when decisions regarding medical care are required, women be provided with full information on available medical alternatives including risks and benefits. Informing women and obtaining their input and consent, or dissent, should be a continuing process. 4. If a physician is either unable or unwilling to provide a desired medical service for non-medical reasons, he or she should make every effort to achieve appropriate referral.” | 1 |
train | 001-22676 | ENG | POL | ADMISSIBILITY | 2,002 | SKOWIERZAK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Andrzej Skowierzak, is a Polish national, who was born in 1940 and lives in Kielce, Poland. He is represented before the Court by Mr Adam Włoch, a lawyer practising in Kraków. The respondent Government are represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 October 1995 the Kielce Regional Prosecutor (prokurator wojewódzki) instituted an investigation in regard to suspected child trafficking. Between 2 and 15 October 1995 the prosecutor heard five witnesses and conducted several other procedural activities, including the appointment of interpreters for two Swedish nationals to be heard in the case. The applicant submits that those two foreigners were Mr U. K., who was one of the accused persons, and his wife. On 12 October 1995 the prosecutor charged the applicant with child trafficking and incitement to false testimony. On 13 October 1995 the applicant was heard. On the same date the prosecutor appointed two medical experts in order to assess whether the applicant’s state of health prevented him from being kept in detention. They found no medical obstacles to the applicant’s detention. On 17 October 1995 the prosecutor remanded him in custody. Between 17 October and 16 November 1995 the prosecutor interrogated other suspects and witnesses in the case. On 16 November 1995 the prosecutor decided to submit a letter rogatory to competent authorities in Sweden requesting the examination of two witnesses. The applicant submits that those letters concerned K. K., who had been previously heard in the case, and J. N., who was counsel for U. K. The applicant appealed against the decision to remand him in custody, but on 23 November 1995 the Kielce Regional Court (sąd wojewódzki) dismissed his appeal. On 30 November 1995 an expert in cardiology, having been so ordered by the prosecutor, prepared an opinion, according to which the applicant should not be kept in detention. On 11 December 1995 the applicant was released on bail. In December 1995 the prosecutor heard further witnesses. On 10 January 1996 she decided to prolong the investigation, relying, among other reasons, on the Swedish authorities’ failure to carry out the letter rogatory. On 26 January 1996 the prosecutor refused the applicant’s request to be released from the bail requirements. On 29 February 1996 his appeal against that decision was dismissed. On 7 February 1996 the prosecutor brought charges against another individual. On 29 February and 22 April 1996 the investigation was further prolonged in view of the Swedish authorities’ failure to execute the letter rogatory. On 21 June 1996 the prosecutor refused the applicant’s further request to be released from the bail requirements. Subsequently, on three occasions the prosecutor again prolonged the investigation, relying each time on the difficulties with the execution of the letter rogatory. On 7 February 1997 the prosecutor refused the applicant’s further request for release from the bail requirements. His appeal against that decision was dismissed on 17 March 1997. On 27 March 1997 the testimony given by the two Swedish witnesses was submitted to the Kielce Regional Prosecutor. On 24 May 1997 the prosecutor decided that a part of the case would be examined in a separate set of proceedings. On 26 May 1997 the applicant notified the Minister of Justice about criminal offences allegedly committed, inter alia, by the Kielce Regional Prosecutor in the course of the investigation. On 23 June 1997 the prosecutor rejected an evidence motion submitted by the applicant. On 30 June 1997 the prosecutor submitted to the Kielce Regional Court the bill of indictment. The indictment comprised allegations in respect of four individuals, including the applicant. One of them was a Swedish national. The prosecutor requested the court to summon 15 witnesses, including two Swedish nationals. On 2 July 1997 the Regional Court requested the Supreme Court to transmit the case to another court. On 7 August 1997 the Supreme Court transferred the case to the Kraków Regional Court, relying on the fact that the applicant was a lawyer practising in the region covered by the Kielce Regional Court’s jurisdiction. On 8 January 1998 the Kraków Regional Court dismissed the applicant’s and another accused person’s requests for the discontinuance of the proceedings. The hearing scheduled for 24 February 1998 was adjourned sine die because of the absence of U. K. In March U. K. submitted a sick certificate. On 18 January 1999 the President of the Regional Court assigned a judge to replace one of the judges in the applicant’s case, who had retired. The hearing scheduled for 10 August 1999 was adjourned because of U. K.’s continuing absence. On 1 September 1999 the court requested the Regional Courts in Poznań and Warsaw to submit case files of criminal cases similar to the applicant’s case, examined by those courts. On 8 October 1999 the court refused the applicant’s further request for the discontinuance of the proceedings. U. K. failed to attend the hearing held on 8 October 1999 and the court decided to adjourn the examination of the charges against him to a separate set of proceedings. At the hearing held on 9 November 1999 the court imposed a fine on witness E. N., who was a victim in the case, for her failure to attend the hearing despite having been duly summoned. Subsequently, her mother informed the court that E. N. resided abroad and she would not attend the hearing scheduled for 8 December 1999. On 8 December 1999 the court held a hearing. On 11 January 2000 it ordered the police of E. N.’s place of residence to submit information concerning her whereabouts. The court held a hearing on 12 January 2000. It fined two witnesses who failed to appear before it although duly summoned. The court held further hearings on 16 February and 21 March 2000. Subsequently, the presiding judge fixed the dates of further hearings for 4 and 12 May 2000, anticipating a possibility to examine witness E. N. She could not be heard on the former date and the hearing scheduled for that date did not take place. The court heard E. N. at the hearing on 12 May 2000. It held another hearing on 9 June 2000. On 16 June 2000 the court gave judgment. The applicant was convicted of inciting U. K. and K. K. to give false testimony and sentenced to one year and six months’ imprisonment, suspended for two years. He was acquitted of child trafficking. The judgment was accompanied by 125 pages of reasoning. The applicant, as well as one of the other accused persons and the prosecutor, appealed. On 8 March 2001 the Kraków Court of Appeal (sąd apelacyjny) acquitted the applicant of inciting U. K. to give false testimony. It dismissed the remainder of his appeal. | 0 |
train | 001-21998 | ENG | DNK | ADMISSIBILITY | 1,999 | SARIC v. DENMARK | 3 | Inadmissible | Christos Rozakis | The applicant is a Bosnian citizen, born in 1963. When introducing his application he was serving an eight-year prison sentence in Denmark. Before the Court he is represented by Mr Thomas Rørdam, a lawyer practising in Copenhagen. On 27 January 1994 the applicant arrived in Denmark together with his family. They were accommodated at the asylum centre Avnstrup, Zealand. The applicant’s arrival caused disturbances at the asylum centre as some of the refugees, coming also from the former Yugoslavia, thought to have recognised the applicant as a perpetrator of violent acts committed in July and August 1993 in the prison camp of Dretelj during the armed conflict in the former Yugoslavia. (The prison camp of Dretelj was situated in the municipality of Čaplinja in the southern part of what is now the Republic of Bosnia and Herzegovina. It appears that this area was Croatian controlled territory at the time of the alleged offences.) The Danish police authorities were notified by the management of the asylum centre and during the following weeks a number of former prisoners from the prison camp, at that time residing in Denmark, were interrogated by the police. On 16 February 1994 the applicant was arrested and charged with having illtreated and killed prisoners in the aforementioned prison camp. The applicant denied the charges. On 17 February 1994 the City Court of Roskilde (Retten i Roskilde) decided to detain the applicant on remand as there were reasons to suspect that he had committed acts amounting to grievous bodily harm (legemsangreb af særlig rå, brutal eller farlig karakter) within in the meaning of Section 245 of the Danish Penal Code under particularly aggravating circumstances (særdeles skærpende omstændigheder) within the meaning of Section 246 of the Penal Code. Furthermore, his detention on remand was based on the fear that he would evade prosecution or impede the investigations if he were at large during the proceedings. On 28 March 1994 counsel for the applicant requested the Chief of Police of Roskilde (Politimesteren i Roskilde) to identify a number of assumed witnesses to the acts with which the applicant was charged, in order to interrogate them about the general conditions of the prison camp and their knowledge of the applicant’s conduct in the camp. The witnesses included three former prisoners from the camp, Z.F., M.B. and A.S.; two former police officers who served in the camp while the applicant was there, C.J. and V.P., and the director of the camp during the applicant’s stay there, T.S. In addition, the testimony of a person alleged to have been working with the applicant in the kitchen of the camp, F.S., was requested. These witnesses were presumed to reside in specific cities or villages in the former Yugoslavia and, with regard to some of the witnesses, a telephone number was mentioned. However, no precise addresses were submitted. On 12 April 1994 the Police of Roskilde requested the Danish Embassy in Vienna to contact the Croatian and Bosnian authorities in order to obtain their assistance in identifying and finding the aforementioned persons. It appears that the Chief of Interpol Zagreb informed the Embassy, on 18 May 1994 by phone and on 4 July 1994 by fax, that it was not possible to identify the named persons since they were citizens of Bosnia and Herzegovina and since the criminal acts had not taken place in Croatia. Furthermore, on 25 August 1994, Interpol Sarajevo informed the Embassy that for the time being they had no opportunity to contact the persons in question. On 18 August 1994 counsel reminded the police that the aforementioned witnesses be summoned and requested that one more witness, H.P., be identified and interrogated. The letter contains no further information about this person. Furthermore, on 19 August 1994 counsel requested a lawyer practising in Bosnia to assist in providing the required evidence. On 15 September 1994 the Police of Roskilde again requested the Embassy in Vienna to provide information about three witnesses, including H.P. and F.S. On the same day a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. It appears that the police never received a reply to any of these requests. On 19 October 1994 an indictment (amended on 4 November 1994) was served on the applicant charging him with twenty-five counts of grievous bodily harm committed against prisoners in the camp during July and August 1993, on two occasions causing the deaths of the victims. In a letter dated 25 October 1994 the Bosnian lawyer informed counsel that he had requested the local judicial authorities to interrogate the witnesses in question. However, due to the state of war in the area and lack of judges, the local authorities had not been able to carry out the interrogations required. The Bosnian lawyer had obtained, however, a written statement from T.S., which read, inter alia, as follows: (Translation) “I, [T.S.], ... give, at the request of V. Jovanović from Čaplinja, this Testimony: In the period between 1 June 1993 and 21 January 1994 I served as a prison camp director in Dretelj, Čaplinja ... I have known [the applicant] from July 1993 to 20 August 1993. In the beginning of July the military authorities sent him to the camp in Dretelj ... When he arrived to the camp he told me that he was a waiter of profession and that he had been working as such in Neum. As there was no trained staff in the kitchen in Dretelj I sent him to work there and he was there all the time while he was in the camp. Thus, he has not been a guard - or a gaoler in the camp of Dretelj, but worked as a prisoner in the kitchen ... [The applicant] is married to D. Jovanović from Čaplinja, daughter of I. Jovanović, ... [D]uring the last period I noticed that Moslems from the Stolac area expressed doubts as to his loyalty to the Moslems as he had married a catholic ... and on several occasions there were fights between Moslems from the Čaplinja area and Moslems from the Stolac area... [The applicant] ... had during his stay in the camp neither opportunity, nor competence to ill-treat ... Moslem prisoners and he has not done so. In the camp of Dretelj the Moslem prisoners were separated in that one group of Moslems expressed European tendencies and behaved as such, whereas another group from Stolac expressed obvious fundamentalist tendencies and due to this there were more frequent conflicts. They soon learned that [the applicant] ... had married D. Jovanović, ... [T]his group of Moslems from Stolac, who expressed obvious fundamentalist tendencies, despised him, humiliated him and threatened him with physical harm as he had married the catholic D. Jovanović and had given the children ... Croatian names. ... He had ... no authorisation from me, as director of the camp, to ... impose disciplinary sanctions and he could not have done so because the camp management would not have allowed it. The group of prisoners from Stolac and from Bosnia addresses him as prison guard but he has never exercised such function ... he had the same rights and duties as all other prisoners. ... The following witnesses can testify that [the applicant] ... did not, during his compulsorily detention in [the camp] ... , in any way ill-treat any Moslem... : [H.P.] ... [F.S.] ... [Z.F.] ... [A.S.] ... [M.B.] ... [V.P.] and [C.J.] ... and by these witnesses I have been told that they are willing to give testimony in court in the Republic of Croatia or in Bosnia-Herzegovinia in the case against [the applicant] and I am as director of the camp even willing to go to Denmark and ... under oath give testimony... I stress that as a prison director I had an organised corps [under my command] which was necessary in order to meet the needs of the camp and, furthermore, I arranged ... a system in order to obtain information so that I would be informed of all events in [the camp]. However, in the period between 1 July and 20 August 1993 I was not informed one single time that [the applicant] was supposed to have ill-treated other prisoners while I had not been present. To my profound belief this charge is raised against [the applicant] by fundamentalist Moslems from the Stolac area, who have not been able to come to terms with the fact that [the applicant] is married to a Croat and has given his children Croatian names... I solemnly declare that my statements in this testimony are correct and this ... testimony I am also prepared to give under oath before a court in Denmark. ...” It is unclear from the material submitted whether this information was mentioned to the prosecution prior to the trial. On 15 September and 27 October 1994 the applicant’s counsel reminded the police of the request that the aforementioned witnesses be summoned to trial. On 2 November 1994 the Police of Roskilde urged the Danish Embassy in Vienna to contact the Bosnian authorities and request their assistance in order to find the eight witnesses and to summon them to appear before the High Court of Eastern Denmark (Østre Landsret) on 18 November 1994. At the same time the police requested that three other witnesses, also residing in former Yugoslavia, be summoned on behalf of the prosecution. These three witnesses - two of whom had previously been interrogated by the police while residing in Denmark - appeared at the hearing before the High Court. On 3 November 1994 the Police of Roskilde, apparently occasioned by a negative reply from the Embassy in Vienna, forwarded their request to the Bosnian authorities for the summoning of the defence’s witnesses through Interpol in Copenhagen. The case was heard by the High Court of Eastern Denmark from 7 November until 22 November 1994, the Court sitting with three professional judges and a jury. During the hearing the applicant and twenty-five witnesses were heard and written evidence was submitted, including a report prepared by the Medico-Legal Council (Retslægerådet). This report stated that the applicant was probably not insane prior to his arrival in Denmark but that he subsequently developed a psychosis caused by external factors. Among the aforementioned twenty-five witnesses who were heard by the High Court, there appears to have been witnesses called on the part of the prosecutor as well as the defence. Most of the witnesses were eyewitnesses to the events they gave evidence about. With regard to the two most serious counts of violence committed against E.R. and O.K. and leading to the death of the victims, several witnesses testified that the applicant had actively contributed to the violence committed against E.R, whereas only one witness had personally seen O.K. being ill-treated by the applicant. With regard to the aforementioned eight witnesses requested by the defence the transcripts from the proceedings in the High Court on 18 November 1994 read as follows: (Translation) “... As regards [Z.F., M.B., A.S., C.J., H.P., V.P., T.S., F.S.] no information has been submitted as to where they are presently residing. [The applicant’s counsel] requested that the hearing be adjourned for the purpose of obtaining further information as to whether and when these witnesses can be called. He referred in that respect to Section 880 subsection 2, and Section 881 of the Administration of Justice Act (retsplejeloven The State Prosecutor objected to the principal request as well as to the alternative. He referred to exhibit ... and added that the police subsequent thereto and as late as this morning had been on the line to Interpol in Sarajevo, who merely refers to the state of war. Everything possible has been attempted to reach the witnesses requested by counsel and under these circumstances [it serves no purpose] to adjourn the proceedings. In the opinion of the prosecution the conditions of Section 877, subsection 3, of the Administration of Justice Act are not fulfilled. ... Having deliberated [the Court] ... made the following Decision: It is established that prior to and during the hearing the prosecution has availed itself of all possible means in order to reach the witnesses. As it must be considered improbable, in the light of the conditions in Bosnia, that an adjournment of the hearing will lead to the completion of the testimonial evidence within a foreseeable period of time, the request for adjournment is denied. As there exists in the present case quite extraordinary difficulties for the defence in the production of evidence, its request [to read out the documents] is exceptionally granted. It is decided: The hearing is not adjourned. It is allowed to read out in court [the aforementioned documents]. ... [The documents] were read out. ...” The statement by T.S was the one given to the Bosnian lawyer (cf. above). After the hearing of evidence and the parties’ closing arguments the prosecution declared that it dropped the charges concerning five of the twenty-five counts for which the applicant was accordingly acquitted. The jury was then asked to consider, primarily, whether the applicant was guilty in the twenty remaining counts charging him with having committed acts, in the prison camp in July and August 1993, amounting to grievous bodily harm within the meaning of Section 245 of the Danish Penal Code under particularly aggravated circumstances within the meaning of Section 246 of the Penal Code and Articles 129 and 130 of the Third Geneva Convention and Articles 146 and 147 of the Fourth Geneva Convention. In the alternative they were asked to consider whether the acts in question amounted to grievous bodily harm within the meaning of Section 245 of the Penal Code and the aforementioned Articles of the Geneva Conventions, only. In addition, the jury was asked whether, pursuant to Section 88, subsection 1, of the Penal Code, the applicant’s sentence ought to exceed the maximum penalty of any of the provisions with which he was charged, with up to the half of the maximum. The jury answered in the negative to the primary questions as well as to the alternative ones with regard to six counts for which counts the applicant was subsequently acquitted. They answered in the affirmative to the primary questions with regard to three of the counts and in the affirmative to the alternative questions with regard to the remaining eleven counts. The jury also answered in the affirmative to the additional question relating to the applicant’s sentence. By judgment of 22 November 1994 the applicant was accordingly convicted of fourteen counts in accordance with the jury’s verdict. He was sentenced to eight years’ imprisonment. It was, furthermore, decided that the applicant be committed to a mental hospital until his prison sentence could be executed. Finally, it was decided that he be expelled from Denmark subsequent to having served his prison sentence. The applicant appealed against the High Court’s judgment to the Supreme Court (Højesteret) which in the circumstances was only competent to determine whether procedural errors had been committed and to determine the sentence. The Supreme Court was on the other hand not empowered to determine the applicant’s guilt. On 30 November 1994 the applicant’s counsel requested the Prosecutor General to make another attempt to find the eight witnesses in question. On 23 December 1994 the applicant’s counsel submitted to the Supreme Court, inter alia, that the applicant be acquitted of twelve counts and that the remainder of the High Court’s judgment be quashed and remitted to the High Court. In support of the claim he argued that the High Court had made a procedural error by deciding not to adjourn the case in order to call in the eight witnesses. He invoked Article 6 § 1 and § 3 (d) of the Convention. It appears from the material submitted that, on 17 January 1995, the Police of Roskilde requested Interpol Copenhagen to establish, through Interpol Sarajevo and Interpol Zagreb, a contact with the eight witnesses. On 6 February 1995 a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. The latter apparently never replied. On 25 January 1995 Interpol Copenhagen received a fax from Interpol Zagreb reading as follows: “Regarding your request, please be informed that we are unable to identify the witnesses, based on the given data, therefore we are also unable to contact them. Furthermore, we know nothing about the information indicated in your message saying that allegedly, the members of the MP of [the] Croatian army served in the prisoners’ camp in Dretelj in summer 1993. In view of the above, we suggest [y]ou contact the Ministry of the Interior of Bosnia and Herzegovinia through NBC Interpol Sarajevo. ...” Upon a request from the applicant’s counsel the Chief of Police of Roskilde issued a note, on 10 February 1995, describing the efforts to get in contact with the eight witnesses. It read, inter alia, as follows: (Translation) “... [The eight witnesses] are either former prisoners in the camp [Z.F., M.B., A.S.] or Croatian police officers/police soldiers [C.J., V.P., F.S.] and the director of the camp [T.S.]. According to counsel, [H.P.] is a former prisoner, which piece of information [we] cannot confirm, or deny. Information in the file concerning the persons in question is very sporadic and scant as they are merely briefly mentioned by their names by a few of the witnesses questioned. [C.J., V.P., T.S., F.S.] must be considered having committed criminal acts of violence in the camp. ... On the basis of counsel’s letter of 30 November 1994 to the Prosecutor General, to whom I have responded on an earlier occasion, I have again attempted to have the witnesses identified, cf. my enclosed note of 10 January 1995 continued on 17 January 1995, although one will probably have to realise that the prospects of success are limited due to the fact that all the witnesses must be assumed to reside either in Croatia or in a Croatian dominated area of Bosnia. Counsel has in my opinion no basis whatsoever for his remarks that the witnesses ‘have a good knowledge of the conditions in the camp’ and will be able to ‘contribute with information as to the circumstances surrounding the deaths of [E.R. and O.K]’ as it is completely uncertain what they have observed - if anything at all. The value of testimonies from [C.J., V.P., T.S., F.S.] will in anticipation have to be distrusted as they very well may have participated in the violent acts in question or in other violent acts against the prisoners. It is in that respect notable that the written testimony from ... [T.S.], which counsel had the opportunity to read out [in the High Court] ... appears untrustworthy and invented. The declaration was, it appears, given by [T.S.] at the request of [the applicant’s] mother-in-law. [The Police of Roskilde] have no knowledge about the former prisoners in the camp [Z.F., M.B., A.S. and possibly H.P.]. It can hardly be ruled out that the said persons held a position in the camp similar to that of [the applicant] (in charge of keeping order) or enjoyed privileges similar to him, for which reason the credibility of their testimonies would be poor. In case of the persons in question being “real” prisoners it is plausible that a testimony from each of them would merely say that they did not observe any violence committed by [the applicant] against the prisoners. The value of such a statement would be very poor as the persons in question had a limited outlook from the buildings ... and a limited possibility of observing [the applicant] who was able to move freely around in the camp. Thus, counsel has in no way rendered it probable that the requested examination of witnesses is required in order to clarify the matter ... However, as I have already mentioned I have again, through Interpol, requested that the efforts to identify the witnesses be continued. If the persons in question are identified I find it of the utmost importance that they give evidence in court in Denmark as witness statements obtained in Croatia or Bosnia in the circumstances hardly will have much probative force. ...” On 13 February 1995 counsel sent a letter to the Prosecutor General reading, inter alia, as follows: (Translation) “... For your information I hereby enclose a copy of a letter of 30 January 1995 from [the aforementioned lawyer practising in Bosnia]. I draw your attention to the fact that the statements made by the witnesses in question are made in court without my presence. Thus, I have not had the opportunity to clarify the factual proposition, which the evidence tends to establish. Had I had that opportunity I would have made sure that [the witnesses] were asked about the deaths of [E.R. and O.K.]. It is, however, evident from the material that it is possible to get in contact with the witnesses whom I have requested being heard. ...” The letter of 30 January 1995 from the Bosnian lawyer reads inter alia: (Translation) “Referring to your request of 19 August 1994 ... the Public Prosecutor of Čapljina has requested the investigation judge at the City Court of Čapljina to hear witnesses, and the witnesses [T.S., M.B., and F.S.] have been heard. I forward the original transcript containing the testimonies. The investigation judge ... will examine another five witnesses, the testimonies of whom we will subsequently forward to you. ...” The testimony of T.S. reads, inter alia, as follows: (Translation) “... In [the prison camp of Dretelj] I served as the director of [the camp] from 21 June to 17 December 1993. I knew personally one of the inmates, [the applicant], and I am willing to declare under oath that he did not during the period in question, when he was in [the camp], ill-treat or beat anyone, nor did he kill anyone. He worked in the kitchen as an assistant to the chef and I had as the director the monitoring function over [the camp] and he has, as I said, not beaten or killed anyone, nor has he in any way ill-treated anyone. If such things had happened I would have known as I was monitoring all inmates. I further declare that no ill-treatment, fights or physical ill-treatment whatsoever took place in this [camp], while I was the director of [the camp]. ...” The testimonies of M.B., F.S., and further testimony given by C.J., read in essence the same in that they maintained that they had not witnessed that the applicant had ill-treated other prisoners. It appears that these testimonies were given in the City Court of Čapljina on 16 January 1995, - except that of T.S. which was given on 17 January 1995 - before an investigation judge and with a prosecutor being present. Before testifying, each witness were impressed with the duty to speak the truth and were told about the consequences of making false statements. On 20 March 1995 the police authorities in Denmark received a radiogram from Interpol Sarajevo reading as follows: “... Concerning your message, please be advised that ... we were not able to find the mentioned persons and contact ... them. These persons are in Republic of Croatia and at this territory of our country ... because of consequences of war ... the legal authorities are not yet able to [carry out their] ... functions. We also mention that these persons were indirectly involved in tragic events in camp “Dretelj” ... [W]e advised you about these details earlier. We suppose that these persons for that reason avoid to stay at [the] territory of our country. ...” On 30 March 1995 the applicant’s counsel sent a letter to the Prosecutor General, which reads as follows: (Translation) “Referring to your letter of 24 March 1995 I shall hereby address [the note] of 10 February 1995 from the Chief of Police of Roskilde. Of the eight witnesses I mention in my letter of 23 December 1994 to the Supreme Court there is, through [the Bosnian lawyer], established a contact to four, i.e. [M.B., C.J., T.S. and F.S.]. ... . In the High Court’s decision concerning the adjournment of the case in order to examine the eight witnesses nothing is said about the relevance of the witnesses for the case. The High Court’s decision is solely reasoned by the difficulties which had been involved - and are presumed to continue to be involved - in getting in contact with the witnesses. Already at an early stage the applicant wanted the hearing of the eight witnesses, whom he firmly believes can contribute with essential information, not least in order to illuminate the circumstances concerning the deaths of [E.R. and O.K.]. The letters to [the Bosnian lawyer] show that it has been possible to get in contact with, so far, four out of the eight witnesses and, therefore, to my mind a continued effort to call these witnesses cannot be considered futile. Furthermore, I refer to the possibility of having a court hearing of the witnesses in their home country with the participation of a Danish prosecutor and myself. Such a hearing can clarify whether the witnesses have any relevant information and, if so, what. The remark made by the police that a number of the witnesses, whom I have requested be heard, possibly had a position in the camp similar to that of [the applicant] or privileges similar to his is in my opinion without substance. I maintain, therefore, that the efforts to get in contact with the eight witnesses and obtain their testimony be continued. ...” From a letter of 2 August 1995 from the Chief of Police of Roskilde to the Prosecutor General it appears that the police had not then received any further information about the witnesses. In reply to a letter from the applicant’s counsel requesting further information relating to the deaths of E.R. and O.K., the Bosnian lawyer replied, on 8 August 1995, inter alia, as follows: (Translation) “... The public prosecutor has informed me that [the applicant] ... was an ordinary prisoner and that, during his stay in [the camp], he had no special authority. ... As regards the death of [E.R.] it has been established that he died on 5 August 1993 and that he was hit in the head with a wooden club by a person named Bunda, a prisoner who was a Moslem and it has been established that this person had been insane for several years ... This piece of information can be confirmed by the City Court of Čapljina. In the second half of 1993 the same, Bunda, ... hit [O.K.] and he died also in [the camp] from the strokes. The accused in both cases, for killing [E.R.] and [O.K.], is the insane man ... Bunda and the case has been investigated by the judicial authorities. The investigation judge at the City Court of Čapljina has told me that they no longer have the competence to interrogate and supervise the defence for [the applicant] as there has been set up an International Tribunal in the Hague for war crimes committed in former Yugoslavia and as the national courts at the request of the Court in the Hague are obliged to initiate certain investigations. ...” On 15 August 1995 the Supreme Court upheld the High Court’s judgment. The judgment reads inter alia: (Translation) “... As regards the claim that the High Court’s judgment be quashed and the case remitted to the High Court, [the applicant] has argued that the High Court’s decision of 18 November 1994 not to adjourn the case in order to find and hear [the eight witnesses], amounts to a procedural error pursuant to Section 943 of the Administration of Justice Act and Section 880, subsection 2, of the Act in conjunction with Article 6 § 1 and § 3 (d) of the Convention. [The applicant] claims, furthermore, that the High Court erred by not employing the special standard of proof adopted in the judgment ..., having regard to [the applicant’s] mental state. ... The Supreme Court’s reasoning: As the Supreme Court agrees with the reasoning of the High Court, in its decision of 18 November 1994, the Supreme Court finds that no procedural error has been committed by the High Court by proceeding with the case on the basis of the testimonies in their possession, cf. Section 943 of the Administration of Justice Act. Nor has the High Court erred in relation to the standard of proof adopted in judgment ..., which must be considered to express a general principle in criminal procedure that the accused must enjoy the benefit of all reasonable doubt. Thus, [the applicant’s] claim that the judgment be quashed and the case remitted [to the High Court] is rejected. It is ordered: The High Court’s judgment is upheld. ...” | 0 |
train | 001-89935 | ENG | POL | ADMISSIBILITY | 2,008 | JASNOWSKI AND JASNOWSKA v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicants, Mr Zdzisław Jasnowski and Zdzisława Jasnowska, are Polish nationals who were born in 1941 and 1942 respectively. They both live in Nowa Sól, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants own a semi-detached house in Nowa Sól. In 1997 their house was considerably damaged by flooding. Subsequently, the applicants intended to build an extension to their house. Under the domestic law they were required to obtain a planning permission and subsequently a construction permit. They instituted administrative proceedings with a view to obtaining these decisions. On 20 January 1998 the applicants applied to the Mayor of Nowa Sól (Prezydent Miasta) for a planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) for the intended extension of their house. On 21 January 1998 the Mayor granted them the permission. The applicants’ neighbour appealed against that decision. On 27 March 1998 the Zielona Góra Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the Mayor’s decision and remitted the case. On 22 May 1998 the Mayor granted the applicants a one year valid planning permission. The applicants’ neighbour appealed. On 7 July 1998 the Self-Government Board of Appeal upheld the Mayor’s decision. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 24 August 1999 the Supreme Administrative Court quashed the Board of Appeal’s decision of 7 July 1998 and remitted the case. On 7 October 1999 the Board of Appeal re-examined an appeal lodged by the applicants’ neighbour. It found that the appeal proceedings were devoid of purpose since the planning permission had meanwhile lost its validity. The applicants’ neighbour again filed an appeal against that decision with the administrative court. On 6 February 2001 the Supreme Administrative Court quashed the Board of Appeal’s decision of 7 October 1999 and remitted the case. On 13 April 2001 the Board of Appeal quashed the Mayor’s decision of 22 May 1998 and remitted the case. The applicants and their neighbour lodged appeals against that decision with the administrative court. On 6 March 2002 the Supreme Administrative Court dismissed the appeal lodged by the applicants’ neighbour. On 26 April 2002 it discontinued the proceedings in respect of the applicants’ appeal since they had withdrawn it. In the meantime, on 11 March 2002 the Nowa Sól Mayor issued a new planning permission for the applicants. The permission remained valid until 31 March 2004. On 18 April 2002 the Local Government Board of Appeal upheld the Mayor’s decision. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 25 August 2004 that the Poznań Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed the Board of Appeal’s decision of 18 April 2002 and remitted the case. On 3 November 2004 the Self-Government Board of Appeal partly quashed part of the Mayor’s decision of 11 March 2002, remitted the case and partly discontinued the proceedings. On 31 July 1998 the applicants applied for a construction permit (pozwolenie na budowę) for the extension of their house. On 9 September 1998 the Head of the Nowa Sól District Office (Kierownik Urzędu Rejonowego) granted them the construction permit. The applicants’ neighbour appealed against that decision. On 21 October 1998 the Zielona Góra Governor (Wojewoda) quashed the decision and remitted the case. On 19 November 1998 the Head of the Nowa Sól District Office again granted a construction permit to the applicants. The applicants’ neighbour appealed. On 16 December 1998 the Zielona Góra Governor upheld the District Office’s decision. On 11 January 1999 the applicants’ neighbour filed an appeal against the Governor’s decision with the Supreme Administrative Court. On 14 January 2000 the Supreme Administrative Court quashed the decision and remitted the case to the Lubuski Governor. On 7 April 2000 the Lubuski Governor quashed the Head of the Nowa Sól District Office’s decision of 19 November 1998 and remitted the case to the first-instance administrative authority. On 7 July 2000 the Mayor of the Nowa Sól District (Starosta Powiatu) granted the applicants a construction permit. The applicants’ neighbour appealed. However, on 22 August 2000 the Lubuski Governor upheld the Mayor’s decision. Subsequently, the applicants’ neighbour filed an appeal against that decision with the Supreme Administrative Court and applied for a stay of execution. On 24 November 2000 the court decided that the execution of the Governor’s decision of 22 August 2000 should be stayed. On 25 January 2001 the applicants requested the Supreme Administrative Court to accelerate the examination of the case. On 17 May 2001 the Supreme Administrative Court quashed the Governor’s decision of 22 August 2000 and remitted the case to that authority. On 31 August 2001 the Lubuski Governor upheld the Mayor of the Nowa Sól District’s decision of 7 July 2000 granting a construction permit to the applicants. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 27 November 2001 the Supreme Administrative Court ruled that the execution of the Governor’s decision of 31 August 2001 should be stayed. On 14 January 2002 the Lubuski Governor requested the court to accelerate the examination of the appeal. On 26 April 2002 the Supreme Administrative Court quashed the Governor’s decision of 31 August 2001. It stressed that the Governor’s decision granting a construction permit to the applicants could not have been issued as the validity of the planning permission had expired in the meantime. On 24 June 2002 the Lubuski Governor quashed the Mayor of the Nowa Sól District’s decision of 7 July 2000 and remitted the case. On 20 August 2002 the Mayor of the Nowa Sól District granted a construction permit to the applicants. On 28 October 2002 the Lubuski Governor dismissed the appeal of the applicants’ neighbour against the decision of 20 August 2002. On an unspecified date the applicants’ neighbour filed an appeal against the Governor’s decision with the administrative court. Subsequently, the Poznań Regional Administrative Court became competent to examine the appeal. On 13 May 2005 the Poznań Regional Administrative Court quashed the Governor’s decision of 28 October 2002 and remitted the case. On 6 October 2005 the Lubuski Governor quashed the Mayor of the Nowa Sól District’s decision of 20 August 2002 and remitted the case. On 29 March 2006 the Mayor of the Nowa Sól District granted a construction permit to the applicants. The applicants’ neighbour appealed. On 1 June 2006 the Lubuski Governor upheld the decision of the Mayor of the Nowa Sól District. On 25 July 2007, the Gorzów Wielkopolski Regional Administrative Court quashed both decisions (of 29 March and 1 June 2006). It is not clear whether the applicants filed a cassation appeal with the Supreme Administrative Court against this judgment. The relevant domestic law concerning inactivity on the part of administrative authorities is described in the Court’s judgments in cases Kaniewski v. Poland, no. 38049/02, 8 February 2006, and Koss v. Poland, no. 52495/99, 28 March 2006. As regards the remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, they are described in the Court’s decisions in 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. | 0 |
train | 001-99807 | ENG | GRC | CHAMBER | 2,010 | CASE OF SITAROPOULOS AND OTHERS v. GREECE | 3 | Violation of P1-3;Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Flogaitis;Khanlar Hajiyev;Spyridon Flogaitis;Sverre Erik Jebens | 6. The applicants were born in 1967, 1961 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe 7. By Presidential Decree no. 154/2007 of 18 August 2007, the Greek Parliament was dissolved and a general election was called for 16 September 2007. 8. In a fax dated 10 September 2007 to the Greek Ambassador in France, the applicants, as permanent residents in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007. 9. In his reply of 12 September 2007 the Ambassador, relying on the instructions and information provided by the Ministry of the Interior, stated as follows: “[The Greek State] confirms its wish – expressed frequently at the institutional level – to enable Greek citizens resident abroad to vote at their place of residence. However, it is clear that this matter requires regulation by means of legislation which does not currently exist. In fact, such regulation could not be brought about by a simple administrative decision, given that special measures would be required for the setting-up of polling stations in Embassies and Consulates ... In the light of the above and despite the wish expressed by the State, your request concerning the forthcoming elections cannot be granted for objective reasons.” 10. The general election took place on 16 September 2007. The applicants, who did not return to Greece, did not exercise their right to vote. 11. The relevant provisions of the Greek Constitution read as follows: “ ... 2. Popular sovereignty is the foundation of government. 3. All powers derive from the People and exist for the People and the Nation; they shall be exercised as specified by the Constitution.” “ ... 3. The Members of Parliament shall be elected through direct, universal and secret ballot by those citizens who have the right to vote, as specified by law. The law cannot curtail the right to vote except in cases where the statutory minimum age has not been attained or in cases of legal incapacity or as a result of a final criminal conviction for certain offences. 4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute. 5. The exercise of the right to vote is compulsory. Exceptions and criminal sanctions shall be specified in each case by law.” 12. Following the Constitutional revision of 2001, Article 51 § 4 was amended as follows: “4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute, adopted by a majority of two thirds of the total number of Members of Parliament. Concerning such persons, the principle of simultaneously holding elections does not rule out the exercise of their right to vote by postal vote or by other appropriate means, provided that the counting of votes and the announcement of the results is carried out at the same time as within the country.” “1. The State must be attentive to the situation of emigrant Greeks and to the maintenance of their ties with the Homeland. The State shall also attend to the education and the social and professional advancement of Greeks working outside the State. 2. The law shall lay down arrangements relating to the organisation, operation and competences of the World Council of Hellenes Abroad, whose mission is to allow the full expression of Hellenism worldwide.” 13. At the time of the parliamentary elections in issue, Presidential Decree no. 96/2007, which was the electoral legislation then in force, provided as follows: “Any Greek national aged 18 or over is entitled to vote. ...” “The following persons are not entitled to vote: (a) Persons who have been placed under guardianship, in accordance with the provisions of the Civil Code. (b) Persons finally convicted of one of the offences provided for in the Criminal Code or the Military Criminal Code, for the duration of their sentence. “ “1. The right to vote in a constituency is reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency. 2. Voting is mandatory.” 14. The report on that bill placed before Parliament by the Ministers of the Interior, Justice and the Economy on 19 February 2009 indicated that the purpose of the bill was to fulfil “one of the Government’s major historical obligations, one which undeniably reinforces Greek expatriates’ ties with the homeland”. The report stated that the right to vote of Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. In particular, as regards Article 108, the report pointed out that it “affords Greek expatriates a ‘social right’. The provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure they have access to Greek education and to make provision, as a matter of State duty, for the social and professional advancement of Greeks working outside Greece. Regulating the conditions for the exercise by Greek expatriates of their right to vote in Greek parliamentary elections will undeniably contribute to real ties being forged between Greek expatriates and their homeland”. Moving on to the constitutional provision on this specific subject, namely Article 51 § 4, the report stated that the law to which that Article referred had the status of an implementing law of the Constitution. Finally, the report considered that “in these times of globalisation, Greek expatriates must be able to have a decisive political say in the development of their own country”. 15. The Scientific Council (Επιστημονικό Συμβούλιο) of Parliament, a consultative body reporting to the Speaker of Parliament, produced a report dated 31 March 2009 on the aforementioned bill. That report noted that in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon Parliament an obligation to grant expatriate Greeks the right to vote from outside Greece. However, referring to other legal authorities and the preparatory work for Article 51 § 4 of the Constitution, the Scientific Council stated that it was an option rather than a duty of the legislature to grant the right to vote from abroad. It observed, further, that the optional nature of the aforementioned provision of the Constitution had not been affected by the Constitutional revision of 2001. 16. On 7 April 2009 the bill was rejected by Parliament since it failed to gain the majority of two thirds of the total number of Members of Parliament required under Article 51 § 4 of the Constitution. 17. According to the information provided on the website of the Greek Ministry of the Interior concerning Greek nationals living abroad, elections to the European Parliament are organised as follows: “Greek citizens who have their residence in the other 26 countries of the European Union and Greeks who happen to be in another Member State of the European Union on Election Day are entitled to participate in the election process in Greece in parallel with Greek voters throughout the Greek State. These results will be incorporated into the general voting results achieved in the Greek State overall. ... In order to exercise their right to vote at their place of residence Greeks resident abroad should: be registered in an electoral roll of a municipality or community in Greece; be entitled to vote and not have been deprived of that right; submit a statement to the local Embassy or Consulate (in the area where they intend to exercise their voting rights) that they wish to vote at their place of residence. ...; have their residence in a Member State of the European Union on Election Day. Based on this statement they will be entered in special electoral rolls prepared by the Ministry of Interior. ... Buildings belonging to Greek Embassies or Consulates, buildings of other Greek authorities or services, independent offices of Greek Christian Orthodox Churches and buildings or other premises belonging to Greek communities, associations or other Greek organizations may be used as polling stations (to be decided on by the Minister of Interior), which will form electoral departments. In case these buildings are inadequate to meet election needs, buildings belonging to the EU Member State may be used. The number of electoral departments (to be decided on by the Minister of Interior), which will be established for each Embassy or Consulate depends on the number of voters stating their intention to vote in that area ... Voting at each electoral department will take place under the supervision of a returning board which will consist of ... a Chairman and three voters from those included in the special electoral rolls. The [Chairman] will be appointed by Chamber I of the Hellenic Supreme Court. The other members of the returning board drawn from persons registered in the special electoral rolls will be appointed by the local Ambassador or Consul following a public draw of lots at the Embassy or Consulate. The date and time of such drawing of lots shall be notified by Embassies and Consulates by displaying a notice to this effect at their offices. Judicial functionaries, court employees and attorneys at law from Greece may be appointed as [Chairmen] of the returning boards. If inadequate numbers of such persons are available to cover the needs of all electoral departments, at exception the Chamber I of the Hellenic Supreme Court may appoint the following persons ...: permanent Embassy and Consul attachés and secretaries ... of higher or tertiary level education employed in the post of Advisor (Grade A or above) serving within the area covered by the Embassy or Consulate.” 18. The relevant texts adopted by the competent bodies of the Council of Europe provide as follows: “ ... 2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, it therefore invites the member and observer states of the Organisation to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim. 3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad. ... 7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting, consistent with Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal, operational and technical standards for evoting. Member states should co-operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories. ... 11. The Assembly therefore invites: i. the Council of Europe member and observer states concerned to: ... b. grant electoral rights to all their citizens (nationals), without imposing residency requirements; c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures (postal and/or consular voting) and considering the introduction of e-voting consistent with Recommendation Rec(2004)11 of the Committee of Ministers and to co-operate with one another to this end; ...” “1. Referring to its Resolution 1459 (2005) on the abolition of restrictions on the right to vote, the Parliamentary Assembly calls upon the Committee of Ministers to: i. appeal to member and observer states to: a. sign and ratify the 1992 Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144) and to grant active and passive electoral rights in local elections to all legal residents; and b. reconsider existing restrictions on electoral rights of prisoners and members of the military, with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim; ii. invite the competent services of the Council of Europe, in particular the European Commission for Democracy through Law (Venice Commission) and its Council for Democratic Elections, to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties, such as expatriates, prison inmates, persons who have been convicted of a criminal offence, residents of nursing homes, soldiers or nomadic groups; iii. review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international co-operation with a view to facilitating the exercise of electoral rights of expatriates.” “... 3.2 Freedom of voters to express their wishes and action to combat electoral fraud i. voting procedures must be simple; ii. voters should always have the possibility of voting in a polling station. Other means of voting are acceptable under the following conditions: iii. postal voting should be allowed only where the postal service is safe and reliable; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad; fraud and intimidation must not be possible; iv. electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent; v. very strict rules must apply to voting by proxy; the number of proxies a single voter may hold must be limited; ...” “... 52. Although the Code of Good Practice in Electoral Matters is not a binding document, it does nonetheless set out a European standard which could influence the interpretation of treaty-based rules, in particular Article 3 of Protocol 1 (see infra 2.). 53. Guideline I.3.2 of the Code states that electronic voting should be accepted only if it is secure and reliable. In particular, electors must be able to obtain confirmation of their vote and correct it if necessary, while respecting secret suffrage. The system’s transparency must be guaranteed. Any violation of secret suffrage should be sanctioned (guideline I.4.d). 54. In paragraph 42 onwards of the explanatory report, this guideline is clarified as follows: Although mechanical and electronic voting methods present clear advantages when several elections are taking place at the same time, certain precautions are needed to minimise the risk of fraud, for example by enabling the voter to check his or her vote immediately after casting it. In order to facilitate verification and a recount of votes in the event of an appeal, it may also be provided that a machine could print votes onto ballot papers; these would be placed in a sealed container where they cannot be viewed. All the methods used should enable the confidentiality of the ballot to be guaranteed (see explanatory report, § 42). Electronic voting methods are ‘secure’ if the system can withstand deliberate attack; they are ‘reliable’ if they can function on their own, irrespective of any shortcomings in the hardware or software (§ 43). The system’s transparency must be guaranteed, in the sense that it must be possible to check that it is functioning properly (§ 43). 55. According to guideline I.1.a., democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of circulation inside the country, freedom of assembly and freedom of association for political purposes, including the creation of political parties. Restrictions of these freedoms must be in conformity with the ECHR and, more generally, have a basis in law, be in the public interest and comply with the principle of proportionality (cf. § 60 of the explanatory report). 56. It may be concluded that, on the one hand, the institutionalisation of postal voting and e-enabled voting is, in principle, compatible with the Code of Good Practice. On the other hand, their compatibility depends primarily on adequate provision, through national legislation and legal practice, of the prescribed conditions, taking particular account of technical and social conditions.” 56. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting .... Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote ... ... 151. Postal voting is permitted in several established democracies in Western Europe, e.g. Germany, Ireland, Spain, Switzerland and, for voters abroad, the Netherlands, Norway, and Sweden ... It was also used, for example, in Bosnia and Herzegovina and the Kosovo in order to ensure maximum inclusiveness of the election process (CG/BUR (11) 74). However, it should be allowed only if the postal service is secure and reliable. Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting. ...” 19. Having carried out a comparative study of the domestic law of thirty-three Council of Europe member States based primarily on data gathered by the Venice Commission and by the Organisation for Security and Cooperation in Europe, the Court notes that the great majority of those countries have implemented procedures to allow their nationals living abroad to vote in parliamentary elections. In particular, twenty-six countries make provision, without restriction as to the persons concerned, for the right to vote from abroad (Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, the Netherlands, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom). Three member States impose certain restrictions on their nationals’ right to vote from abroad (Ireland, Denmark and the Czech Republic). Finally, four member States make no provision for their nationals living abroad to vote in parliamentary elections (Albania, Armenia, Azerbaijan and Malta). | 0 |
train | 001-22646 | ENG | ESP | ADMISSIBILITY | 2,001 | FEDERACION NACIONALISTA CANARIA v. SPAIN | 1 | Inadmissible | null | The applicant, Federación Nacionalista Canaria, is a federation of political parties which was founded on 14 August 1998 and is based in Arrecife (Lanzarote). It was represented before the Court by Mr F. Fernández Camero and Ms J.M. Fernández de las Heras, lawyers practising in Lanzarote. On 18 June 1999 general elections to the legislative assembly of the Autonomous Community of the Canary Islands took place. The applicant federation submitted various observations on the results issued by certain polling stations in the constituency of the island of Lanzarote. On 19 June 1999 the applicant federation lodged a complaint on the matter with the Canary Islands Electoral Council, which dismissed the complaint in a decision of 20 June 1999. On 21 June 1999 the applicant federation lodged an ordinary appeal against that decision with the Central Electoral Council, which dismissed the appeal in a decision of 23 June 1999. On 28 June 1999 the Canary Islands Electoral Council announced the names of the candidates who had been elected to the eight seats representing Lanzarote in the regional legislative assembly. The applicant federation, which had obtained 28.13% of the valid votes cast in the Lanzarote constituency, was not awarded any seats in the regional assembly. Nor was it awarded any seats in respect of the other constituencies of the Autonomous Community of the Canary Islands, although it had obtained 4.81% of the valid votes cast in the Autonomous Community as a whole. The applicant federation applied to the Canary Islands High Court of Justice for judicial review of the election results, alleging that there had been irregularities and claiming approximately 100 additional votes, which it maintained had not been counted. In a judgment of 22 September 1999 the court dismissed the application. It stated, firstly, that it had no jurisdiction to rule on the applicant federation’s objections concerning the thresholds for parliamentary representation (barreras electorales) laid down in the Canary Islands’ Statute of Autonomy. Next, it examined the applicant federation’s allegations of irregularities in the vote count and upheld the decisions which the electoral councils had taken to the federation’s detriment. Thirdly, it added that the other alleged irregularities, which had not been sufficiently established, did not form a basis on which the elections could be declared void or the list of elected candidates amended in accordance with the applicant federation’s wishes. The applicant federation lodged an appeal with the Constitutional Court (recurso de amparo) on the basis of Article 23 § 2 of the Constitution. In a decision of 8 October 1999 the Constitutional Court dismissed the amparo appeal. It held: “The application of statutory thresholds or exclusion clauses has been endorsed by this court’s case-law as a means of refining the principle of proportionality, a ‘guiding imperative’ that shapes, but does not predetermine, the decision-making freedom of a democratic legislature, with a view to avoiding the excessive and dysfunctional fragmentation of Parliament, thereby facilitating governance and the work of the parliamentary bodies ... representing the various political forces... Consequently, the imposition of an electoral threshold or barrier – that is to say, a requirement that a fixed percentage of the vote must be obtained for candidates to be eligible to take part in the distribution of seats in accordance with established models – cannot be said to infringe the rights enshrined in Article 23 of the Constitution (the right to participate in public affairs and the right of access to public posts on equal terms). Furthermore, the prior allocation, regardless of population size, of a set number of seats to each constituency of an electoral region, is not unconstitutional... Quite apart from the ‘guiding imperative’ referred to above, other constitutionally valid concerns, such as the need to ensure, for geographical or, indeed, demographic reasons, that all the territorial areas making up the electoral region are adequately represented, serve in themselves as justification for the electoral system in question. The system established by the Statute of Autonomy, whereby the number of residents per seat must lie within specified limits in each of the constituencies, is in no way manifestly disproportionate or arbitrary. The appeal is therefore inadmissible and the reasons given for the application of electoral legislation in the judgment appealed against are sufficient from a constitutional standpoint.” “1. Parliament (Cortes Generales) shall represent the Spanish people and shall be composed of the Congress of Deputies and the Senate. 2. Parliament shall exercise the legislative power of the State...” “By virtue of the ... Constitution, each Autonomous Community shall have as its basic institutional law a Statute, which the State shall recognise and protect as an integral part of its legal system.” “1. The Autonomous Communities may exercise powers in the following areas: (i) organisation of their institutions of self-government; ...” “Responsibilities not expressly conferred on the State by the Constitution may fall to the Autonomous Communities, in accordance with their Statutes. ...” “1. In matters within the State’s field of competence, Parliament may endow all or some of the Autonomous Communities with powers to enact legislative provisions for themselves in accordance with the principles, bases and guidelines set out in national legislation. ... 2. The State may, by means of an institutional Act, transfer or delegate to the Autonomous Communities powers within its own sphere of competence that are, by their very nature, capable of being transferred or delegated. ...” “In the Statutes approved by means of the procedure laid down in the foregoing Article, the institutional organisation of the Autonomous Community shall be based on: a legislative assembly elected by universal suffrage according to a system of proportional representation that also ensures that the various geographical areas of the Community are represented; a Governing Council with executive and administrative functions; and a President, who shall be elected by the assembly from among its members and appointed by the King, and who shall preside over the Governing Council and act as the supreme representative of the Autonomous Community and the ordinary representative of the State within the Community. ...” “1. Parliament, the representative body of the people of the Canary Islands, shall be composed of regional deputies (autonómicos) elected by direct universal suffrage in an equal, free and secret ballot. 2. The electoral system shall be one of proportional representation. 3. The number of deputies shall be neither lower than 50 nor higher than 70. 4. The islands of Hierro, Fuerteventura, Gran Canaria, Gomera, Lanzarote, La Palma and Tenerife shall each form an electoral constituency.” “... 2. ... in accordance with Article 9 of this Statute, and save where a law passed by a two-thirds majority of the members of the Canary Islands’ legislative assembly provides otherwise, the only lists to be taken into account shall be those of the parties or coalitions that have obtained the greatest number of valid votes in each of the constituencies and the other [lists] that have obtained at least 30% of the valid votes cast in a single constituency or, adding together the votes for each constituency, at least 6% of the valid votes cast in the Autonomous Community as a whole.” | 0 |
train | 001-90336 | ENG | RUS | CHAMBER | 2,008 | CASE OF SLADKOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1956 and lives in Dushanbe, a city in Tajikistan. 5. At the material time the applicant was a colonel of the Russian Border Guard Service. In 1996 he requested an early discharge for health reasons. Under domestic law, long-serving servicemen in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that he wished to receive the housing. 6. Since no housing was provided, the applicant sued his command. On 21 January 1998 the Military Court 10514 ordered the Director of the Border Guard Service to discharge the applicant with the provision of housing in Russia, and to pay 7,000 Russian roubles (RUB) by way of non-pecuniary damages. This judgment became binding on 31 January 1998. 7. From March 1998 to August 2006 the command offered the applicant flats in Vyazma (Smolensk Region), Kursk (Kursk Region), Kovrov (Vladimir Region), Galich (Kostroma Region), Voronezh (Voronezh Region), and Krasnodar (Krasnodar Region). The applicant rejected these offers because he wished to receive a flat in Tver. 8. For this reason, the applicant once again sued his command. On 8 February 2002 the Military Court of Garrison 109 ordered the Director of the Border Guard to discharge the applicant with the provision of housing in Russia and to pay RUB 5,000 by way of non-pecuniary damages. This judgment became binding on 16 April 2002 after the appeal court had upheld it having specified that the housing should be provided in Tver. 9. In October 2006, December 2006, and June 2007 the command offered the applicant three flats in Tver. The applicant rejected these offers because he considered that the command should have first satisfied his claims for other benefits, and because he disliked the flats’ characteristics. 10. Under section 23 § 1 of the Federal Law on the Status of Servicemen, servicemen who have served ten years and more and whose housing needs to be improved, cannot be discharged against their will without the provision of such housing. 11. According to the Ruling of the Constitutional Court 322-O of 30 September 2004, after expiry of a serviceman’s contract and in the absence of his written agreement to discharge without provision of housing, he should be considered as serving voluntarily only until the provision of housing. | 1 |
train | 001-90416 | ENG | FIN | ADMISSIBILITY | 2,008 | JUSSI UOTI v. FINLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Jussi Uoti, is a Finnish national who was born in 1964 and lives in Turku. He was represented before the Court by Mr M. Brander, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows. The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud. On 29 January 1996 the applicant was questioned by the police as a suspect and he was subsequently charged with four counts of economic crime allegedly committed in 1991. On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld the applicant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court. Meanwhile, a second hearing was held on 12 June 1996. On 6 August 1996 the applicant was charged with aggravated fraud allegedly committed in 1991. At the third hearing on 27 August 1996, the District Court upheld his claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision. At the same hearing on 27 August 1996 the public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996. On 21 January 1998 the District Court upheld co-defendant X’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision. Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue. On 18 May 2000 the District Court issued a separate decision dismissing the applicant’s request that the charges against him be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed the applicant’s renewed request. On 12 January 2001 the applicant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001. There were 28 days of hearings in the District Court up to the end of 2000, held at intervals of approximately two to five months. On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of the applicant, who was residing in Spain at the time, to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, the applicant would be granted immunity from further prosecution in Finland for offences he had previously committed. On 14 August 2001 the District Court found that the criminal case against the applicant was barred on the basis of immunity. On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue the applicant’s prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The applicant’s appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland. The applicant challenged the lawfulness of the continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003. The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill. Meanwhile, on 25 February and 20 August 2003 respectively the District Court dismissed the applicant’s further requests that the charges be ruled inadmissible owing to the length of the proceedings. On 9 February 2004 it also dismissed his renewed request, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal. On 31 August 2004 the District Court dismissed the applicant’s renewed request to have the charges against him declared inadmissible on account of the length of the proceedings. During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003. There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004. On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need for the allocation of adequate financial resources to both the District Court and the authorities involved in the case. On 21 March 2006 the District Court gave its judgment. It found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected. The court dismissed as time-barred the charges concerning four counts of debtor dishonesty and acquitted the applicant of two counts of aggravated fraud. Finally, it dismissed the charge of debtor dishonesty. It ordered the applicant and two co-defendants jointly to pay damages in the amount of some 100,000 euros (EUR), together with interest from 25 May 1992. The public prosecutor appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007. On 22 October 2007 the Court of Appeal gave its judgment, convicting the applicant of aggravated fraud. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court, however, found that the applicant had contributed to the length of the proceedings as, at the time when the summonses were served, he had been abroad and thereby been difficult to reach. Nevertheless, the court stated that it would reduce the applicant’s sentence by half owing to the lengthy proceedings. Having noted the length of the standard sentence for the aggravated fraud in question and having as a mitigating factor taken into account that the sentence could have been imposed at the time of the imposition of the applicant’s previous sentences (which would have been more advantageous for the applicant) and in that connection the so-called maximum sentence rule laid down by Chapter 7, article 2, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 697/1991), the Court of Appeal noted that 60 days’ imprisonment would have been appropriate had the proceedings not been excessively lengthy. However, owing to the breach of the “reasonable time” requirement, the Court of Appeal sentenced him to an immediate term of 30 days’ imprisonment. It applied Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004). Having regard to the seriousness of the applicant’s offence, the damage thereby caused and the considerable advantage pursued and achieved, the court considered that the maintaining of general obedience to the law required that the prison term be an immediate one. The two latter factors led the court to conclude that community service was not an option. The applicant requested leave to appeal to the Supreme Court, which was refused on 22 May 2008. Chapter 6, article 7, point 3 of the Penal Code reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” Chapter 6, article 12, point 4, of the Penal Code provides: “The court may waive the sentence if ... 4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services; ...” In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaration of inadmissibility might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that, in this case, there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. On 1 February 2006 the Supreme Court delivered a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence. | 0 |
train | 001-4527 | ENG | CHE | ADMISSIBILITY | 1,999 | BIFL v. SWITZERLAND | 4 | Inadmissible | Christos Rozakis | The applicant, a German citizen born in 1961, is a businessman residing in Freiburg in Germany. Before the Court he is represented by Ms C. Triebel, a lawyer practising in Schluchsee in Germany. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 May 1993 at approximately 11h00, the applicant was driving on a motorway in Switzerland in the direction of Basle. At one stage, when driving on the left lane, he noted a neutral car behind him which kept coming up towards him and then falling back again. The applicant felt endangered; as he could not move to the right lane, he decided to accelerate, though the car behind him did the same. Eventually, the applicant was able to move to the right lane and then leave the motorway at the next exit. Still the car followed him. It suddenly overtook him and the co-driver held a police-signal out of the window, ordering him to stop. The applicant stopped and realised that the persons in the car were two policemen. He was accompanied to a motorway stop where he was told that he had exceeded the speed limit of 120 km/h by an average of 43,51 km/h and that he would be fined 500 Swiss Francs (CHF). The applicant was shown a video film of his driving which the policemen had recorded from their car while following him. The applicant pointed out that he had been followed for a longer period of time; originally he had driven at 135 km/h and had been pressed by the car to drive more quickly. The police replied that they had had to follow him for a certain stretch in order to obtain valid readings. The readings concerned a stretch of 1,6 km. The applicant did not pay the fine and signed the police report. On 14 June 1993 the Rheinfelden District Office (Bezirksamt) issued a penal order (Strafbefehl) sentencing the applicant to three days' imprisonment, suspended on probation, and a fine of 500 CHF for having exceeded the speed limit by 43,51 km/h. Throughout the ensuing proceedings the applicant was represented by a lawyer. Upon the applicant's objection, the Rheinfelden Public Prosecutor's Office (Staatsanwaltschaft) requested the Rheinfelden District Court (Bezirksgericht) to punish the applicant with three days' imprisonment and a fine of 800 CHF. On 30 August 1993 the Court summoned the applicant and police officer B. (the co-driver) to the trial. The invitation was sent to the applicant's previous address in Freiburg in Germany by means of letters rogatory (Rechtshilfeersuchen), though the invitation could not be served as the applicant had meanwhile moved to Berlin. At the hearing on 1 December 1993 the applicant was absent, and considered not to have provided an excuse herefor. At the hearing police officer B. was heard, explaining inter alia the video-system used, his experience in such matters, and that the applicant had driven at 135 km/h. The police officer submitted twelve photos which were taken from the video film. The photos register inter alia the speed of the applicant’s car. On eleven photos there is a distance of approximately 100 m between the applicant and the police car, often with ample free space on the right lane on the motorway; and on the twelfth and last picture the police car had come closer to the applicant’s car in order to film the applicant’s number plate. At the hearing, hand written minutes of police officer B. were submitted according to which the applicant had overtaken the police car at a speed of just below 120 km/h. The minutes also noted: "he has allegedly been chased by the police" ("er sei durch Pol. gejagt worden"). This statement was apparently not included in the subsequent typed minutes of the hearing. The summons to the applicant for a new hearing on 9 March 1994 could not be served on him either. On 23 March 1994 the District Court President issued a warrant of arrest against the applicant in order "to secure his presence at the trial" ("Sicherung der Hauptverhandlung"). The applicant was arrested on 15 April 1994 when entering Switzerland. He then withdrew his objection against the penal order of 14 June 1993. As a result, the District Court struck the case off its list. The applicant filed an appeal which was upheld by the Court of Appeal (Obergericht) of the Canton of Aargau on 10 August 1994 which found, inter alia, that the applicant had not been absent at the hearing of 1 December 1993 by his own fault. Proceedings were resumed before the Rheinfelden District Court which fixed a new trial for 14 December 1994. As the applicant only received the invitation on 13 December, a new hearing was fixed for 8 March 1995. The applicant challenged the President of the District Court, whereupon the Deputy President presided. At the hearing, the applicant unsuccessfully requested to question the second police officer (the driver) and to be shown the entire video film. On 8 March 1995 the District Court sentenced the applicant to three days' imprisonment, suspended on probation, and a fine of 800 CHF. In its decision the Court found that the video film clearly demonstrated the excess in speed, and there was no indication that the registration system was faulty. In view thereof and of B.'s statement of 1 December 1993, the Court refused to hear the other police officer. The Court also found that the applicant, who alleged that he had been pressed by the police, had been able to comment on B.'s statements. On 21 March 1995 the applicant challenged the Deputy District Court President in view of the manner in which he had conducted the proceedings. On 12 September 1995 the applicant filed an appeal in which he requested, inter alia, to be shown the entire video film leading to his conviction, and to be able to put questions to both police officers. The appeal was dismissed by the Court of Appeal of the Canton of Aargau on 21 November 1995. The Court, which had the competence to decide on both the factual and legal issues of the case, relied in its decision, inter alia, on statements of police officer B. as to the events. The Court found that one particular statement of B. was an incorrect assessment, namely that a police car regularly drove 500 m behind a car when the speed exceeded 100 km/h; in fact the pictures demonstrated that the police had driven approximately 100 m behind the applicant. In respect of the applicant's requests for the taking of evidence, the Court of Appeal found that the applicant had been shown twelve pictures of the video film which sufficed to demonstrate that he had exceeded the speed limit, and that he had not been pressed by the police. The gaps of some two to five seconds between the pictures were too short to prove otherwise. For the same reason the police officers need not be heard, and their statements would not alter the Court's opinion. Indeed, even if the police had pressed the applicant, this would not justify the excess in speed. In any event, police officer B. had been heard, and his statement had been shown to the applicant. The applicant’s public law appeal (staatsrechtliche Beschwerde) and plea of nullity (Nichtigkeitsbeschwerde) were dismissed by the Federal Court on 18 March 1996, the decision being served on 25 March 1996. In its decision the Court found that the applicant had not shown that the Court of Appeal had acted arbitrarily. Thus, even if it was accepted that the police car had pressed him by coming up towards him and falling back again this would not help him, as he would then have had periods where he would have reduced his speed. In respect of the applicant's complaint about the alleged bias of the Rheinfelden District Court, the Federal Court found that the decision of the Court of Appeal would have healed any such shortcoming. Under the headline "disciplinary punishment", the Federal Court stated that the applicant's appeals clearly lacked prospects of success in view of the convincing reasons given by the Court of Appeal of the Canton of Aargau in its decision. The decision continues: <Translation> "The long-winded statements in his plea of nullity and in large parts also in his public law appeal are not reasonable. The applicant's representative shall therefore be admonished in accordance with S. 31 (1) of the Federal Judiciary Act." | 0 |
train | 001-114785 | ENG | ARM | CHAMBER | 2,012 | CASE OF KHACHATRYAN AND OTHERS v. ARMENIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 4. The applicants were born in 1982, 1981, 1986, 1984, 1986, 1986, 1986, 1986, 1985, 1983, 1986, 1985, 1986, 1987, 1985, 1986, 1986, 1985 and 1986 respectively and live in Yerevan, Vanadzor, the villages of Baghramyan and Zolakar, Artik, Martuni and Hrazdan, Armenia. 5. The applicants are Jehovah’s Witnesses who were eligible for call-up. 6. Following the entry into force of the Alternative Service Act on 1 July 2004, the applicants applied to the authorities asking to perform alternative labour service instead of military service. It appears that their requests were granted and the applicants were assigned to various institutions to perform the service, such as hospitals, nursing homes and dispensaries. The applicants allege that, while performing the service, they realised that the alternative labour service was not a truly civilian service. 7. In May and June 2005 the applicants wrote letters to the directors of the institutions where they were individually serving stating that, since the alternative labour service was in reality under the control of the military, they could not continue to serve in good conscience. They requested that the Alternative Service Act be modified so that they could serve in a genuine civilian alternative service. After filing these letters, all applicants left the service. 8. On 23 June 2005 criminal proceedings were instituted under Article 361 § 5 of the Criminal Code (CC) in respect of the sixth, seventh, eighth and ninth applicants on account of their joint abandonment of the civilian institution where they were performing alternative labour service. 9. On the same date criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the seventeenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service. 10. On 27 June 2005 criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the first, second, fifth, twelfth, thirteenth, sixteenth and nineteenth applicants on account of their abandoning the civilian institutions where they were performing alternative labour service. These proceedings were divided into individual sets of proceedings in respect of each of these applicants on 18 August 2005. 11. On 22 August 2005 the first, fifth, thirteenth and sixteenth applicants were formally charged under Article 361 § 4 of the CC. 12. On the same date the Gegharkunik Regional Court examined the investigator’s motion seeking to have them detained on the grounds that they had committed an offence under Article 361 § 4 of the CC and could abscond. The Regional Court decided to grant this motion, stating that the imputed acts fell into the category of crimes of medium gravity and taking into account their nature and degree of dangerousness. The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 13. On 31 August 2005 the investigator decided to modify the charges against the applicants by bringing a new charge under Article 362 § 1 of the CC on the ground that, pursuant to Section 21 § 2 of the Alternative Service Act, persons performing alternative labour service bore equal liability for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service. 14. On 6 and 8 September 2005 the prosecutor approved the indictments under Article 362 § 1 of the CC and the cases were transferred to the Regional Court for examination on the merits. 15. On 29 November 2005 the fifth, thirteenth and sixteenth applicants filed a motion with the Regional Court, arguing that Article 362 § 1 of the CC was not applicable to their cases, since they were not servicemen, and seeking to have the proceedings terminated. 16. On 1 and 2 March 2006 the Regional Court decided to remit the cases for further investigation upon the prosecutor’s motions in order to clarify, inter alia, which norms of criminal law had been breached by the imputed acts and whether the applicants could be considered as subjects of a military crime as defined by Article 356 § 5 of the CC, taking into account that it applied only to servicemen. The Regional Court stated that the applicants’ detention was to remain unchanged. 17. On 9 March 2006 the applicants filed motions with the General Prosecutor, seeking to be released. They argued that they had fully cooperated with the investigating authority, had always appeared whenever summoned, had never obstructed the investigation, had never committed an offence and had never made any attempts to abscond. 18. On 13 and 16 March 2006 the first, fifth, thirteenth and sixteenth applicants lodged appeals against the decisions of 1 and 2 March 2006, seeking to have the proceedings terminated and to be released. They argued that Article 362 § 1 of the CC was not applicable to their cases since they were not servicemen. The acts committed by them were not a criminal offence, since at the material time the CC did not prescribe any penalties for the unauthorised abandonment of the place of alternative labour service. In spite of this, they were charged and detained which violated their right to liberty. The criminal law required that all offences be incorporated into the CC, so the reliance on Section 21 § 2 of the Alternative Service Act had been unlawful. The applicants further raised the same arguments as in their motions of 9 March 2006. They invoked, inter alia, Article 5 §§ 1 (c) and 3 of the Convention. 19. On 10 April 2006 the Criminal and Military Court of Appeal decided to dismiss the first applicant’s appeal and to uphold the Regional Court’s decision in its part remitting the first applicant’s case for further investigation. The Court of Appeal found that the investigating authority had failed to clarify whether the first applicant could be considered as a subject of an offence against military rules. Therefore it was necessary to do so in the course of further investigation. Similar decisions were taken in respect of the fifth, thirteenth and sixteenth applicants on 11 and 13 April 2006. 20. At the same time, the Court of Appeal decided to grant the applicants’ appeals in their part concerning their release from detention. As regards the first and thirteenth applicants’ detention, the Court of Appeal found that the grounds envisaged by Article 135 of the Code of Criminal Procedure (CCP) necessitating their detention were absent. In particular, before abandoning their places of service the first and thirteenth applicants had informed the prosecutor of their addresses and had not made any attempts to abscond during the first three months of the investigation. They had never obstructed the proceedings and there were no grounds to believe that they would commit another offence. In such circumstances, the first and thirteenth applicants had shown proper behaviour during the proceedings and it was no longer necessary to keep them in detention. 21. As regards the fifth and sixteenth applicants’ detention, the Court of Appeal found that the Regional Court had provided no reasons for leaving the detention unchanged, despite the fact that there were no grounds to keep the fifth and sixteenth applicants in detention. 22. On 17, 18 and 20 April 2006 the applicants lodged appeals on points of law against these decisions, which were dismissed by the Court of Cassation on 26 May and 1 June 2006. 23. On 22 August 2005 the second, twelfth and nineteenth applicants were formally charged under Article 361 § 4 of the CC. 24. On the same date the Gegharkunik Regional Court granted the investigator’s motion seeking to have them detained on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 12 above). The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 25. On 31 August 2005 the charges against the applicants were changed to Article 362 § 1 of the CC, with reliance on Section 21 § 2 of the Alternative Service Act. The indictments under that Article were approved on 6 and 8 September 2005 and the cases were transferred to the Regional Court for examination on the merits. 26. On 21 November 2005 the applicants filed a joint motion with the Regional Court, arguing that Article 362 § 1 of the CC was not applicable to their cases, since they were not servicemen, and seeking to have the proceedings terminated and to be released. 27. On 2 December 2005 the Regional Court found the applicants guilty under Article 361 § 4 of the CC and sentenced them to two years and six months’ imprisonment. 28. On 14 December 2005 they lodged appeals against their conviction, in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen. They sought to be acquitted and released from detention. 29. On 21 February 2006 the Criminal and Military Court of Appeal, upon the prosecutor’s motion, quashed the twelfth applicant’s conviction and remitted the case for further investigation on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 19 above). The Court of Appeal stated that the twelfth applicant’s detention was to remain unchanged. 30. On 24 February 2006 the nineteenth applicant filed a motion with the Criminal and Military Court of Appeal, arguing that his detention was unjustified and seeking to be released. 31. On the same date the Court of Appeal quashed the nineteenth applicant’s conviction and remitted the case for further investigation on the same grounds as in the twelfth applicant’s case (see paragraph 29 above). The Court of Appeal stated that the nineteenth applicant’s detention was to remain unchanged. A similar decision was taken by the Court of Appeal in the second applicant’s case on 27 February 2006. 32. On 3 and 6 March 2006 the second, twelfth and nineteenth applicants filed motions with the General Prosecutor, raising the same arguments as in the motions filed in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 17 above) and seeking to be released. 33. On 3, 6 and 7 March 2006 the applicants lodged appeals on points of law against the decisions of 21, 24 and 27 February 2006, raising arguments similar to those raised in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above). 34. On 13 March the twelfth applicant was released from detention upon a written undertaking not to leave. 35. On 14 April 2006 the Court of Cassation dismissed the nineteenth applicant’ 36. On 21 April 2006 the second applicant was released from detention upon a written undertaking not to leave. 37. On 7 July 2006 the Court of Cassation dismissed the second and twelfth applicants’ appeals on points of law. 38. On 17 August 2005 the seventh and ninth applicants and on 18 August 2005 the sixth and eighth applicants were formally charged under Article 361 § 5 of the CC. 39. On 17 August 2005 the Gegharkunik Regional Court granted the investigator’s motion seeking to have the seventh and ninth applicants detained on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 12 above). Similar decisions were taken in respect of the sixth and eighth applicants on 18 August 2005. The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 40. On 1 September 2005 the charges against the applicants were changed to Article 362 § 1 of the CC, with reliance on Section 21 § 2 of the Alternative Service Act. The joint indictment under that Article was approved on 6 September 2005 and the case was transmitted to the Regional Court for examination on the merits. 41. On 20 October 2005 the applicants filed a motion with the Regional Court, seeking to have the criminal proceedings terminated and to be released. 42. On 3 November 2005 the Regional Court found the applicants guilty under Article 361 § 5 and sentenced them to three years’ imprisonment. 43. On an unspecified date they lodged a joint appeal, in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen. 44. On 27 February 2006 the Criminal and Military Court of Appeal quashed their conviction and remitted the case for further investigation on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 19 above). It further added that criminal liability could be imposed only if the committed act contained all the elements of an offence. Both the investigating authority and the Regional Court had failed to clarify whether the applicants could be considered as subjects of military offences under Articles 361 and 362 of the CC, taking into account that only servicemen could be considered as such subjects pursuant to Article 356 of the CC. As regards the applicants’ detention, the Court of Appeal found that it was to remain unchanged, since the grounds for their detention had not ceased. 45. On 7 March 2006 the applicants lodged a joint appeal on points of law, raising arguments similar to those raised in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above). 46. On 9 March 2006 the applicants filed a joint motion with the General Prosecutor, seeking to be released, raising the same arguments as in the motions filed on 9 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 17 above). 47. On 20 April 2006 the Court of Cassation dismissed the appeal on points of law. The Court of Cassation ordered, however, that the applicants be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above). 48. On 22 August 2005 criminal proceedings were instituted under Article 361 § 1 of the CC in respect of the fourteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service. 49. On 27 September 2005 the applicant was formally charged under Article 362 § 1 of the CC. 50. On the same date the Avan and Nor Nork District Court of Yerevan granted the investigator’s motion seeking to have the applicant detained, finding that he could abscond, obstruct the proceedings and avoid serving his penalty. The applicant was present at this hearing. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 51. On 28 September 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits. 52. On 2 February 2006 the applicant filed a motion with the District Court, arguing that Article 362 § 1 was not applicable to his case, since he was not a serviceman, and seeking to have the criminal proceedings terminated or to be released. 53. On 27 February 2006 the District Court decided to remit the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The District Court replaced the applicant’s detention with a written undertaking not to leave and ordered his release, stating that his behaviour during the trial provided grounds to believe that he would not abscond or commit another crime. 54. On 13 March 2006 the applicant lodged an appeal against this decision, seeking to have the proceedings terminated since he was not a serviceman and the act committed by him was not criminally punishable. 55. On 3 May 2006 the Criminal and Military Court of Appeal dismissed the appeal, finding that there was a need to carry out further investigation. 56. On 8 May 2006 the applicant lodged an appeal on points of law which was dismissed by the Court of Cassation on 9 June 2006. 57. On 14 October 2005 criminal proceedings were instituted under Article 362 § 1 of the CC in respect of the fifteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service. 58. On 19 October 2005 the applicant was formally charged under Article 362 § 1 of the CC. 59. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion seeking to have the applicant detained, finding that there were sufficient grounds to believe that he could abscond, obstruct the investigation and commit another offence. The applicant was present at this hearing. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 60. On 4 November 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits. 61. On 3 March 2006 the District Court decided to remit the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The District Court stated that the applicant’s detention was to remain unchanged. 62. On 9 March 2006 the applicant filed a motion with the General Prosecutor, raising the same arguments as in the motions filed by other applicants and seeking to be released. 63. On 17 March 2006 the applicant lodged an appeal against the decision of 3 March 2006, seeking to have the proceedings terminated and to be released. He raised the same arguments as in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above). 64. On the same date the applicant was released from detention upon a written undertaking not to leave. 65. On 19 April 2006 the Criminal and Military Court of Appeal dismissed the appeal, finding that there was need to carry out further investigation. 66. On 28 April 2006 the applicant lodged an appeal on points of law which was dismissed by the Court of Cassation on 1 June 2006. 67. On 24 August 2005 at 6 p.m. the seventeenth applicant was arrested in connection with the criminal proceedings against him. 68. On 26 August 2005 he was formally charged under Article 362 § 1. 69. On the same date at 4 p.m. the applicant was brought before Judge A. of the Kentron and Nork-Marash District Court of Yerevan who, after having heard him, decided to grant the investigator’s motion seeking to have him detained, finding that the applicant, if he remained at large, could obstruct the investigation and abscond. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days. 70. On 2 September 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits. 71. On 15 September 2005 the District Court found the applicant guilty under Article 362 § 1 of the CC and sentenced him to two years and six months’ imprisonment. 72. On an unspecified date the applicant lodged an appeal. 73. On 8 February 2006 the applicant filed a motion with the Criminal and Military Court of Appeal, arguing that his detention was unjustified and seeking to be released. 74. On 16 March 2006 the Criminal and Military Court of Appeal quashed the applicant’s conviction and remitted the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The Court of Appeal stated that the applicant’s detention was to remain unchanged. 75. On 23 March 2006 the applicant lodged an appeal on points of law, seeking to have the proceedings terminated and to be released. He raised the same arguments as in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above). 76. On 24 March 2006 the applicant filed a motion with the General Prosecutor, raising the same arguments as in the motions filed by other applicants and seeking to be released. 77. On 20 April 2006 the Court of Cassation dismissed the applicant’s appeal on points of law, finding that the Court of Appeal’s decision was well-founded. The Court of Cassation ordered, however, that the applicant be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above). 78. On 9 August 2005 separate sets of criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the third and eighteenth applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service. 79. On the same date the third and eighteenth applicants made written undertakings not to leave. 80. On 15 August 2005 they were formally charged under Article 361 § 4. 81. On 16 August 2005 similar criminal proceedings were instituted in respect of the fourth applicant. 82. On 12 September 2005 he was formally charged under Article 361 § 4 and made a written undertaking not to leave. 83. On 28 October 2005 the Syunik Regional Court found the third and eighteenth applicants guilty under Article 361 § 4 of the CC and sentenced them to two years’ imprisonment. They were taken into custody. 84. On 8 November 2005 the Shirak Regional Court found the fourth applicant guilty under Article 361 § 4 of the CC and sentenced him to two years and six months’ imprisonment. He was taken into custody. 85. On 10 November 2005 the third applicant lodged an appeal, seeking to be acquitted and released from detention since he was not a serviceman and the act committed by him was not criminally punishable. On unspecified dates the fourth and eighteenth applicants also lodged appeals. 86. On 8 February 2006 the third and fourth applicants filed motions with the Criminal and Military Court of Appeal, arguing that the acts committed by them had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released. 87. On 9 February 2006 the eighteenth applicant filed a motion with the Court of Appeal, arguing that his continued detention was unjustified and seeking to be released. 88. On 28 February 2006 the third and fourth applicants filed similar motions. 89. On the same date the Court of Appeal quashed the third and fourth applicants’ convictions and remitted the cases for further investigation upon the prosecutor’s motions for the same reasons as in the other applicants’ cases. The Court of Appeal stated that their detention was to remain unchanged. 90. On 6 March 2006 the eighteenth applicant filed two more motions with the Court of Appeal, arguing that the act committed by him had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released. 91. On the same date the Court of Appeal quashed the eighteenth applicant’s conviction and similarly remitted the case for further investigation. The Court of Appeal stated that his detention was to remain unchanged. 92. On 8 March 2006 the third and fourth applicants lodged appeals on points of law against the Court of Appeal’s decisions of 28 February 2006 (see paragraph 89 above), seeking to have the proceedings terminated and to be released. 93. On 9 March 2006 the third and fourth applicants filed motions with the General Prosecutor, seeking to be released. 94. On 14 and 15 March 2006 a similar appeal and motion were lodged by the eighteenth applicant. 95. On 7 April 2006 the Court of Cassation dismissed the applicants’ appeals, finding that the Court of Appeal’s decision was well-founded. The Court of Cassation ordered, however, that they be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above). 96. On 17 August 2005 separate sets of criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the tenth and eleventh applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service. 97. On 14 October 2005 the applicants were formally charged under Article 361 § 4 and made written undertakings not to leave. 98. On 3 and 7 March 2006 the Malatia-Sebastia District Court of Yerevan decided to remit the applicants’ cases for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. 99. The applicants’ appeals against these decisions were dismissed by the Criminal and Military Court of Appeal and the Court of Cassation on 13 and 14 April and 26 May and 1 June 2006 respectively. 100. On 22 June 2006 the Gegharkunik Regional Prosecutor decided to terminate the criminal proceedings against the first applicant on the ground that the offence in question was of medium gravity, he had spent about eight months in detention and the act in question had ceased to be dangerous for society. 101. On 12 September 2006 the General Prosecutor decided to quash this decision and to terminate the proceedings for the lack of corpus delicti, with reference to Article 35 § 1 (2) of the CCP. The General Prosecutor found, in particular, that at the material time the CC did not prescribe an offence for the act of unauthorised abandonment of the place of alternative labour service and such an offence was incorporated in the CC only by the amendments introduced on 1 June 2006 (see also paragraphs 112-113 below). The General Prosecutor apologised to the first applicant and informed him that it was open to him to claim compensation pursuant to Article 66 of the CCP. 102. Around the same period, identical decisions were taken in respect of all the other applicants. 103. On various dates in December 2006 and January, February, March and May 2007 the applicants instituted civil proceedings against the Ministry of Finance and Economy, seeking pecuniary and non-pecuniary damages in connection with the criminal proceedings against them, including their detention. The claims for pecuniary damage included alleged transportation and medical costs, expenses related to food parcels and lost earnings. 104. On various dates in March, April, May and July 2007 the Kentron and Nork-Marash District Court of Yerevan examined and dismissed all the applicants’ claims, finding the claims for pecuniary damage to be unsubstantiated. As regards the claims for non-pecuniary damage, these claims were dismissed because Armenian law did not provide such a form of compensation. 105. On various dates in March, April, May, June and July 2007 the applicants lodged appeals. 106. On various dates in June, July, September, October and November 2007 the Civil Court of Appeal decided to dismiss the appeals and to uphold the judgments of the District Court. 107. On various dates in December 2007 and January and February 2008 the applicants lodged appeals on points of law, which were declared inadmissible by the Court of Cassation for lack of merit on 21 January and 11 February 2008. 108. The relevant general and other provisions read as follows: “1. Criminal legislation of Armenia consists of this Code. New laws which envisage criminal liability shall be incorporated into the Criminal Code. ...” “The only ground for criminal liability is the commission of an offence, that is of an act which has all the features of corpus delicti envisaged by criminal law.” “1. Only criminal law determines whether an act is criminal and punishable, as well as its other criminal and legal consequences. 2. The application of criminal law by analogy is prohibited.” “1. Evasion of regular military service, military training or draft, in the absence of lawful grounds for exemption from such service, shall be punishable by a penalty in the amount of three hundred to five hundred times the minimum wage, or by detention for a period not exceeding two months or imprisonment for a period not exceeding two years.” 109. The relevant provisions of Chapter 35 of the CC, entitled “Offences Against the Military Service Rules”, as in force at the material time, read as follows: “5. The subjects of offences against the military service rules envisaged by this Chapter are the persons who serve in the armed forces of Armenia and in other forces of Armenia on the basis of conscription or a contract, as well as, during training sessions, the persons liable for military service.” “1. Unauthorised abandonment of the military unit or the place of service by a serviceman performing military service on the basis of conscription or a contract ... for a period not exceeding one month [or] three or more times within three months, each time for a period from one to three days, shall be punishable by detention for a period not exceeding three months or placement into a disciplinary battalion for a period not exceeding one year. ... 4. The [act] envisaged in [paragraph 1] of this Article, if the unauthorised absence lasted longer than one month, but for the purpose of temporary evasion from military service, shall be punishable by imprisonment for a period not exceeding three years. 5. The [act] envisaged in [paragraph 1] of this Article, if committed by a group of people with prior agreement, shall be punishable by imprisonment from two to five years.” “1. Desertion, that is unauthorised abandonment of the military unit or the place of service for the purpose of definitive evasion from military service, as well as the failure to report for service for the same purpose, shall be punishable by imprisonment for a period not exceeding four years. ...” 110. On 19 May 2005 the Government presented to the National Assembly a draft law, proposing to introduce an amendment in Article 327 of the CC which prescribed a penalty for evading military service, by inserting into the phrase “military service” the words “or alternative”. The Explanatory Note to the draft law stated that the adoption of the Alternative Service Act violated the principle of equality of all before the law because persons evading alternative service remained unpunished in contrast to those who evaded regular military service. 111. This law was adopted by the National Assembly on 16 December 2005 and entered into force on 4 February 2006 (Law HO-34-N). 112. On 30 March 2006 the Government presented another draft law to the National Assembly, proposing to introduce another amendment to Article 327 of the CC by adding a new provision, namely Article 327.1, that would make punishable the act of unauthorised abandonment of the place of service by a person performing alternative labour service. The Explanatory Note to the draft law stated that there were currently up to 29 criminal cases pending before the courts in which charges were brought under Article 361 of the CC. The CC was adopted before the Alternative Service Act and naturally it could not prescribe a penalty for the unauthorised abandonment of the place of service by persons performing alternative labour service. 113. This law was adopted by the National Assembly on 1 June 2006 and entered into force on 1 July 2006 (Law HO-59-N). 114. The relevant provisions of the CCP, as in force at the material time, provide: “1. Criminal proceedings may not be instituted and criminal prosecution may not be carried out, while instituted criminal proceedings must be terminated, if: ... (2) the act lacks corpus delicti; ...” “1. A person shall be considered to be acquitted if criminal prosecution or criminal proceedings against him were terminated on ... the grounds envisaged by[, inter alia, Article 35 § 1(2)] of this Code or if he was acquitted by a court judgment. ... 3. An acquitted person shall be ... entitled to claim full compensation of pecuniary damage caused as a result of unlawful arrest, detention, indictment and conviction, taking into account the possible lost profits. ...” “1. The court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) obstruct the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment.” 115. The relevant provisions of the Civil Code provide: “1. The person whose rights have been violated may claim full compensation for the damage suffered, unless the law or a contract envisages a lower amount of compensation. 2. Damages are the expenses borne or to be borne by the person, whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost earnings which the person would have gained in normal conditions of civil circulation, had his rights not been violated (lost income). ...” “1. Damage caused as a result of unlawful conviction, [unlawful] criminal prosecution, [unlawful] imposition of a preventive measure in the form of detention or a written undertaking not to leave, and [unlawful] imposition of an administrative penalty shall be compensated in full, in a procedure prescribed by law, by the Republic of Armenia, regardless of the fault of the officials of the body of inquiry, the investigating authority, the prosecutor’s office or the courts. ...” 116. The relevant provisions of the Act, with their subsequent amendments which were introduced on 22 November 2004 and entered into force on 9 January 2005, read as follows: “1. Alternative service, within the meaning of this Act, is the service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions. 2. Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty, and the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely], labour service performed outside the armed forces of Armenia. 3. The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive, depreciatory or degrading nature.” “1. An Armenian citizen, whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, may perform alternative service.” “2. Persons performing alternative labour service shall bear liability for violations of the law and crimes, as well as for pecuniary damage caused to the state, on general principles, according to a procedure prescribed by law. Persons performing alternative labour service shall bear equal responsibility for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service, according to a procedure prescribed by law [Note: this paragraph was repealed on 1 July 2006].” | 1 |
train | 001-105104 | ENG | HUN | CHAMBER | 2,011 | CASE OF ZOLTÁN NÉMETH v. HUNGARY | 3 | Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 4. The applicant was born in 1958 and lives in Szigetszentmárton. 5. On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother. 6. The applicant was thereafter not able to see his son due to the mother’s reluctance to hand over the child. 7. The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August. 8. Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions. From this date onwards he was fully denied access to the child by his former wife. 9. The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights. 10. On 16 June and 18 July 2000 the competent Budapest XV District Guardianship Authority heard both parents, warned the mother to allow the applicant to see his son and imposed fines on her. However, these fines were later cancelled. 11. In January 2001 the case was transferred to the Budapest XIII District Guardianship Authority. Since a warning issued in July 2001 was to no avail, it fined the mother 10,000 Hungarian forints (HUF) (approximately 37 euros (EUR)) on 13 August 2001 and a further HUF 30,000 (EUR 110) on 18 October 2001. 12. Furthermore, in December 2001 the Budapest XV District Guardianship Authority discontinued the proceedings, initiated ex officio by the Budapest XIII District Guardianship Authority, to place the child under protection (“védelembe vétel”), finding no reason for it. The child welfare service contacted the parents in an attempt to find a solution to the situation. It prepared an environment study at the mother’s home, establishing that it was ideal for the upbringing of the child, who was in a loving relationship with his mother. However, it emphasised the importance of and need for a balanced contact between the child and his father. 13. As the applicant had had no contact with his child since May 2000, he lodged complaints with various authorities, but to no avail. 14. The Guardianship Authority then contacted a child upbringing counsellor (“nevelési tanácsadó”) who recommended the assistance of a foundation specialised in facilitating visits. It therefore ordered that the regular visits scheduled for the period between 16 February and 11 May 2002 be held at the foundation’s premises. It appears that there was therefore some contact between the applicant and his son in this period. The applicant’s relationship with his son was examined and found to be harmonious. Subsequently, the Guardianship Authority invited both parents to a reconciliatory meeting on 10 June 2002. This, however, proved to be unsuccessful. The father’s environment was also examined, and it was established that the conditions were appropriate to hold the visits there. The authority recommended a gradual extension of the duration of the contact between the father and the child. 15. The Guardianship Authority drew up a new access schedule on 16 August 2002 and warned the parents once again to respect these arrangements. However, the mother continued to deny access to the child. 16. Following the applicant’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights, on 30 March 2004 the Budapest XI District Guardianship Authority again warned the mother and took nine separate decisions concerning the visits not ensured in 2003, imposing a series of fines on her in the total amount of HUF 260,000 (EUR 975). On 23 June 2004 it initiated the child’s placement under protection. Subsequently, on 15 September 2004 the Guardianship Authority imposed a further fine of HUF 100,000 (EUR 375) for the overdue visits from 1999 until 2003. 17. The Guardianship Authority also ordered police assistance twice in 2004. Afterwards, the applicant managed to see his son until the following year. 18. Meanwhile, the applicant initiated an action before the Budapest IV/XIV District Court in February 2002, seeking a change of custody and requesting the temporary placement of the child with him as an interim measure. Since no measures were taken thereafter, he submitted a petition to the ombudsman, asking for his assistance. 19. Eventually, the Budapest Regional Court, acting as a second-instance court, rejected the maintenance of contact with the child via the foundation mentioned in paragraph 14 above, and dismissed the applicant’s action on 23 March 2005. 20. In April 2005 the Ministry of Youth, Family and Social Matters quashed the decisions of the Budapest XI District Guardianship Authority described in paragraph 16 above, thereby withdrawing the fines imposed and the order to initiate the child’s placement under protection, without the possibility to appeal against the decision. The Ministry established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant’s access rights prior to 1 March 2004. It nevertheless ordered the Guardianship Authority to take effective measures to ensure the applicant’s rights by using the range of measures at its disposal and not only through the imposition of fines. The Ministry pointed out, inter alia, that: “... [t]he fact that the administration of minor A.N.’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good, but other measures would be required as well, as it seems that the fines do not lead to any result, the goal being to enable Zoltán Németh to exercise his visiting rights regarding his son. That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father. This should have been done already by the previous guardianship authority. The placement of the child under protection was initiated once by the Budapest XIII District Guardianship Authority, but the proceedings were discontinued by the Budapest XV District Guardianship Authority on the ground that the child’s care may be provided through basic service. The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest. ... Overall, it can be established that the first-instance guardianship authorities were not controlling the situation, revoking the fines imposed on formal grounds. ... The Budapest Guardianship Authority was a “spectator” to the situation, hindered the enforcement proceedings several times; on the basis of the appeal even it could have clarified whether the visits took place, or could have requested the first-instance guardianship authority to hear the parties, once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer. ... The second-instance guardianship authority also omitted [to fulfil its obligations] in that when the father had not received his son for months and the competent guardianship authority did not assist the enforcement, it did not take over the case. It is not an acceptable solution to settle cases that, instead of solving the professional problems, the second-instance guardianship authority repeatedly assigns new acting organ. This practice is unlawful ... It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions between 1999 and 2004 by not effectively promoting the enforcement of the contacts ...” 21. The applicant initiated the review of the Ministry’s decision before the Chief Prosecutor’s Office. On 25 August 2005 this Office established that the decision in question had been unlawful and informed the Ministry about its findings. 22. However, the applicant was not able to exercise his access rights after the Ministry’s decision had been adopted. He initiated several enforcement proceedings, following which a few penalties in the sum of the statutory maximum were imposed on the mother. 23. It appears that the applicant has been unable to have any contact with his son since then. 24. Meanwhile, as it had become impossible for the applicant to meet his child, he lodged a criminal complaint against the mother for endangering a minor, on 10 January 2004. The Pest Central District Court found the mother guilty and imposed a criminal fine on her on 5 September 2007. In its reasoning, the court emphasised that: “[a] child’s moral development can be endangered not only by so-called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development. Thus, by the conduct of the mother, who, having knowledge of the fact – of which the child also had knowledge – that the father was to exercise his access rights at a given date, knowingly violated this right by organising for that date an attractive programme for the child in the countryside, at a location far from the father ... The mother involved the child in her conflict with the father, informed him of the court actions brought against or by him and made disparaging remarks about the father, thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her.” However, it also noted that the applicant: “... [h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission.” 25. No further information was provided by the parties as to the development of the criminal case before the appellate court. 26. The relevant rules concerning the enforcement of contact orders can be found in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows: “(1) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order. (2) If non-compliance with the contact order on the part of the parent ... is a fault of his/her own, the guardianship authority shall warn him/her about the consequences of such conduct. The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct. (3) If the measures provided for under subsection (2) are of no effect and one year has not elapsed from the receipt of the warning, the guardianship authority shall apply the rules governing enforcement of the Act on Public Administration Procedure with the exceptions set forth in this Decree. ... (5) If the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or there are disturbances in the communication between the parents [in force since 15 February 2003], the guardianship authority may initiate the involvement of the child welfare service’s contact centre, the ordering of taking the child into protection, or the institution of the child protection mediation procedure. (6) If it is proved that the parent ... brings up the child by continuously turning him/her against the person entitled to contact, and despite enforcement measures fails to comply with the contact order, an action to change custody may be brought before the court.” 27. Moreover, section 72 of Act no. 31 of 1997 on the Protection of Children and Child Welfare Administration provides for the possibility temporarily to place the child with the other parent living apart, if the child’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary. Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child. 28. Other measures at the authorities’ disposal are listed in the Act on Public Administration Procedure, providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines. | 1 |
train | 001-75627 | ENG | HRV | CHAMBER | 2,006 | CASE OF OMEROVIC v. CROATIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1945 and lives in Gračanica, Bosnia and Herzegovina. 5. On 18 September 2000 the applicant sought enforcement of a judgment awarding him compensation following an employment dispute with the company G. (“the debtor”). He applied for enforcement on the debtor’s bank account and on its movable property. 6. On 6 February 2001 the Slatina Municipal Court (Općinski sud u Slatini) issued en enforcement order, which became final on 21 February 2001. 7. On 24 October 2001 the court made a list of the debtor’s movable property in the applicant’s absence and scheduled a public auction for 25 January 2002. The auction was unsuccessful. 8. Another public auction was held on 16 April 2002, which was again unsuccessful, as no bids were made. 9. On 12 August 2002 the court made a new list of the debtor’s movables on which the applicant, who had been duly summoned, did not appear. 10. On 28 October 2003 the applicant requested an injunction prohibiting the debtor to transfer or encumber shares it held in other companies. 11. On 19 November 2003 the court held yet another unsuccessful public auction. 12. On 6 July 2004 the applicant requested the court to order that the debtor should disclose its assets (prokazni popis imovine). 13. On 23 July 2004 the debtor paid the applicant the principal amount of his claim, stating that it would satisfy the remainder of the claim within eight days. 14. On 17 August 2004 the applicant informed the court that the claim had not been settled in full. The court forwarded the applicant’s submission to the debtor, for observations. 15. On 27 September 2004 and 19 January 2005 the court imposed fines on the debtor, for failure to comply with its orders. 16. On the latter date the court also denied the applicant’s motion for the disclosure of the debtor’s assets. At the same time, the court also dismissed the applicant’s motion for injunction prohibiting the transfer of the debtor’s shares. Instead it instructed the applicant to provide a detailed list and addresses of companies in which the debtor held such shares. On 25 January 2005 the applicant submitted the requested information. 17. The proceedings are still pending. 18. Meanwhile, on 10 June 2002 the applicant filed a constitutional complaint concerning the length of the proceedings. 19. On 2 October 2002 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his complaint inadmissible finding that the enforcement order had already been issued. 20. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.” 21. Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows: “The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time. In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party’s rights and obligations had already been decided. Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63: “Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” 22. In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a complainant’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court’s case-law on the matter. | 1 |
train | 001-97356 | ENG | UKR | CHAMBER | 2,010 | CASE OF NIKIFORENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Violation of P4-2 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. The applicant was born in 1945 and lives in Chervonopartizansk. 5. On 11 November 1997 the applicant broke into the apartment of Ms M. and took a bicycle which had belonged to her ex-husband, who had died three days earlier. 6. On receiving a complaint from Ms M., on 18 November 1997 the Sverdlovskiy District Prosecutor’s Office (“the SDPO”) instituted criminal proceedings against the applicant for burglary and theft. 7. In November and December 1997 the investigation was suspended several times because of the applicant’s illness. 8. On 5 January 1998 the applicant was charged with burglary and theft. The same day she was placed under an obligation not to abscond. 9. In January, April, May and August 1998 the investigation was suspended several times because of the applicant’s illness. 10. In November 1998 the investigation was completed and the criminal case against the applicant was referred to the Sverdlovskiy Local Court, Lugansk Region (“the Sverdlovskiy Court”). 11. On 25 December 1998 the Sverdlovskiy Court remitted the case for additional investigation. 12. On 20 September 1999 the SDPO reclassified the applicant’s actions and charged her with burglary and robbery. 13. On 3 November 1999 the SDPO completed the additional investigation and referred the case to the court. 14. On 2 December 2000 the Sverdlovskiy Court convicted the applicant, but on 28 March 2000 the Lugansk Regional Court quashed the judgment and remitted the case for fresh investigation. 15. On 15 June 2000 the SDPO reclassified the applicant’s actions from robbery to forcible assertion of right. 16. On 12 July 2000 the applicant was charged with robbery. 17. On 5 August 2000 the charges against the applicant were changed back to forcible assertion of right. The SDPO terminated the criminal case against the applicant because further prosecution was time-barred. 18. On 20 September 2000 the Lugansk Regional Prosecutor’s Office (“the LRPO”) quashed the decision of 5 August 2000 and took over the investigation into the case. 19. On 21 December 2000 the investigation was completed and on 29 December 2000 the criminal case was transferred to the court. 20. On 26 March 2002 the court remitted the case for further investigation. 21. On 10 November 2003 the investigator changed the charges against the applicant to concealment of a crime. 22. In May 2004 the investigation was completed and the case was referred to the court. 23. On 17 June 2004 the court remitted the case for further investigation. 24. On 17 August 2004 the Lugansk Regional Court of Appeal upheld the decision of 17 June 2004. 25. In October 2004 the charges against the applicant were changed to forcible assertion of right. The investigation was completed and the case was referred to the court. 26. In November-December 2004 the court held three hearings. 27. On 28 December 2004, 26 January and 16 February 2005 the hearings were adjourned because of the applicant’s absence. 28. In 2004 Ms M., the aggrieved party, died. 29. On 11 April 2005 the Rovensky Local Court closed the criminal case against the applicant as time-barred for further prosecution. On 17 June 2005 the Lugansk Court of Appeal quashed this decision and remitted the case for fresh consideration. 30. Between September and November 2005 court hearings were postponed four times due to the applicant’s failure to appear. 31. On 27 December 2005 the court remitted the case for further investigation. 32. On 30 June 2006 the investigation was completed and the case was referred to the court. 33. Between July and November 2006 court hearings were postponed four times due to the applicant’s failure to appear. 34. On 14 May 2007 the case was remitted for further investigation. 35. On 12 July 2007 the investigation was completed and the case was referred to the court. 36. On 6 September 2007, 4 June 2008 and 12 February 2009 the court remitted the case for further investigation. 37. On 22 October 2008 the investigator cancelled the applicant’s obligation not to abscond. During the period when the applicant had been under the obligation not to abscond she had been allowed several times to go abroad to visit her relatives and on several occasions she had done so without permission. On one occasion, the applicant had not been permitted to leave her place of residence. 38. On 21 March 2009 the prosecutor terminated the criminal proceedings against the applicant for lack of proof of crime. 39.The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960, which are the general rules on preventive measures, is set out in Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004). 40. According to Article 151 of the Code, an undertaking not to abscond consists of an obligation by a suspect or an accused not to leave his or her place of residence or temporary address without the permission of an investigator. In the event of a breach of such a written undertaking, a stricter measure of restraint may be applied. | 1 |
train | 001-117135 | ENG | DEU | CHAMBER | 2,013 | CASE OF B.B. AND F.B. v. GERMANY | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens | 5. The applicants, who were originally of Turkish origins, were born in 1966 and 1976 respectively and live in Duisburg. 6. On 23 May 2008 the Municipal Authority of Krefeld lodged a request with the Krefeld Family Court to withdraw the applicants’ parental rights over their two children, a daughter (born in 1996) and a son (born in 2000). According to information provided by the girl’s headmistress, their father systematically beat both children if they did not achieve good school grades. The school had already received information during the previous semester that the girl had been beaten. As the girl’s parents appeared to be well adjusted and overly polite, the school did not react immediately, but decided to observe the child more closely. It was thus observed that the children’s family closely supervised the girl via her mobile phone. Furthermore, the father had taken the girl out of biology class because the curriculum provided for sexual education. The girl was not allowed to leave on a school trip and was reported sick instead. 7. When a teacher caught the girl in the act of manipulating the marks of a school exam, she opened up to her teacher. The girl further reported that her brother was under even more pressure to achieve good grades and was punished “draconically” if he did not comply. The headmistress contacted the Society for the Protection of Children in Krefeld, which had informed the Youth Office. 8. By interim order of 23 May 2008 the Krefeld District Court, in its capacity as a family court, and referring to the reasons submitted in the Municipal Authority’s request, temporarily withdrew the applicants’ parental rights over their two children and transferred them to the Youth Office. 9. On 28 May 2008, the Youth Office fetched the two children from their respective schools and brought them to a children’s home. On that same day, the Youth Office informed the second applicant by telephone and in person about the reasons for the placement. The children’s whereabouts were not disclosed to the applicants. The second applicant insisted that they had never beaten the children. 10. On 2 June 2008 the applicants, in the main proceedings, represented by counsel, submitted to the District Court that it was true that they considered it important that their children performed well at school. However, they had never been violent towards the children. They further submitted two medical attestations by their family physician Dr D. dated 29 May 2008, certifying that she had seen both children regularly in her medical practice. Both children had made a balanced, stable and cheerful impression. There was no indication that they had suffered from any violent acts. The physician further noted that she had further examined the boy by sonograph. There were no indications of any use of force against the boy, there had been neither hematoma, nor injuries nor bruises. The applicants further submitted medical attestations to demonstrate that the girl had indeed been ill at the dates she had not attended the school trip. They further submitted a number of school reports in order to demonstrate that the children had good grades, showed adequate social behaviour and had rarely been absent from school. They finally submitted that the children regularly attended sports classes. The applicants suggested that there was the possibility that the girl had made the whole story up when she was caught in the act of manipulating school grades. 11. On 8 July 2008, during a first hearing before the District Court, the parties agreed that the court should hear the children in person. 12. On 16 July 2008, the District Court judge heard the two children in the absence of the other parties to the proceedings. According to the court minutes, both children were heard separately. The girl stated that the applicants exerted considerable pressure on her to achieve good school grades. As soon as she did not deliver the requested results, her father beat her both with his hands and with objects. In the previous years, her father had beaten her on the soles of her feet with an iron rod. Following this, she had to put her feet into cold water in order to avoid marks. At one occasion, her mother had whipped her legs. She further submitted that she was feeling at ease in the children’s home and that she did not want to return home for fear of further violence. 13. The boy stated that, since entering school, he had been permanently beaten if he did not achieve the best school grades. His father had also used objects like an iron rod. He did not want to return home as long as his father remained violent. 14. On 22 July 2008, the applicants wrote a letter to the District Court in which they denied having ever beaten the children. They submitted that their daughter was lying and that she manipulated her brother. Doctors who could confirm that they had never detected any sign of physical abuse had regularly examined both children. They had regularly attended school and sports classes without the teachers detecting any sign of abuse. The applicants further referred to a staff member of the municipality’s psychological service who had repeatedly examined the boy without detecting any physical abuse. 15. On 4 August 2008, the Krefeld District Court, in the main proceedings, withdrew the applicants’ parental authority over their two children and transferred it to the Youth Office. Based on its own examination, in particular the hearing of the two children, the court was convinced that the applicants had repeatedly acted violently towards their children. Following the children’s entry into school, the parents had exerted considerable pressure that culminated in corporal punishment if the children did not achieve the expected school results. Both children had inter alia been beaten on the soles of their feet with an iron rod. 16. As the court was convinced that the children’s statements reflected the truth, it did not deem it necessary to obtain expert opinion on their credibility. Both children had confirmed their statements in their mother’s presence before the Youth Office. It could be excluded that the boy had been influenced by his older sister, as the Youth Office employees had paid express attention that the children were not in a position to discuss the events before the boy had also been interrogated. Even taking into account that the girl might be endowed with a vivid imagination, the court ruled out that the girl could have falsely accused her parents over such a long period of time. Her statements were rather characterised by a tendency to exculpate her parents. 17. Having regard to these facts, the court considered that the applicants were currently incapable of raising their children and that it would seriously jeopardise the children’s welfare to return them to the applicants’ household. 18. On 17 September 2008, the applicants, represented by counsel, lodged an appeal. On 8 October 2008, the applicants submitted that the impugned decision was based on incorrect facts. In particular, the children had never been interrogated in their mother’s presence. Furthermore, the District Court had failed sufficiently to examine the relevant facts before taking the decision on the definite withdrawal of parental rights. In the present case, it was indispensable to hear expert opinion on the children’s credibility. 19. At no point in time had there been any objective facts such as bruises, injuries, frequent absences from school etc., which might indicate physical abuse. Any medical practitioner could confirm that even the submersion in cold water could not prevent the appearance of bruises if the children had indeed been beaten with an iron rod. Furthermore, such treatment would entail reduced mobility, feelings of numbness and pain. No such symptoms had ever been observed on the children. 20. As the parents vehemently denied having ever beaten their children, there was no objective indication for the alleged abuse other than the children’s own statements. Before taking such a drastic decision as the withdrawal of parental authority, the applicants thus deemed it necessary to assess the children’s credibility by hearing expert opinion. 21. On 6 November 2008, the Düsseldorf Court of Appeal rejected the applicants’ appeal. The Court of Appeal considered that the District Court, having heard the applicants and the children in person, had put forward relevant reasons justifying the withdrawal of parental authority under section 1666 of the Civil Code (see relevant domestic law, below). 22. The Court of Appeal confirmed the District Court’s assessment of the evidence. It did not consider it decisive that the District Court had assumed that the statements had also been made in the mother’s presence. 23. There were no indications that the children, in particular the girl, would wrongly accuse the applicants. This followed from the reasons relied upon by the District Court and in particular from the fact that the children, who were fully aware of the consequences of their allegations, repeated these allegations over a longer period of time in a self-consistent way. Under these circumstances, it could be ruled out that the children had invented and maintained their allegations merely because they had been afraid of the teacher’s reaction to the girl’s attempts to manipulate her school marks. 24. According to the Court of Appeal, the District Court had not been obliged further to examine the facts. It was, in particular, irrelevant whether the attending medical practitioners had detected any injuries in the course of regular consultations, as the abusive acts need not have provoked any visible signs, furthermore as such signs could have been overlooked or could have occurred at times when no medical consultation was imminent. 25. Neither was the District Court obliged to hear expert opinion on the children’s trustworthiness. According to the Federal Court of Justice’s case law, it was up to the courts to assess witness evidence and to establish the trustworthiness of witnesses. Expert opinion was only necessary if there were concrete indications that could call into question the reliability of a witness statement and if specific expert knowledge was necessary to establish these factors and their impact on the witness statement’s content. Such a concrete indication could not be derived from the mere fact that the witness was a child or juvenile. In the absence of any concrete circumstances to the contrary, both the District Court and the Court of Appeal were in a position to assess the credibility of the statements made by the children before the District Court without having recourse to expert help. 26. On 3 March 2009, the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication without giving further reasons. 27. On 17 March 2009, the applicants lodged a request with the District Court to be granted contact rights with the children. During a hearing before that court on 7 July 2009, a first meeting between the parents, the children and the Youth Office was arranged for 16 July 2009. 28. During the meeting on 16 July 2009, the daughter confessed that she had lied and that the allegations she had made the previous year had not been true. The son confirmed this. The daughter further submitted one letter to her parents and one to the District Court, in which she confessed to having lied and in which she expressed her wish to return to her family. 29. On 28 August 2009, both children confirmed before the District Court Judge that their parents had never beaten them. The parties agreed to extend contacts between the applicants and their children with a view to return the children to the parental household. 30. On 9 October 2009, the children returned to the applicants’ household. On 13 April 2010, the District Court lifted its decision of 4 August 2008 and restored the applicants’ parental authority. 31. Section 1666 of the Civil Code provides that in cases of a danger to the child’s welfare the court shall order the necessary measures. Pursuant to section 1666a § 1 measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. The complete care for the child (gesamte Personensorge) may only be withdrawn if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger (section 1666a § 2). 32. Under section 26 of the Rules of Procedure on Family Affairs, the family courts are obliged to carry out on their own motion all investigations necessary to establish the relevant facts. | 1 |
train | 001-90345 | ENG | UKR | CHAMBER | 2,008 | CASE OF UKHAN v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | 5. The applicant was born in 1961 and lives in Nekhvoroshch, in the Cherkasy Region. 6. By decision of the Gorodyshche District Court of 21 May 1997, upheld on appeal by the Cherkasy Regional Court on 12 August 1997, the applicant was convicted of inflicting grievous bodily harm and sentenced to ten years’ imprisonment. 7. Between 18 August 1997 and 3 December 2002 the applicant was detained in Vinnytsia penitentiary no. 86. 8. According to the applicant, the sanitary conditions in this prison were poor in that dishes used by inmates were not properly washed after use, thus entailing an increased risk for detainees of contracting tuberculosis. Furthermore, the detainees were woken up very early and assembled for morning exercises in the prison yard without due regard being had to weather conditions. 9. In December 2002 the applicant was moved to penitentiary no. 113, with a less strict regime, where detainees could enjoy relative freedom of movement. In that penitentiary, according to the applicant, the food and the living conditions were inadequate and the detainees were used as a source of cheap labour for the administration’s benefit. 10. In neither of the penitentiaries, allegedly, did the applicant receive adequate medical treatment for unspecified medical conditions. 11. According to the Government, the conditions of the applicant’s detention in these penitentiaries, including the quality of medical care, were adequate. 12. In June 2003 the applicant was released on probation and returned to his home in Nekhvoroshch. 13. On 28 October 2003 the applicant was arrested on suspicion of hooliganism and theft and detained in the Korsun-Shevchenkivsky town police station. 14. On 31 October 2003 the Korsun-Shevchenkivsky District Court remanded the applicant in custody. 15. On the same date the applicant requested the Korsun-Shevchenkivsky Prosecutor’s Office to institute criminal proceedings against several police officers, who had allegedly inflicted bodily injuries on him in order to force him to confess. 16. On 11 November 2003 the applicant underwent a medical examination and was found to be fit for detention, although he had a fractured rib. According to the applicant, he also suffered other injuries at the hands of the police, including a major head injury, which was not recorded. He did not, however, lodge any complaints concerning the adequacy of the medical examination at the relevant time. 17. On 30 January 2004 the prosecutor’s office refused to institute criminal proceedings to investigate the applicant’s ill-treatment complaint, having found it groundless. It referred to the findings of the medical commission that the applicant had been fit for detention and to the testimonies of the investigator and police officers who had participated in his arrest. All officers denied the applicant’s allegations concerning ill-treatment. The four police officers who had taken part in the arrest operation, however, admitted that they could have inflicted minor injuries on the applicant when arresting him. In their opinion the application of force had, however, been proportionate, since the applicant, who had gone into hiding after his disorderly conduct on 25 October 2003, had vigorously resisted his arrest and threatened the officers with a loaded rifle. The applicant did not appeal against that decision in court. 18. On 20 December 2004 the Korsun-Shevchenkivsky District Court convicted the applicant of hooliganism, acquitted him of theft, and sentenced him to six and a half years’ imprisonment. The court found, in particular, that on 25 October 2003 the applicant had killed two dogs, belonging to his neighbour, with an unregistered rifle, had sworn at and beaten two ladies and had fired the rifle in the direction of police officers. 19. The applicant appealed, alleging, in particular, that the police officers had beaten him, to force him to confess to the above offences. 20. On 29 March 2005 the Cherkasy Regional Court of Appeal dismissed the applicant’s appeal. It refused to consider his ill-treatment argument, referring to the decision of the prosecutor’s office of 30 January 2004 not to institute criminal proceedings and to the fact that the applicant had failed to appeal against it through the applicable appeal procedure. 21. On 4 October 2005 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. 22. Between November 2003 and May 2005 the applicant was detained in the Cherkasy Regional Investigative Isolation Unit SIZO no. 30. 23. According to the applicant, during that period he started suffering from severe headaches and pain in the left eye as a result of his purported head injury. Gradually he began losing mobility in his left side. In addition, the applicant suffered aggravation of his chronic bronchitis and digestive tract conditions. The administration of the Cherkasy SIZO did not provide him with prompt and adequate medical examination and treatment, purportedly to conceal the fact that a number of his health problems resulted from his having been ill-treated in police custody. 24. According to the Government, the applicant was examined by medical professionals on a number of occasions. Although they have not provided a comprehensive medical file recording all those consultations, the case-file contains a number of handwritten medical notes which, in so far as they are legible, prove that the applicant was frequently attended by doctors. 25. The first records of such medical care relate to the applicant’s examination in the Korsun-Shevchenkivsky district hospital on 18 December 2003, during which it was established that he suffered from haemorrhoids, chronic bronchitis and a fractured rib. The next records relate to 6 and 27 April 2004, when the applicant was examined in the Korsun-Shevchenkivsky district hospital for chronic bronchitis and unspecified “neurological symptoms”. At this point in time the complaint concerning neurological symptoms was considered unfounded. No details concerning treatment recommendations have been provided. 26. On 21 May 2004 the applicant was seen by a SIZO doctor on account of headaches, dizziness and an irregular heartbeat. He was diagnosed as suffering from the after-effects of a head injury sustained in 2003, in particular, hypertension and neurasthenia, and prescribed nootropic and anti-hypertensive medication (dibazolum and cerebrolisin). There is no indication as to the duration of the prescribed treatment or whether the applicant actually received it. 27. Subsequently the applicant was seen by the SIZO medical staff on a number of occasions, in particular on 27 and 28 May 2004 (complaints about headache, dizziness, noise in the ears and aggravation of chronic bronchitis); 21 and 30 June 2004 (same symptoms); 4 August 2004 (a knee injury); 21 September 2004 (headache, dizziness and chills); 12 and 13 October and 3 November 2004 (stomach-ache, bronchitis, headache); 13, 17 and 28 December 2004 (leg pain, headache, bronchitis); 11 and 14 January 2005 (headache); 18 January 2005 (headache and itching); 21 January 2005 (insomnia, headache); 3, 9 and 13 February 2005 (dizziness, insomnia, headache); 18, 25 and 27 February and 3, 7, 9 and 18 March 2005 (headache, dizziness, insomnia and itching). 28. In the course of the above visits the applicant was primarily recommended to take painkillers (analgin, tempalgin) and other conservative medication, including sedatives (valeriana and dimedrol), mild bronchial and cough medicine (aminophylline, bromgecsine and mucaltine); stomach medicine (platifillin); brain stimulators (fezam, cerebrolisin, piracetam) and over-the-counter anti-allergy medication (diasolin). 29. On 8 July 2004 the applicant was additionally consulted by a neurologist in the hospital of another (Bucha) penitentiary, who found that he was suffering from cerebral dystonia, chronic vascular insufficiency, neck osteochondrosis, chronic rhinitis and partial loss of sight in the left eye. The neurologist recorded that the applicant’s ailments were associated with his head injury sustained in 2003. 30. On 21 July 2004 the applicant underwent a head scan, which revealed no skull injuries at the time of the test. 31. On 15 December 2004 and 30 March 2005 the applicant consulted a neurologist and an eye doctor, who concluded that he suffered from partial atrophy of the left eye nerve of traumatic origin, an astheno-neurotic syndrome and insomnia. According to the available materials, he received full treatment for these ailments, without any details as to the nature and duration of this treatment being recorded. 32. Between 5 April and 3 May 2005 the applicant was treated as an in-patient in the Bucha penitentiary hospital for the after-effects of the head injury, with moderate left-side hemiparesis, asthenia, “mnestic personality impairment” (мнестичне зниження особистості), chronic bronchitis and chronic gastro-duodenitis. The case-file contains no details concerning the nature of the treatment. 33. On an unspecified date the applicant complained to the Cherkasy prosecutor’s office that the medical treatment he was receiving was insufficient, regard being had to the seriousness of his medical conditions. On 8 April 2005 the prosecutor’s office informed the applicant that it did not find any grounds to pursue his complaint. 34. On 26 April 2005 the applicant was examined by a disability commission in Bucha penitentiary and recognised as falling into the “third category” (the mildest category) of invalidity (третя група інвалідності) for one-year period on account of secondary neuritis of the left eye nerve, moderate left-side hemiparesis without movement disorders, cerebral asthenia, mnestic personality impairment, chronic bronchitis and chronic gastro-duodenitis. He was found unfit for work in the cold, activities involving high noise levels or lifting heavy objects. 35. On 11 May 2005 the applicant was transferred to Stryzhavska penitentiary no. 81 in the Vinnytsya Region. 36. In the applicant’s opinion, the conditions of detention there were unsatisfactory in that the prison authorities failed to ensure his adequate medical supervision and treatment and to provide him with facilities to attend to his progressively deteriorating mobility. In particular, the applicant was no longer able to walk to the cafeteria without assistance, and even being supported by other inmates caused him unbearable pain. Moreover, on many occasions the administration did not let the inmates assist the applicant, maintaining that he was pretending to be in pain, and he was left in his cell without food for days. 37. According to the Government and as confirmed by the handwritten medical notes in so far as they are legible, the applicant was seen by medical professionals and treated as an in-patient on a number of occasions. 38. Between 1 and 22 June and 25 June and 15 July 2005 the applicant was treated in the penitentiary hospital. His diagnosis included posttraumatic osteochondrosis, chronic obstructive bronchitis, gastro-duodenitis, hyper-metropy of the left eye and chronic haemorrhoids. The prescribed treatment consisted primarily of conservative medication such as sedatives (dimedrol) painkillers (analgin, citramon), brain-stimulators (cinarisin, piracetam), vitamins (nicotine acid), metabolism stimulators (inosine, asparcam), other stomach medicines (almagel and vikalin) and spasmolytics (no-spa, papaverin). There is no information as to the doses and duration of the medication prescribed or whether the applicant actually received the treatment. Upon his releases from the hospital, the applicant was recommended further therapeutic supervision, an unspecified diet and prophylactic in-patient treatment twice a year. 39. On 13 June 2005 the applicant was additionally examined by a neurology professor, who concluded that the “vague limitations of mobility in the applicant’s left limbs” did not meet the criteria for organic hemiparesis of traumatic of vascular origin, as indicated in the applicant’s invalidity report. It appears that apart from this finding the professor made no further comments concerning the nature of the applicant’s ailments or recommendations as to his subsequent supervision and treatment. 40. On 3 August 2005 the applicant refused to walk to the cafeteria for lunch, referring to unbearable pain in the spinal cord, and demanded that his lunch be brought to his cell or that he be carried to the cafeteria on a chair. Eventually, on the instructions of the administration, two other inmates dragged the applicant to the cafeteria by his hands. On the same day the applicant saw the governor of the penitentiary about his walking problem, and was referred to the penitentiary doctor. 41. On 4 August 2005 the doctor concluded, referring in particular to the report by the neurology professor, that the applicant was exaggerating the gravity of his state, which was stable, and that he was able to move on his own with the help of a stick or a crutch. 42. On 11 August 2005 the penitentiary administration concluded that the applicant’s refusal to walk to the cafeteria was prompted by his low moral fibre and the desire to receive undeserved privileges. Accordingly, on 19 August 2005 the applicant was reprimanded for his conduct by way of a disciplinary sanction. 43. On 31 August 2005 the applicant demanded his urgent hospitalisation on account of severe pain in the spinal cord and the general aggravation of his state of health. According to the applicant, between 25 August 2005 and 13 September 2005 he was on hunger-strike to protest against his situation and was force-fed twice a day during that period. Between 1 and 13 September 2005 the applicant was placed in a disciplinary cell which, according to him, had none of the necessary facilities, including furniture. 44. According to the Government, the applicant was held in the disciplinary cell during the period in question as punishment for offending an inmate’s dignity. However, he did not refuse food, or at least did not inform the administration about his hunger-strike and was therefore not force-fed. The conditions in which the applicant was kept in the disciplinary cell were not incompatible with human dignity. 45. Between 14 September and 21 October 2005 the applicant was treated as an in-patient in the penitentiary hospital for the same conditions and under the same conservative treatment scheme as in June and July 2005, and was subsequently transferred to penitentiary no. 6. 46. Between 8 November and 18 December 2005 the applicant was placed in the Dnipropetrovsk penitentiary hospital suffering from organic injury of the central nervous system of complex origin (traumatic and vascular), left-side hemiparesis and psycho-organic syndrome. The treatment prescribed to the applicant during this period included glucose, aminophylline, inosine, piracetam, cinnarisin and the Pavlov mixture (a sedative). The applicant’s further supervision was recommended. 47. On several occasions the applicant complained to various authorities, including the prosecutor’s office and the ombudsman, that his treatment in penitentiary hospitals was far from sufficient. Inter alia, the medical personnel refused to examine and even record a number of his complaints, in particular about severe abdominal pain, heartache and pain in the right arm. Furthermore, he had an opportunity to go to toilet only three times a day at a designated hour, which was unbearable in his condition. Moreover, the patients were held in anti-sanitary conditions; the hospital premises smelled foul, disposable syringes were used several times, the supply of drugs was short and outdated drugs were sometimes administered. Medical personnel rarely checked on the patients, including those who were seriously ill, and administered medication irregularly. As a result, each day somebody died. On several occasions the applicant received responses from the authorities advising him that, as far as they could determine, his condition was satisfactory and did not call for any intervention on their part. 48. On 9 December 2005 the applicant was examined by a disability commission, which placed him in the second (more advanced) category of invalidity. In the same month the applicant was transferred to Sofiyivska penitentiary no. 45, designed for inmates with disabilities. 49. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine, (no. 75520/01, §§ 39-42, 6 December 2007). 50. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: 35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.” 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” | 1 |
train | 001-77385 | ENG | AZE | ADMISSIBILITY | 2,006 | KERIMOV v. AZERBAIJAN | 3 | Inadmissible | Christos Rozakis | The applicant, Mr Eyyub Zakir oglu Kerimov (Eyyub Zakir oğlu Kərimov), is an Azerbaijani national who was born in 1958 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 July 2001 an article called “The Nasimi District Deputy Prosecutor – A KGB Agent” was published in a local newspaper Femida, of which the applicant was the chief editor. The article depicted the prosecutor, T.K., as an incompetent and unprofessional prosecutor who was able to hold high-ranking posts in the prosecution authorities only due to his good personal contacts with top-level officials. The article stated, inter alia, that T.K. “had no idea of the working methods of the prosecutor’s office, and his work was limited to wandering around corridors”. On 5 September 2001 T.K. filed a lawsuit against the newspaper, claiming that the article was defamatory and damaging his reputation. He asked the court to close the newspaper, order it to pay compensation and institute criminal proceedings against the persons responsible for the article’s publication. The newspaper, represented by the applicant, filed a counterclaim, contending that T.K., by filing an allegedly abusive and frivolous lawsuit against the newspaper, damaged the newspaper’s professional reputation. On 1 October 2001 the Yasamal District Court partially upheld T.K.’s claim and dismissed the newspaper’s counterclaim. The court held that the article contained defamatory material and that the newspaper had been unable to prove its truthfulness. It ordered the newspaper to pay compensation to T.K. and to “terminate the publication and distribution” of the newspaper in accordance with the Law On Mass Media. The applicant, on behalf of the newspaper, filed an appeal. He claimed that the termination of the newspaper’s publication in fact amounted to a liquidation of the newspaper as a legal entity. He further claimed that such closure of the newspaper was unlawful, because the court could not order a liquidation of a legal entity based on a defamation complaint made by an individual. Instead, in accordance with Article 59.3 of the Civil Code, the court could order such liquidation only upon an application by the relevant government or local authority. By a judgment of 6 December 2001, the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment as lawful. At this point, in accordance with the domestic civil procedure law, the judgment entered into legal force and the enforcement proceedings were instituted. On 26 December 2001 the Head of the Yasamal District Bailiff’s Office (Yasamal Rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları Şöbəsi) sent a letter to the applicant, requesting the newspaper to comply with the judgment voluntarily within a five-day period. It appears that the newspaper’s management complied with this request in a timely manner. Accordingly, the production and distribution of the newspaper was terminated and the moral compensation was paid to T.K. by the end of 2001. On 8 May 2002 the applicant, on behalf of the newspaper’s editorial board, filed a cassation appeal with the Supreme Court. He claimed that the Court of Appeal had committed the same errors of fact and law as the district court. On 31 July 2002 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment. According to the Government, although the production and distribution of the Femida newspaper had been terminated, the newspaper’s editorial staff continued their activities through Femida’s legal successor, a newspaper called Femida 007. The applicant noted that Femida 007 was simply an addendum to the newspaper and not its legal successor. “233.1. A [first-instance] judgment enters into legal force after one month from the date of its delivery, unless an appeal has been filed against it [with the appellate court]. 233.2. A judgment, which [has been appealed but] has not been quashed on appeal, enters into legal force upon the delivery of the appellate court’s judgment [upholding the first-instance judgment]. ... “A judgment is subject to execution after its entry into legal force ...” “A judgment of the appellate-instance court enters into legal force from the moment of its delivery.” “413.0. Upon a petition by a party to the case, the cassation-instance court may suspend, until the end of the cassation proceedings, the execution of the appellate court’s judgment and the related judgment of the first-instance court ...” | 0 |
train | 001-77848 | ENG | POL | CHAMBER | 2,006 | CASE OF HASS v. POLAND | 4 | Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1976 and lives in Toruń, Poland. 5. On 15 November 2001 the applicant was arrested on suspicion of having committed several car thefts. 6. On 17 November 2001 the Toruń District Court (Sąd Rejonowy) remanded the applicant in custody until 15 February 2002. The court considered that his detention was justified by the existence of substantial evidence against him and the gravity of the charges. It also noted that the applicant had attempted to induce one of the witnesses to change her testimony. 7. On 11 February 2002 the court prolonged the applicant’s detention until 15 May 2002. It repeated the reasons previously given and added that the need to obtain additional evidence justified keeping the applicant in custody. 8. The applicant’s detention was subsequently prolonged several times by the District Court and the Gdańsk Court of Appeal (Sąd Apelacyjny) until 30 March 2003. 9. His appeal against the prolongation of his detention was dismissed by the Court of Appeal on 15 January 2003. 10. On 14 March 2003 the applicant and 22 other persons were indicted on charges of being members of an organised criminal group and having committed numerous car thefts. 11. Subsequently, the applicant’s detention was extended several times by the Toruń District Court and the Gdańsk Court of Appeal, for the same reasons as before. 12. On 18 November 2003 the District Court refused the applicant’s application for release. 13. On 3 February 2004 the Court of Appeal granted the District Court’s request to prolong the applicant’s detention until 15 May 2004. The court considered that the case was very complex and that it was necessary to examine voluminous evidence. It also found that the detention was justified by the existence of strong evidence against the applicant and the gravity of the charges. There was also the possibility that the applicant would attempt to tamper with evidence. His appeal against that decision was dismissed on 16 March 2004. 14. On 11 May and 12 July 2004 the Court of Appeal again granted the District Court’s requests and ordered that the applicant be detained until 30 September 2004. It dismissed the applicant’s appeals against those decisions. 15. On 18 August 2004 the District Court released the applicant under police supervision; it also prohibited him from leaving the country. The court considered that the applicant suffered from a personality disorder and depression and that his isolation from the outside world constituted a danger to his life and health. The court based its view on a report by two expert psychiatrists. 16. The proceedings are still pending. 17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 18. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 19. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 20. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 21. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 22. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” | 1 |
train | 001-73012 | ENG | MDA | CHAMBER | 2,006 | CASE OF CORSACOV v. MOLDOVA | 3 | Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant was born in 1981 and lives in Cărpineni, Moldova. 9. On 9 July 1998 the applicant, who was seventeen years old, was arrested on charges of theft. On the way to the police car he made an attempt to throw away a pocket-knife. After being alerted by a passer-by, the police officers A. Tulbu and V. Dubceac threw the applicant to the ground. According to the applicant, they also punched him in the face and handcuffed him. They also allegedly assaulted him all the way to the police station. 10. At the police station the police officers allegedly continued beating the applicant during questioning. They kicked him, punched him and beat him with batons all over his body and on the soles of his feet in order to obtain a confession. During the beatings he was handcuffed. He was also allegedly suspended on a metal bar for a long period of time. The Government deny these allegations. 11. On 10 July 1998 the applicant claims to have been taken by the arresting police officers to a forest for the reconstruction of the crime. He was allegedly beaten up on the way to the forest. In the forest, one of the officers allegedly put a gun to the applicant’s head and threatened to shoot him if he did not confess. He was released from detention in the evening. It appears from the documents submitted by the parties that the applicant confessed to having committed the theft. However, later the criminal proceedings against him were discontinued on grounds of lack of “constitutive elements” of an offence. 12. According to the Government, the applicant could not have been threatened with a gun by the police officers because they did not accompany him to the woods. He was taken to the woods for investigation purposes, but not for a reconstruction of the crime. 13. On 11 July 1998, the applicant’s state of health worsened and his mother took him to a doctor who established that he had suffered a head trauma and cerebral post-concussion syndrome. 14. On 13 July 1998 a forensic doctor examined the applicant and established that he had grey-yellowish bruises of 3 x 2 cm and of 6 x 5 cm around his right eye, right ear, lips and on the sole of his left foot. The soft tissue on his head and his teeth on the right side were painful when touched. The doctor concluded that the injuries could have been inflicted by blows with a blunt object, possibly in the conditions described by the applicant, and corresponded to the category of light corporal injuries. 15. On 13 July 1998 the applicant’s mother lodged a criminal complaint with the Prosecutor’s Office of Hânceşti County, asking it to institute criminal proceedings against the police officers who had allegedly ill-treated her son and threatened him with death. 16. On 14 July 1998 an ear, nose and throat specialist examined the applicant and concluded that he was suffering from hyperaemia and had a central perforation of the right tympanic membrane. 17. On 28 July 1998 another specialist concluded that the applicant was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with perceptive deafness. 18. Between 14 and 25 July, 30 July and 22 August, 2 and 17 September and 14 October and 3 November 1998, the applicant was hospitalised with the diagnosis of head trauma and sudden deafness (surditate de percepţie brusc instalată). 19. On 3 August 1998 the applicant’s mother was informed by the Hânceşti Prosecutor’s Office that her complaint had been dismissed on grounds of lack of “constitutive elements” of an offence. She appealed against that decision to a hierarchically superior prosecutor. 20. On 21 August 1998 the applicant’s mother received a letter from a hierarchically superior prosecutor of the Hânceşti Prosecutor’s Office informing her that her appeal had been dismissed. She appealed against that decision to the Hânceşti District Court. 21. On 16 November 1998 the Hânceşti District Court quashed the prosecutor’s decision to dismiss the applicant’s complaint about ill-treatment and ordered that an additional investigation be carried out. It found inter alia that it was undisputed that the applicant had sustained his injuries on 9 July 1998 either at the police station or on the way there; however, the circumstances were not clear. The court also found that the Hânceşti Prosecutor’s Office had not paid sufficient attention to the fact that since 9 July 1998 the applicant had been permanently undergoing medical treatment in hospital and had thus been prevented from attending school. 22. On 15 January 1999 the Hânceşti Prosecutor’s Office issued a new decision by which it again refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the police officers had to throw him to the ground in order to counter his attack with a knife on one of them. The decision relied on a medical report dated 14 January 1999 which stated that the injuries could have been inflicted either by a blunt object or by a fall. The applicant’s mother appealed to the Prosecutor General’s Office. 23. On 25 February 1999 the Prosecutor General’s Office quashed the decision of 15 January 1999 for being “premature” and the file was remitted to the Prosecutor’s Office of Hânceşti County for “additional review”. The Prosecutor’s Office considered inter alia that the investigation had failed to elucidate the circumstances of the alleged attack with a knife committed by the applicant on one of the police officers. 24. On 15 March 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it refused to institute criminal proceedings against the police officers on the ground that their actions did not disclose any signs of an offence. 25. On 25 March 1999 the hierarchically superior prosecutor quashed the decision of 15 March 1999 on the ground that the applicant’s alleged attack with a knife on the police officers had not been properly investigated. 26. On 9 April 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it again refused to institute criminal proceedings against the police officers, because their actions were justified. At the same time the Prosecutor’s Office found that the applicant did not attack the police officers with a knife, but rather the police officers thought that there was a risk of his attacking them. The applicant’s mother appealed to the hierarchically superior prosecutor. 27. On 1 May 1999 the hierarchically superior prosecutor quashed the decision of 9 April 1999 and ordered the institution of criminal proceedings against the two police officers. 28. On an unspecified date, the applicant lodged a complaint with the Ministry of Internal Affairs. 29. On 14 June 1999 the Ministry of Internal Affairs informed the applicant that disciplinary sanctions would be imposed on police officers A. Tulbu and V. Dubceac only to the extent that they were found guilty in the criminal proceedings. 30. On 20 September 1999 the Hânceşti Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision. 31. On 18 November 1999 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office dismissed the appeal. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the applicant had made an attempt to throw away a knife but the police officers had thought that he was going to use it against them and had thrown him to the ground. The applicant’s state of health was “normal” and none of the witnesses had seen the police beating him. The applicant’s mother appealed. 32. On 10 February 2000 the Prosecutor General’s Office upheld the applicant’s appeal and ordered the re-opening of the criminal investigation. It stated inter alia that the investigation had been conducted “in an extremely superficial manner”. It instructed the investigators inter alia to re-hear the witnesses and the parties to the case and to investigate whether the police officers A. Tulbu and V. Dubceac had fired a gun in the woods. It also ordered the conduct of a medical investigation of the applicant and pointed to several contradictory statements of the witnesses and to procedural irregularities. 33. On 28 February 2000, at the request of investigator V.B. from the Hânceşti Prosecutor’s Office, an independent medical commission of four experienced forensic doctors performed a thorough medical investigation. On the basis of earlier medical certificates and of its own investigation the commission drafted a report which stated inter alia that: “At the forensic examination it was found that [the applicant] had bruises around his right eye, right ear, on his lips and on the sole of his left foot. From [the applicant]’s records it appears that at the age of eight months... he suffered purulent otitis in his left ear. On 11 July 1998 a neurologist found that [the applicant] had suffered an acute head trauma with cerebrostenic syndrome. On 14 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered from tympanic hyperaemia and had a central perforation of the right tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure] of 9 July 1998. On 14 July 1998, [the applicant] did not appear to have any injury to his teeth. On 28 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered post-traumatic acute otitis media on the right side and agnogenic otitis on the left side. He suffered from sudden deafness (surditate de percepţie brusc instalată). On 9 October 1998 a neurologist found that as a consequence of the head trauma [the applicant] was suffering intracranial hypertension with signs of epilepsy. On 20 April 2000 [the applicant] was examined by an otolaryngologist who found that he was suffering from post-traumatic bilateral hypoacusis [slightly diminished auditory sensitivity, with hearing threshold levels above normal]. Hospitalisation was recommended. ... 1. On the basis of the above, the commission comes to the conclusion that M. Corsacov suffered injuries in the form of bruises on his face (right eye, right ear and lips) and the sole of his left foot; head trauma and concussion; post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis. ... The applicant’s injuries necessitated medical treatment of a long duration and could be qualified as moderately serious (mai puţin grave). ... 3. The commission does not have any objective grounds to believe that the injuries could have been sustained by the applicant prior to 9 July 1998. 4. The injuries were inflicted by blows with blunt objects (aceste leziuni au fost cauzate prin acţiunea corpurilor contondente (lovire)), possibly in the circumstances described by the applicant and they could not have been sustained as a result of a fall (n-au putut fi produse prin cădere). 5. ...Currently Mr Corsacov’s state of health is relatively satisfactory and he suffers of posttraumatic bilateral hypoacusis...” 34. On 10 June 2000 the Lăpuşna Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision. 35. On 12 July 2000 the Prosecutor General’s Office quashed the decision of 10 June 2000 and ordered that an additional investigation be carried out. It found inter alia that the quashed decision was illegal and had a tendentious character. It stated inter alia: “Contrary to the conclusion of the medical commission, which clearly found that Corsacov’s injuries were inflicted by blows with a blunt object, possibly in the circumstances described by the applicant and that they could not have been sustained as a result of a fall, investigator V.B. indicated in his decision that the injuries were caused by the applicant’s fall...” 36. On 30 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the criminal investigation against the applicant for the alleged attack with a knife on the police officers on 9 July 1998. It found that there were no grounds to believe that the applicant intended to use the knife against the police officers. 37. On 31 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which the criminal proceedings against the police officers were also dismissed. It stated inter alia that the applicant had had a knife in his hand and that the police officers had interpreted that as a threat and had thrown him to the ground. Accordingly, the applicant had sustained his injuries by hitting the ground with his head while the police officers had been acting in legitimate defence. The applicant appealed against this decision. 38. On 21 January 2001 the decision of 26 August 2000 was quashed by the Prosecutor General’s Office and the criminal proceedings were re-opened. 39. On 28 February 2001 the Lăpuşna Prosecutor’s Office again dismissed the criminal investigation against the police officers. The applicant appealed. 40. On 20 March 2001 the hierarchically superior prosecutor from the Lăpuşna Prosecutor’s Office quashed the decision of 28 February 2001 and ordered the re-opening of the investigation. 41. On 20 June 2001 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the applicant’s complaint. It stated inter alia that: “... According to the medical certificate of 15 January 1998, Corsacov had bruises around his right eye, right ear, and consequences of a barotrauma, head trauma, which could have been caused by a fall and which fell in the category of light corporal injuries. According to the conclusion of the Commission [the medical report of 28 February 2000], Corsacov’s teeth were not injured and it was discovered that he was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis, which could also have been caused by blows. It is not disputed that the applicant was injured; however, his injuries were inflicted within the limits of the law. As to the agnogenic otitis on the left side, the applicant was suspected of having suffered from it since his childhood... According to doctor A.M., the agnogenic otitis on the left side is not connected with the otitis on the right side and could have been caused by a cold or an infection but not by a blow. Deafness can have a multitude of causes, and in order to know its origin it is important to determine the moment of its appearance. In the present case it is impossible to establish the exact moment of commencement of the applicant’s deafness; more so since, in his first declaration, Corsacov stated that only after receiving the blows did he start to experience ringing in his right ear, but he did not say anything about the pain and the deafness in his left ear. The police officers [A. Tulbu and V. Dubceac] and the witness C. stated that on 9 July 1998, on the way to the police station, no physical force was used against the applicant except when he was relieved of a knife that he had in his hand. Then, by means of a special technique, the applicant was thrown to the ground, which he hit with his head... Corsacov admitted having had a knife and explained that he had been trying to throw it away in order to avoid trouble at the police station. The police officers M.I and D.I. who were present at the police station on 9 July 1998 stated that nobody used physical force against the applicant in their presence, no handcuffs were used and that he was not beaten with a baton... The applicant’s mother stated that in the evening of 9 July 1998 she saw her son at the police station and he did not have any injuries... The applicant’s uncle B.V. also stated that he had seen the applicant in the police station on 10 July 1998 between 1 a.m. and 2 a.m. and that he did not have any sign of injury... and the applicant did not complain to him about having been assaulted. ... The injuries sustained by Corsacov were caused by his hitting the ground with his head when police officers A. Tulbu and V. Dubceac faced a real threat of injury. The officers acted within the limits of Articles 14 and 15 of the Law on Police while relieving him of his knife.” 42. The decision did not include any reference to the applicant’s allegation that on 10 July 1998 he was taken to the woods and threatened with death. The applicant appealed. 43. After 20 June 2001 the investigation was re-opened and closed on several occasions. The final decision closing the investigation was that of 10 January 2002 of the Lăpuşna Prosecutor’s Office. 44. After the case was declared admissible by the Court, on 7 November 2005, the Prosecutor General’s Office ordered the re-opening of the investigation. The re-opened investigation is still pending. According to the Government the re-opening was prompted by the Prosecutor General’s concern that the injuries sustained by the applicant in July 1998 had deteriorated into invalidity of the second degree which under Moldovan law is equivalent to a loss of working capacity of 50-75%, and that the applicant needed permanent medical treatment. 45. The Code of Criminal Procedure in force between 24 March 1961 and 12 June 2003 provides: “Section 193. Written complaints concerning acts of the criminal investigation organs or concerning acts of the criminal investigator shall be addressed to the prosecutor. Section 194. The prosecutor shall examine the complaint and communicate his decision to the interested person within three days of its receipt. If the complaint is dismissed, the prosecutor shall give reasons for his decision. Section 195/1. The decisions of the criminal investigation organs and of the prosecutor may be challenged in court by an accused, a lawyer, a victim .... The persons specified in the first paragraph have the right to challenge in court ...decisions regarding the suspension and dismissal of criminal proceedings ... A complaint shall be addressed to the competent District Court within ten days of the date on which the interested person learns about the decision. Section 195/3. A person whose rights have been infringed by a refusal to institute criminal proceedings may challenge in court the decision regarding the dismissal of criminal proceedings within ten days of the date on which he learns about the decision. Section 195/4. ... The competent court shall examine the reasons for the refusal to institute criminal proceedings and their conformity with procedural law. Following the examination, the court can adopt one of the following decisions: 1) to quash the decision to refuse to initiate criminal proceedings; 2) to modify the reasons given for the refusal while upholding the refusal; 3) to dismiss the complaint....” 46. The old Criminal Code in force between 24 March 1961 and 12 June 2003 states: “Section 185. ... An abuse of power accompanied by acts of violence, by use of arms or by acts of torture and humiliation is sanctioned with imprisonment of three to ten years and with a prohibition on carrying out certain activities for a period of up to five years. ...” 47. The old Civil Code in force until 12 June 2003 states: “Section 475. Any damage caused to a person or to his or her goods... shall be entirely redressed by the person who caused it... No duty of restitution shall arise in respect of damage caused by legitimate actions, except in the cases provided for by law.” 48. The Law on Police of 18 December 1990 states: “Section 14. Conditions and limits of the use of force, special techniques and fire-arms Police officers have the right to use force, special techniques and fire-arms in the cases and in the manner provided for in the present law. The use of force, of special techniques and of fire-arms shall be preceded by a warning about the intention to use them, and sufficient time shall be allowed for reaction, except in cases in which a delayed use of force... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences. ... In any case, when the use of force cannot be avoided, police officers are obliged to do their best in order to cause the least harm possible to the health, honour, dignity and goods of citizens, as well as to ensure medical assistance is provided to victims. In case of injury or death caused as a result of use of force... the police officer shall report it to his direct superior, in order that the latter may inform a prosecutor. The abuse of the power to use force... shall be punished in accordance with the law. Section 15. The use of physical force Police officers are entitled to use force and special fight techniques for the purpose of ending criminal activities and for neutralising resistance to legal demands, only in cases in which non-violent methods are not sufficient for the discharging of their obligations.” | 1 |
train | 001-108967 | ENG | RUS | COMMITTEE | 2,012 | CASE OF SHANOVY v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);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 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Anatoly Kovler;Erik Møse;Mirjana Lazarova Trajkovska | 5. The applicants are mother and son who were born in 1954 and 1985 respectively and live in Selyatino in the Moscow Region. 6. On 14 March 1997 the applicants’ husband and father Mr Shanov died. Before his death Mr Shanov was a recipient of the Chernobyl social benefits. 7. On 29 May 1999 the first applicant brought proceedings before the Naro-Fominsk Town Court of the Moscow Region (“the Town Court”) against the Pension Department of the Naro-Fominsk District (Управление пенсионного фонда РФ по Наро-Фоминскому району) seeking reassessment of the amount of benefits that she and the second applicant were entitled to after Mr Shanov’s death. 8. Her claims were rejected by a judgment of the Town Court of 21 March 2000, as upheld by the Moscow Regional Court (“the Regional Court”) on 18 April 2000. 9. On an unspecified date at the first applicant’s request the president of the Regional Court lodged an extraordinary appeal for supervisory review against the above court decisions. 10. On 17 January 2001 the Presidium of the Regional Court granted the appeal, quashed the judgment of 21 March 2000 and the decision of 18 April 2000 by way of supervisory review and remitted the matter to the first instance for fresh consideration. 11. On 31 May 2001 the Town Court granted the first applicant’s claims for reassessment and recovery of the benefits. However, on 8 August 2001 the judgment was set aside on appeal by the Regional Court which required a new hearing. 12. On 21 October 2002 the Town Court granted the first applicant’s claims against the Pension Department and Department of Social Protection of the Naro-Fominsk District (Комитет социальной защиты населения администрации Наро-Фоминского района) for recovery of the benefits, awarding her lump-sum compensation amounting to 298,801 Russian roubles (RUB) and monthly payments in the amount of RUB 15,381. 13. On 2 December 2002 the above judgment was upheld by the Regional Court on the respondents’ appeal. The appeal court did not recite the reasoning of the grounds of appeal but mentioned that the arguments of the appellant had been considered by the trial court. 14. In respect of the lump-sum compensation award, the first applicant received the first instalment on 4 August 2004 and the second instalment on 13 November 2004. She has not received the remaining RUB 100,014 (approximately 2,380 euros (EUR)) to date. 15. On 21 April 2003 the respondent lodged an application for supervisory review on account of allegedly erroneous application of the material law in the judgment of 21 October 2002 and the appeal decision upholding it. 16. The applicants were notified that a hearing of the application for supervisory review by the Presidium of the Regional Court was scheduled for 8 September 2004. 17. On 8 September 2004 the applicants’ representative appeared in court but was informed that the hearing had been rescheduled to a later date of which he would be notified in due course. 18. On an unspecified date the applicants received the decision of the Presidium of the Regional Court of 8 December 2004 to quash by way of supervisory review the impugned judgments for incorrect application of the material law and a failure to subtract a previously received payment from the total amount due. The Presidium remitted the matter for fresh consideration to the first instance. The applicants had not been notified of the hearing of 8 December 2004 and did not appear in it. 19. On 6 February 2005 the first applicant brought proceedings for compensation of pecuniary and non-pecuniary damage resulting from the delayed enforcement of the judgment of 21 October 2002. Her original claims and damages action were joined in one case against the Treasury of Russia and the Moscow Region Department of the Ministry of Social Protection (Министерство социальной защиты населения Московской области), where the claimant party was eventually represented by the second applicant who had come of age. 20. On 12 September 2005 the Town Court delivered a new judgment which partially granted the applicant’s claims for recovery of the benefits but dismissed the damages action. 21. On 2 November 2005 the Regional Court upheld on appeal the part of the judgment dismissing the claim for damages and remitted the rest of the judgment for fresh consideration due to erroneous application of the material law. 22. On 28 March 2006 the Town Court again granted the second applicant’s claims in part awarding him RUB 10,474 in monthly payments and a lump-sum amount of RUB 98,564. According to the Government, this judgment was enforced on 29 November 2007, but the applicants submitted that they had received the payment on 5 December 2007. 23. By a final decision of 12 December 2008 the Town Court indexlinked the lump-sum amount awarded by the judgment of 28 March 2006. This amount was paid to the applicants on 28 October 2009. | 1 |
train | 001-91641 | ENG | TUR | CHAMBER | 2,009 | CASE OF ERBEY v. TURKEY | 3 | Violation of P1-1;Just satisfaction reserved | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicant was born in 1926 and lived in İzmir. 6. On 23 February 1998 the applicant bought a plot of land (plot no. 536 in the Ulucak village, in the Menemen district of İzmir) from the heirs of V.G. 7. On 13 July 1999 the Ministry of Agriculture (“the Ministry”) brought an action before the Menemen Civil Court, requesting the annulment of the title deed of the applicant to plot no. 536 and its registration in the Treasury's name, claiming that it had had actual possession of this land since 1966. The Ministry primarily relied on Article 38 of the Expropriation Act (Law no. 2942). The Ministry also alleged that an expropriation had been effected in relation to the said land in 1966 and that V.G. had received compensation for it. However, the land register had not been amended due to an administrative error. 8. On 20 December 2000 the Menemen Civil Court accepted the request of the Ministry of Agriculture and ordered that the land be registered in favour of the Treasury in accordance with Article 38 of Law no. 2942. In its judgment, the first-instance court noted that the Ministry had been in actual possession of this land for more than twenty years and that the applicant had been aware of this fact when he had bought the plot. 9. The applicant appealed. 10. On 17 September 2001 the Court of Cassation upheld the judgment of 20 December 2000. 11. The applicant requested rectification of the decision of 17 September 2001. 12. On 24 December 2001 the Court of Cassation dismissed the applicant's request. 13. On 4 January 2002 the Court of Cassation's decision was served on the applicant. 14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942. 15. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006). | 0 |
train | 001-60857 | ENG | SVK | CHAMBER | 2,003 | CASE OF KOPECKÝ v. SLOVAKIA | 3 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Nicolas Bratza | 9. On 12 February 1959 the applicant’s father was convicted of an offence on the ground that he had kept, contrary to the regulations then in force, 131 gold coins and 2,151 silver coins of numismatic value. He was sentenced to one year’s imprisonment. He was also fined and the coins were confiscated. 10. On 1 April 1992 the Supreme Court of the Slovak Republic (Najvyšší súd) quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act of 1990, the judgment of 12 February 1959 including all consequential decisions and discharged the applicant’s late father. 11. On 30 September 1992 the applicant claimed the restitution of his father’s coins under the Extra-Judicial Rehabilitations Act of 1991. 12. On 19 September 1995 the Senica District Court (Okresný súd) granted the action and ordered the Ministry of the Interior to restore the coins to the applicant. The court established, with reference to the relevant records, that the coins had been taken away from the applicant’s father on 21 November 1958 and that they had been transmitted to the Regional Administration of the Ministry of the Interior in Bratislava on 12 December 1958. On 19 December 1958 the coins were examined by an expert and inventoried in the premises of the Regional Administration in Bratislava. 13. The relevant part of the District Court’s judgment reads as follows: “It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is. However, in the present case the plaintiff undoubtedly has no possibility of inspecting the premises or safes of the former Public Security Regional Administration in Bratislava as he is not allowed to enter those premises. By insisting that the applicant should show that the coins are at the last known place the court would impose a burden of proof on him which it is practically impossible to fulfil. On the contrary ... the Ministry of the Interior neither showed that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority nor did it propose to take evidence to that effect... The court established that the last time the coins ... had been held in the premises of the Public Security Regional Administration in Bratislava to which the Ministry of the Interior is a successor, and it has not been shown that the coins were not in those premises when the Extra-Judicial Rehabilitations Act became operative, i.e. by 1 April 1991.” 14. On 1 December 1995 the Ministry of the Interior appealed. Its representative argued that all relevant documents had been destroyed and that the onus of proof as regards the deposit of the coins lay on the applicant. 15. On 29 January 1997 the Bratislava Regional Court (Krajský súd) dismissed the applicant’s action. It found, with reference to Sections 4 (1), 5 (1) and 20 (1) of the Extra-Judicial Rehabilitations Act of 1991, that the applicant had failed to show where the coins had been deposited when that Act had become operative on 1 April 1991. 16. In the judgment the Regional Court admitted that the applicant had limited possibilities of locating his father’s property. It therefore took further evidence of its own initiative. In particular, the Regional Court noted that in accordance with the relevant practice the confiscated property should have been handed over to the public prosecutor and, after the relevant judgment had became final, to the financial department of the competent local government authority. The Regional Court therefore examined the criminal file concerning the case of the applicant’s father. It further established that the archives of the Senica District Office, of the Ministry of the Interior, of the National Bank of Slovakia and of the State Regional Archive in Bratislava contained no document relating to the coins in question. The Regional Court also heard a witness who had worked at the Myjava District Department of the Ministry of the Interior in 1958. However, the latter had no knowledge of the case. 17. On 27 January 1998 the Supreme Court (Najvyšší súd) dismissed the applicant’s appeal on points of law. It shared the Regional Court’s view according to which the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins as required by Section 5 (1) of the Extra-Judicial Rehabilitations Act of 1991. 18. In the judgment the Supreme Court further stated: “The allegation that the movable property in question had been taken over by an employee of the Public Security Regional Administration in Bratislava on 12 December 1958 and that ... it had been examined there by an expert on 19 December 1958 cannot suffice. Since then a considerable period lapsed during which the golden and silver coins in question could have been alienated, destroyed or lost. The legislator, however, explicitly included in Section 5 (1) of the Extra-Judicial Rehabilitations Act the obligation to show where the movable in question is at the moment of the entry into force of that law. ... it follows from logical and systematic interpretation of Section 5 (1) of the Extra-Judicial Rehabilitations Act that a restitution claim can only concern the same property which was taken over by the State and not a different object of the same kind. Only movable property which can be individually identified by its specific features thanks to which it cannnot be interchanged with other objects is therefore liable to restitution...” 19. Act No. 119/1990 on Judicial Rehabilitation (Zákon o súdnej rehabilitácii) entered into force on 1 July 1990. The relevant provisions read as follows: “The aim of the Act is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and set out in the international documents, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted...” ... “2. The conditions under which the provisions of this Act shall apply to claims resulting from quashed confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law.” 20. Act No. 87/1991 on Extra-Judicial Rehabilitations (Zákon o mimosúdnych rehabilitáciách) became operative on 1 April 1991. Its preamble stipulates that it was adopted with the aim of mitigating the consequences of certain infringements of property rights as well as of other rights which occurred between 25 February 1948 and 1 January 1990. The relevant provisions of the Extra-Judicial Rehabilitations Act read as follows: “1. This Act relates to the mitigation of the consequences of certain infringements ... which arose between 25 February 1948 and 1 January 1990 ... and which are incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights and the ensuing international pacts on civil, political, economic, social and cultural rights. 2. This Act also lays down the conditions for submitting claims resulting from quashed sentences by which property was confiscated as well as the manner of redress and the scope of such claims.” “1. Persons obliged [to restore the property] comprise the State or legal persons having confiscated property in their possession at the date when this Act becomes operative... 2. Any natural person who [unlawfully] acquired property from the State is also obliged to restore such property...” “1. A person obliged [to make restitution] shall restore the property upon a written request provided that the person [claiming the property] proves that he or she is entitled to have the property restored and shows in which way it was taken away by the State. When claiming restitution of movable property [the person concerned] is further required to show where the property is...” “1. Financial compensation may be granted to the person concerned only in respect of real property which cannot be restored... 2. When the State acquired, on the basis of a judicial decision which was quashed under Act no. 119/1990 on Judicial Rehabilitation..., the entire property of a citizen and when such property did not comprise real property, the person concerned is entitled to compensation in the amount of 60,000 Czechoslovak korunas...” “1. The persons obliged [to restore confiscated property] shall comprise any legal person referred to in Section 4 (1), any natural person referred to in Section 4 (2) who acquired such property from the State where the State itself obtained it as a result of a judicial decision, and the competent central government authority. 2. The persons obliged to restore confiscated property shall do so in accordance with Sections 5, ... of the Act. When it is impossible to restore the property the persons concerned are entitled to claim compensation pursuant to Section 13 of [this] Act.” | 0 |
train | 001-98630 | ENG | GBR | ADMISSIBILITY | 2,010 | LARKE and OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The facts of the case, as submitted by the applicants, may be summarised as follows. Mr Larke (application no. 25402/02), was born in 1928 and lives in Canada. Having spent a number of years working in the United Kingdom and paying National Insurance contributions, he is in receipt of a United Kingdom State retirement pension. This pension is not up-rated in line with United Kingdom inflation (see Carson and Others v. the United Kingdom [GC], no. 42184/05, 16 March 2010). Mr Havard (application no. 7692/03), was born in 1926 and lives in Australia. He has received a United Kingdom State retirement pension since 29 January 1991. It is fixed at GBP 62.68 per week and is not up-rated in line with United Kingdom inflation. Mr Havard wrote to the then Department of Social Security Pensions and Overseas Benefits Directorate in 2000, asking them to index-link his annual Retirement Pension in line with inflation. This was refused on 5 October 2000 by the Secretary of State, on the grounds that before 6 April 1992, or since that date, the applicant was not ordinarily resident in Great Britain. His subsequent appeal was dismissed on 9 November 2000. In a further Appeal Tribunal hearing, the applicant's appeal was again dismissed and the original decision of the Secretary of State confirmed on 12 July 2001. The decision of the Tribunal records that the applicant's counsel chose expressly not to pursue any point under the Human Rights Act 1998. On 18 October 2001, the Chairman of The Appeals Service refused permission to appeal against the Tribunal's decision but recommended that the applicant apply directly to the Social Security Commissioner's office to continue with his application, if he so wished. On 20 January 2003 the Commissioner refused permission to appeal. He noted that the Secretary of State would have preferred the case to have been adjourned pending the decision of the Court of Appeal in Carson, but that the applicant had protested strongly against further deferment. In his decision the Commissioner noted that, since the applicant had specifically chosen not to put forward arguments based on the Human Rights Act before the Tribunal, he was precluded from raising them in his appeal. However, the Commissioner went on to hold that, even if this were not so, the judgment of Stanley Burnton J. in Carson (22 May 202) should be followed. There appear to have been no further proceedings until the applicant bought this current application before the Court. Mr Kulkarni (application no. 35919/03), was born in 1931 and lives in India. He and his wife (born in 1933) receive a basic State retirement pension which is not up-rated. The applicant states that in 2003 he wrote to the Department of Social Security asking for the pension to be index-linked, but received no reply. Application no. 44317/05 was lodged by 374 named members of the British Pensioners Association of Western Canada (BPAWC), 6,854 named members of the South African Alliance of British Pensioners (SAABP), 2,355 named members of the British Pensions in Australia (BPiA) and 6,812 named members of the Canadian Alliance of British Pensioners (CABP). The applicants are former United Kingdom residents now living in Canada, South Africa and Australia. Each receives a basic State retirement pension; some also receive a pension under State Earnings-Related Pension Scheme (SERPS). The applicants' pensions are not up-rated because the applicants are not ordinarily resident in the United Kingdom and Canada, South Africa and Australia are not countries with which the United Kingdom has a bilateral agreement providing for up-rating. The relevant domestic law and practice are set out in Carson and Others, cited above. | 0 |
train | 001-83249 | ENG | ALB | CHAMBER | 2,007 | CASE OF RAMADHI AND OTHERS v. ALBANIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed | Josep Casadevall | 5. The applicants, all siblings, were born in 1921, 1916, 1927, 1928, 1934 and 1943 respectively and live in Kavaja and Durrës, Albania. 6. During the communist regime several plots of land and two shops owned by the applicants’ father were confiscated by the authorities without payment of compensation. The property, measuring in total 46,000 sq. m (the land) and 150 sq. m (the shops) (“the relevant property”), was situated in the Kavaja region. 7. On an unspecified date the applicants lodged an application with the Kavaja Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) under the Property Act, seeking to have the relevant property returned to them. 8. On 7 June 1995 and 20 September 1996, respectively the Kavaja Commission upheld the applicants’ title as joint owners of two shops and a plot of land measuring 15,500 sq. m. Not being able to restore the relevant property in its entirety, the Commission ruled that 10,000 sq. m of the relevant property was to be returned to the applicants and that they were entitled to compensation, under the Property Act, in respect of the remaining 5,500 sq. m of land and the shops. Moreover, it decided not to rule on the adjacent plot of land measuring 30,500 sq. m, since agricultural property was outside its jurisdiction: rather the District Land Commission was the competent body pursuant to the Land Act (Law no. 7501 of 19 July 1991). 9. On an unspecified date, in compliance with the Kavaja Commission’s decision of 20 September 1996, the applicants took possession of the plot of land measuring 10,000 sq. m. 10. Notwithstanding the applicants’ requests, to date, the authorities have failed to comply with the parts of the Commission’s decisions of 7 June 1995 and 20 September 1996 relating to the payment of compensation in respect of the shops and the plot of land measuring 5,500 sq. m. 11. On an unspecified date the applicants lodged an application with the Kavaja Land Commission (“the Land Commission”), attached to the Kavaja Municipality, claiming property rights in respect of the plot of land measuring 30,500 sq. m. 12. On 11 November 1998 the Land Commission upheld the property claims of the applicants Sh. Ramadhi, R. Kapedani and R. Ramadhi (“the first three applicants”) and dismissed those of the applicants Xh. Ramadhi, D. Ramadhi and N. Ramadhi (“the last three applicants”) on the ground that the latter were not eligible to claim property rights over agricultural land, in so far as they were not resident in the area where the land was located. 13. The first three applicants entered their ownership of the property in the Land Register. According to the ownership certificates, the applicants’ titles nos. 462, 460 and 461 corresponded to the plots of land registered in the Register as nos. 89/15, 89/16 and 89/17 respectively. 14. On 7 April 1999 the Land Commission, further to a request by the Ministry of Justice, declared the first three applicants’ titles void on the basis that the decision of 11 November 1998 conflicted with substantive laws. 15. On 25 November 1999 the first three applicants initiated proceedings in the Durrës District Court, claiming property rights over the relevant property. 16. On 4 February 2000 the Durrës District Court annulled the Land Commission’s decision of 7 April 1999 and ordered the Land Commission to examine de novo the first three applicants’ claim to be given title to the plot of land measuring 30,500sq.m. The judgment became final at the latest on 6 March 2000. 17. On an unspecified date the Kavaja District Court issued a writ for the enforcement of the judgment of 4 February 2000. 18. On 14 February 2001, by letter no. 151/h, the Bailiff’s Office ordered the Kavaja Municipality to comply with the District Court’s decision of 4 February 2000. 19. On 7 May 2001, by decision no. 366, the Kavaja Municipality held that it had no jurisdiction to enforce the decision on the ground that the Kavaja Land Commission, which would originally have had jurisdiction, had been dissolved pursuant to the Instruction of 8 November 1999 by the city’s mayor. 20. On 8 January 2003, the newly established Kavaja Land Commission, in compliance with the District Court’s judgment of 4 February 2000, upheld the validity of the first three applicants’ titles nos. 462, 460 and 461. 21. The applicants maintained that the property issue was still unresolved since the local authorities had transferred the above-mentioned plots of land to third parties, so that the Commission decision was thus ineffective in practice. Entries in the Land Register indicate that the plots of land registered as nos. 89/15 and 89/16 (corresponding to the applicants’ titles nos. 462, 460) are currently owned by third parties and the applicants maintained that third parties had built on the third plot of land corresponding to title no. 461. The Government maintained that the applicants had failed to register their title to the relevant property in the Land Register in order to take possession of the property in question and did not comment on the applicants’ submission concerning the transfer of the property to third parties. 22. The Albanian Constitution, in so far as relevant, reads as follows: “1. The right of private property is protected by law 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation. 5. A complaint may be filed in court to resolve disputes regarding the amount/extent of compensation due.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. Within two to three years from the date when this Constitution enters into force, The Assembly, guided by the criteria of article 41, shall issue laws for the just resolution of different issues related to expropriations and confiscations done before the approval of this Constitution; 2. Laws and other normative acts that relate to the expropriations and confiscations, adopted before the entry into force of this Constitution, shall be applied provided they are compatible with the latter.” 23. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. Thus, hereinafter they will be referred to as the “Property Act 1993”, the “Property Act 2004” and the “Property Act 2006”, respectively. The relevant provisions of each of these laws are abridged as follows: 24. According to the Act of 1993 the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim the ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in kind (in a maximum of 10,000 sq. m) or in value if one of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; (4) had been designated as suitable for construction and is situated within the boundaries of a city. Section 16 of the Act provided for the following forms of compensation in respect of property which could not be restituted: (a) State bonds, equivalent to the compensation owed, and with a first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. The Council of Ministers had the authority to define detailed rules for determining the methods and time-limits for such compensation to take place. 25. Moreover, the 1993 Act instituted the Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ restitution and compensation of property claims. However, it omitted to provide a time-limit within which a decision could be appealed, thus preventing it from even becoming binding. 26. The Property Act enacted in 2004, repealing the previous one, provided for two forms of restitution of immovable properties, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The restitution was not limited in size. The Act provided 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, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria of these (sections 13). 27. Section 19 provided for the enforcement of the decisions awarding compensation within the first six months of each financial year. On its entry into force, persons entitled to claim restitution or compensation had to lodge applications with the District Committee by 31 December 2007. The Act granted the Committee discretion to decide which form of compensation should be granted, but applicants could express in writing their preferred type of compensation. The District Committee’s decision could be appealed to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision. 28. On 28 April 2005 Parliament adopted an Act, setting down the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee for the Compensation and Restitution of Properties, which was to issue the appropriate maps for the properties’ valuation. 29. In order to comply with the committees’ decisions awarding pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts. On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions, could therefore, not have any impact on property rights recognised by administrative or court decisions given before its entry into force. 30. On 17 July 2006 Property Act of 2004 was amended by means of the Property Act 2006 which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution and Compensation of Properties, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 § 2; 19 and 20 of the previous law which, inter alia, provided for the procedure for the enforcement of decisions that awarded compensation. | 1 |
train | 001-5841 | ENG | NLD | ADMISSIBILITY | 2,001 | ARHIM v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson;Luigi Ferrari Bravo | The applicant is a Libyan national, born in 1968 and living in the Netherlands. He is represented before the Court by Mr T. Adank and Mr D. Gürses, both lawyers practising in Utrecht. The facts of the case, as submitted by the applicant, may be summarised as follows. On 2 December 1997, the applicant arrived in the Netherlands where he applied for asylum or, alternatively, a residence permit for compelling humanitarian grounds. On 5 February 1998, the applicant was interviewed by immigration official on the reasons for his asylum request. On 28 September 1998, the applicant’s request were rejected by the State Secretary of Justice (Staatssecretaris van Justitie). The applicant’s objection (bezwaar) against this decision was rejected by the State Secretary on 21 July 1999. The applicant’s subsequent appeal to the Hague Regional Court (Arrondissementsrechtbank) sitting in Zwolle was dismissed on 10 February 2000. The Regional Court noted that, in support of his asylum request the applicant submitted that his father had been arrested in 1978 for involvement in a trade union and that he had been released later, that his brother was detained since 1993 for opposition activities and that in this connection his family had been arrested and questioned on three occasions; the last time in 1995. As to his personal situation, the applicant had submitted that, since 1996, he had been a member of the illegal organisation “the Association for the Rights of the Libyan Citizen” which association collects and provides information about detained persons and acts as a go-between between detainees and their families. He had stencilled and copied pamphlets for this association at his work. His immediate superior in the association was Y., an internal security service officer. In August 1997, he had been informed that a travel prohibition had been issued against him and in September 1997 the association decided that he and another person, J., should leave the country. In October 1997, the applicant and J. obtained a visa in their passport via the Netherlands Embassy in Libya and, on 14 November 1997, they travelled by car to Tunisia from where they travelled by plane to Belgium. They were refused entry to Belgium and sent back to Tunisia. They subsequently travelled by plane to the Netherlands. After his departure from Libya, his brother had been arrested and released later. The Regional Court held that the general situation in Libya was not as such that asylum seekers from Libya automatically qualified for asylum. It should therefore be established whether, on the basis of his personal situation, the applicant had founded reasons to fear persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. The Regional Court did not find it established that the applicant had attracted the negative attention of the Libyan authorities in connection with his alleged activities for the association indicated. Noting that the applicant had left Libya in a lawful and controlled manner, it did not find it established that the applicant had been subject to travel prohibition. It further did not find it established that the applicant had left the country in an illegal manner. The Regional Court further noted that a link between the alleged travel prohibition and the applicant’s activities had remained unsubstantiated. It further noted that, after having learned of the alleged travel prohibition in August 1997, the applicant had remained at his permanent addresses and had encountered no problems from the side of the Libyan authorities until his departure from Libya on 14 November 1997. The Regional Court further found it unlikely that an investigation against the applicant would have been conducted as from August 1997. On this point it rejected as unlikely that Y., a founder of the association and who allegedly held a high position in the Libyan internal security service, would have held further meetings with the applicant and other members of the association whilst the applicant would have been under investigation and the chances of discovery thus being real. This alleged approach of the Libyan authorities did not, in the court’s view, match the situation described by Amnesty International in its report of 1 July 1999, i.e. a ruthless suppression of any form of opposition. As to applicant’s argument that he belonged to a family considered suspect by the authorities, the Regional Court noted that it had not appeared that, since 1995, the applicant’s family had encountered any problems from the side of the authorities whereas, until his departure, the applicant had worked in the public service. Without any further substantiation, this finding could not be altered by the fact that the applicant’s brother had been arrested after November 1997 and released later. The Regional Court also rejected as not having been established that the applicant had evaded his military obligations by failing to respond to a summons for military retraining. This claim had remained fully unsubstantiated despite the fact that the applicant had contacts with his family on various occasions and the fact that the applicant’s brother had been in the Netherlands. Even assuming that the applicant would have in fact been summoned to report for military service, the Regional Court considered that it could not be concluded from an official report of 9 December 1996 of the Netherlands Ministry of Foreign Affairs nor from the Amnesty International report that it would be likely that the applicant, on grounds of failing to report for military service, would risk a disproportionate or discriminatory sanction. According to the Amnesty International Report, the sanction for such a failure was imprisonment for a maximum of three years and deprivation of civic rights for a maximum of ten years. As to the applicant’s claim that an absence from Libya for an extended period of time is sufficient to attract the negative attention from the Libyan authorities, the Regional Court noted that, according to Amnesty International, it was not known whether Libyan nationals required permission for a lengthy stay abroad but that it could be expected that Libyan nationals, upon their return to Libya after a lengthy stay abroad, would be questioned by the security service. However, according to the Regional Court, this was insufficient to conclude that the applicant had founded fears for persecution. In view of these findings, the Regional Court concluded that the applicant did not qualify for the status of refugee and that it had not been established that, if expelled to Libya, he would run a real risk of treatment contrary to Article 3 of the Convention. On the latter point, the Regional Court further held that it had not been established that the applicant, on grounds of a recognition by any public official or informer of the Libyan authorities in the Netherlands, had to fear treatment contrary to Article 3 upon his return to Libya. Insofar as the applicant argued that returned unsuccessful asylum seekers did run such a risk in Libya, the Regional Court noted that, according to the Amnesty International Report, suspected opponents of the Libyan authorities who had applied for asylum abroad did run the risk, when returned, to be tortured. However, the Regional Court did not find it established that the applicant was considered as an opponent by the Libyan authorities. On 15 March 2000, the applicant was apprehended and placed in aliens’ detention (vreemdelingenbewaring) for the purposes of his expulsion. On 16 March 2000, the applicant filed a second asylum request. An immigration official interviewed him on 20 March 2000 on the reason for this second asylum request. On 21 March 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in ‘s-Hertogenbosch and to award him compensation for having been unlawfully detained. On 31 March 2000, the State Secretary declared the applicant’s second asylum request inadmissible in that no other substantial grounds had been submitted by the applicant than those already examined in the proceeding on his first asylum request. The State Secretary decided that the applicant would not be allowed to remain in the Netherlands pending the outcome of a possible appeal. By decision of 4 April 2000, the President of the Hague Regional Court sitting in ‘s-Hertogenbosch ordered the applicant’s release from alien’s detention, holding that this had been unlawful given the absence of any indication that the applicant had sought ways to prevent his expulsion. The President awarded the applicant an amount of NLG. 2,700 in compensation for having been unlawfully detained. On 6 April 2000, in violation of an agreement reached with him, the applicant failed to report himself to the Royal Constabulary (Koninklijke Marechaussee) at Schiphol Airport for his expulsion to Tunisia. It appeared that the applicant had left his known address for an unknown destination. On 26 April 2000, the applicant filed an appeal with the Hague Regional Court sitting in ‘s-Hertogenbosch against the decision of 31 March 2000. On 13 May 2000, acting upon a complaint filed by neighbouring women that they had been bothered by men living in a certain house in Apeldoorn, the police visited this house. One of the men found there was the applicant, who was subsequently placed in aliens’ detention. On the same day the applicant filed a third request for asylum. After having been interviewed by an immigration officer on 16 May 2000, his third asylum request was rejected by the State Secretary on 17 May 2000. The State Secretary noted that this third request was based on, inter alia, an article published in a Dutch regional daily newspaper on a protest action by the applicant’s friends in front of the Apeldoorn police station where the applicant had been detained. In this article, the applicant’s name is mentioned. The applicant claimed that he had obtained this article via a Tunisian friend in the Netherlands to whom this article had been sent by a person who had bought this newspaper at a newspaper stand in Tunisia. The applicant further claimed that the Libyan intelligence authorities were aware of this article. As this claim had remained unsubstantiated, the State Secretary did not find this fact established. Insofar as the applicant relied on other documents, the State Secretary held that these did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests. The State Secretary finally did not find that the applicant would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if he would be returned to Libya. The applicant’s expulsion to Libya was scheduled for 22 May 2000. However, physically resisting his expulsion, the applicant was refused access to the plane and he remained in the Netherlands. On 26 May 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in Haarlem. In the meantime a new date for the applicant’s expulsion had planned, namely for 3 June 2000. This expulsion was cancelled as his passport could not be found. It was found again on 7 June 2000. On 19 June 2000, the Hague Regional Court sitting in Haarlem rejected the applicant’s request for release from aliens’ detention. On 20 July 2000, the Hague Regional Court sitting in Zwolle rejected the applicant’s appeal against the State Secretary’s decision of 31 March 2000. In its decision of 3 August 2000, the President of the Hague Regional Court sitting in Zwolle accepted the applicant’s appeal against the State Secretary’s decision of 17 May 2000 on the applicant’s third asylum request and quashed this decision on grounds of a failure to state sufficient reasons for holding that the new documents submitted by the applicant – i.e. an article from a Libyan newspaper about the execution of seven Libyan nationals, a judgment and arrest warrant from Libya in connection with the applicant’s conviction of anti-government activities, the publicity around his case in the Netherlands, his conversion to Christianity and the worsened situation in Libya – did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests. However, as to the general situation in Libya, the President held that this point had already been examined in the proceedings having resulted in the decision of 10 February 2000 and that, since then, this situation had not seriously worsened. The President further has doubts as to the value of the Libyan documents submitted by the applicant in that – in the first place – it had remained unclear how the applicant had obtained these “very secret” documents and also in the course of the hearing before the Hague Regional Court the applicant was unable to give a satisfactory explanation on this point. Secondly, these documents were presented as a judgment and arrest warrant against the applicant whereas it appeared from the translation that in fact it concerned an “information form” not disclosing the existence of a conviction. Finally, even assuming the veracity of the applicant’s claim that it dates back to 1998 but that he did not think that this would be needed for his asylum request, the President concluded that on that ground it could not be regarded as a new fact. The President further consider rather incredible the applicant’s account that the Dutch regional newspaper article would have been found at a petrol station in Tunisia. The applicant’s subsequent account that this newspaper would have been bought at a newspaper stand in Tunisia was even more incredible. The President concluded that, in any event, it had not appeared that the Libyan authorities would have become aware of the contents of the article. The President further rejected as speculative, the applicant’s argument that he had become known to Libyan security officials who were in the Netherlands in connection with the Lockerbie trial. On this point, the President further considered that it had not appeared that the applicant had continued the activities undertaken in this country of origin. The President added that it would be unacceptable when an alien, whose personal history in itself did not give rise to an assumption of a founded fear for persecution, would be able to make a valid claim to asylum on the basis of subsequent activities that would have attracted attention. A risk thus created remains in principle to be borne by the person concerned. As regards the applicant’s conversion to Christianity, the President noted that this had taken place more than two years ago and that therefore this argument could have been raised in the proceedings on the applicant’s first asylum request. As regards the Libyan newspaper article, the President held that this article did not concern the applicant and that there was no indication that his personal situation was comparable to that of the seven persons referred to in this article. The President, therefore, concluded that the applicant did not meet the requirements for granting him refugee status and that there was no real risk of that he would be subjected to treatment contrary to Article 3 of the Convention if he would be expelled to Libya. For these reasons, the President decided that, although the decision of 17 May 2000 was quashed, its legal consequences were to remain entirely intact. | 0 |
train | 001-71883 | ENG | AUT | ADMISSIBILITY | 2,005 | MAHDID AND HADDAR v. AUSTRIA | 1 | Inadmissible | Mark Villiger | The four applicants Madani Mahdid, Fatiha Haddar, Riad Mahdid and Yacine Mahdid are all Algerian nationals. They were born in 1959, 1965, 1992 and 1993, respectively, and now live in Canada. The first and second applicants are a couple, and the third and fourth applicants are their children. They were represented before the Court by Mr W. Rainer, a lawyer practising in Vienna. The respondent Government were represented by their agent Ambassador H. Winkler, former Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case may be summarised as follows. On 3 November 1996 the applicants arrived at Vienna International Airport on a flight from Tunis (Tunisia). They were in possession of passports, flight tickets and tourist visas for Slovenia. On 4 November 1996 they presented themselves to the airport and border police. They requested asylum, claiming that they had fled Algeria because of political persecution and that in Tunisia they risked deportation to Algeria. They further submitted that they were no longer in possession of passports. Noting that the applicants had no passports and had not arrived directly from the State where they feared persecution, the airport and border police refused them leave to enter Austrian territory. The applicants were offered lodging in a special transit zone (“Sondertransit”) in a locked container near the airport which was equipped with beds and where food was provided. They refused and continued to stay in the main transit zone of the airport. On 7 November 1996 the applicants made statements to officers of the Federal Refugee Office (Bundesasylamt). They said that they had left Algeria in 1994 as the first applicant had been persecuted by the Islamic Salvation Front (FIS). Since 1994 they had been living in Tunisia with tourist visas which they renewed every three months by travelling to Libya and subsequently re-entering Tunisia. The first applicant had obtained refugee status from the UNHCR in Tunisia. They had not filed an asylum request in Tunisia as they feared that once the Tunisian authorities became aware of their presence they would be deported. They added that they had destroyed their passports upon their arrival at Vienna Airport in order to avoid deportation. Later that day the Federal Refugee Office dismissed the applicants’ request for asylum. It noted that the applicants had come from Tunisia where they were safe from persecution. Subsequently, at a hearing before the Independent Administrative Panel on 17 April 1997, the applicants explained that it was in fact only after that decision that they had destroyed their passports. Meanwhile, on 8 November 1996 the Schwechat Federal Police Directorate (Bundespolizeidirektion) ordered the applicants’ deportation to Tunisia, stipulating that if the deportation could not be effected, the applicants were to remain in the transit zone of the airport. Flights from Vienna to Tunis left twice a week, on Thursdays and Sundays. On 10 and 17 November 1996 the applicants’ deportation to Tunisia had to be postponed as they could not be found in the transit zone. Another attempt was made to deport them on 14 November 1996, but proved to no avail as the applicants did not comply with the order to board the flight and the authorities refused to employ force. Meanwhile the Regional Office of the UNCHR in Vienna was informed about the applicants’ situation. It gave a favourable opinion on the applicants’ deportation. In the morning of 21 November 1996 the applicants were placed under police surveillance in order to ensure their deportation on a flight to Tunisia that evening. Their deportation was however postponed indefinitely after information was received from the Tunisian authorities that they would not accept the applicants without passports. The police surveillance was stopped at 2 p.m. that day. Meanwhile, the applicants’ case attracted the attention of the media, and several articles about their situation appeared in Austrian newspapers. On 2 December 1996 the Regional Office of the UNCHR in Vienna stated that in Tunisia the applicants would risk deportation to Algeria. It stated in that connection that on 20 November 1996 it had been informed by the first applicant for the first time that he was a member of the Hamas Party. On 11 December 1996 the first applicant was again interviewed by an officer of the Schwechat Federal Police Office. On 13 December 1996 the Austrian authorities allowed the applicants to enter Austria on humanitarian grounds. On 21 May 1997 the Federal Ministry for the Interior (Bundesminister für Inneres) dismissed the applicants’ appeal against the Federal Refugee Office’s decision of 7 November 1996. It noted that there was nothing to show that Tunisia would disregard its obligations under the Geneva Convention on the Status of Refugees and deport them to Algeria. On 6 July 1999 the Administrative Court rejected the applicants’ complaints. It noted that the Ministry’s decision was void as it was based on the 1991 Asylum Act which, in the meantime, had been replaced by the 1997 Asylum Act. It therefore directed that the proceedings should resume at the stage of the Federal Refugee Office’s decision. However, the applicants did not pursue the proceedings any further. In the meantime, on 24 January 1997, the applicants lodged complaints with the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat). They complained that their stay in the transit zone and the authorities’ attempts to deport them to Tunisia had been unlawful as they should have been allowed to enter Austria as asylum seekers who had come from a country where they feared persecution. They further complained that their stay in the transit zone was contrary to Articles 5 §§ 1 and 4 of the Convention. They submitted that they had been left to their own devices without appropriate sleeping or sanitary facilities. Furthermore, there was no statutory right to bring proceedings by which the lawfulness of their detention could be reviewed speedily by a court and their release ordered if their detention was unlawful. On 15 July 1997, after a hearing on 17 April 1997, the Independent Administrative Panel (IAP) dismissed the complaint concerning the Austrian authorities’ refusal to let the applicants enter Austria and rejected the complaint concerning their stay in the transit zone. It found that the refusal to let the applicants enter Austria and the subsequent attempts to enforce their departure had been lawful, as they did not possess valid passports and had no right to enter under the relevant provisions of the Asylum Act, since they had come from Tunisia where they were safe from persecution. The Panel further found that the stay in the transit zone had not been ordered by, and was therefore not attributable to, the Austrian authorities. The applicants, who had been free to leave Austria, had remained of their own free will. It further noted that the situation in the case before it differed from the Amuur case (Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III) in that the applicants were free to move about the transit zone and had not been placed under surveillance. They had also been in contact with the media and a humanitarian organisation, Caritas, in Vienna, which provided, inter alia, legal assistance. It found that their stay in the transit zone did not amount to a deprivation of liberty. On 30 September 1997 the Constitutional Court (Verfassungs- gerichtshof) declined to deal with the applicants’ complaints and subsequently referred the case to the Administrative Court. On 23 February 2001 the Administrative Court noted that the applicants’ complaints did not concern the authorities’ refusal to grant them leave to enter Austria or their attempts to deport them to Tunisia, but were restricted to the IAP’s rejection of their complaint about the alleged unlawful stay in the transit zone. It confirmed the IAP’s findings in this regard. This decision was served on the applicants’ counsel on 14 March 2001. Meanwhile, in the summer of 1997, the applicants had left Austria for Canada. Section 32(1) of the Aliens Act (Fremdengesetz) 1992 stipulates that aliens who do not satisfy relevant passport or visa obligations shall be prevented (Zurückweisung) from entering the Austrian territory. An alien shall not be prevented from entering Austria when he is entitled to do so under other legislation. Section 32(3) lays down that the decision whether or not to admit an alien into Austrian territory will be taken by the border police after questioning the alien and on the basis of plausible evidence submitted by the alien or other known facts. Section 33 provides that the border police may order an alien who has been refused entry into Austria but is present on Austrian territory to leave immediately. If departure is not immediately possible the officer may order the alien to stay in a designated place in the border control area until he or she leaves the territory. Section 37 forbids the expulsion of an alien to a State where there is good reason to believe that he or she will be exposed to the risk of inhuman treatment or punishment or the death penalty or will be persecuted, within the meaning of the Geneva Convention relating to the Status of Refugees. Section 1 of the Asylum Act (Asylgesetz) 1991 defines a refugee as a person who has left his or her home country because of a well-founded fear of persecution on account of his or her race, religion, nationality or adherence to a particular social group or political opinion. Section 2(3) states that asylum is not to be granted to a refugee who has already found a safe haven from persecution in another country. Section 6(2) provides that an asylum seeker who has come directly from the State where he allegedly suffered persecution shall be allowed to enter Austria without any formalities. By virtue of section 7(1), an asylum seeker who has entered Austria in accordance with section 6(2) (that is to say, who has come directly from the State where he allegedly suffered persecution) and who files his request for asylum within one week, has a temporary right of residence. Both the Aliens Act 1992 and the Asylum Act 1991 have now been amended. The Protection of Personal Freedom Act (Gesetz zum Schutz der persönlichen Freiheit) provides protection against the intentional deprivation of liberty. In particular, it provides for compensation for unlawful detention and a procedure by which the lawfulness of detention is decided by a body, the Independent Administrative Panel, within one week after the complaint is lodged. If the detention is unlawful, an order must be made for the release of the person detained. However, according to the Constitutional Court’s settled case-law (see its judgment of 11 March 1999; VfSlg. [Collection of Judgments and Decisions of the Constitutional Court] 15465/1999) a mere order to stay in the main transit zone of an airport after leave to enter Austria has been refused does not amount to an arbitrary deprivation of liberty. The above mentioned Act is therefore inapplicable. On the other hand, an order requiring foreigners to stay in the special transit zone at Vienna International Airport may, in certain circumstances, constitute a deprivation of liberty. By virtue of Section 67a (1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons who allege a violation of their rights as a result of the exercise of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). A refusal by the border police to admit foreigners arriving at Vienna International Airport into Austria is deemed to be an exercise of direct administrative authority and coercion. Section 73 of the General Administrative Procedure Act deals with the administrative authorities’ duty to give a decision. It provides that, in the absence of any contrary provision in the administrative regulations, the authorities must decide applications by parties without unnecessary delay and at the latest six months after the application or appeal has been lodged. | 0 |
train | 001-101859 | ENG | SVK | COMMITTEE | 2,010 | CASE OF J.V. AND OTHERS v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time) | Ján Šikuta;Lech Garlicki | 4. The applicants were born in 1947, 1986 and 1986 respectively and live in Bratislava. 5. On 7 April 1995 the applicants claimed compensation for damage to their health (infection with Hepatitis C). 6. On 6 November 2007 the Bratislava I District Court dismissed their action. 7. On 29 May 2009 the Bratislava Regional Court, upon the applicants' appeal, quashed the first-instance judgment and remitted the case file for further examination to the district court. 8. On 18 January 2010 the applicants complained to the President of the district court about undue delays. On 2 February 2010 the President of the court concerned acknowledged that there had been delays in the proceedings. 9. On 4 March, 18 May and 1 July 2010 the district court held hearings. 10. The proceedings are pending. 11. On 8 June 2004 the Constitutional Court found that the Bratislava I District Court had violated the applicants' right to a hearing without unjustified delay. The Constitutional Court awarded 30,000 Slovakian Korunas (SKK) to each applicant as just satisfaction in respect of non-pecuniary damage, ordered the district court to avoid further delays and to reimburse the applicants' legal costs. 3. Second set of constitutional proceedings 12. On 15 March 2007 the Constitutional Court found that, in the period after its previous ruling, the Bratislava I District Court had violated the applicants' right to a hearing without unjustified delay. The Constitutional Court awarded SKK 50,000 to each applicant as just satisfaction in respect of non-pecuniary damage, ordered the district court to avoid further delays and to reimburse the applicants' legal costs. | 1 |
train | 001-57964 | ENG | AUT | CHAMBER | 1,995 | CASE OF RIBITSCH v. AUSTRIA | 2 | Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland | 6. Mr Ronald Ribitsch, an Austrian national born in 1958, lives with his wife in Vienna. 7. At the material time the Security Branch of the Vienna Federal Police Authority (Sicherheitsbüro der Bundespolizeidirektion) included three units assigned to investigating drug offences. One of these, led by Chief Inspector Pöttinger, had particular responsibility for cases involving fatalities. 8. On 21 May 1988, following the deaths of two people from heroin overdoses, the girlfriend of one of the deceased went to the headquarters of Mr Pöttinger’s unit and made a statement alleging that her boyfriend had told her that he intended to obtain drugs from the applicant. Acting on this information several of the unit’s officers questioned the applicant on the same day and searched his home, although they had no warrant. The search revealed nothing and the applicant and his wife were authorised to leave for Turkey on holiday that very day. 9. On 22 May 1988 one of the deceased was recognised as a rock singer who was very well known in Austria. This led to pressure from the media to find the dealer who had sold the heroin that had caused the deaths. Mr Pöttinger’s unit conducted numerous inquiries between 22 and 31 May 1988. 10. On the latter date another Security Branch unit, led by Chief Inspector Gross, and including at the material time Police Officers Markl, Trnka and Fröhlich, received an anonymous telephone call accusing Mr Ribitsch of selling heroin to one of the deceased. At about 12.30 p.m. a number of officers belonging to this unit arrested the applicant and his wife for drug trafficking and searched their home, although they had neither a search warrant nor an arrest warrant. The search revealed 0.5 g of hashish. 11. Mr Ribitsch and his wife were held in police custody at the headquarters of the Security Branch of the Vienna Federal Police Authority from about 12.30 p.m. on 31 May 1988 to about 9.30 a.m. on 2 June 1988. 12. There are two conflicting versions of what occurred during the period of police custody. According to the applicant, the officers questioning him grossly insulted him and then assaulted him repeatedly in order to wring a confession from him. He received punches to the head (Kopfnuß), kidneys and right arm and kicks to the upper leg and kidneys. He was pulled to the ground by the hair and his head was banged against the floor. Ninety per cent of his injuries were inflicted by blows from Police Officer Markl. When released he had bruises on his right arm and one thigh and was suffering from a cervical syndrome, vomiting, diarrhoea and a violent headache. A different version was given by Mr Markl in a report that was dated 1 June 1988 but purported to give an account of events which, according to the report itself, had occurred on 1 June from about 3.20 p.m. onwards, on 2 June at about 8 a.m. and on 2 June at about 9.30 a.m. The report stated that in the afternoon of 1 June the applicant was taken from police headquarters to an acoustic research institute so that his voice could be compared with that of a person who had made an anonymous phone call to the Vienna emergency services. As he was getting out of the police car, and while he had handcuffs on his wrists, Mr Ribitsch had slipped and his right arm had banged into the rear door. Mr Markl, who had opened the door for him, managed to grab hold of his left arm, but was not able to prevent him from falling. However, his fall had largely been broken and he had landed "gently" on his behind. It was only the next morning, when being questioned, that the applicant informed the police of his injury, although he refused medical attention. 13. On being released from police custody the applicant informed several members of his family, a psychologist and a journalist of the ill-treatment he had allegedly suffered. On the latter’s advice he went to Meidling Hospital in the afternoon of 2 June, where he was examined from 5.35 p.m. onwards, and to his general practitioner the following day. The hospital report recorded bruises measuring 2 to 3 cm in the middle of the outside of the right arm, and an appended neurological report recorded bruises on the outside and inside of the right arm. No other injury to his limbs was found. An X-ray showed no broken bones. The doctor’s report stated that the applicant had several bruises on his right arm and symptoms characteristic of a cervical syndrome, that he was suffering from vomiting and a violent headache and that he had a temperature of 37.5 oC. A photographer took a photograph of Mr Ribitsch’s injuries. 14. On 7 June 1988, following a programme on Austrian radio about the methods allegedly used by the police when they questioned Mr and Mrs Ribitsch, the Vienna Federal Police Authority began an inquiry into the officers concerned and sent the results to the public prosecutor’s department on 25 October 1988. On 22 November the applicant lodged a civil party claim for damages under Article 47 of the Code of Criminal Procedure (Strafprozeßordnung). 15. On 26 June 1989 the judge of the Vienna District Criminal Court (Strafbezirksgericht) conducted the preliminary inquiries (Vorermittlungen) and heard Mr and Mrs Ribitsch as witnesses and Police Officers Trnka, Gross, Fröhlich and Markl as accused (Beschuldigte). In its report the Commission gave the following account of the statements they made: "23. The applicant stated that on 31 May 1988 he had been arrested by four police officers, inter alia Markl and Trnka. Following the taking of photographs and fingerprints, the questioning had started in the afternoon and evening. At the first questioning five police officers had been present, who had interrogated him in turns. The applicant also indicated that the police officers, with the exception of Police Officer Fröhlich, were drinking wine. In the course of the questioning, their superior Mr Gross had started to pull his handle-bar moustache and to go around the room with him, and then also slapped him in the face. As he still had not confessed, Police Officer Markl had begun to hit him. He knew about this officer’s identity as he had seen him signing the record. Police Officer Fröhlich had been sitting at the typewriter. He had been the only officer behaving correctly. Police Officer Markl had continued to hit him in the course of the ensuing interrogations. Markl had been the one hitting him most of the time, though, while he had been lying on the floor, others had also kicked him. On the second day, even a legally qualified person had been present for a short time and had seen that he had been beaten. Police Officer Markl further had attempted to provoke him to hit back. 90% of his injuries had been caused by Markl. The haematoma on his right upper arm had been caused by Markl’s punches. Markl had further kicked him and caused a haematoma on his right or left lower leg; the print of the shoe had later been seen on his trousers. Police Officer Markl had also grasped his hair and had thrown him to the floor. Upon questioning, the applicant stated that there had been no accident when he was taken by car to have his voice compared. 24. Police Officer Trnka stated that he had been working with, inter alia, the Police Officers Markl and Fröhlich. He could not remember whether he had been present upon the applicant’s arrest. He had conducted the questioning of the applicant’s wife. The applicant had been questioned in another room, he had sometimes been there to put questions to the applicant. He had learnt about the injuries sustained by the applicant in the media. He himself had not beaten or kicked the applicant, nor seen that his colleagues had done so. The police officers had not drunk alcohol in the course of the interrogations. Moreover, though working hard, they had always taken a break at least between midnight and 7 a.m. 25. Police Officer Gross explained that he had been leading the particular work unit since 1983, Police Officer Markl had been in this unit for two years, Police Officer Fröhlich for one year and Police Officer Trnka for five years. He had been present at times at the interrogations of both the applicant and his wife. He had not touched the applicant or pulled his moustache, though he remembered that the applicant had a peculiar moustache. At the relevant time, they had worked overtime, but there had not been any particular pressure upon them. He had been informed at that time that the applicant had stumbled in the course of getting out of a police car, Police Officer Markl or Fröhlich had informed him of this. He had not known about any injuries. He had instructed his colleagues to draft a report on the incident. There had been no alcohol in the room where the interrogations had taken place. 26. According to Police Officer Fröhlich, who had joined the work unit in April 1988, Police Officer Markl had conducted the questioning of the applicant in the presence of always two or three colleagues. Upon questioning, he confirmed that a legally qualified person, namely a superior, had been present for a short time at one of the interrogations. No alcohol had been drunk in the course of the questioning. They had worked overtime, but there had been no particular pressure. Fröhlich, stating that he had been present at most of the questioning, denied that the applicant had been bodily assaulted. Fröhlich continued that on 1 June 1988 he had, together with Police Officer Markl, taken the applicant to have his voice compared. Fröhlich had driven and Markl had been at the rear with the applicant who had been handcuffed with his hands in front of his body. The applicant had probably stepped out of the rear left door. Fröhlich indicated that he had not seen the applicant stumble, but heard something like it. When he had turned around, he had seen Markl already holding the applicant. The applicant had said that he was not hurt. The next day the applicant had mentioned the bruise on his upper arm. One of them had informed Police Officer Gross about the bruise, and Gross had advised them to draft a report on the incident. 27 Police Officer Markl stated that he had joined the work unit of Police Officer Gross in May 1988. He had at the time interrogated the applicant, but he had certainly not been alone: in order to avoid unfounded allegations, other colleagues had been present for at least part of the time. Markl denied having used violence against the applicant, and supposed that the applicant and his wife, for unknown reasons, wanted to take revenge on them. As to the course of the interrogations, Markl specified that at the beginning the applicant had denied any involvement in the offences at issue; only in the further course of questioning had he given the decisive hint as to the identity of the actual culprit. As regards the injuries sustained by the applicant, Markl confirmed his statements in his report of 1 June 1988. During the drive, he had been sitting next to the applicant, who had been handcuffed with his hands in front of his body, in the rear of the police car. Markl continued that he had opened the door on the applicant’s side from the outside. The applicant had stumbled while getting out and fallen, knocking his right arm against the doorframe. Markl had only been able to stop him falling. The applicant had said that he was all right. Only the next day had he mentioned a bruise on his right upper arm. Markl could not remember any other injuries or a footprint on the applicant’s trousers. Markl clarified that he had written the report concerning the accident on 2 June, but had put the date of the incident. Markl further confirmed that a superior, possibly presented as a legally qualified person, had shortly been present at one of the interrogations. Markl also indicated that he worked normally 60 to 70 hours overtime per month; at the relevant time he had possibly done 80 to 90 hours overtime. Moreover, they had not consumed any kind of alcohol during their work." 16. On 13 October 1989 the trial of Police Officers Trnka, Gross and Markl on charges of assault occasioning bodily harm opened in the Vienna District Criminal Court, composed of a single judge. During the trial the judge examined the accused and several witnesses, namely Mr and Mrs Ribitsch, Police Officer Fröhlich, Mr Pretzner, the head of the three units of the Security Branch of the Vienna Federal Police Authority, and all those who had seen the applicant’s injuries or been informed by him of the ill-treatment he had undergone. These included Dr Scheidlbauer, the general practitioner, Dr Tripp, the psychologist, Mr Buchacher, the journalist, and Mr Lehner, the photographer. In its report the Commission gave the following account of their statements: "30. Police Officer Markl referred to his earlier statements. Upon questioning, he explained that due to information given to him, the investigations concerning the case in question had been transferred from another work unit at the Vienna Federal Police Authority. Following their arrest, the applicant and his wife had been brought to the Police Authority. Questioned about the further development of matters regarding the applicant, Police Officer Markl stated that the applicant’s identity had been established and he had been questioned about the offences concerned. Markl confirmed that Police Officer Fröhlich had been present in the course of the interrogation. However, he could not remember whether Police Officers Gross and Trnka had been also there. The applicant had claimed to be innocent, and even claimed that he had nothing to do with drugs and in particular opium. He had complained that the police was again creating difficulties. Moreover, the applicant had repeatedly indicated that he would cause troubles and ridicule them. Police Officer Markl then described the events when the applicant had been taken out of the building of the Police Authority: The applicant had been handcuffed with his hands in front of his body, he had been sitting in the rear of the police car. Upon arrival, Markl had opened the door where the child lock had been in position as a precautionary measure. When getting out of the car, the applicant had lost his balance, had fallen and hit his right arm against the door frame. He had shown his injury, a round bruise, but had not wanted to see a doctor. Upon further questioning by the public prosecutor, Markl stated that, upon the arrest, a piece of hashish had been found upon the applicant, nothing upon his wife. However, police informers had told them that the applicant had been dealing with heroin and had been selling washing powder to drug addicts. This information had not been recorded as the informers were not prepared to make a statement for the record. Upon further questioning, Markl indicated that, having first denied any relationship to one of the victims, the applicant and his wife had later admitted a close relationship. 31. Police Officer Trnka first made some more general remarks about the organisation and distribution of work between the three units dealing with drug offences. He remembered that he had been present at the arrest of the applicant and his wife and that he had interrogated the applicant’s wife. Though he had not assisted in the questioning of the applicant in the adjoining office, he had occasionally come to put questions to the applicant. They had mainly inquired about discrepancies in the spouses’ statements about their alibi. He had learnt about the injury sustained by the applicant only after his release. 32. Police Officer Gross, the head of the work unit concerned, also explained that following information obtained by Police Officer Markl on the particular case, it had been transferred from another work unit which had initially conducted the investigations. He had seen the applicant for the first time during the interrogation in the afternoon. Together with Police Officer Trnka he had questioned the applicant’s wife, but also the applicant in order to verify their alibi, as there had been discrepancies in their statements. As regards the applicant’s injury, he remembered that either Police Officer Markl or Police Officer Fröhlich had informed him about the incident in the course of the escorted visit. He had instructed them to draft a report. Being asked in detail about the applicant’s allegations of ill-treatment, Gross stated that it appeared practically impossible to pull the applicant around by his moustache without leaving injuries to his face. 33. The applicant, heard as a witness, stated that, following his arrest in the late morning, he had first been questioned in the late afternoon by Police Officers Markl and Fröhlich, in particular about his alibi. Violence had been used, Gross had pulled him around the room by his moustache, and he had been slightly hit on his head. In the afternoon of the second day, he had again been interrogated, and because he had refused to admit that he had given drugs to the two persons who had subsequently died, he had been beaten every half-hour. He had also been kicked while lying on the floor, and had therefore not seen the persons who had kicked him. Police Officer Markl had hit him on the upper arm and kicked him. On one occasion, a legally qualified person had been present who had not stopped the beatings. Police officers from another group had also been present; there had been continual changes. In between, he had been escorted to have his voice compared. Questioned about the escorted visit, the applicant denied that he had stumbled while getting out of the car. He also confirmed that Police Officer Fröhlich had not hurt him. 34. The applicant continued that he had been released on 2 June 1988 at the same time as his wife; they had gone home where he had met his brother and a psychologist, Dr Tripp, with whom he was acquainted. He had only later noticed that a footprint on his trousers was consistent with an injury to his leg. After having taken a shower and changed clothes, he had met the journalist Buchacher. Subsequently he had gone to the hospital. Two fingers of his right hand had been numb. On the next day he had got a stiff neck, he had vomited. The applicant stated that he had not eaten for two days and that he had a nervous stomach. He further stated that he had health problems due to the fact that Markl had pulled him by the hair off a chair and on to the floor. 35. The applicant’s wife stated that she had been questioned by Police Officer Trnka, subsequently cross-examined by four persons and later by Police Officers Markl and Fröhlich. She had been released at the same time as her husband who had told her immediately that he had been hit and beaten and pulled by his moustache and hair. She had seen the bruises mentioned by him, and also the shoe-print on his trousers. Her husband had said that Police Officer Markl had caused the injuries. Her husband had complained about pain in the neck, headache, and later a feeling of numbness in his right hand. 36. Police Officer Fröhlich was next heard as a witness. He stated that following a tip-off about who had given the deceased the drugs the case had been transferred to their work unit. Because of the rivalry existing between the units, information of such kind would not be passed on. Upon his arrest, the applicant had said that he would cause difficulties. However, during his interrogation, the applicant had been quite calm. Fröhlich denied having seen that the applicant had been hit. As regards the escorted drive, Fröhlich indicated that he had parked the police car rather close to another car. Police Officer Markl had opened the door for the applicant. According to Fröhlich, there had been a noise and, turning around, he had seen that Markl was holding the applicant. Fröhlich confirmed that Police Officer Gross had advised them to draft a report on the incident. 37. The applicant’s doctor, Dr Scheidlbauer, confirmed that he had examined the applicant who had been undressed. The applicant had several haematomas, the largest on his right upper arm. Scheidlbauer had the impression that the applicant had either bumped against something or had been hit. Scheidlbauer excluded that a fall against a doorframe could have caused these haematomas. The applicant had not indicated that he had been hit by the police. Scheidlbauer had not ascertained injuries to the legs, but there were other bruises and the applicant had complained about vomiting and headache. The applicant had not had a concussion but, as a consequence of a cervical syndrome, had been unable to turn his head. Upon questioning, Scheidlbauer stated that such a cervical syndrome could have several causes, inter alia, a cold or the fact that somebody had been several times pulled by his hair. However, the cause could not be objectively established. 38. The psychologist Tripp, who had seen the applicant after his release, confirmed that the applicant had told him about his arrest and detention and about having been hit and maltreated by the police, in particular one police officer. Tripp further said that he had not looked for any injuries. He also stated that he had not for a moment had the impression that the applicant had made up his story. 39. The court next heard Mr Pretzner, the head of the section - with three work units - at the Vienna Federal Police Authority which had been responsible for the investigations in the opium poisoning cases. Pretzner first explained the organisation and distribution of work between the units and, in this context, excluded rivalry between the units. Moreover, Pretzner stated that he had been present at the questioning of the applicant by Police Officers Markl and Fröhlich for about ten minutes. Pretzner remembered that he had advised the applicant that a confession could result in the court passing a more lenient sentence. Being confronted with the applicant’s allegations, Pretzner denied that the applicant had been tortured or beaten; rather, the atmosphere had been friendly. 40. The applicant’s sister-in-law, Mrs Hoke, described the state of the applicant and his wife following the release from detention. Mrs Hoke confirmed in particular that she had seen the bruise on his right upper arm and that the applicant had told her that he had been pulled around by his hair, thrown to the floor, punched and that two or three police officers had been present most of the time, the most brutal one having been the Police Officer Markl. She could not remember having seen a shoe-print on the applicant’s trousers. 41. [The applicant’s brother] I. Ribitsch stated that when they had met at the applicant’s apartment the applicant had told him that he had been subjected to physical violence while in detention, namely that he had been beaten, kicked and pulled by the hair to the ground. I. Ribitsch had seen several bruises on the applicant’s body, and a shoe-print on the applicant’s trousers. The applicant had also told him that he had problems with his stomach and had vomited. 42. The applicant’s sister-in-law, Mrs Hoke, and his brother I. Ribitsch were subsequently questioned about whether the applicant had mentioned an accident in the course of an escorted visit. Mrs Hoke stated that the applicant had mentioned that one of the police officers had told him that this was the cause of his injuries. I. Ribitsch had not heard about this. 43. The reporter Buchacher had been informed by the applicant’s sister-in-law, Mrs Hoke, about the applicant’s allegations of ill-treatment in the course of his police detention. Buchacher had thereupon arranged by phone a meeting with the applicant. Buchacher had been shown several injuries, haematomas on the applicant’s right arm, the largest on the outside, one or two smaller on the inside. Buchacher had photographed them the next day for the purposes of a story in a magazine. Upon questioning, Buchacher indicated that the applicant had told him that his voice had been compared, but not that he had fallen out of the police car. 44. Buchacher then turned to read from the notes which he had made in the course of the conversation with the applicant at the time according to which the applicant had given the following account: the head of the group had pulled him by the beard and hit him on the head with the flat of his hand; during the first interrogations he had been insulted, but not yet been hit. Following the escorted visit to the Acoustics Research Institute, the police officers had shaken him by the feet and hands and beaten him for about twenty minutes. There had been bottles of wine in the office and the police officers had been smelling of alcohol. Police Officer Fröhlich had behaved correctly and not hit him, Police Officer Markl had hit him the most. They had also threatened to place his children at a children’s home. Only at the last interrogation in the morning before his release, all police officers, including Markl, had been friendly and polite. 45. Buchacher also indicated that he had seen a footprint on the applicant’s trousers which appeared to have been dragged over the floor. Buchacher continued that he had verified that the shoe-print coincided with a haematoma on the applicant’s leg below his knee. Upon questioning, Buchacher stated that he did not have the impression that the applicant had been acting. 46. The photographer Lehner, a colleague of the journalist Buchacher, confirmed that he had photographed the injuries suffered by the applicant, namely a severe bruising on his right upper arm. He also remembered injuries to the applicant’s legs. He had not taken photographs of the smaller injuries as they would not have been visible." 17. At the end of the trial the District Criminal Court found Police Officer Markl guilty of assault occasioning bodily harm, within the meaning of Article 83 para. 1 of the Criminal Code (Strafgesetzbuch), and sentenced him to two months’ imprisonment, suspended, and three years’ probation. It also ordered him to pay Mr Ribitsch the sum of 1,000 Austrian schillings (ATS). The other two police officers, Mr Trnka and Mr Gross, were acquitted. In its judgment of 13 October 1989 the court gave a brief account of the criminal investigation, referring to the pressure the officers in Mr Gross’s unit had been under to find the guilty person and the many hours of overtime they had put in on that account. It then described the ill-treatment suffered by the applicant while in police custody and excluded the possibility that his injuries could have been caused accidentally. The court based its judgment on the evidence given by Mr Ribitsch, who had made an excellent impression in the witness box, and by the witnesses, particularly the journalist who had seen the applicant on the day when he was released from police custody and had taken notes. It went on to say: "In summary, the court therefore notes that the injuries sustained by Ronald Ribitsch were seen by several people who were not in any way involved in the events giving rise to the case. These injuries consisted of several bruises - not a slight abrasion or a small bruise - on the upper right arm. The claim that a cervical syndrome was sustained is credible, given the description of how it occurred, namely by the head being pulled violently backwards by the hair. It is a fact recognised by the courts (gerichtsbekannt) that it is impossible to prove the existence of a cervical syndrome by objective means, even using X-rays. To have consulted a medical expert for this purpose would therefore merely have led to a delay in the proceedings. A haematoma about as big as an egg, many other bruises and a cervical syndrome constitute bodily harm. This is not a question for an expert; it is a matter for the court, which it has duly determined in accordance with the consistent case-law. It is not only the testimony that has so far been heard which is persuasive of Ronald Ribitsch’s credibility but also his excellent memory of the persons concerned. In this connection, the court would refer to the identity parade on 26 June 1989, that is more than one year after the offence (file, item 10). At this identity parade, consisting of a total of nine persons, Ronald Ribitsch did not hesitate for one moment in recognising those involved in the police interviews, and in particular the accused Markl. Ranged against this evidence is the line of defence established by the accused, which can only be described as disquieting. Both he and his defence lawyer, as well as his superior officer, Mr Pretzner, attempted at the trial (file, page 114 in item 25) to make Ronald Ribitsch out to be a despicable, work-shy individual. Apart from the fact that an officer of the Security Branch does not have the right to beat someone up in order to induce him to make a confession, simply because he is unemployed, what is noteworthy here is the obviously misguided attitude of the accused to his legal obligations. In his efforts to portray the witness Ribitsch as a depraved individual, he suddenly claimed at the trial that the two anonymous callers had been Wilhelm Puschl and Ursula Hennemann. He had, he stated, in the meantime learned from them that ‘Ribitsch [was] a despicable creature (eine miese Kröte) because he [sold] washing powder to the poorest of the poor, the drug addicts’ (file, page 128 in item 25). When the court asked him whether he had reported this, he was forced to reply that he had not. He subsequently went on to entangle himself in more and more contradictions concerning the statements made by these two witnesses (file, page 129 in item 25). If the accused’s claim were really true this would mean that an officer of the Security Branch, who had good reason to suspect someone of, at the very least, deliberately inflicting grievous bodily harm by selling washing powder he passed off as heroin, did not consider it necessary in any way at all to perform his duty under Article 84 of the Code of Criminal Procedure. The conclusion must be drawn that the accused Markl would prefer to allow criminal acts to be committed with potentially fatal consequences than to run the risk of having people say that he now wants to pin something on Ribitsch - which he is obviously afraid of (see page 129). With regard to the application for a forensic doctor to be appointed with a view to showing that the injuries and the haematoma could also have been caused by a fall against the edge of the car door and that the other bruises on the inside of the upper right arm were caused when the former suspect’s arm was grabbed, the court notes as follows: The accused Markl himself states in his (wrongly dated) report (file, page 419) that when Ronald Ribitsch was taken away for the voice comparison to be made he evidently missed his footing getting out of the car, which caused him to lose his balance and his right arm to bang into the edge of the car door, which had remained open. He, Markl, who had been standing right next to him, had managed to grab his upper left arm but had not been able to prevent him from falling. However, due to his intervention the fall had been rendered much less serious, and Ribitsch had only fallen gently on to his behind. Markl therefore himself states that he grabbed Ribitsch by the left arm, so that he cannot have inflicted a bruise on the inside of the right arm by catching him in this way. However, this version of events in the report is also contradicted by the witness Fröhlich (file, page 103 in item 25). This witness stated that there had been a big problem finding a place to park. He had had to park very close to another vehicle, so that he had had a great deal of trouble getting out of his own. It is `very strange’ (lebensfremd) that, although the driver of the vehicle had great difficulty getting out of it on his side, and although, because of the tight squeeze, the suspect at the time (Mr Ribitsch) must obviously also have had trouble getting out - Markl stated that Ronald Ribitsch sat directly behind the driver - there was yet sufficient room for Ribitsch to fall against the edge of the door and then on to his bottom. If one considers Ronald Ribitsch’s size, that is impossible. Furthermore, the witness Scheidlbauer, who is a general practitioner, made a statement as an expert witness that was both credible and `easy to understand’ (nachvollziehbar), namely that whilst the largest bruise had been on the upper right arm it had not been the only one there. He continued by drawing attention to a phenomenon that the courts have recognised in many previous cases, namely that a person who falls against a hard edge normally has a graze or a skin wound, whereas when a person falls against or is struck by something without sharp edges, whether it is something with a large surface area or a fist, it is not the surface that is affected but the soft tissues underneath the skin (file, page 107). Similarly, a cervical syndrome could be the result of Ribitsch’s head being violently shaken. In law, both the objective and the subjective elements of the offence have been made out and Josef Markl is therefore guilty of the offence of assault occasioning bodily harm as defined in Article 83 para. 1 of the Criminal Code. The conditions laid down in Article 42 of the Criminal Code are not satisfied since this kind of behaviour cannot be classified as a trivial offence. Moreover, the specific, and above all general, requirements of deterrence militate against the application of this rule. Josef Markl was unable to prevent himself from committing the acts in issue in the instant case, even though he must have known that similar proceedings (where the facts were more serious) had already been brought against one of his superior officers, Mr Gross. In sentencing the accused, the court considers the fact that the accused has no previous convictions to be a mitigating circumstance. On the other hand, his particularly brutal conduct constitutes an aggravating circumstance. Given a possible maximum sentence of nine months, the sentence imposed of two months is reasonable in view of the offender’s personality and the degree of culpability. For general reasons of deterrence - more and more accusations directed against the brutal policemen (prügelnde Polizisten) of the Security Branch have been made in recent years - a fine would not have been sufficient. In view of the length of prison sentence imposed, it must, however, be assumed that the threat of its execution will be sufficient to deter Josef Markl and others from committing criminal acts. For this reason, the court has been able to impose a suspended sentence." 18. Mr Markl appealed against the judgment to the Vienna Regional Criminal Court (Landesgericht für Strafsachen). 19. By an interlocutory decision of 2 March 1990 the court ordered an expert opinion to be produced by the University of Vienna Institute of Forensic Medicine concerning the probability of there being a causal connection between Mr Ribitsch’s injuries and the accident which had allegedly occurred when he was taken out under police escort, and the credibility from the medical point of view of the applicant’s statements regarding the ill-treatment he had undergone. 20. After interviewing both Mr Ribitsch and Mr Markl and organising a reconstruction of the applicant’s alleged fall against the rear door of the police car, the expert from the Institute of Forensic Medicine summarised his findings as follows: "Therefore, judging by Meidling Accident Hospital’s medical records, Ronald Ribitsch had a group of bruises on the outside of his upper right arm covering an area of 2 by 3 cm. Moreover, the findings of the neurological examination also contain a description of bruising to the inside of the right arm. Thus, the only injuries established by doctors were the bruises on the outside and inside of the upper right arm described above. These bruises must be regarded as minor and are to be interpreted as the result of dull blows to these parts of the body (lokale stumpfe Gewalteinwirkung). They are not likely to result in more than 24 days’ sickness or unfitness for work. Whether there was further bruising in the area of one armpit and below the right knee must be left to the judge’s assessment of the evidence, as no medical findings were available to form the basis for an opinion on this question. The decisive factor is the credibility of the witness evidence. Even if one assumes that these haematomas existed it would make no difference to the assessment of the consequences of the injuries described above. The general practitioner Dr Fritz Scheidlbauer diagnosed a cervical syndrome and pointed to vomiting, headaches and a raised body temperature. However, the neurological examination conducted at Meidling Hospital did not reveal any evidence of a head injury or a displaced cervical vertebra. These symptoms can be interpreted in this case as non-specific complaints, resulting, for example, from a general infection (Allgemeininfekt) (Ronald Ribitsch stated that he was suffering from diarrhoea). On the other hand, from the point of view of forensic medicine, no connection can be proved with any trauma that may have been suffered. The results of the test carried out with the car - no big differences are to be expected with a VW Golf - showed that the bruising to the outside of the upper right arm was roughly consistent as far as its position was concerned with the bruise on the outside of the upper arm described in the outpatient records and visible in the photograph. From the medical point of view these injuries must be described as non-specific injuries, and they only support the conclusion that this area of the body was violently struck by a blunt ‘instrument’, without it being possible to conclude from the nature of the damage what kind of instrument it was. The possibility cannot therefore be excluded that the injury was caused by a bump against the car door. Even if one proceeds upon the assumption that the injuries described by the witnesses existed, the general diagnosis must, on the whole, be described as non-specific, so that no certain conclusion can be drawn from the medical point of view as to whether there was maltreatment, although blows to the upper arm and, perhaps, a kick in the knee area cannot be excluded. However, serious ill-treatment lasting several hours cannot in any case be deduced from the overall pattern of the injuries. However, the version submitted by Josef Markl, namely that Ronald Ribitsch fell against the car door can explain only one of several injuries that may have been sustained." 21. At the hearing on 14 September 1990 the expert’s report and a statement by the "police detention centre" to the effect that the prison doctor had seen Mr Ribitsch at 8 a.m. on 1 June 1988 and had declared him fit for detention were read out. The court then heard Police Officer Markl, Mr Ribitsch and the expert from the Institute of Forensic Medicine. In its report, the Commission gave the following account of Mr Markl’s and the applicant’s declarations: "60. Police Officer Markl was again questioned on the accusations against him, brought both by the applicant and his wife. Markl expressed the view that the applicant’s wife had suffered from the fact of her detention as such and had, together with her husband, concentrated upon Markl against whom to bring their accusations. Markl remembered that upon his arrest the applicant had threatened to cause difficulties. At a later stage, when his superior Pretzner had been present, there had, as usual, been a rather calm atmosphere. At the questioning on 2 June 1988, the applicant had shown him the bruising on his right upper arm, but had not wanted to see a physician. Markl also repeated his version of the incident upon the applicant’s escorted visit. 61. The applicant was questioned about his professional training and his past occupations, his financial situation, furthermore about his contacts with drugs. Questioned about the alleged escalation of the interrogation, the applicant stated that the police officers had wished to find a culprit by any means. As regards the first questioning on 31 May 1988, he stated that Police Officer Gross had disliked one of his answers and, therefore, pulled him by his moustache out of the chair and later put him down again. As he had not resisted, his moustache had not been torn off. Police Officer Markl had already hit him at that stage, however not in the face; throughout the beating Markl had attempted to avoid marks as far as possible. The applicant further stated that he had not suffered any accidental incident upon his escorted visit, and he insisted that at the time he had been driven in a two-door car, whereas the reconstruction had been done with a four-door car. The applicant was subsequently questioned in detail about the course of the maltreatment to which he had allegedly been subjected. He repeated his earlier statements that Markl had mainly beaten and kicked him and pulled him by the hair, though, when lying on the floor, he had the impression of being kicked by more than one person. Questioned about the varying statements in the course of the proceedings as to the shoe-print, the applicant insisted that the haematoma had been on his lower leg underneath his knee, as had the shoe-print on his trousers. He could not say with certainty that Markl had kicked him, causing this particular haematoma. The applicant also said that he had chosen counsel to represent him in this matter only after having gathered information. The reporter of the public broadcast had coincidentally been present in a pub where he had told friends about the incidents." 22. At the end of the trial the Regional Criminal Court quashed the District Court’s judgment of 13 October 1989 and acquitted Mr Markl. Pursuant to Article 366 para. 1 of the Code of Criminal Procedure, it referred the applicant to the civil courts in respect of his claim for damages. In its judgment of 14 September 1990 the court set out its reasons as follows: "However, the defence lawyer’s written appeal against conviction and his oral pleadings at the hearing on 2 March 1990 cause attention to be focused on the question whether on its own, and in context, the evidence incriminating the accused provides a sufficient degree of reliability to support a verdict of guilty, since it must be borne in mind that the civil party Ronald Ribitsch has been involved, from time to time at any rate, in the drug scene. The position confronting the appeal court as regards evidence (Beweislage) is as follows: while it is true that the statements made by all the witnesses informed by the civil party Ronald Ribitsch tallied perfectly with his own version of events, which always remained the same, the objective accuracy of this version stands or falls solely on the reliability of the evidence given by Ronald Ribitsch. Moreover, like the court of first instance, the appeal court has no doubt as to the subjective accuracy of the statements made by the witnesses Dr Scheidlbauer, Dr Tripp, Elisabeth Hoke, Robert Buchacher and Peter Lehner, and can therefore base its decision on the record of their testimony, in accordance with Article 473 para. 2 of the Code of Criminal Procedure. Nevertheless, it considers it necessary to inquire into Ronald Ribitsch’s credibility, to weigh up his story against that of the accused and to supplement the evidence adduced in the proceedings at first instance by consulting an expert from the Institute of Forensic Medicine." With regard to the applicant’s credibility, the Regional Court pointed out that on 6 October 1988 the District Criminal Court had found him guilty of drug offences and ordered him to pay a fine. Moreover, he had been unemployed for several years and lived off his wife’s income and social security benefits. These resources were not, however, sufficient to cover his expenses as a drug user who was the father of two minor children at the material time, or his other personal expenses. The court then summarised the versions given by Mr Ribitsch on the one hand and Mr Markl on the other of the events which had occurred while the applicant was in police custody, and went on to say: "Neither Ronald Ribitsch’s account nor the testimony of his wife Anita in the file have been able to satisfy the appeal court conclusively that there was a situation which could logically explain why the police interviews degenerated into criminal behaviour. Moreover, seeing that only four police officers were present and asked questions during the interviews, and were busy for part of the time interviewing Anita Ribitsch, that Police Officers Gerhard Trnka and Helmut Gross, who were subsequently acquitted, were cleared of blame by Ronald Ribitsch himself (vol. II, pages 95 and 96) and that neither Ronald Ribitsch nor his wife Anita accused Police Officer Mario Fröhlich, who treated them correctly, of any offence (Ronald Ribitsch to Buchacher, vol II, pages 122 and 123; Anita Ribitsch, vol. I, page 47), the appeal court considers that it remains a completely open question which other Security Branch officers might have been Josef Markl’s accomplices (Mit- oder Nebentäter). The view of the evidence taken by the court of first instance, to the effect that public pressure to solve the crime, which was reflected in the numerous hours of overtime (confirmed by the Chief of Police, Dr Bögl, in vol. I, pages 37 and 43), constituted sufficient motivation, does not appear to the appeal court to be capable of bearing scrutiny (tragfähig), since one cannot simply assume that a police officer, and one moreover who had good reason to be aware of the heightened vigilance of the media, would let himself be drawn into criminal acts in a way that defies all logic. Ronald Ribitsch’s version of events, according to which, `between 3 p.m. and 10.45 p.m. on 1 June 1988 he was questioned for periods of about three-quarters of an hour, each time by three police officers, after which two more officers banged his head against the floor and kicked him for a quarter of an hour’ (vol. I, page 27) leads one to expect a large number of injuries, especially to prominent parts of the face. Similarly, Ribitsch’s claim (loc. cit.) that he was hit on the body in such a way ‘that this did not leave many marks but was nevertheless very painful’ would suggest that the officers had gone about their task in a methodical way, but this cannot be reconciled with Ronald Ribitsch’s account, according to which the officers, in their efforts to force him to confess, had lost all control over their actions. This version of events does not tally with Mr Ribitsch’s assertion that it was possible for him to distinguish between the officers questioning him and those who were maltreating him, given that, according to other statements made by Ribitsch, Josef Markl participated both in the interrogation and in the ill-treatment." The court then turned to the question of the injuries noted on the applicant’s person. (i) It referred to Mr Markl’s statements to the effect that Mr Ribitsch had lost his balance when he bumped into the car’s rear door and had slid to the ground before he, Markl, could grab hold of his left arm and break his fall. According to the forensic medical report, it was not impossible for the bruises on the outside of the applicant’s right arm to have been caused by this fall, even though the general practitioner questioned by the court of first instance on this subject had stated that this was rather unlikely. Lastly, the expert from the Institute of Forensic Medicine, who had organised the reconstruction of the events, had stated that the more violent Mr Ribitsch’s collision (Anprall) with the car door had been, the more likely it was to have caused the injuries, but that the more it resembled a mere slip to the ground (Abgleiten), the more improbable was the version of the events given by the accused. (ii) The court added that only one of the witnesses, namely the journalist, had noted the existence of a bruise on the inside of the right arm, which in any case was not by itself proof of ill-treatment. Moreover, Mr Markl had stated in that connection that he could not be sure he had not also grabbed Mr Ribitsch’s right arm to stop him falling. (iii) As for the applicant’s other symptoms, namely the cervical syndrome, stiffness of the fingers and diarrhoea, the court pointed out that, according to the report from the Institute of Forensic Medicine, these might also have been signs of a general infection. The court refused the applicant’s lawyer’s request that further evidence be taken, such as re-examination of the witnesses, production of the recording made by Austrian radio, reconstruction of the events with a two-door VW Golf and a psycho-neurological report; it also refused the prosecution’s request for production of the Security Branch log-books so that it could be checked whether a two-door or four-door car had been used. It concluded in these terms: "Finally, if one considers the fact that the civil party Ronald Ribitsch did not see fit to report the offence, that he has been unable in the course of these proceedings to state why he did not do so, that, for incomprehensible reasons, he chose the course of making a public accusation on Austrian radio and that during the proceedings he became entangled in contradictions concerning the alibi to be proven by the witness Stranner, then there are considerable doubts as to the reliability (verläßliche Tragfähigkeit) of his evidence. The appeal court is therefore unable to reach a conclusive decision either to reject the accused’s evidence or to accept even in part the evidence adduced by the civil party Ronald Ribitsch with the certainty which alone may be made the basis of a verdict of guilty in criminal proceedings. ..." 23. Mr Ribitsch then applied to the Constitutional Court, which gave judgment on 26 November 1990. It held that the applicant’s arrest, his detention in police custody and the searches carried out at his home had been unlawful and had infringed his right to liberty of person and respect for his home. The police had not been in possession of either an arrest warrant or a search warrant and had not been able to establish the risk of collusion or immediate danger. It ruled that it had no jurisdiction to rule on the question of the insults allegedly uttered by the police to the applicant. As for the ill-treatment he had allegedly undergone, it noted that the three defendants had been acquitted by the lower courts and concluded: "In the light of this outcome of the criminal proceedings (during which a large body of evidence was presented), the Constitutional Court considers that it is not in a position (außer Stande) to uphold the applicant’s allegations and to consider the claims of ill-treatment made in the application to this court to have been proved beyond doubt. In summary, in the proceedings before the Constitutional Court it was no longer possible, in the circumstances, to clarify the relevant facts any further, nor, consequently, to furnish proof of the alleged human rights violation. On this point also, therefore - in the absence of a valid object - the application must be declared inadmissible (unzulässig)." | 1 |
train | 001-110469 | ENG | POL | CHAMBER | 2,012 | CASE OF FĄFROWICZ v. POLAND | 3 | No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1971 and lives in Nowy Sącz. 6. On 27 January 2006 the applicant was arrested on suspicion of car theft and subsequently remanded in custody. On an unspecified later date he was charged with selling drugs. The charges concerning car theft were severed to be dealt with in another set of proceedings. 7. On 15 February 2006 a certain JH, a minor, was questioned by the police in respect of the car theft. On 27 February 2006 JH was questioned by the police in respect of the charge of selling drugs between September 2005 and 10 February 2006. He admitted that he had been selling drugs which he had received from the applicant. The questioning took place in the presence of a psychologist. 8. In her report dated 1 March 2006 the psychologist observed that JH’s cognitive processes had functioned at the level commensurate to his age. She noted that his interpretation of the facts could have been slightly changed on account of his fear of the consequences of his acts. There could also have been minor inconsistencies with regard to the amount of drugs sold by the applicant to other persons. She also noted that JH had willingly presented the facts related to the drug transactions involving him and other persons. 9. JH was heard by the police as a juvenile suspect but no preventive measures were applied. The charges against him were to be examined separately by the Division for Family and Minors of the Nowy Sącz District Court. That court ordered an inquiry to be carried out at his home. On 10 July 2006 the report of the inquiry was submitted to the District Court. According to the report, JH had left Poland for the USA on 17 March 2006 and his parents did not know his address or telephone number. JH had not informed his parents of his plans to leave Poland and he had merely called them from the airport. 10. On 7 September 2006 the District Court requested the police to establish JH’s place of residence. On 18 September 2006 the police informed the court that JH had been in Chicago as from April 2006 and that he was expected to return to Poland in the summer of 2008. 11. On 17 October 2006 the Nowy Sącz District Court decided not to institute proceedings against JH. It had regard to the fact that he had been in the USA since April 2006 and in those circumstances it would be impossible to apply to him the measures provided in the Juvenile Procedure Act (ustawa o postępowaniu w sprawach nieletnich). 12. On 19 August 2006 the prosecution filed a bill of indictment against the applicant with the Nowy Sącz Regional Court. The applicant was charged with offering drugs to a minor, JH, and with seven counts of selling drugs to JH, PK, SB, KJ, GS, TK and RG between June 2004 and 27 January 2006. The prosecutor requested the court to hear seventeen witnesses, including JH. 13. There were five other defendants in the case (WZ, GS, KJ, MG and TK) who were also charged with drug trafficking offences. Two of them, WZ and GS, were additionally charged with car theft. On 3 October 2006 the trial court severed the charges against MG and TK. 14. On 28 August 2006 the Nowy Sącz Regional Court scheduled hearing dates for 3, 9, 13, 16 and 17 October 2006. JH was summoned to testify on 9 October 2006. On 11 September 2006 JH’s mother informed the trial court that JH resided in the USA where he was attending school. She produced photocopies of the plane tickets. On 18 September 2006 the police confirmed the above and informed the court that the date of JH’s return to Poland was unknown. 15. On 9 October 2006 the trial court again summoned JH to give evidence on 17 October 2006. The police were asked to serve the summons or to establish the date of his return to Poland. On 13 October 2006 the police informed the court that the summons could not be served since JH was still in the USA and the date of his return remained unknown. 16. On 18 October 2006 the trial court again summoned JH to testify at the hearing. It also requested police assistance in establishing the date of his return to Poland. The police informed the court in their two letters of 26 October 2006 that JH was in Chicago. They notified the court that the date of his return to Poland was still unknown. They also reported that, according to the information obtained from JH’s parents, JH would remain in the USA for several years as he was attending school. 17. The trial court held five hearings as scheduled and one additional hearing on 15 November 2006. At the hearing held on that date the prosecutor requested the court to read out the statements JH had made to the police. The applicant and his counsel objected. They argued that those depositions were the main incriminating evidence against the applicant and that they wanted to put questions to JH at the hearing. The trial court decided that JH’s statements should be read out pursuant to Article 391 § 1 of the CCP since the witness was permanently abroad and his date of return to Poland remained unknown. It noted that in those circumstances it was not possible to grant the applicant’s request to hear JH at the hearing. 18. The Nowy Sącz Regional Court gave judgment on 16 November 2006. It convicted the applicant as charged and sentenced him to four years’ imprisonment and a fine of PLN 2,000. It further ordered him to make a payment of PLN 5,000 to an association assisting drug addicts. 19. The trial court established that the applicant had sold drugs as alleged in the bill of indictment. In this respect it relied on the statements of JH who had been heard by the police as a juvenile suspect. JH stated that the applicant had sold drugs to GS, TK, SB, RG and KJ in his presence. In his evidence, he described in detail the factual circumstances of those transactions and distinguished between transactions at which he had been present from those of which he had only heard. The trial court considered JH’s evidence reliable, having regard to its detail, certainty and consistency. The reliability of his evidence was enhanced by the fact that JH had known all the defendants well and had had no motive to incriminate them. Furthermore, the trial court considered that JH’s evidence was objective since he had not concealed any facts which might have put him in a negative light as he admitted that he had been selling the drugs for the applicant to KJ, GS, PK and AB and that he had stolen the car. On 14 February 2006 JH together with the two co-accused WZ and GS had stolen a car which indicated that they had trusted each other. 20. The applicant pleaded not guilty and decided not to testify. He stated that he had not sold or offered drugs to other persons and had not possessed them. He refused to answer any questions from the court and the parties. 21. According to the trial court, the credibility of the statements given by JH was supplemented by other evidence. Those statements were not the only incriminating evidence as they were confirmed in certain respects by evidence from PK, KJ, GS and WZ. Furthermore, JH’s statements were not undermined by the findings of the psychologist who had assisted in his questioning. 22. In respect of witness PK, the trial court considered credible the statements which he had given during the investigation. When questioned at that stage he stated that JH had received drugs from the applicant and had been selling them to others. PK had also confirmed that JH had offered drugs to his friends. That evidence corroborated the relevant statements of JH. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage. During the trial, PK changed his version of events and denied that the applicant had supplied drugs to JH, but the trial court refused to accept his change of testimony as PK had offered no explanation for it. 23. KJ was a friend of JH and the applicant. The court found reliable the evidence she had given during the investigation, namely that she had bought drugs from JH, GS and WZ, and that she had offered and taken amphetamine with the applicant. The latter fact contradicted the applicant’s assertion that he had had nothing to do with drugs. At the trial, KJ denied those statements. However, the trial court noted that she had not explained the reason for the change in her testimony and considered credible her original statements. Furthermore, KJ’s testimony during the investigation was corroborated by JH’s statements. KJ denied that the applicant had sold her drugs. However, the trial court did not find this evidence reliable, having regard to the consistent statements of JH and to the lack of a motive on the part of JH to incriminate the applicant and KJ. 24. The trial court considered credible the statements of GS that he had purchased drugs from JH. The latter confirmed that he had been selling drugs received from the applicant to others persons, including GS. GS was also buying drugs from the applicant and selling them to others as confirmed by the statements of JH and KJ. In view of those statements, the court rejected GS’s subsequent denial at the trial that he had anything to do with drugs. 25. The applicant appealed. He argued that the trial court had breached criminal procedure by reading out the depositions of JH which had been made during the latter’s questioning by the police. He also submitted that the trial court had relied on JH’s statements although they had not been corroborated by other evidence in the case. The applicant lastly claimed that the court had erred in its establishment of the facts of the case. 26. On 17 April 2007 the Kraków Court of Appeal held a hearing and upheld the trial court’s judgment for the most part. It amended it only to the extent that it deleted one count of selling drugs by the applicant to PK since JH had stated that he had not witnessed that particular transaction. 27. Otherwise, the Court of Appeal found that the trial court had correctly established the facts, basing itself on a comprehensive assessment of all the evidence. It had explained why it had considered JH’s statements credible and why it had disregarded the applicant’s evidence since he had limited himself to denying the charges against him. It stressed that the applicant had not put forward any rational arguments to contest the duly substantiated findings of the trial court. 28. The Court of Appeal noted that JH had described precisely various details concerning the purchase of drugs from the applicant, such as the type of drugs, price, quantity, dates of transactions, form of payment, etc. It underlined that JH’s version of events, namely that he had been selling drugs received from the applicant and offering them to his friends, had been confirmed by PK and KJ during their questioning in the course of the investigation. The fact that PK, when heard at the trial, had changed his earlier version of events could not be considered credible as he had not given a plausible explanation for this change. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage but that proposal had been refused. The fact of JH’s offering drugs to friends had also been confirmed by GS and WG during their questioning in the course of the investigation. 29. The Court of Appeal accepted the findings of the trial court that JH, being a close acquaintance of the applicant, GS, KJ, PK, SB, TK and RG, had objectively described the applicant’s actions and that he had not been in conflict with the applicant. In his statements, JH had not concealed facts which incriminated him. He had consistently stated that GS, KJ, SB, RG and TK had purchased drugs from the applicant in his presence. He distinguished those situations from transactions at which he had not been present. The Court of Appeal also noted that before his questioning as a juvenile suspect, JH had been advised that he had the right to refuse to make statements. 30. As regards the lack of cross-examination of JH, the Court of Appeal stated: “The allegation of the breach of procedure by the trial court is not sustainable. The appeal setting out the above allegation does not specify which provisions were breached; it would appear from the grounds of the appeal that it concerns Article 391 § 1 of the CCP, which the trial court relied on when reading out the statements of JHJH at the trial, and that the court took the decision to read out the statements of that witness after having established objectively and unequivocally that the precondition specified in Article 391 § 1 of the CCP had been met (his uninterrupted long stay abroad), and then only just before closing the trial. The defendant [the applicant] does not dispute that the circumstances specified in Article 391 § 1 of the CCP in respect of witness JH were correctly ascertained, admitting expressly that the witness went away and has lived abroad. In this procedural situation the trial court had the right to read out the statements of that witness, a minor, given at the time when he was questioned as a suspect (the fact that the trial court did not invoke § 2 of Article 391 of the CCP does not have any ility of that evidence (reading out a witness’ statements), the circumstances in which it was obtained and the credibility of those statements by corroborating them with other evidence obtained in the case, as already explained. The parties and the defence had an opportunity to react directly to those statements [of witness JH]....” 31. On 22 June 2007 the applicant filed a cassation appeal with the Supreme Court. He stated that the trial court had read out JH’s depositions and by doing so had prevented the applicant from putting questions to that witness. He alleged a breach of his defence rights, invoking Articles 6, 7 and 391 § 1 of the CCP and Article 6 § 3 (d) of the Convention. 32. The applicant argued that the trial court and subsequently the Court of Appeal had based their verdict exclusively on JH’s evidence and had disregarded the evidence of KJ, GS and WZ as being contradictory to the former evidence. In respect of PK, the applicant argued that his statements given at the pre-trial investigation stage had to be carefully analysed since he could not confirm them at the hearing as he had been undergoing drug therapy. 33. The applicant claimed that the courts had not used all available means to secure the attendance of JH at the trial. Furthermore, JH had been treated leniently by the authorities as he had been allowed to leave the country despite his admission that he had been selling drugs. Lastly, the applicant informed the Supreme Court that JH had returned to Poland and that he could have been questioned in respect of the charges against the applicant. 34. On 24 June 2007 JH was arrested by the police for drunken driving in Poland. On 25 June 2007 he was questioned by the Zakopane District Prosecutor. On the same day the Zakopane District Court convicted him of drunken driving in summary proceedings and sentenced him to a suspended prison term and a fine. It also banned him from driving for one year. JH was further placed under the supervision of a court officer. 35. On 5 November 2007 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded. It held, in so far as relevant: “When formulating them [arguments in the cassation appeal] the applicant completely disregarded Article 519 of the CCP, which entitles the parties to lodge a cassation appeal exclusively against the final judgment of the second-instance court. Nonetheless, in the present case the author of the cassation appeal repeated the same assertions which he had raised earlier in an ordinary appeal, making only such modifications which supposedly complied with the requirements specified in Article 523 § 1 of the CCP. The same circumstances, which had earlier served as the basis for an assertion that the trial court had made errors in respect of its factual findings, were now being used to formulate arguments of a procedural nature. However, the assessment of their content and the reasons for the cassation appeal leads to the conclusion that as a matter of fact the author intended again to attempt to undermine the credibility of particular sources of evidence and to challenge the factual findings made on that basis. However, in the light of the binding regulation such an attempt in cassation appeal proceedings cannot be effective. (...) It cannot be overlooked that the arguments of the cassation appeal in the present case are in fact directed against the trial court’s judgment. It was the trial court which assessed the credibility of particular sources of evidence and determined the quantity of drugs which had been trafficked; it was also the Nowy Sącz Regional Court which made use of the measure provided in Article 391 of the CCP in order to disclose statements made by the then minor JH (...) The issue of the correctness of admitting and relying on JH’s statements was also subject to ordinary review by the second-instance court. The Court of Appeal could not infringe Article 391 of the CCP since it did not make use of the measure provided in it. Even now the appellant has not substantiated [his contention] that the restrictions on the opportunity to release depositions or statements by persons listed in that provisions were breached. (...) However, the digressions as to the possibility of taking evidence from JH, and the conducting of evidentiary proceedings with the participation of the defendant [the applicant] at the current stage of the proceedings, at a time when the case has finally been determined and no breach of the law (still less a manifest breach – Article 523 § 1 of the CCP) has been substantiated, do not fit within the framework of the model of cassation appeal proceedings. The repeated reliance on all those circumstances additionally reinforces the conclusion that the arguments presented in the cassation appeal constituted nothing but an attempt to circumvent the obligation stemming from Article 519 of the CCP, which stipulates that a second-instance judgment shall be the subject of a cassation appeal.” 36. Article 390 § 1 of the 1997 Code of Criminal Procedure (“the CCP”) provides: “The accused has a right to be present during the taking of evidence in the proceedings.” 37. Article 391 of the CCP reads as follows: “1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him pursuant to Article 333§2 [i.e. because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law. 2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the records of evidence that a witness has given when heard as an accused may also be read out.” | 0 |
train | 001-67639 | ENG | BGR | ADMISSIBILITY | 2,004 | SLAVIC UNIVERSITY IN BULGARIA and OTHERS v. BULGARIA | 4 | Inadmissible | Christos Rozakis | The first applicant is the “Slavic University in Bulgaria”, a Bulgarian legal person (the “University”). It is represented before the Court by Mr A. Krastev, a lawyer practising in Sofia. The other applicants are 617 students and teachers listed in the annex (the “other applicants”, the “students” or the “teachers”). They have joined the application of the University without filing separate submissions with the Court. s, may be summarised as follows. On 21 July 1995 the National Assembly, as a result of a private initiative, granted the University the status of higher education institution. On 27 December 1995 a new Higher Education Act was adopted, which introduced a new statutory framework within which higher education institutions were required to function. By decision of 15 February 1999 the Council of Ministers proposed to the National Assembly to revoke the status of a higher education institution of the University. As grounds for its proposal, the Council of Ministers indicated that, inter alia, (1) the University operated without internal rules and regulations, as well as without management bodies, elected in accordance with the law; (2) all its general assemblies had not been conducted in conformity with the statutory requirements; (3) it had been accepting students in violation of the State's university admission criteria, which were more than the maximum permissible number and for courses which had not been approved by the State; (4) the University had been appointing academic staff in violation of the applicable rules; (5) it had not had an approved budget prior to 1997 and after that had two budgets approved by two separate and competing administrative bodies; (6) it had been operating in violation of the Accountancy Act as it lacked a balance sheet for 1996 and did not have any accounting documents for 1995 and 1997. Allegedly the applicants were not officially informed of the procedure undertaken by the Council of Ministers. On 22 February 1999 the University appealed against the decision of the Council of Ministers to the Supreme Administrative Court. On 5 March 1999 the Supreme Administrative Court refused to examine the appeal. It found that the proposal by the Council of Ministers had no direct effect on the rights of the University as it was only a proposal to the National Assembly, was not therefore an individual administrative act and was not subject to judicial review. Upon further appeal, the extended panel of the Supreme Administrative Court, on an unspecified date, refused to examine the appeal on similar grounds. By decision of 10 March 1999 the National Assembly revoked the status of the University as a higher education institution. It authorised the Council of Ministers to deal with all matters in connection with the revocation of the status of the University. It expressly addressed the option for the students to continue their studies at other universities, which subsequently led to the adoption by the Council of Ministers on 27 July 1999 of a special regulation which specified the procedures related thereto. No reasons for the decision of the National Assembly were given and the applicants were allegedly not informed of the procedure. The decision was promulgated on 16 March 1999. On an unspecified date the University appealed against the decision of the National Assembly to the Supreme Administrative Court, arguing that it was an individual administrative act which was subject to judicial review. On 9 April 1999 the Supreme Administrative Court refused to examine the appeal on the basis that acts of the National Assembly were not subject to judicial review. Upon further appeal, on 28 May 1999 the extended panel of the Supreme Administrative Court also refused to examine the appeal on similar grounds. The National Assembly's decision of 10 March 1999 was challenged before the Constitutional Court by fifty-four members of parliament. They argued that the decision was unconstitutional, that at the time it was adopted the University had corrected the alleged violations and that its operations had been in compliance with the statutory requirements. On 6 July 1999 six judges from the Constitutional Court voted in favour of declaring the decision of 10 March 1999 unconstitutional, whereas five judges voted against. Accordingly, as the Constitutional Court failed to obtain the seven votes required for a majority decision, the court rejected the challenge by judgment of the same day. The Constitution provides, inter alia, that citizens and organizations shall have the right to set up higher education institutions in accordance with the conditions and procedures established by statute and demands that the education they provide must comply with the requirements set by the State (Article 53 § 3). It also provides that the State shall exercise control over all forms and levels of education, including higher education institutions (Article 53 § 4). The Higher Education Act of 1958 (the “1958 Act”), which was in force at the time the University was established, regulated the establishment and functioning of higher education institutions. It did not differentiate between public and private institutions. The Act provided that higher education institutions were set up by the National Assembly. It also detailed the different grades of academic staff, determined their hierarchy and their relationship with the institutions. The status of students and their relationship with the higher education institutions was also regulated. The 1958 Act was repealed by the Higher Education Act of 1995. The Higher Education Act of 1995 (the “1995 Act”) regulates the establishment, functions, management and financing of higher education institutions, which could be public or private. The 1995 Act, as in force during the relevant period, envisaged special control, supervisory and decisionmaking functions for the legislature and the Government. For example, (1) the National Assembly created, transformed and closed higher education institutions; (2) the Council of Ministers developed and supervised implementation of Government policy in the sphere of higher education; approved academic qualification grades and the requirements towards all courses; determined the maximum number of undergraduates and postgraduates taught by each higher education institution and approved the rules for providing students with housing and other social benefits; (3) the Ministry of Education facilitated communication between the State and the higher education institutions and maintained the register of approved academic qualifications; (4) the National Accreditation Agency, a special administrative body created under the 1995 Act, was designated to monitor, assess and determine whether a particular higher education institution complied with the State's requirements. A lack of an accreditation or receipt of two negative assessments from this body was a basis for closing a higher education institution. The 1995 Act, as in force during the relevant period, also regulated the management structure of State higher educational institutions, their hierarchy, procedures for appointment, term of office and powers. It also determined the conditions and requirements towards the teaching provided by higher educational institutions. The 1995 Act further provided that higher education institutions enjoy academic autonomy, which consisted of academic freedoms, academic self-government and sanctity of the territory of the institutions. Within this context, higher education institutions were required to adopt internal rules and regulations, which would include, inter alia, procedures for internal conflict resolution. | 0 |
train | 001-84648 | ENG | DEU | ADMISSIBILITY | 2,008 | LYSZCZYNA v. GERMANY | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Wladislaw Lyszczyna, is a German national who was born in 1945 and lives in Düsseldorf. 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. Until his emigration to Germany in February 1984 the applicant lived and worked in Katowice (Poland). When applying for benefits in Germany the applicant made differing statements as to his employment or working record in Poland. In an application to the Federal Insurance Fund for Miners (Bundesknappschaft – hereinafter called “Federal Insurance Fund”) the applicant submitted that he had been self-employed prior to leaving Poland. Yet in an application for unemployment benefits to the Federal Labour Office the applicant submitted that he had been employed at the material time. In Germany the applicant collected unemployment benefits and temporary allowances (Übergangsgeld). On 3 October 1984 and 21 December 1992 he had a heart attack. On 11 April 1995 the applicant applied for an invalidity pension to the Federal Insurance Fund submitting that he had been self-employed in Poland until 31 January 1984 and had made contributions to the Polish pension scheme during that time. On 26 September 1995 the Federal Insurance Fund rejected his request finding that he had not contributed to the pension scheme for a sufficiently long period. On 2 October 1995 the applicant lodged an objection with the Federal Insurance Fund. On 28 February 1996 the Commission for Objections of the Federal Insurance Fund (Widerspruchsstelle) rejected his objection. On 20 May 1996 the applicant offered to contribute retroactively (nachentrichten) to the pension scheme for the month of January 1984. In October 1997 the Federal Insurance Fund rejected the applicant’s request. On 7 March 1996 the applicant brought an action against the Federal Insurance Fund in the Düsseldorf Social Court arguing inter alia that he would be entitled to make contributions to the pension scheme retroactively for the month of January 1984. In April 1998 the court obtained information from the Polish Pension Fund relating to the applicant’s contributions to the Polish pension scheme. According to the Polish Pension Fund the applicant had been self-employed and had contributed to the public pension scheme until 31 December 1983. On 12 January 1999, following a hearing, the Düsseldorf Social Court rejected the applicant’s action confirming the findings of the Federal Insurance Fund. The court noted in addition that the time-limit for contributing retroactively had elapsed. On 18 February 1999 the applicant lodged an appeal with the Social Court of Appeal. On 18 May 1999 the court ordered the translation of Polish documents submitted by the applicant. On 24 June 1999 the court requested the applicant to submit the original Polish documents. On 17 June 1999, 9 November 2001, 13 June and 12 September 2002, 7 April and 18 September 2003 the court held hearings and questioned four witnesses altogether. Following a change of Social Code No. 6 as of 1 January 2001 the applicant requested the application of the new legal provisions to his case. On 18 September 2003 the Social Court of Appeal rejected the applicant’s appeal. The court acknowledged that he had been invalid since his heart attack on 21 December 1992, but confirmed that he had not contributed to the pension scheme for a sufficiently long period. It recalled that according to the provisions of Social Code No. 6 an insured would have had to contribute to the pension scheme for at least 36 months during the last five years preceding the occurrence of invalidity. That period could be extended exceptionally by taking into account previous contributions or periods during which certain benefits had been collected. Although the court took into consideration previous contributions made to the Polish pension system and periods during which the applicant had received unemployment benefits the applicant still did not reach the required minimum number of months. A further exceptional extension was rendered impossible because the court found that the applicant had not made contributions in respect of January 1984. The court pointed out that according to the Polish Pension Insurance the applicant had only made contributions until 31 December 1983. As regards the applicant’s own submissions the court found them to be inconsistent, since he had made different statements as to his employment or working record in the past. Furthermore, the court had grave doubts as to whether the applicant had actually been unemployed in Germany while receiving unemployment benefits since the witnesses questioned had indicated that he had worked illicitly. In addition the applicant had carried a licence to run a bar. However, the court left that question open since the absence of contributions for the month of January 1984 excluded an invalidity pension in any event. Lastly, the court held that also the application of the new legal provisions of Social Code No. 6 would not entitle the applicant to invalidity pension. The court refused the applicant leave to appeal on points of law. The applicant then lodged a complaint against the refusal of leave to appeal on points of law with the Federal Social Court, inter alia contesting the application of Social Code No. 6. The complaint reached the Federal Social Court on 26 January 2004. The applicant was granted an extension of one month of the time-limit for substantiating his complaint upon his own motion. His submissions reached the court on 5 April 2004 and on 24 June 2004 the Federal Social Court rejected the applicant’s complaint as inadmissible stating that he had not sufficiently substantiated his complaints. | 0 |
train | 001-82748 | ENG | MDA | CHAMBER | 2,007 | CASE OF TIBERNEAC v. MOLDOVA | 4 | Violation of Art. 6-1;Violation of P1-1 | Nicolas Bratza | 6. The applicant who was born in 1923 and lives in Terebna. 7. In 1949 the applicant and her parents had been persecuted by the communist authorities. Their property was confiscated and they were exiled to Siberia. In 1989 they were rehabilitated. 8. On an unspecified date in 2003 the applicant brought an action against the Edineţ Department of Finances, seeking compensation for the confiscated property. 9. On 24 December 2003 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay her 63,885 Moldovan lei (MDL) (the equivalent of 3,901 euros (EUR) at the time). The judgment was not appealed against and after fifteen days it became final and enforceable. 10. On 23 February 2004 a Bailiff received the enforcement warrant. 11. The judgment has not been enforced to date. 12. The relevant domestic law was set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts). | 1 |
train | 001-76177 | ENG | POL | CHAMBER | 2,006 | CASE OF RYLSKI v. POLAND | 4 | No violation of Art. 6-1 (length);Remainder inadmissible | Nicolas Bratza | 5. The applicant was born in 1960 and lives in Warszawa. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1991 the applicant's wife filed with the Warsaw Regional Court (Sąd Wojewódzki) a petition for divorce, asking to be granted custody rights over her daughter and child maintenance from the applicant. On 12 July 1991 a mediation hearing was held, but the parties did not reach an agreement. 8. On 29 October 1991 and 13 December 1991 hearings were held. The court heard witnesses and ordered the applicant to file a declaration of means. In addition, it requested an opinion of an expert psychologist and a social inquiry report to be prepared. 9. On 3 February 1992 the court secured the claim and ordered the applicant to pay 500,000 old zlotys (PLZ) in monthly maintenance for his daughter. On 5 February 1992 the court dismissed the applicant's motion for exemption from court fees. On 19 February 1992 the applicant appealed against the decisions of 3 and 5 February 1992. His appeal was dismissed. On 20 February 1992 the applicant challenged the impartiality of the judge. His motion was dismissed. 10. On 5 October 1992 the court ordered another social inquiry report. On 28 October 1992 a psychologist's opinion concerning relations between the parents and the daughter was issued. On 16 March 1993 the court held a hearing. It heard an expert in psychology and one witness. The court regulated the frequency of the applicant's contacts with his daughter pending the divorce proceedings. 11. On 16 March 1993 the court imposed a fine on the applicant for offending the court. 12. On 26 April 1993 the plaintiff asked the court to increase the amount of child maintenance. 13. On 14 May 1993 the plaintiff submitted her pleadings. 14. On 26 May and 7 June 1993 the court yet again summoned the applicant to submit, within seven days, information regarding his financial situation. He complied with the summons on 11 and 22 June 1993. 15. On 11 June 1993 the applicant appealed against the decision of 15 April 1993 by which his previous appeal against the fine imposed on him had been rejected. On 22 June 1993 his appeal was rejected as having been lodged outside the prescribed time-limit. 16. On 27 July 1993 the court amended its decision concerning maintenance, increasing it to PLZ 900,000. It considered that as a construction engineer the applicant was able to earn approximately PLZ 3,000,000 per month. The applicant appealed. 17. On 2 September 1993 the applicant appealed against the decision imposing a fine on him. On 9 September 1993 his appeal was rejected as having been lodged after the prescribed time-limit. The applicant appealed against this decision and his appeal was rejected on 29 November 1993. 18. On 22 October 1993 the court ordered him to comply with the formal requirements in respect of his appeal against the decision of 27 July 1993. On 12 November 1993 the case file was sent to the Warsaw Court of Appeal (Sąd Apelacyjny). On 29 November 1993 that court dismissed the applicant's appeal against the decision of 27 July 1993. 19. On 30 November 1993 the applicant complained that the plaintiff had impeded his contacts with the child. On 16 May 1994 the plaintiff asked the court not to schedule hearings in July. 20. On 8 June 1994 the applicant was charged with having forced a witness in his divorce proceedings to withdraw her testimony. On 12 July 1994 the Warsaw District Prosecutor (Prokurator Rejonowy) submitted to the Warsaw District Court a bill of indictment concerning that charge. On 20 June 1994 the prosecutor submitted to the District Court another bill of indictment against the applicant. The applicant was charged with domestic violence against his wife. On 15 September 1994 the Warsaw District Court joined those two cases. On 27 November 1995 the Warsaw District Prosecutor submitted to the court another bill of indictment in which he charged the applicant with evading the payment of maintenance for his daughter. Apparently the case was joined to the earlier proceedings. On 30 September 2003 the District Court convicted him of the first two charges and acquitted him of the third charge and sentenced him to two years' imprisonment. Upon his appeal, on 6 May 2004 the Warsaw Regional Court stayed the execution of the sentence for a probationary period of five years. 21. On 7 July 1994 the court ordered the parties to submit their pleadings within one month. On 22 August 1994 it urged them to comply with its summons. They submitted their pleadings on 21 September 1994. 22. On 12 October 1994 the case-file of the divorce proceedings was sent to the District Prosecutor upon his request. It was returned on 16 November 1994. 23. On 27 December 1994 the court scheduled a hearing for 24 February 1995. On 24 February and 19 May 1995 two hearings were held. The applicant did not appear and in consequence they were adjourned. On 15 September 1995 a hearing was heard. The applicant did not agree to a divorce. 24. On 13 and 27 September 1995 the applicant submitted pleadings in which he inter alia asked the court to order the plaintiff to pay him alimony. 25. On 24 November 1995 a hearing was held at which the court heard both parties. The Warsaw Regional Court dismissed the applicant's claim for alimony from his wife and refused his request to reduce the amount of the maintenance payable to his daughter. He appealed, but on 18 July 1996 the Warsaw Court of Appeal dismissed his appeal. 26. On 24 November 1995 the Warsaw Regional Court amended its decision of 16 March 1993 in that it increased the frequency of the applicant's meetings with his daughter. He and his wife appealed and on 18 July 1996 the Warsaw Court of Appeal quashed that decision. It considered that the contested decision was not supported by an opinion of psychologists. 27. The hearing scheduled for 23 February 1996 had to be adjourned until the appeals were examined. The hearing held on 13 December 1996 was adjourned. The court ordered a supplementary expert opinion of psychologists. 28. On 29 January 1997 the institution which was to prepare an expert opinion informed the court that it had started mediation between the parties and that the opinion would be submitted after 12 March 1997. The opinion was submitted on 30 March 1997. On 23 December 1997 a hearing was held at which the court heard the expert and the plaintiff. It decided to summon another witness – a Mr J.M. 29. On 23 December 1997 the Warsaw Regional Court issued an order concerning the applicant's contacts with his daughter pending the divorce proceedings. It decided that the meetings should take place on the first, second and third Saturdays of every month between 11 a.m. and 4 p.m. without the mother's presence. The court also ordered a guardian (kurator sądowy) to supervise those meetings. Having regard to the opinion of the psychologists, it considered that in the ongoing conflict between the parents, the daughter, who was emotionally attached to her mother, had become more and more unfriendly towards her father, which called for more frequent contacts with the father. 30. On 29 December 1997 the applicant requested the written grounds for the decision. They were sent to him on 5 February 1998. On 18 February 1998 he appealed against the decision. On 25 February 1998 he was summoned to pay a court fee. On 3 April 1998 a hearing was held but it was adjourned pending the examination of the applicant's appeal. On 18 June 1998 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 December 1997. 31. On 30 September 1998 the applicant requested the court to increase the frequency of his contacts with the child. 32. On 15 January 1999 the court held a hearing and dismissed the motion to call the witness J.M. The court heard the parties. The applicant asked the court to hear another witness as well as all the witnesses who had already been heard. He also requested a stay of the proceedings pending the outcome of the criminal proceedings. The court dismissed those motions. 33. On 29 January 1999 the Warsaw Regional Court gave judgment, granting a divorce based on the applicant's fault, and deciding on the daughter's custody and child maintenance. On 19 March 1999 the court served the written grounds of the judgment on the applicant. He appealed and requested an exemption from the appeal fee on 7 April 1999. 34. On 5 May 1999 the court dismissed the applicant's motion for an exemption from court fees. The applicant appealed on 18 May 1999. On 17 June 1999 his appeal was dismissed. The court based its decision on the fact that the applicant had not submitted the necessary documents to confirm his financial situation. 35. On 2 August 1999 the applicant was summoned to pay the appeal fee. On 20 August 1999 he asked the court to exempt him from that fee. On 7 September 1999 the court dismissed his motion. The applicant appealed on 30 September 1999. On 18 November 1999 the Court of Appeal rejected the applicant's appeal. 36. On 4 January 2000 the applicant requested the court to exempt him from the court fee. On 18 January 2000 his motion was dismissed. The applicant appealed on 1 March 2000. On 14 April 2000 his appeal was dismissed by the Court of Appeal. The courts emphasised that the applicant had persistently repeated his request without providing any new circumstances to justify a new motion and without submitting relevant documents. 37. On 28 April 2000 the applicant again requested to be exempted from the court fee. 38. On 2 June 2000 the court again ordered the applicant to pay the court fee for his appeal, amounting to 400 PLN. 39. On 16 June 2000 the applicant asked for exemption from the court fee. This motion was dismissed on 28 June 2000 for the same reasons as given previously. On 19 July 2000 the applicant appealed against this decision. It was dismissed by the Court of Appeal on 27 October 2000. 40. On 28 June 2000 the applicant's appeal against the judgment of 29 January 1999 was rejected on formal grounds for non payment of the appeal fee. The Regional Court noted that the applicant's repeated and unsubstantiated motions for exemption had been dismissed several times and he had failed to pay the fee despite two summonses. The court emphasised that the applicant's only intention was to delay the proceedings, to the detriment of the plaintiff. The applicant appealed on 19 July 2000. 41. On 27 December 2000 the applicant asked to be exempted from all court fees, in particular from the appeal fee. On 8 January 2001 his motion was sent to the Regional Court. 42. On 12 March 2001 the court called on the applicant to pay the court fee of 80 PLN for his appeal against the decision of 28 June 2000 (see paragraph 40 above). 43. On 27 March 2001 the court refused to exempt the applicant from the court fees. It underlined that the applicant had requested to be exempted from the court fees on several occasions but had once again not indicated any new circumstances justifying his request. On 24 April 2001 the applicant appealed. On 28 May 2001 his appeal was dismissed. 44. On 28 June 2001 the Regional Court ordered the applicant to pay the court fee due for his appeal against the decision rejecting his appeal against the judgment (see paragraph 42 above). 45. On 12 July 2001 the defendant informed the court that he had paid the court fee for the appeal against the judgment (amounting to 400 zlotys) and requested the court to reinstate the time-limit for paying the fee. 46. On 19 July 2001 the Warsaw Regional Court issued two decisions, in which it rejected the applicant's appeal against the decision of 28 June 2000 and rejected the applicant's motion to be granted retrospective leave to pay the appeal fee. 47. The judgment of 29 January 1999 became final on 8 August 2001. 48. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State's liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 49. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2. The inability to establish guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury's liability for damage if such proceedings cannot be instituted in view of a [statutory] exception to prosecution or disciplinary action.” 50. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury's liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and the imposition on the State of tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” 51. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date. 52. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution. On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the State official concerned, established in criminal or disciplinary proceedings. 53. On 18 December 2001, the date on which the Constitutional Court's judgment took effect, Article 418 was repealed. The Constitutional Court's opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury's liability for the actions of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.” 54. 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. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act. Article 2, in so far as relevant, reads as follows: Article 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 55. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 56. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.” 57. Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court: “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. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” | 0 |
train | 001-98048 | ENG | AUT | CHAMBER | 2,010 | CASE OF S.H. AND OTHERS v. AUSTRIA | 2 | Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 7. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R. 8. The first applicant is married to the second applicant and the third applicant to the fourth applicant. 9. The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). The second applicant, her husband, is also infertile. 10. The third applicant suffers from agonadism (Gonadendysgenesie), which means that she does not produce ova at all. Thus she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation. 11. On 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of section 3(1) and section 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz - see Relevant domestic law below). 12. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by section 3(1) and section 3(2) of the Artificial Procreation Act. The third applicant submitted that she was also infertile. Suffering from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryotransfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act. 13. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception was a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Federal Constitution, which guarantees equal treatment. 14. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated. 15. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. The Constitutional Court found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken. 16. As regards the merits of their complaints the Constitutional Court considered that Article 8 was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8. 17. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification of such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or the cohabiting couple itself – would be allowed and only methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception. The aim was to avoid the forming of unusual personal relations such as a child having more than one biological mother (a genetic mother and one carrying the child) and to avoid the risk of exploitation of women. 18. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl). 19. Applying the principle of proportionality under Article 8 § 2, however, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended to a large extent on whether a heterologous or homologous technique was used. 20. In the Constitutional Court’s view, the legislator had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. This compromise reflected the current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislator would have to take into account in the future. 21. The legislator had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using sperm from donors. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. In so far, however, as homologous techniques were not sufficient for the conception of a child the interests of the individuals concerned ran counter to the above-mentioned public interest. 22. The Constitutional Court also found that for the legislator to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was in accordance with the prohibition of discrimination as contained in the principle of equality. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence the legislator was not bound to apply strictly identical regulations to both. Also, the fact that insemination with donor sperm was allowed while ova donation was not did not raise a discrimination issue because again, as pointed out above, there was no risk of creating unusual relationships which might adversely affect the well-being of a future child as there was with heterologous insemination. 23. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention. 24. This decision was served on the first and third applicants’ lawyer on 8 November 1999. 25. The Artificial Procreation Act (Fortpflanzungsmedizingesetz, Federal Law Gazette 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)). 26. These methods comprise: (i) introduction of sperm into the reproductive organs of a woman, (ii) unification of ovum and sperm outside the body of a woman, (iii) introduction of viable cells into the uterus or fallopian tube of a woman and (iv) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman (section 1(2)). 27. Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage, and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success (section 2). 28. Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage (Lebensgefährten) may be used for the purpose of medically assisted procreation. In exceptional circumstances, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of sperm by donors is prohibited. 29. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus ova donation is always prohibited. 30. The further provisions of the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8). 31. In 1999 the Artificial Procreation Act was supplemented by a Federal Act Establishing a Fund for Financing In-vitro Fertilisation Treatment (Bundesgesetz mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisiation eingerichtet wird – Federal Law Gazette Part I No. 180/1999) in order to subsidise in–vitro fertilisation treatment allowed under the Artificial Procreation Act. 32. On the basis of the material available to the Court, including the document “Medically-assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on Access to Medically-assisted Procreation” (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles. 33. The study in particular sets out the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by sperm donor, ova donation, ova and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilization procedure in which a single sperm is injected directly into an egg). 34. As far as can be seen, sperm donation is currently prohibited only in three countries: Italy, Lithuania and Turkey, which all ban heterologous assisted fertilisation as a whole. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards the donation of ova, it is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above. Since Germany in practice allows donation of sperm only for non-in vitro fertilisation, the legal situation is quite similar to the situation in Austria. 35. In a number of countries, such as Cyprus, Luxembourg, Malta, Finland, Poland, Portugal and Romania, where the matter is not regulated, the donation of both sperm and ova is used in practice. 36. A comparison between the Council of Europe study of 1998 and a survey conducted by the International Federation of Fertility Societies of 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden sperm and ova donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway sperm donation for in vitro fertilisation has been allowed since 2003, but not ova donation. 37. Principle 11 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI, 1989), states: “1. In principle, in vitro fertilisation shall be effected using gametes of the members of the couple. The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro. However, in exceptional cases defined by the member states, the use of gametes of donors may be permitted. ” 38. The Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids to use a medically assisted reproduction technique to choose the sex of a child. Its Article 14 reads as follows: “The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.” 39. The Additional Protocol to the above Convention, on Transplantation of Organs and Tissues of Human Origin, of 2002, which promotes donation of organs, expressly excludes from its scope reproductive organs and tissues. | 1 |
train | 001-93866 | ENG | RUS | CHAMBER | 2,009 | CASE OF YEVGENIY KORNEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1960 and lives in Kurgan. 6. On 27 December 2000 the Ketovskiy District Court of the Kurgan Region found the applicant guilty of kidnapping for profit and sentenced him to five years’ imprisonment conditional on three years’ probation. Neither the applicant nor the prosecutor appealed. 7. On an unspecified date the applicant asked the Kurgan Regional Court for supervisory review of the judgment of 27 December 2000. He alleged that the court had erred in defining his actions as kidnapping for profit. He further challenged the findings of the trial court as to the circumstances of the matter. He claimed that he had freed the kidnapped victim of his own will and should have been exonerated from the kidnapping charges as provided for in the Russian Criminal Code. 8. By a letter of 10 October 2003, the Kurgan Regional Court informed the applicant that the supervisory-review proceedings had been instituted and that the Presidium would examine his application on 20 October 2003. According to the stamp on the letter, it reached the penitentiary establishment where the applicant was serving a prison sentence on 23 October 2003. The applicant indicated that the letter had been handed over to him on 27 October 2003. 9. On 30 October 2003 the applicant sent written submissions to the Kurgan Regional Court. 10. In December 2003 the applicant received the text of the Presidium’s decision on his application for supervisory review. The hearing had taken place on 20 October 2003. The court had reviewed the applicant’s case and granted his application in part. It had reclassified the charges as simple kidnapping. The sentence, however, had remained unaffected. 11. On 7 August 2001 the applicant was arrested, together with Mr T. and Mr Z., by officers of the Organised Crime Unit on suspicion of extortion. 12. On 10 August 2001 the applicant was formally charged and remanded in custody. 13. On 21 January 2002 the Kurgan Town Court of the Kurgan Region convicted the applicant and Mr Z. of extortion and sentenced the former to six years’ imprisonment. The applicant appealed. 14. On 26 March 2002 the Kurgan Regional Court upheld the conviction on appeal. 15. According to the applicant, on 7 August 2001 during and after the arrest he was beaten up by the police officers. 16. On 8 August 2001 the applicant was placed in the temporary detention facility (ИВС) located within the police station. On admission he was examined by an officer on duty and a paramedic, who did not observe any injuries on his body. The applicant did not bring an oral or written complaint about the alleged beatings. 17. On 10 August 2001 the applicant was transferred to remand centre no. 43/1 of Kurgan. On arrival he was examined by a general practitioner who noted several bruises in the lumbar region measuring 1 by 1 cm and 3 by 2 cm. A relevant entry was made in the applicant’s medical file. 18. It appears that on the same day the administration of the remand centre prepared a report concerning the applicant’s injuries and forwarded all the relevant materials to the prosecutor’s office for further inquiry. According to a certificate issued by the remand centre on 16 August 2007, the copies of those materials stored at the remand prison had been destroyed after the expiry of the time-limit for their storage on 20 January 2006 and 27 March 2007. 19. On 5 March 2002 the applicant complained to the Kurgan Regional Prosecutor that he had been beaten up by police officers on 7 August 2001. 20. On 27 March 2002 the deputy prosecutor of Kurgan issued a decision refusing to institute criminal proceedings into the applicant’s allegations of ill-treatment. The prosecutor based his findings on the statements made by the alleged perpetrators, who denied the applicant’s allegations, and the medical documents from the applicant’s file. In particular the prosecutor stated as follows: “The inquiry conducted did not confirm the [applicant’s] allegations. The police officers Ch., M. and K. ... denied that they had put any pressure on [the applicant]. Upon arrival at [the temporary detention facility], he did not complain that he had been beaten up by the police officers... According to [the applicant’s] medical file, upon his arrival at [the remand centre]... several bruises were noted in the lumbar spine area. However, according to the certificate, issued by the head of [the temporary detention facility], upon his placement [there] [the applicant] had been examined and questioned by an officer on duty as to whether he had any injuries. [The applicant] had not complained of his condition or had any visible injuries. Nor had the results of the applicant’s examination by a paramedic on 8 August 2001 been any different. When transferred to [the remand centre], [the applicant] did not complain of his condition either. Accordingly, the injuries noted at [the remand centre] cannot have been caused by the [police officers] in the circumstances described by [the applicant].” 21. The applicant complained to a court, claiming that the scope of the prosecutor’s inquiry had been insufficient because he had never been interviewed by a prosecutor with regard to his allegations of ill-treatment. 22. On 31 December 2002 the Kurgan Town Court upheld the prosecutor’s decision, finding that the scope of the inquiry had been adequate given the lack of evidence supporting the applicant’s allegation of ill-treatment. In particular, the court found as follows: “The Kurgan prosecutor’s office carried out a proper investigation into the allegations concerning the use of unlawful investigation techniques by the police officers. Messrs M., Ch., and K. were questioned. They explained that they had not put any physical or psychological pressure on [the applicant] during his arrest. [The applicant] did not confess to the crime. It is true that on [10] August 2001 after his transfer from [the temporary detention facility] to [the remand prison] bruises on the small of [the applicant’s] back were detected. However, earlier, when [the applicant] had been brought to [the temporary detention facility], he had been examined and questioned by an officer on duty. At that time [the applicant] had no injuries and did not complain of the alleged ill-treatment or his condition. Having regard to those facts, the Kurgan prosecutor’s office drew a justified conclusion that the [bruises] detected upon the applicant’s arrival at [the remand prison] could not have been caused by the policemen in the circumstances described by [the applicant]. There are no other materials in the court’s possession to prove that the policemen had committed any unlawful acts vis-à-vis [the applicant].” 23. On 1 July 2003 the Kurgan Regional Court dismissed the applicant’s appeal against that decision. 24. The parties to the criminal proceedings, including the defendant and his or her counsel and the prosecutor, may ask a superior court for supervisory review of judgments rendered by the courts of first or second levels of jurisdiction (Article 402 of the Code of the Criminal Procedure (the “CCrP”). 25. In the event that the court decides to open supervisory-review proceedings, it should notify the interested parties of the date, time and place of the hearing within 30 days. The parties to the proceedings should inform the court if they wish to participate in the hearing. The parties present at the hearing may make oral submissions to the court (Article 407 of the CCrP). 26. The court may uphold, amend or quash any of the earlier judgments on the matter, discontinue the proceedings or remit the matter for fresh consideration to a trial or appeal court (Article 408 of the CCrP). In particular, a judgment will be quashed if there is an inconsistency between the conclusions reached by the court in the judgment and the facts established (Articles 409 and 379 of the CCrP). 27. The court is not bound by the scope of the application for supervisory review and may consider the matter in its entirety. It may commute the sentence or reclassify the offence as a less serious one (Article 409 of the CCrP). It cannot, however, increase the sentence or reclassify the charges as a more serious offence (Article 405 of the CCrP). 28. In response to a complaint of a criminal offence, the investigator is under obligation to verify the complainant’s allegations (Article 144 of the CCrP). 29. Should there be sufficient grounds to believe that a crime had been committed, the investigator initiates a criminal investigation (Article 145 of the CCrP). 30. The complainant may appeal against the investigator’s refusal to open a criminal investigation to the investigator’s superior, a prosecutor or a court (Article 148 of the CCrP). | 1 |
train | 001-103526 | ENG | BIH | CHAMBER | 2,011 | CASE OF PALIĆ v. BOSNIA AND HERZEGOVINA | 3 | No violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 5-1 | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 6. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people were killed and more than two million people were displaced. It is estimated that almost 30,000 people went missing and that one third of them is still missing. The major parties to the conflict were the ARBH (mostly made up of Bosniacs and loyal to the central authorities of Bosnia and Herzegovina), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). The Brčko District, under the exclusive sovereignty of the State and international supervision, was formally inaugurated on 8 March 2000. 7. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) headquartered in The Hague. Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia. More than 60 individuals have been convicted and currently more than 40 people are in different stages of proceedings before the ICTY. Two accused are still at large (Mr Goran Hadžić and Mr Ratko Mladić). 8. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. In addition to its work in the former Yugoslavia, the ICMP is now actively involved in helping governments and other institutions in various parts of the world address social and political issues related to missing persons and establish effective identification systems in the wake of conflict or natural disaster. Reportedly, the ICMP has so far identified by DNA around 13,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified by traditional methods around 7,000 missing persons. 9. After the war, the ARBH, HVO and VRS forces merged into the Armed Forces of Bosnia and Herzegovina. 10. The applicant was born in 1967 and lives in Sarajevo. 11. The applicant’s husband, Mr Avdo Palić, was a military commander of the ARBH forces in the United Nations “safe area” of Žepa during the war. On 27 July 1995, shortly after the VRS forces had taken control of that area, Mr Palić went to negotiate the terms of surrender with the VRS forces and disappeared. 12. Following many fruitless attempts to obtain any official news about her husband, on 18 November 1999 the applicant lodged an application against the Republika Srpska with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the Dayton Peace Agreement. 13. On 5 September 2000 the Human Rights Chamber held a public hearing and heard several witnesses, including Mr Abdurahman Malkić and Mr Sado Ramić who had been detained together with Mr Palić in a military prison in Bijeljina in August 1995. The Republika Srpska maintained at the hearing that it had no knowledge of the arrest and detention of Mr Palić. 14. In its decision of 9 December 2000, the Human Rights Chamber held that Mr Palić had been a victim of “enforced disappearance” within the meaning of the Declaration on the Protection of All Persons from Enforced Disappearance and found a breach of Articles 2, 3 and 5 of the Convention in respect of Mr Palić and Articles 3 and 8 of the Convention in respect of the applicant. The Republika Srpska was ordered: (a) to carry out immediately a full investigation capable of exploring all the facts regarding the fate of Mr Palić with a view to bringing the perpetrators to justice; (b) to release Mr Palić, if still alive, or to make available his mortal remains to the applicant; and (c) to make all information about the fate and whereabouts of Mr Palić known to the applicant. The applicant was awarded, for non-pecuniary damage, 15,000 convertible marks (BAM – 7,669 euros (EUR)) and, in respect of her husband (which sum was to be held by the applicant for her husband or his heirs), BAM 50,000 (EUR 25,565). The decision was delivered on 11 January 2001 and entered into force on 8 March 2001 when the full Chamber rejected the Republika Srpska’s request for review. 15. On 14 November 2001 the Republika Srpska acknowledged that Mr Palić had been held in Vanekov mlin, a military prison in Bijeljina administered by the VRS forces, between 4 August and 5 September 1995 and that on the latter date Mr Dragomir Pećanac, Security Officer of the Main Staff of the VRS, had taken Mr Palić from that prison. 16. Having found that Mr Pećanac had meanwhile settled in Serbia, in February 2002 the Republika Srpska authorities issued a domestic arrest warrant against him. In March and April 2002 they interviewed the entire war-time personnel of Vanekov mlin, including its governor. 17. On 12 June 2003 the Bijeljina District Prosecutor (answerable to the Prosecutor of the Republika Srpska) asked the State Prosecutor to take over this case. On 25 December 2003 the latter decided that the case should remain with the Bijeljina District Prosecutor and returned the case file. 18. On 7 September 2005 the Human Rights Commission, which had replaced the Human Rights Chamber, rendered another decision in this case: while noting that the monetary award had been paid, it held that the decision of 9 December 2000 had not yet been fully enforced. The Republika Srpska was given an additional three-month period in which to do so. 19. From October until December 2005 the authorities of the Republika Srpska and Serbia, at the request of the Republika Srpska, interviewed eighteen people in connection with this case, including Mr Pećanac. 20. On 16 January 2006 the Human Rights Commission repeated in another decision that the core element of the decision of 9 December 2000 had not been enforced: the Republika Srpska had not released Mr Palić, if still alive, or otherwise had not made available his mortal remains to the applicant and no prosecution had been brought. This decision was submitted to the State Prosecutor (non-enforcement of the decisions of the Human Rights Chamber constitutes a criminal offence, see paragraph 36 below). 21. On 25 January 2006 the Republika Srpska, at the request of the High Representative, established an ad hoc commission to investigate this case. It included Mr Milorad Bukva who had allegedly attended the meeting of 27 July 1995 mentioned in paragraph 11 above (see paragraph 61 below). The applicant appointed her representative to that commission. 22. On 17 March 2006 the Sarajevo Municipal Court, at the applicant’s request, issued a declaration of presumed death with respect to Mr Palić (see paragraph 39 below). 23. On 20 April 2006 the ad hoc commission adopted a report. Having interviewed numerous people, it established that Mr Palić had been captured by the VRS forces (that is, by Mr Radomir Furtula of the Rogatica Brigade) and handed over to Mr Zdravko Tolimir, Assistant Commander for Intelligence and Security of the Main Staff of the VRS. By order of Mr Mladić, the Commander of the VRS, he was held in a private flat in Rogatica (belonging to Mr Zoran Čarkić, Security Officer of the Rogatica Brigade) for a week or so and then in Vanekov mlin, the military prison mentioned above. He was interrogated daily by security officers of the VRS. It was also established that Mr Pećanac and his driver, Mr Željko Mijatović, had taken Mr Palić from that prison on the night of 4/5 September 1995. While questioned by the Serbian authorities, at the request of the Republika Srpska, Mr Pećanac and Mr Mijatović said that they had taken Mr Palić to Han Pijesak and handed him over to the late Mr Jovo Marić. However, the report established that Mr Marić had not been in Han Pijesak at that time. 24. On 13 December 2006 the Prime Minister of the Republika Srpska established another ad hoc commission to investigate this case. He also met the applicant who appointed her representative to that commission. 25. On 20 December 2006 the Court of Bosnia and Herzegovina issued international arrest warrants against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity. 26. In March 2007 the second ad hoc commission established that Mr Palić had been buried in a mass grave in Rasadnik near Rogatica and, having searched the area in vain, that he could have been transferred to a secondary mass grave in Vragolovi near Rogatica (where nine unidentified bodies had been exhumed on 12 November 2001) or elsewhere in that area. 27. On 31 May 2007 the authorities of Bosnia and Herzegovina arrested Mr Tolimir and transferred him to the custody of the ICTY. 28. On 5 August 2009 the ICMP established that one of the unidentified bodies from the mass grave in Vragolovi (which had been exhumed on 12 November 2001 and reburied in a nameless grave in Visoko on 14 March 2002) was that of Mr Palić. The Sarajevo Cantonal Court then ordered that the body be exhumed. On 20 August 2009 the ICMP confirmed through DNA tests that the body indeed belonged to Mr Palić. 29. On 26 August 2009 Mr Palić was finally buried on the grounds of the Ali Pasha’s Mosque in Sarajevo with military honours. 30. On 16 December 2009 the ICTY amended the indictment against Mr Tolimir. He is charged with the participation in joint criminal enterprise to forcibly transfer and deport the Muslim populations of Srebrenica and Žepa, a natural and foreseeable consequence of which was the killing of Mr Palić and two other Muslim leaders from Žepa by the VRS (the third category of joint criminal enterprise). His trial commenced on 26 February 2010. 31. Mr Pećanac and Mr Mijatović live in Serbia. They were granted Serbian citizenship on 4 January 1999 and 17 September 1998, respectively. 32. Armed conflicts often lead to the disappearance of hundreds or even thousands of people. Pursuant to Articles 32-34 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, families have the right to be informed of the fate of missing relatives; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again; and lists showing the exact location and markings of the graves, together with particulars of the dead interred therein, must be exchanged. The International Committee of the Red Cross (ICRC), with the assistance of its Central Tracing Agency, has long experience in searching for soldiers and combatants who go missing during military operations (“missing in action”) and for civilians who are reported missing as a consequence of armed conflict. 33. This is a much narrower concept. A recent definition of “enforced disappearance” is set out in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” 34. The widespread or systematic practice of enforced disappearance is described as a crime against humanity in Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998. 35. The Agreement between Bosnia and Herzegovina and Serbia on Mutual Assistance in Civil and Criminal Matters (published in Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 11/05 of 8 December 2005, amendments published in Official Gazette no. 8/10 of 29 July 2010) entered into force on 9 February 2006. Under Article 39 thereof, when a citizen or resident of one Contracting State is suspected of having committed an offence in the territory of the other Contracting State, the latter may request the former to take proceedings in the case. While such a request is pending, the requesting State may not prosecute the suspected person for the same offence. Moreover, a person in respect of whom a final criminal judgment has been rendered in the requested State may not be prosecuted for the same offence in the requesting State if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty (Article 41 of the Agreement). Lastly, when one State intends to request the transfer of proceedings, it may also request the other State to provisionally arrest the suspected person (Article 40a of the Agreement). 36. The 2003 Criminal Code (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010) entered into force on 1 March 2003. The relevant part of Article 172 of the Code provides as follows: “1. Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack perpetrates any of the following acts: ... i) enforced disappearance of persons; ... shall be punished by imprisonment for a term not less than ten years or long-term imprisonment. 2. For the purpose of paragraph 1 of this Article the following terms shall have the following meanings: ... h) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time. ...” Furthermore, in accordance with Article 239 of the Code, non-enforcement of a decision of the Human Rights Chamber is an offence: “An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term between six months and five years.” 37. The 2003 Code of Criminal Procedure (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into force on 1 March 2003. Article 247 of the Code reads as follows: “An accused may never be tried in absentia.” 38. War Crimes Sections of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina have been set up pursuant to the Court of Bosnia and Herzegovina Act 2000 (a consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09 of 22 June 2009, amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 of 15 December 2009). 39. Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the 1992-95 war as from the expiry of the waiting period, which is one year from the cessation of the hostilities (the Non-Contentious Procedure Act 1989, published in Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 10/89 of 23 March 1989, which was in force in the Federation of Bosnia and Herzegovina until 28 January 1998 and in the Republika Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998, published in Official Gazette of the Federation of Bosnia and Herzegovina no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005; and the Non-Contentious Procedure Act 2009, published in Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009). Pursuant to section 27(1) of the Missing Persons Act 2004, a declaration of presumed death will automatically be issued with respect to all those recorded as missing in the Central Records (see paragraph 40 below). 40. The Missing Persons Act 2004 (published in Official Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004) entered into force on 17 November 2004. It provides, in so far as relevant, as follows: “Families of missing persons have the right to know the fate of their missing family members and relatives, their place of (temporary) residence, or if dead, the circumstances and cause of death and location of burial, if such location is known, and to receive the mortal remains.” “The status of missing person is terminated on the date of identification, and the process of tracing the missing person is concluded. In the event that a missing person is proclaimed dead, but the mortal remains have not been found, the process of tracing shall not be terminated.” The Missing Persons Institute and, within that Institute, the Central Records have been set up as domestic institutions pursuant to that Act. The Missing Persons Fund, although envisaged, has not yet been set up. 41. The War Crimes Act 2003 (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). A number of persons have been convicted in Serbia for war crimes committed during the 1992-95 war in Bosnia and Herzegovina. As an example, at the request of Bosnia and Herzegovina, the Serbian authorities have taken proceedings and convicted Mr Nenad Malić of war crimes committed against Bosniacs in Stari Majdan in 1992 and sentenced him to 13 years’ imprisonment. As another example, they have recently convicted Mr Slobodan Medić, Mr Branislav Medić, Mr Pero Petrašević and Mr Aleksandar Medić of war crimes committed against Bosniacs in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years’ imprisonment respectively. 42. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/09) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens may not be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which was in force between 28 March 2002 and 27 March 2009. | 0 |
train | 001-81021 | ENG | UKR | ADMISSIBILITY | 2,007 | POZHARSKYY v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Oleksandr Yukhymovych Pozharskyy, is a German national who was born in 1965 and lives in Berlin. He was represented before the Court by Mr A. Vronsky, a lawyer practising in Kyiv. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 September 1995 the applicant deposited an amount of 175,600 United States dollars (hereafter “the USD”) in cash with Mr Nevmerzhytsky, who at the relevant time was the Head of the Kyiv office of the Poltava Bank (hereafter “the Bank”). Mr Nevmerzhytsky issued a receipt for this money, in which he undertook to repay it immediately on the applicant’s demand. The receipt was countersigned by the applicant and two witnesses. On 28 September 1995, in the course of an ongoing preliminary criminal inquiry, the premises of the Bank were searched by the police and an amount of USD 184,761 in cash was seized which had been stored underneath the table of an employee. On 18 October 1995 the Investigative Division of the Main Department of the Ministry of Internal Affairs of Ukraine in Kyiv began a criminal investigation into allegations of illegal currency transactions that had allegedly been committed by Mr Nevmerzhytsky. Subsequently this charge was dropped and he was charged with financial fraud, forgery committed by an official, aggravated forgery, abuse of power, tax evasion, aggravated fictitious trading and aiding and abetting the concealment of the proceeds of currency sales (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 10-25, ECHR 2005). On 27 October 1995 a police investigator ordered that the money seized at the premises of the Bank be attached to the file in the criminal case against Mr Nevmerzhytsky and be used in the subsequent trial as real evidence. On 19 April 1997 the applicant was put on the list of wanted persons for his alleged involvement in illegal currency transactions. On 6 May 1997 he was apprehended by the police. On 8 May 1997 the applicant was formally charged with engaging in illegal currency transactions. On 10 June 1998 the investigator discontinued the criminal proceedings against the applicant, holding that there was no evidence that the applicant had been aware of the fact that Mr Nevmerzhytsky had conducted illegal financial transactions. On 3 August 1998 the applicant lodged a civil-party application in the context of the criminal case against Mr Nevmerzhytsky, asserting his rights to the money seized at the bank in the amount of USD 175,600. On 5 August 1998 the investigator dealing with case against Mr Nevmerzhytsky, allowed the applicant to join the proceedings as a civil claimant. In his decision the investigator stated, inter alia, that the applicant had a valid claim for part of the money seized at the premises of the Bank. During the trial proceedings against Mr Nevmerzhytsky, which started in August 1999 and continued, with several interruptions (see Nevmerzhitsky, cited above, §§ 19-26), until February 2001, the applicant was heard as a witness. He stated that on several occasions in summer and autumn 1995 he had deposited cash with the defendant, including the amount USD 175,600, handed over on 21 September 1995. On 19 February 2001 the Kyiv City Court convicted Mr Nevmerzhytsky of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months’ imprisonment, and ordered the confiscation of all his personal property. The trial court acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. The Kyiv City Court also ordered the amount of USD 184,761 forfeited to the State as its rightful owner had not been established during the hearings. On the same date the Kyiv City Court issued a separate ruling, noting that the investigating authorities had permitted the applicant to join the proceedings as a civil claimant on the ground that in summer and autumn 1995 he had deposited substantial amounts in cash with Mr Nevmerzhytsky. However, the applicant could not be a party to the criminal proceedings as the authorities had failed to verify the source of this money and the lawfulness thereof. The Kyiv City Court suggested that the investigating authorities should reconsider their decision of 10 June 1998 to discontinue the criminal proceedings against the applicant. There is no indication that the criminal investigation against the applicant was ever reopened. On an unspecified date the applicant appealed against the judgment of 19 February 2001, stating that the Kyiv City Court had unfairly denied him access to the proceedings in his capacity as civil claimant. The applicant further complained that the trial court had unreasonably ordered the forfeiture of the cash seized at the premises of the Bank, as the major part of this money belonged to him. Pursuant to Article 347 of the Code of Criminal Procedure, the applicant’s appeal in cassation was handed over to the Kyiv City Court, which examined its compliance with the relevant procedural requirements (see the relevant domestic law below). On 1 March 2001 this court declared the appeal inadmissible as the applicant was not a party to the criminal trial and therefore not entitled to appeal against the judgment of 19 February 2001. The applicant challenged this decision before the Supreme Court. On 24 May 2001 the Supreme Court, following a hearing held in presence of the applicant’s lawyer, upheld the Kyiv City Court’s finding that the applicant was not a civil party to the criminal proceedings against Mr Nevmerzhytsky and was therefore not entitled to file an appeal against the judgment of 19 February 2001. The Supreme Court stated, inter alia, that the amount of cash seized during the search differed from that deposited by the applicant with Mr Nevmerzhytsky on 21 September 1995 and that the seized cash did not have any features that would permit to identify it as that belonging to the applicant. Moreover, it was highly improbable that such a significant sum of money would be stored for seven days (from 21 to 28 September 1995) by the bank employees in the counter hall underneath a table. 2. Civil proceedings On 29 November 1995 the applicant sued Mr Nevmerzhytsky for breach of contract, claiming that the latter owed him USD 175,600. On 7 December 1995 the Svyatoshynsky District Court of Kyiv suspended the proceedings in this case. On 24 April 1996 the Kyiv City Court, acting as supervisory instance, quashed this decision and remitted the case for examination on the merits. On an unidentified date the case was transmitted from the Svyatoshynsky to Starokyivskyy District Court of Kyiv. On December 1997 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claim because he had repeatedly failed to appear in court. On 25 November 1998 the Kyiv City Court, on the applicant’s appeal, quashed this decision on the ground that the case file did not contain any evidence that the applicant had been duly informed of the scheduled hearings. On an unknown date before February 1999 the applicant amended his claims, requesting the court to order to the Kyiv City Police Department to join the proceedings as a co-defendant and requesting that the sum of USD 175,600 be excluded from the attachment order of 27 October 1995. On 1 February 1999 the Starokyivskyy District Court of Kyiv suspended the proceedings pending the outcome of the criminal proceedings against Mr Nevmerzhytsky. This decision was quashed on an unspecified date by a higher court. On 5 June 2000 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claims because he had repeatedly failed to appear. The applicant did not appeal against this decision. Article 28 of the Code of Criminal Procedure provides that a person who sustained material damage from a crime shall be entitled to lodge a civil claim against the accused person or any other persons who bear material liability for the actions of the accused. The civil claim can be filed during the pre-trial proceedings as well as at the initial stages of the trial proceedings. The person who has not filed a civil claim in the context of the criminal proceedings, as well as a person, whose claim was left without consideration, is entitled to bring proceedings before civil courts. | 0 |
train | 001-110717 | ENG | GBR | CHAMBER | 2,012 | CASE OF M.S. v. THE UNITED KINGDOM | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award | David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. The applicant was born in 1970. At the time of filing his application, he was resident in a psychiatric clinic. According to an expert report drawn up during the domestic proceedings in this case, the applicant has a diagnosis of mental impairment and, prior to the facts giving rise to this case, had been admitted to psychiatric hospitals twice. He also had a number of convictions against him, including for indecent assault, burglary and theft. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. In the early hours of 6 December 2004, police in Birmingham were called out to deal with the applicant, who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner. He was arrested at 4.20 a.m. and transferred to a police station, where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required. His detention was authorised under section 136 of the Mental Health Act 1983 (see paragraph 28 below). The police also went to the applicant’s address, where they found his aunt with serious and extensive injuries to her face and upper body, inflicted by the applicant. She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung. 9. The applicant was examined in his cell at approximately 5 a.m. by the Forensic Medical Examiner, Dr T. In view of the applicant’s behaviour, speech and appearance, he assessed him as not fit to be interviewed or charged with any criminal offence. A formal assessment under the Mental Health Act 1983 was requested. This was done at approximately 7 a.m. by the psychiatric specialist registrar on call, Dr O. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons. 10. A second assessment was carried out shortly after 11 a.m. by another psychiatric specialist, Dr. O’D. He too advised that the applicant be formally admitted to hospital for assessment. He also advised that the applicant be observed via closed circuit television, since the presence of a police officer outside his cell was causing him to become agitated. For the remainder of his time at the police station, the applicant remained under continuous observation by this means. 11. At around midday, the applicant was visited by an approved social worker, Mr G. He was also seen by a community psychiatric nurse, Mr J. Both noted that the applicant was displaying clear signs of mental illness. The social worker filled out the relevant form for admission to a mental hospital, omitting just one point, the name of the establishment, which had yet to be determined. 12. At around 3 p.m. two members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to Reaside Clinic, which had a medium secure unit. The police thereupon contacted Reaside to inform them of the situation. Shortly after 6 p.m., Dr M., a consultant forensic psychiatrist at Reaside, called back and was informed of the situation concerning the applicant. According to the custody record, he stated that someone would be sent over from the clinic. According to Dr M.’s own notes on the situation, which the Government have provided, he then consulted with a number of colleagues. Believing that the applicant would be charged and remanded in custody and that an assessment from Reaside would be required only afterwards, they considered that there was no need for their involvement before such time. At 7.24 p.m. the police received a call from Reaside informing them that the clinic would not be sending anyone to the station, but would liaise with the social worker. 13. The custody record for the applicant’s first day at the police station refers at several points to his disturbed behaviour: clapping loudly, shouting, banging on the door, lowering his trousers and waving his testicles about, and licking the wall of his cell. Dr T. noted that the applicant repeatedly hit his head against the wall, causing himself bruising. He was provided with, and accepted, food and drink at intervals throughout the day. 14. The next day, 7 December, there were further telephone contacts between the police station and Reaside regarding the applicant’s case. The police also contacted other mental health officials, but admission to Reaside remained the only viable solution. During the morning Dr M. spoke with the duty solicitor of the Crown Prosecution Service, who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody. In the event of no charge being brought, they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant the previous day. In discussion with the clinical director of Reaside, Dr M. noted that at that point there was no immediate action to be taken. He was later told by Dr O. that the applicant would be charged with assault, and arranged an appointment to assess the applicant on 9 December at HMP Birmingham. 15. An entry in the custody record at 1.46 p.m. states that the duty solicitor of the Crown Prosecution Service had concluded that there was insufficient evidence to charge the applicant. An entry at 5.01 p.m. states that there was an “internal argument” between doctors and the social services regarding the applicant. At 8.41 p.m. an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant. 16. The applicant’s behaviour was observed to deteriorate over the course of the day. By midday he had removed all of his clothing. Later he drank water from the bowl of the toilet in his cell. He accepted three meals, in the early morning, mid-morning and in the mid-afternoon. He accepted a drink at 4.17 p.m., but, according to the custody record, refused all further offers of food and drink for the remainder of the day. 17. On the third day of the applicant’s detention, 8 December, the duty Inspector made an entry in the custody record at 8.53 a.m. noting his concern at the environment in which the applicant was detained, given his obvious illness. The applicant was still naked and was observed during the morning rocking to and fro on a bench, talking to himself, banging his chest and ranting. 18. Dr M. arrived at the police station shortly before 11 a.m., accompanied by other mental health professionals from Reaside to assess the applicant. The police refused to open the door of the applicant’s cell on the ground that this would endanger everyone’s safety. The assessment was conducted through the hatch. Dr M. noted that the applicant appeared agitated and was shouting loudly, and that his naked body appeared to be smeared with food or faeces. The applicant was elated, and his speech was incoherent at times. Dr M. concluded that the applicant was clearly unwell and required inpatient treatment in a medium-secure setting with adequate nursing resources and a clear and effective care plan. He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems. The police indicated that their advice from the Crown Prosecution Service was that there could be no charge at that point in time, given the impossibility of interviewing the applicant. Dr M. said he would endeavour to get a place for the applicant at Reaside, although it would not be possible to receive him there until the following morning, i.e. beyond the 72-hour limit laid down by the Mental Health Act 1983. That afternoon, the Chief Superintendent spoke to the clinical director of Reaside, who agreed to receive the applicant the same evening. 19. Informed of this, Dr M. discussed the situation with nursing staff at Reaside. He was informed that the resources needed to admit the applicant could be made available for the following morning at 8 a.m. at the earliest. He considered that an admission in the middle of the night, i.e. just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. He suggested to the Chief Superintendent that the applicant could be transferred to Reaside at the end of the 72-hour period, but that police assistance would be required to maintain him in safe conditions until it was possible to admit him. He was informed that the presence of the police could not be guaranteed for the whole period. 20. At 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. Late that night, an Approved Social Worker from Reaside came to the police station to complete the necessary forms for the application’s admission under the Mental Health Act 1983. 21. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day (9.34 a.m. and 2.28 p.m.). At the end of the afternoon a meal was not offered because the applicant was sleeping. He requested food at 7.08 p.m., which was provided but which he dropped on the floor. He refused an offer of a meal and a drink at 10.56 p.m. 22. On the fourth day, 9 December, the applicant was released from police custody at 7.27 a.m. and escorted, in handcuffs, to Reaside. According to the Government, it took eight members of the nursing staff to restrain him once admitted. He was assessed as having pressure of speech, flight of ideas, a labile mood, thought disorder and persecutory delusions. The diagnosis was of a manic episode with psychotic features. The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive, threatening manner. He received continued medication over the following days and showed sustained improvement. 23. On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding. A hearing was held on 14 March 2007 before a District Judge. The applicant’s counsel submitted a report prepared by a Consultant Forensic Psychiatrist, Dr E., who had not interviewed the applicant but had reviewed the relevant documents. Dr E. considered that Dr M. should have assessed the applicant within 24 hours of being made aware of the situation, since by that stage the applicant had been detained for about 12 hours. The delay in assessing him and in admitting him to Reaside had in turn delayed the applicant’s treatment and recovery. 24. The judge granted the order for summary judgment. He held that although the defendant had owed the applicant a duty of care, and that that duty had been breached, it had not caused the applicant any physical or psychological injury. The action in negligence therefore failed on causation and loss. In any event, any loss had been absolutely minimal. A delay of 31 hours in the hospitalisation of the applicant could only lead to minimal damages. The judge also rejected the claim based on the Human Rights Act on the grounds that Dr M. could not be seen as a public authority for the purposes of the Act, and that the situation did not meet the minimum level of severity inherent in Article 3 of the Convention. The applicant’s claim for damages based on Article 8 of the Convention was also dismissed, the judge finding that this was not an exceptional case in which compensation would be justified. The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant, which he had not done. 25. The applicant was granted permission to appeal. The case was heard at Birmingham County Court by Judge M., who dismissed the appeal in a judgment of 14 November 2007. The judge described the applicant’s claim in negligence as “hopeless”, there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant. It was unrealistic to suggest that a delay of a given number of hours (the applicant’s counsel having conceded that the delay was considerably less than 31 hours) in some way caused that number of hours of psychosis. 26. In relation to the claim under the Human Rights Act, the judge considered that Dr M. should be viewed in that context as a “public authority”. However, the claim failed because the situation did not fall within Article 3. The applicant had been lawfully detained and his basic needs had been met. The fact that he had spent an extra 12-24 hours at the police station did not make the situation so appalling as to breach Article 3. The judge found that there had been no breach of Article 8 because there had been no arbitrary or deliberate interference with the applicant’s rights. As regards the claim for malfeasance, he concurred with the decision of the District Judge. 27. In light of these findings, the applicant’s legal representatives advised him that legal aid would not be available for him to appeal the decision further. 28. Section 136 of the Mental Health Act 1983 provides: “Mentally disordered persons found in public places. (1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above. (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” A “place of safety” is defined in section 135(6) as follows: “In this section “place of safety” means residential accommodation provided by a local social services authority..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.” 29. The Code of Practice issued under the Mental Health Act 1983 provided at the relevant time: “The place of safety 10.5 The identification of preferred places of safety is a matter for local agreement. However, as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station. Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment. Once the person has been removed to a particular place of safety, they cannot be transferred to a different place of safety. ... 10.8.c. Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital.” 30. Extract from Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008: “148. The CPT also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police. More than once, members of the CPT’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self-harm. Such treatment is clearly unacceptable and should be stopped immediately. In such cases police officers should immediately call a doctor and act in accordance with his instructions. Further, detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility. The CPT recommends that immediate steps be taken to ensure that detained persons with mental health disorders, held in police stations, are provided with appropriate care and treatment, until they are transferred to a mental health facility.” | 1 |
train | 001-23292 | ENG | UKR | ADMISSIBILITY | 2,003 | DZIZIN v. UKRAINE | 4 | Inadmissible | null | The applicant, Mr Victor Aleksandrovich Dzizin, is a Ukrainian national, who was born in 1926 and resides in the city of Kharkov, Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 March 1956, as a result of injuries sustained in an industrial accident, the applicant was unable to work. Thereafter, he was paid a disability pension by his former employer, the Serp i Molot company. According to the applicant, 92% of the shares in the company belong to the State. In August 1998 the payments ceased and on 14 June 2001 the applicant lodged a claim with the Moskovsky District Court of Kharkov against the company. On 5 July 2001 the District Court found in favour of the applicant (Рiшення Московського Районного Суду м. Харкова). The decision became effective on 5 August 2001 and was sent for execution to the Moskovsky District Department of the State Bailiffs’ Service (Вiддiл Державної Виконавчої Служби Московського Районного Управлiння Юстицiї м Харкова). On 11 September 2001, the State Bailiffs’ Service initiated execution proceedings in the applicant’s case. The first payment (328.46 UAH) to the applicant was made on 22 October 2001. In the absence of further execution, the applicant contacted the bailiff responsible for the execution of the judgment on several occasions and, on 26 February 2002, lodged a complaint with the Head of the Moskovsky District Department of the State Bailiffs’ Service against that bailiff. On 23 March 2002 the Head of the Moskovsky District Department of the State Bailiffs’ Service replied to the applicant, stating, inter alia, that the judgment could not be executed due to the adoption of the Law of Ukraine “on the Introduction of a Moratorium on the Forced Sale of Property” (Закон України “Про введення мораторiю на примусову реалiзацiю майна”), which had entered into force on 29 November 2001. On 22 April 2002, a second payment (314.19 UAH) was made to the applicant. On 11 October 2002, the final payment (5132.99 UAH) was made to the applicant and the court judgment of 5 July 2001 was thereby fully enforced. 1. Civil Code of Ukraine Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim of the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period. 2. Law of Ukraine of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property” The Law aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. The moratorium has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set. Section 2 of the Law provides that the forced sale of property includes the execution of writs by the State Bailiffs’ Service over property belonging to undertakings. The Law applies to immovable property and other fixed assets, which are used in production, as well as shares, owned by the State in the property of other companies and invested to the statutory capital of those enterprises. The Law therefore stays the execution of all writs by the State Bailiffs’ Service over the above-mentioned assets or undertakings in which the State holds at least 25% of the share capital. 3. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings” Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against the State Bailiffs’ Service for inadequate enforcement or non-enforcement of a judgment, and to receive compensation. 4. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service” Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. | 0 |
train | 001-76094 | ENG | SVN | CHAMBER | 2,006 | CASE OF KRAJNC v. SLOVENIE | 4 | Violation of Art. 6-1 (one set of proceedings);No violation of Art. 6-1 (other sets of proceedings);Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1952 and lives in Celje. 6. On 5 September 1991 the applicant was injured in an accident at work. PUV, the applicant’s employer, had taken out insurance with the insurance company ZT. 7. On 30 April 1992 the applicant instituted civil proceedings against PUV in the Celje Court of Associated Labour (Sodišče združenega dela v Celju) seeking damages in the amount of 980,000 tolars (approximately 4,000 euros) for the injuries sustained. On 9 March 1993 the court upheld, in part, the applicant’s claim. 8. The applicant appealed to the Court of Associated Labour (Sodišče združenega dela Republike Slovenije). The judgment, upholding the applicant’s appeal and remitting the case to the first-instance court for re-examination, was served on the applicant on 8 December 1993. 9. On 12 and 30 September 1994 the applicant lodged with the Celje Labour Court (Delovno sodišče v Celju), the renamed first-instance court, preliminary written submissions and/or adduced evidence. Neither of the two hearings held on 15 September and 19 October 1994 was adjourned at the request of the applicant. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 16 December 1994. 10. On 27 December 1994 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče). On 16 May 1997 the court allowed the applicant’s appeal in part. The judgment was served on the applicant on 1 September 1997. 11. On 29 September 1997 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). PUV cross-appealed. On 29 September 1997 the applicant also sought exemption from paying the court fees. On 22 October 1997 the first-instance court rejected the applicant’s request for exemption. On 28 October 1997 the applicant appealed. On 17 September 1999 the Higher Labour and Social Court dismissed the applicant’s appeal and requested that he paid the court fees. On 28 September 1999 the case was transferred to the Supreme Court to decide on the applicant’s appeal on points of law. On 7 December 1999 the Supreme Court dismissed the applicant’s appeal and allowed PUV’s appeal in part. The judgment was served on the applicant on 4 January 2000. 12. On 13 August 1992 the applicant was injured in an accident at work. PUV, the applicant’s employer, had taken out insurance with the insurance company ZT. 13. On 12 December 1994 the applicant instituted civil proceedings against ZT and PUV in the Celje Basic Court, Celje Unit (Temeljno sodišče v Celju, Enota v Celju) seeking damages in the amount of 10,016,472 tolars (approximately 41,800 euros) for the injuries sustained. On 1 January 1995 the Celje Distric Court (Okrožno sodišče v Celju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. Between 9 March 1995 and 12 July 2001 the applicant made fifteen requests that a date be set for a hearing. Between 16 October 1995 and 18 September 2001 he lodged fifteen preliminary written submissions and/or adduced evidence. Of the seven hearings held between 25 October 1995 and 3 October 2001 none was adjourned at the request of the applicant. On 25 September 1997 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was transferred to a new judge. During the proceedings the court appointed three medical experts. The judgment, upholding the applicant’s claim in part, was served on the applicant on 26 November 2001. 14. On 28 November 2001 the applicant appealed to the Celje Higher Court. ZT and PUV cross-appealed. On 29 May 2003 the court allowed the applicant’s appeal in part and dismissed ZT’s and PUV’s appeals. The judgment was served on the applicant on 1 September 2003. 15. On 12 September 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and requested the second-instance court to correct its judgment. ZT and PUV cross-appealed. On 29 October 2003 the second-instance court corrected its judgment. On 14 July 2005 the court dismissed the applicant’s appeal, upheld ZT’s and PUV’s appeals in part and amended the first-instance court judgment. The judgment was served on the applicant on 21 October 2005. 16. On 7 June 2000 ZT instituted civil proceedings against the applicant in the Celje Local Court (Okrajno sodišče v Celju) seeking reimbursement of overpaid damages in the amount of 281,234 tolars (approximately 1,170 euros). ZP paid the damages to the applicant following the judgment the Higher Labour and Social Court’s judgment of 16 May 1997 rendered in the first set of proceedings. The damages were lowered by the Supreme Court’s judgment of 7 December 1999. Between 4 July 2000 and 19 November 2002 the applicant lodged three preliminary written submissions and/or adduced evidence. Neither of the two hearings held on 2 and 18 December 2002 was adjourned at the request of the applicant. The judgment, upholding the ZT’s claim, was served on the applicant on 24 January 2003. 17. On 29 January 2003 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 5 May 2004 the court allowed the applicant’s appeal and remitted the case to the first-instance court for re-examination. The judgment was served on the applicant on 18 June 2004. 18. On 21 June 2004 the applicant submitted written submissions. The proceedings are still pending. | 1 |
train | 001-57720 | ENG | BEL | CHAMBER | 1,991 | CASE OF BORGERS v. BELGIUM | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos;R. Pekkanen | 9. Mr André Borgers, a Belgian national residing at Lummen (Belgium), is a lawyer who currently practises at the Hasselt Bar. 10. On 8 November 1981 he was elected provincial counsellor and thereupon tendered his resignation from the post of substitute district judge (juge de paix suppléant) which he had held since 12 April 1976, but which under the Judicial Code was incompatible with his new elected office. 11. On 16 June 1981 he had appeared before the Antwerp Court of Appeal charged with forgery and using forged documents, the latter court having jurisdiction by virtue of the privileges which he enjoyed in this respect as a judicial officer. On 19 May 1982 it imposed on him a suspended sentence of six months’ imprisonment and fined him 40,000 Belgian francs. 12. The applicant appealed to the Court of Cassation on points of law. He argued that in its judgment convicting him the Court of Appeal had failed to give an adequate statement of its reasons and to attach sufficient weight to the records of the investigating judge’s examinations; he contended further that the judgment had been delivered following a violation of the rights of the defence. In accordance with usual practice, the procureur général’s department of the Antwerp Court of Appeal did not submit a memorial in reply. 13. On 20 March 1984 the Court of Cassation allowed the appeal and quashed the contested decision on the ground that an adequate statement of the reasons on which it was based had not been given. Previously, at the hearing, it had heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions (conclusions) of Mr Tillekaerts, the avocat général (a member of the procureur général’s department). The latter had also attended the deliberations in accordance with Article 1109 of the Judicial Code (see paragraph 17 below). 14. The Ghent Court of Appeal, to which the case had been remitted, convicted the applicant on 14 November 1984 and imposed on him identical sanctions to those resulting from the earlier decision (see paragraph 11 above). Mr Borgers again appealed to the Court of Cassation; he complained inter alia that the judgment in question had failed to state sufficient reasons and had misinterpreted the provisions of criminal law concerning forged documents and statutory limitation. 15. His appeal was dismissed on 18 June 1985, following a hearing at which the Court heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions of Mr Tillekaerts, the avocat général, who had again participated in the deliberations (see paragraph 17 below). 16. According to Article 141 of the Judicial Code: "The procureur général at the Court of Cassation shall not act as prosecuting authority except where he has instituted proceedings in which the decision on the merits falls to the Court of Cassation." This provision replaced Article 37 of the Prince Sovereign’s Decree of 15 March 1815, which was in issue in the Delcourt case (already cited, see paragraph 3 above) and which was worded as follows: "Even in criminal proceedings, the procureur général at the court cannot be regarded as a party; his role is only to make submissions (conclusions), except where he has himself appealed. In the latter event, he shall put the prosecution case (réquisitoire) in pleadings which, filed with the registry, shall be forwarded without further formalities to the rapporteur appointed by the First President and then distributed with the report to the members of the procureur général’s department." It is true that where the Court of Cassation hears a case on its merits, the procureur général’s department assumes the role of a party, but these instances are quite rare. They include the trial of ministers (Article 90 of the Constitution), civil proceedings brought against a judge in his official capacity (la prise à partie) (Article 613, 2o, and Articles 1140 to 1147 of the Judicial Code) and disciplinary proceedings against certain judicial officers (Articles 409, 410 and 615 of the same Code). Apart from these exceptional circumstances, the procureur général’s department at the Court of Cassation carries out, with full independence, the duties of adviser to the Court. In this capacity, it is by no means unusual for it to express the opinion that the court should dismiss an appeal lodged by the prosecuting authorities of the lower court or should allow an appeal by an accused; indeed it may even raise an argument against the conviction or sentence of its own motion. 17. On the procedure to be followed in the Court of Cassation, whether for civil or criminal proceedings, the Judicial Code provides as follows: "After the report has been read out, submissions are taken from the lawyers present at the hearing. Their pleadings shall relate exclusively to the issues of law raised in the grounds for appeal or to the pleas in bar put forward against the appeal. The procureur général’s department shall then make its submissions, whereafter no further documents shall be accepted." "The procureur général or a member of his department shall be entitled to attend the deliberations unless the appeal on a point of law has been lodged by the procureur général’s department itself; he shall not be entitled to vote in the deliberations." The procureur général’s department may file an appeal on a point of law either "in the interests of the law" (Articles 1089 and 1090 of the Judicial Code and Article 442 of the Code of Criminal Procedure) or following a complaint by the Minister of Justice (Article 1088 of the Judicial Code and Article 441 of the Code of Criminal Procedure). The rule which, in such cases, requires the exclusion from the Court’s deliberations of the procureur général or his representative already applied under the Prince Sovereign’s Decree of 15 March 1815 (see paragraph 16 above), but it was not expressly laid down therein (see the transcript of the hearing of 30 September 1969 in the Delcourt case, Series B, no. 9, p. 215). It merely provided, in Article 39: "In cassation proceedings the procureur général or a member of his department shall have the right to be present, without voting, when the court retires to consider its decision." 18. Under Article 400 of the Judicial Code the disciplinary hierarchy applying to the officials of the ministère public is as follows: "The Minister of Justice shall exercise supervisory authority over all the officials of the ministère public, the procureur général at the Court of Cassation over his counterparts at the Courts of Appeal and the latter over public prosecutors and their departments in their courts and the lower courts as well as over State counsel in the Industrial Appeals Tribunals, the crown prosecutors and the State counsel in the industrial tribunals and their substitutes." The above provision replaced section 154 of the Judiciary (Organisation) Act of 1869, referred to in the Delcourt judgment (cited above, Series A no. 11, p. 16, para. 30). Article 414 of the Judicial Code states as follows: "The procureur général at the Court of Appeal may impose on the subordinate officials of the ministère public the sanctions of a warning, a reprimand or a reprimand with suspension of salary. The procureur général at the Court of Cassation shall have the same powers in regard to persons holding the office of avocat général at that court and those holding the office of procureur général at the Courts of Appeal. The Minister of Justice may likewise warn and reprimand all the officials of the ministère public or recommend to the King their suspension or their revocation." 19. On the question of disciplinary proceedings against judges and the role in this matter of the procureur général at the Court of Cassation, the following provisions of the Judicial Code may be cited: "Only the Court of Cassation may hear disciplinary proceedings to remove a judge from office." "Substitute judges" - such as Mr Borgers from 1976 to 1981 (see paragraph 10 above) - "are, in that capacity, subject to the same disciplinary authorities as full judges." "[...] disciplinary proceedings [...] against judges [...] shall be instituted by the competent authority of its own motion; if their object is the issue of a warning, they shall be instituted by the authority empowered to order such a measure; in other cases, they shall be instituted by the first president of the competent court. Disciplinary proceedings may always be instituted at the instance of officers of the ministère public." | 1 |
train | 001-57854 | ENG | AUT | CHAMBER | 1,993 | CASE OF INFORMATIONSVEREIN LENTIA AND OTHERS v. AUSTRIA | 2 | Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 8. The first applicant, an association of co-proprietors and residents of a housing development in Linz, comprising 458 apartments and 30 businesses, proposed to improve the communication between its members by setting up an internal cable television network. The programmes were to be confined to questions of mutual interest concerning members’ rights. 9. On 9 June 1978 the first applicant applied for an operating licence under the Telecommunications Law (Fernmeldegesetz, see paragraph 17 below). As the Linz Regional Post and Telecommunications Head Office (Post- und Telegraphendirektion) had not replied within the six-month time-limit laid down in Article 73 of the Code of Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), the association applied to the National Head Office (Generaldirektion für die Post- und Telegraphenverwaltung), attached to the Federal Ministry of Transport (Bundesministerium für Verkehr). The National Head Office rejected the application on 23 November 1979. In its view, Article 1 para. 2 of the Constitutional Law guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, "the Constitutional Broadcasting Law", see paragraph 19 below) had vested in the federal legislature exclusive authority to regulate this activity; it had exercised that authority only once, by enacting the Law on the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks, see paragraph 20 below). It followed that no other person could apply for such licence as any application would lack a legal basis. Furthermore there had been no violation of Article 10 (art. 10) of the Convention since the legislature - in its capacity as a maker of constitutional laws (Verfassungsgesetzgeber) - had merely availed itself of its power to set up a system of licences in accordance with the third sentence of paragraph 1 (art. 10-1). 10. Thereupon the first applicant complained to the Constitutional Court of a breach of Article 10 (art. 10); the court gave judgment on 16 December 1983. It took the view that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 (art. 10-1, art. 10-2) (Gesetzesvorbehalt). Accordingly, an administrative decision could infringe that provision only if it proved to have no legal basis, or its legal basis was unconstitutional or again had been applied in an arbitrary manner (in denkunmöglicher Weise an[ge]wendet). In addition, the Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence (Konzession) by the federal legislature. This system was intended to ensure objectivity and diversity of opinions (Meinungsvielfalt), and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the Austrian Broadcasting Corporation (Österreichischer Rundfunk, ORF), as no implementing legislation had been enacted in addition to the law governing that organisation. Contrary to its assertions, the first applicant had in fact intended to broadcast within the meaning of the constitutional law, because its programmes were to be directed at a general audience of variable composition. The broadcasting law therefore provided a legal basis for the decision in issue. Consequently, the Constitutional Court rejected the complaint and remitted it to the Administrative Court. 11. On 10 September 1986 the Administrative Court in substance adopted the grounds relied on by the Constitutional Court and in its turn dismissed the first applicant’s claim. 12. From 1987 to 1989 the second applicant elaborated a project for the setting up, with other persons, of a private radio station in Carinthia. He subsequently gave up the idea after a study had shown him that according to the applicable law as interpreted by the Constitutional Court he would not be able to obtain the necessary licence. As a result he never applied for one. 13. The third applicant, an Austrian association and a member of the Fédération européenne des radios libres (FERL - European Federation of Free Radios), plans to establish a radio station in southern Carinthia in order to broadcast, in German and Slovene, non-commercial radio programmes, whose makers already operate an authorised mobile radio station in Italy. 14. In 1988 AGORA applied for a licence. Its application was refused by the Klagenfurt Regional Post and Telecommunications Head Office on 19 December 1989 and by the National Head Office in Vienna on 9 August 1990. On 30 September 1991, on the basis of its own case-law (see paragraph 10 above), the Constitutional Court dismissed an appeal from that decision. 15. The fourth applicant is a shareholder of an Italian company operating a commercial radio which broadcasts to Austria and he wishes to carry out the same activity in that country. However, in view of the legislation in force, he decided not to make any application to the appropriate authorities. 16. The fifth applicant is a private limited company incorporated under Austrian law. On 8 November 1988 it asked the Linz Regional Post and Telecommunications Head Office to allocate it a frequency so that it could operate a local radio station which it hoped to launch in Salzburg. On 28 April 1989 its application was rejected, a decision confirmed on 12 July 1989 by the National Head Office and on 18 June 1990 by the Constitutional Court, which based its decision on its judgment of 16 December 1983 (see paragraph 10 above). 17. According to the Telecommunications Law of 13 July 1949, "the right to set up and operate telecommunications installations (Fernmeldeanlagen) is vested exclusively in the federal authorities (Bund)" (Article 2 para. 1). The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (Article 3 para. 1). No licence is required in certain circumstances, including the setting up of an installation within the confines of a private property (Article 5). 18. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations lays down inter alia the conditions for setting up and operating private telecommunications installations subject to federal supervision. According to the case-law, it cannot however constitute the legal basis for the grant of licences. 19. According to Article 1 of the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting, "... 2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions,balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1. 3. Broadcasting within the meaning of paragraph 1 shall be a public service." 20. The Law of 10 July 1974 on the National Broadcasting Corporation established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation. It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (Article 2 para. 1 (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (Article 3). Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations (Article 5 para. 1). A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (Articles 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government. 21. On 8 July 1992 the Administrative Court decided that the Constitutional Law of 10 July 1974 (see paragraph 19 above) did not cover "passive" broadcasting via cable, in other words the broadcasting in their entirety by cable of programmes picked up by an aerial. Consequently, the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an Austrian audience could not constitute grounds for refusing the licence necessary for this type of operation. 22. On 1 January 1994 a Law on regional radio stations is to enter into force (Regionalradiogesetz, Official Gazette (Bundesgesetzblatt) no. 1993/506). It will allow the authorities under certain conditions to grant private individuals or private corporations licences to set up and operate regional radio stations. | 1 |
train | 001-110541 | ENG | MKD | CHAMBER | 2,012 | CASE OF GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1953 and lives in Sveti Nikole. 6. By a court decision of 11 May 1999, the applicant was sentenced to six months’ imprisonment for causing serious injury (a broken forearm) to a third person. On 2 December 1999 he started serving his sentence in Štip Prison (“the prison”) where he was responsible for livestock. 7. On 24 April 2000 he was attacked by a bull, which was not castrated, as a result of which he sustained numerous bodily injuries. After the incident he was transferred by prison vehicle to Štip hospital, where he underwent surgery. The State covered the medical expenses. On 25 April 2000 the bull was put down. On 9 May 2000 the applicant was released from the hospital. The same day, Mr M.K., the prison governor, ordered him to be released early from prison on account of good behaviour. 8. On 28 November 2000 the applicant brought a civil action against the State and the prison (“the defendants”) claiming non-pecuniary damages for the injuries sustained by the bull. His claim was based, inter alia, on sections 173 and 174 of the then valid Obligations Act (see paragraphs 26 and 27 below). He claimed that the bull had attacked him despite the fact that the prison authorities had been alerted about the aggressiveness of the bull, by himself and a certain G. (the first name of Mr G.S., as established in the course of the compensation proceedings, later referred to as Mr G.S.). 9. At a hearing of 23 April 2001, Mr G.S. stated that he, with the applicant and Mr M.S., had been looking after eighteen animals, including the bull. He confirmed that the bull had attacked him and other prisoners, including Mr M.S. and Mr Z.S., and that Mr A.B., a prison guard on duty, had been warned on several occasions before the incident about the aggressiveness of the bull. In a certified written statement of 24 December 2001, Mr M.S., a prisoner at that time, confirmed that the bull had been aggressive and that Mr A.B. had been informed of the fact. 10. Mr A.B. stated that the applicant, in view of his previous experience in handling cattle, had asked to work on the prison farm. Due to his good behaviour, the prison authorities had granted his request despite initial concerns related to his criminal record. After a week’s work-related induction course, the applicant started working on the prison farm. He remained on the farm for a month before he was allowed pasture duties. That corresponded to the practice already established in the prison. After the incident the bull was lame, which according to him, had been due to the injuries on his buttocks. He had called Mr K.M., a vet, to examine the bull. The next day, in the presence of Mr K.M., the bull had been put down. He denied that the applicant or any other prisoner had ever alerted him that the bull was aggressive. 11. Mr I.K., a prisoner at that time who worked on the prison farm, stated that before the incident prisoners had often provoked the bull. He had not heard that any prisoner had ever mentioned, to the prison authorities or to him, that the bull was aggressive. 12. At a hearing of 23 April 2002, Mr K.M. stated that the bull had been regularly examined and treated when needed. He denied that it had been aggressive. He confirmed that immediately after the incident he had visually examined the bull and noticed injuries to the rear of its body, the buttocks and testicles, which according to him, had been inflicted by a blunt object. Those injuries were confirmed in the post mortem report which Mr K.M. had drawn up the same day. 13. The applicant objected to this report, arguing, inter alia, that (1) it was inaccurate, (2) it was biased and had been ordered by the State, as was evident from the date, 1 February 2001, which had been stamped on it and (3) it could not have been post mortem, since on 24 April 2000, the day it had allegedly been drawn up, the bull was still alive. 14. At a hearing on 7 October 2002 the applicant stated that owing to his forty-year experience in rearing livestock he had been assigned to work on the prison farm. Initially, the bull was not aggressive, but it had become anxious during the cows’ mating season. He confirmed Mr M.S.’s statement (see paragraph 9 above) and denied that he had ever hit the bull. He maintained that he had alerted Mr A.B. about the aggressiveness of the bull, but that he had never informed, orally or in writing, Mr M.K., the prison governor. 15. On 7 October 2002 the first-instance court ruled partly in favour of the applicant, ordering the State to pay him compensation in the amount of 300,000 Macedonian denars (MKD, equivalent to approximately 4,890 euros (EUR)) for the injuries, which an expert established as serious. The court established that the State owned the bull, which was considered dangerous within the meaning of section 173 of the Obligations Act (see paragraph 26 below). Referring to the above statements, the court established that the bull had been aggressive and had attacked others. It further rejected as unsubstantiated the arguments of the State that the applicant had contributed to the incident by hitting the bull. In this connection it disregarded the expert report of Mr K.M. for the reasons advanced in the applicant’s objection (see paragraph 13 above). 16. Both parties appealed. 17. On 5 September 2003 the Štip Court of Appeal remitted the case for fresh consideration so that the lower court could establish who had owned the bull. 18. In this respect, the defendants submitted in evidence extracts from the court register according to which an economic unit S. (“the economic unit”), which operated as a separate legal entity within the prison, had been the owner of the bull. The economic unit was established on 15 April 1993 by a decision of the Government. It was run by Mr M.K. 19. In a submission of 30 January 2004, the applicant argued that the defendants had been responsible for the injuries, in particular due to the fact that they had failed, despite having been alerted about the aggressiveness of the bull, to take any measures to protect him. 20. At a hearing of 19 March 2004, Mr M.K. stated that no prisoner had ever complained about the aggressiveness of the bull, either to Mr A.B. or to him. He confirmed that the economic unit was the owner of the bull, that it was a separate legal entity and that he ran it, as provided for in section 70 of the Execution of Sanctions Act (see paragraph 34 below). He further submitted that the applicant had received a monthly work-related allowance from the economic unit. 21. The applicant reiterated that he had complained orally to Mr A.B. about the aggressiveness of the bull on several occasions, but that no complaint whatsoever had been submitted to Mr M.K. 22. On 19 April 2004 the first-instance court dismissed the applicant’s claim, as the defendants did not have the necessary capacity to act in the proceedings. Relying on the extract from the court register (see paragraph 18 above) and Mr M.K.’s statement, it found that the economic unit was the owner of the bull, and that accordingly the defendants bore no responsibility, under section 174 of the Obligations Act, for the injuries the applicant had sustained. In support was an invoice dated after the killing of the bull, according to which the prison had paid the economic unit for the meat. The applicant was ordered to pay the defendants’ costs. 23. On 15 May 2004 the applicant appealed, arguing that no consideration had been given to the State’s responsibility for prisoners’ health and physical integrity, given that he had been injured while in custody. He argued that prisoners’ rights and freedoms should be guaranteed by putting in place control and supervisory mechanisms. He further complained that the first-instance court had failed to establish whether the State, being responsible to protect him while in custody, had undertaken all necessary measures to avoid damage from occurring. In this latter respect, he complained that the prison authorities, despite having been informed that the bull was aggressive, had failed to take any measure to protect him (the applicant). Lastly, he argued that he had been ordered to look after livestock by the prison authorities. 24. On 20 January 2005 the Štip Court of Appeal dismissed the applicant’s appeal, finding no grounds to depart from the established facts and reasoning given by the lower court. The applicant received this decision on 21 February 2005. 25. On 28 February 2005 the applicant requested the public prosecutor to lodge a request for the protection of legality with the Supreme Court. On 20 April 2005 the public prosecutor informed him that there were no grounds for using that remedy. 26. Section 173 of the Obligations Act, as relevant at that time, provided that damage related to a dangerous item was presumed to have been caused by that item, if not otherwise proven. 27. Under section 174, the owner of a dangerous item was responsible for any damage caused by it. 28. Under section 376, a compensation claim became time-barred three years after the victim became aware of the damage and the person responsible. The absolute time-bar for compensation was five years after the occurrence of the damage. 29. Section 6 of the Execution of Sanctions Act, as relevant at that time, provided for respect for the human dignity and the physical and moral integrity of persons serving a sentence. 30. Section 12 (2) and (3) provided that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The right to security of person had to be ensured. 31. Under section 21 (3), convicted persons could not be required to perform activities that were dangerous and detrimental to their health. 32. Under section 67, one or more economic units for prisoners to work in could be organised within a prison. 33. Section 68 provided that the Government should set up the economic units. 34. Under section 70, the prison governor or a person authorised by the governor was to run the economic unit. 35. Section 71 provided that the economic unit was a separate legal entity liable for its debts. It was to have a separate account. 36. Section 111 provided that prisoners worked, in principle, in economic units. 37. Under section 113, prisoners were entitled to a work-related allowance. This was to be regulated by a decision of the prison governor. 38. Section 164 provided that prisoners could lodge an oral complaint with the prison governor or other person authorised by the governor about a violation of their rights or other irregularities. 39. Under section 165, prisoners could also lodge a written complaint with the prison governor within eight days of the alleged violation. 40. Under section 166, the prison governor was required to consider the allegations and to render a decision within fifteen days of receipt of the complaint. The prisoner could appeal against that decision before the Execution of Sanctions Directorate (“the Directorate”). 41. Section 167 provided that the Directorate was required to examine the arguments of the appeal and reach a decision within thirty days of receipt. That decision could be subject of judicial review. The prisoner could seek a judicial decision even if the Directorate had not decided on his or her appeal. 42. Section 142 of the Criminal Code prohibits torture and provides for imprisonment between three months and five years. 43. Section 143 of the Criminal Code provides that a person who, in the performance of his duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years. 44. Under section 294 of the Criminal Code, a person who failed, in the absence of any risk, to report to a competent authority or to take any measure against a fire, inundation, explosion or car accident or to remove any danger to the life or body of an individual would be fined or sentenced to a maximum of one year’s imprisonment. 45. Section 16 of the Criminal Procedure Act provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to prosecution by the State of its own motion or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences for which only private charges may be brought the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act. 46. Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence which may be subject to State prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that he is entitled to conduct the prosecution himself. The latter may take over or continue the prosecution within eight days. 47. Under section 141, anyone can report a criminal offence subject to State prosecution. The complaint is submitted to the public prosecutor, orally or in writing. “... 26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside. 26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside ...” | 1 |
train | 001-104574 | ENG | POL | CHAMBER | 2,011 | CASE OF MOCZULSKI v. POLAND | 4 | Violation of Art. 6-1+6-3 | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | 5. The applicant was born in 1930 and lives in Warsaw. 6. On 4 June 1992 the Minister of Internal Affairs, Mr Antoni Macierewicz, submitted to Parliament and made public a “list of secret collaborators with the security services between 1945 and 1990”. The list, unofficially called “the Macierewicz list”, contained names of public officials who appeared in the archives of the Ministry and included the President and many Members of Parliament. The publication of the list sparked uproar in the Sejm, a Chamber of the Polish Parliament, which led to the fall of the government of Jan Olszewski a couple of hours later. 7. The applicant, who had been a Member of Parliament, appeared on the list. 8. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. 9. On 26 March 1999 the applicant applied to the court to institute the socalled “autolustration” proceedings under section 18a § 3 of the Lustration Act. He submitted his lustration declaration, in which he stated that he had not been an intentional and secret collaborator with the secret services. 10. The applicant was the first of many persons from the Macierewicz list who applied for autolustration claiming that they had not been secret collaborators with the communistera secret services. In some cases the lustration courts agreed and cleared the name of the person concerned. 11. On 6 May 1999 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings in the applicant’s case. 12. On 6 November 2001 the Court of Appeal gave a judgment in which it found that his lustration declaration had been truthful and that the applicant had not been an intentional and secret collaborator with the secret services. The panel of the court was composed of three judges. 13. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego) appealed against the judgment. 14. On 30 July 2002 the Warsaw Court of Appeal, acting as the secondinstance lustration court allowed the appeal and remitted the case. The court was constituted of a panel of three judges which included judge R.K. 15. On 6 April 2005 the Warsaw Court of Appeal acting as the firstinstance lustration court, found that the applicant had been an intentional and secret collaborator with the security services between 1969 and 1977. 16. The applicant appealed against the judgment. 17. On 12 September 2006 the Warsaw Court of Appeal dismissed the appeal and upheld the judgment. The court was constituted of a panel of three judges which again included Judge R.K. 18. The applicant lodged a cassation appeal complaining inter alia about the lack of impartiality of Judge R.K. The applicant submitted that this judge had participated in the preparation of his lustration proceedings and was a member of a lustration court between 1999 and 2000. The latter panel was later dissolved; nevertheless, these factors cast doubt on the judge’s impartiality particularly as he was a member of the panels giving judgment at the secondinstance. 19. The applicant’s cassation appeal was dismissed on 17 April 2008 by the Supreme Court (Sąd Najwyższy). The Supreme Court examined inter alia the applicant’s complaint that Judge R.K. had participated in his trial at the first and, on two occasions, the second instance. It dismissed the argument that such participation had given rise to doubts regarding his impartiality, finding that the judge in question had not been a member of the panel that had given a decision at first instance. As regards the applicant’s complaint that Judge R.K. had been a member of the panel of the second-instance court twice, the court noted that, according to the domestic law, such judge was not ex lege excluded from dealing with the case. It was however open to the party having doubts as to the lack of impartiality of the judge to challenge him or her during the proceedings; the applicant had failed to do that. Since the applicant accepted the composition of the second-instance court which gave the judgment on 12 September 2006, he cannot effectively raise doubts as to the lack of impartiality of one of the judges at the cassation appeal stage. 20. The applicant was barred from being a Member of Parliament for a period of ten years in application of the 1997 Lustration Act. 21. The judgment was notified to the applicant’s representative in June 2008. 22. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 2739, ECHR 2007V. | 1 |
train | 001-103586 | ENG | GBR | ADMISSIBILITY | 2,011 | N.M. AND M.M. v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 1. The present applicants are both nationals of Uzbekistan. The first applicant, Ms N.M., was born in 1950 and lives in Port Talbot. Her son, the second applicant, Mr M.M., was born in 1983 and also lives in Port Talbot. They are represented before the Court by Duncan Moghal Solicitors, lawyers practising in Gwent. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005. 4. On 9 September 2004, she claimed asylum on the basis of her Russian ethnicity, Orthodox Christianity, and the threats to and attacks upon her family by the mafia because of her British son-in-law who, it was assumed, must be sending money to the family in Uzbekistan. In particular, she claimed that, while in Uzbekistan, three men had held a knife to her ribs demanding money in 2003 and that her family home had been subjected to an attempted arson attack in August 2004. 5. On 14 October 2004, her application was refused by the Secretary of State who considered her claim to be incredible because, inter alia, there were discrepancies in her account of when she had started to receive demands of money from the mafia; she had failed to claim asylum on previous visits to the United Kingdom in 1998, 2000, and 2001; there were inconsistencies in the date that she claimed to have been attacked with a knife; it was implausible that the mafia would have known when her British family had sent her money in Uzbekistan; and her son-in-law would not have returned to Uzbekistan after 1996 if his life was genuinely in danger there. In addition, the Secretary of State considered that she had failed to demonstrate that there would be insufficient protection from the Uzbek authorities from the mafia or that she would be unable to relocate internally within Uzbekistan. Finally, the problems and discrimination that she claimed to have suffered due to her ethnicity and religion were not considered to amount to persecution. 6. Her appeal against this refusal was dismissed by the then Immigration Appellate Authority (“the IAA”) on 2 February 2005. The Adjudicator upheld the majority of the Secretary of State’s findings and also found that the first applicant’s credibility was undermined by her delay in claiming asylum until 9 September 2004. Furthermore, the Adjudicator found nothing in the objective evidence to suggest that the first applicant would be at risk in Uzbekistan by virtue of her status as a returning failed asylum seeker. 7. On 26 May 2005, the then Asylum and Immigration Tribunal (“the AIT”) dismissed an application for reconsideration of that determination. 8. On 27 July 2005, the High Court granted an application for reconsideration of that determination for unknown reasons. 9. In a decision promulgated on 23 April 2008, the AIT dismissed her appeal upon reconsideration, finding that the IAA’s decision had to stand as her representatives had conceded that it did not disclose any arguable error of law. 10. The second applicant also entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005. 11. He also made an application for asylum on 9 September 2004, on the basis of his Russian ethnicity, Orthodox Christianity, the multiple attacks upon him by the mafia because of his British brother-in-law (which had led to the second applicant’s hospitalisation for ten days), and an attempted arson attack upon the family home in August 2004. 12. On 22 October 2004, his application was also refused by the Secretary of State who considered his claim to be incredible because, inter alia, he had not been physically attacked until four years after his brother-in-law had left Uzbekistan; there were discrepancies in his account of when he had been attacked; it was implausible that the mafia would have been aware of when his brother-in-law had sent the family money; and he had failed to claim asylum on previous visits to the United Kingdom in 2000 and 2003. The Secretary of State also considered that the second applicant had not established that the police had failed to assist him or that he would be unable to relocate within Uzbekistan. It was noted that the second applicant claimed not to practise his religion and therefore it was not accepted that he would be at risk of persecution on that account. The problems that he claimed to have suffered due to his ethnicity and religion were not considered to amount to persecution. 13. His appeal against this refusal was dismissed by the IAA on 19 January 2005. The Adjudicator upheld the findings of the Secretary of State and found that the second applicant’s account of past events was not credible. Furthermore, the Adjudicator did not accept that Christians or ethnic Russians were persecuted in Uzbekistan. Whilst the Adjudicator was satisfied that the second applicant had an existing private and family life in the United Kingdom, it was found to be proportionate to remove him to Uzbekistan in the lawful and legitimate interests of immigration control. 14. On 30 March 2005, the second applicant was granted permission to appeal to the then Immigration Appeal Tribunal (“the IAT”). On 3 February 2006, further to reforms of the IAA (see paragraphs 23–26 below), the appeal was dismissed by the AIT. It found that the second applicant had not submitted any objective evidence with regards to the situation of ethnic Russians or Christians in Uzbekistan and therefore could not make out his contention that the Adjudicator had failed to take into account any such evidence. 15. On 14 March 2006, the second applicant submitted further representations in relation to the increased risk upon return of ethnic Russians to Uzbekistan, which were rejected by the Secretary of State on 21 September 2007 as not amounting to a fresh claim. It was accepted that Russians may face discrimination in Uzbekistan, but not that such treatment would amount to persecution. It was considered that the documents that the second applicant had submitted were generic and did not specifically relate to his own experience. 16. On 25 February 2008 and 6 May 2008, further representations were submitted to the United Kingdom Border Agency on both the first and second applicants’ behalf, which were rejected on 25 June 2009 as not amounting to a fresh claim. Given the previous findings upon appeal, the United Kingdom Border Agency did not accept that there was any objective evidence to suggest that they would be at real risk on account of their ethnicity or religion on return to Uzbekistan. It was accepted that discrimination against ethnic Russians might be perpetrated by random individuals, but considered that the applicants could seek protection from the authorities or move to another part of the country to avoid the same. It was also considered that the applicants could decide to join their extended family that had already moved to the Russian Federation from Uzbekistan. In relation to their claims under Article 8 of the Convention, it was accepted that the first applicant had both family life with her British daughter, son-in-law and grandson and private life in the United Kingdom after having integrated into the community over a period of five years. Similarly, it was accepted that the second applicant had both family life with his British sister, brother-in-law, and nephew and private life in the United Kingdom. Nevertheless, it was not considered that their removal would be disproportionate under Article 8 as they had remained in the United Kingdom unlawfully and would be removed together. 17. On 20 July 2009, the applicants submitted further representations through their legal representatives, in which they relied upon compassionate and discretionary grounds which focussed on their family life in the United Kingdom. Those representations also clarified that they were not pursuing their asylum claims and stated: “... it is not contended that there is any continuing asylum, or Humanitarian Protection claim. Although anti-Russian and Government harassment are running at high levels in Uzbekistan, there is insufficient evidence to counter the judicial (and [Home Office]) conclusion, in each of these cases, that those threats do not amount to ‘persecution’ or any risk of ‘serious harm’ upon return. For both mother and son, their claims are compassionate, derived from their family situation in Port Talbot.” 18. On 23 July 2009, those representations were rejected by the United Kingdom Border Agency as not amounting to a fresh human rights claim as it was considered that the applicants’ claim to have established family life in the United Kingdom had already been fully considered both on appeal and in responses to earlier representations. It was not accepted that the relationship between the first applicant and her adult daughter, or the second applicant and his adult sister constituted family life for the purposes of Article 8 of the Convention as they had not submitted any evidence of dependency. Furthermore, it was considered that the applicants could maintain contact with family members in the United Kingdom by the usual methods of communication from overseas. It was considered that the applicants’ removal was necessary and proportionate to the wider interests of maintaining an effective immigration control. 19. On 24 July 2009, the applicants submitted further representations which they claimed raised new and serious concerns about the likelihood of torture of failed asylum seekers forcibly returned to Uzbekistan. Those representations were supported by a letter dated 23 July 2009 from Mr Murray, the former British Ambassador to Uzbekistan from 2002 to 2004, which set out concerns about the fate of anybody deported to Uzbekistan whose exit visa had expired. Mr Murray stated that: “The notoriously cruel Uzbek security service – the SNB – have a permanent presence behind the immigration officers at Tashkent airport and at all points of entry. They would pick up anybody with an expired exit visa and subject them to ferocious questioning. In February 2003, the UN Special Rapporteur on torture, Prof Theo Van Boven, published a report that said that torture in Uzbekistan was a ‘routine investigative technique’. I can absolutely confirm that from experience of hundreds of cases. Any hint that [the applicants] had claimed political asylum in the UK – and the Uzbek SNB are a massive, very efficient and well-equipped intelligence service – and [the applicants] will almost to a certainty be subjected to treatment that well exceed the bar for torture.” 20. Later the same day, the United Kingdom Border Agency refused those representations concluding that they did not amount to a fresh claim. It was noted that Mr Murray had been reprimanded by the Foreign and Commonwealth Office on several occasions in 2003 and 2004, and subsequently dismissed from his post in October 2004 at which point he had been charged with gross misconduct and an investigation had been commenced. Given Mr Murray’s outspoken public views on the human rights situation in Uzbekistan, it was not considered that he could be accepted as an independent source of evidence which would add weight to their claims. 21. Simultaneously, the applicants lodged applications with the Court and requested interim measures under Rule 39 of the Rules of Court to stop their removal to Uzbekistan later that day. 22. On 24 July 2009, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicants should not be expelled until further notice. 23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 24. Until 4 April 2005, appeals in asylum, immigration and nationality matters were heard by the IAA. Section 101 of the NIA Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the NIA Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal. It also provided that, in the event that the Court of Appeal upheld any error of law in the determination, it had the power to make any decision which the IAA could have made or to remit the case to the IAA. 25. From 4 April 2005, the then AIT replaced the former system of Adjudicators and the IAT. This in turn has been replaced by the Immigration and Asylum Chambers. 26. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 27. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows: “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 28. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held: “Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” 29. Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits. 30. Country guidance determinations of both the former AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. 31. In the country guidance determination of OM (Returning citizens – minorities – religion) Uzbekistan CG [2007] UKAIT 00045, the AIT considered a large amount of objective evidence in relation to the general human rights situation in Uzbekistan and heard evidence from Mr Murray (see paragraph 19 above). 32. In relation to Mr Murray’s evidence, the AIT commented as follows: “We have some concern about Mr Murray’s evidence. He is in an unusual position and it has given us cause to reflect on the weight which we should give to his opinion. We say that for this reason. Mr Murray has produced a short statement which is entirely unsourced. He has given evidence during the course of which he gave an indication in general terms as to some of the sources which he relies upon. In one aspect, the return of the German failed asylum seekers, there was express source, namely the German Ambassador. Having said that his report was unsourced, we acknowledge that he is not an expert of an academic nature who relies upon the reports of others for their information. Rather, he had been the United Kingdom’s Ambassador in Uzbekistan for two years or so and is therefore a person who has had an exceptional opportunity to observe and obtain information. We also acknowledge that, the Uzbekistan Government having ejected much of the foreign press, and many NGOs, there is limited opportunity for obtaining information about what is going on there. ... We are left with the impression that although Mr Murray is in a unique position to assist us about Uzbekistan, he also has interests of his own which may effect, consciously or otherwise, the interpretation which he puts on facts and events. We have therefore decided that although the factual incidents of which he speaks are likely to be reliable, we should treat with some circumspection his interpretation of them. That is not to say that we reject his interpretation out of hand. We are fortunate in this case that there is also a great deal of background evidence from other sources.” 33. In light of the above and other considerations, the AIT then held as follows: “We are not satisfied that it is not possible to obtain a passport renewal outside Uzbekistan. We say that because the appellant’s husband has recently returned there and he will in all probability have had to obtain some form of travel document. He arrived with the appellant in 1996. We have not been told of any difficulty on his part. ... The fact that he has returned undermines Mr Murray’s assertion that it is not possible to get documentation. We accept he may not have been issued with an actual passport but that does not matter. It is the fact he was in possession of an official document that enabled him to return, apparently without difficulty, which is important. His return also detracts very considerably from Mr Murray’s evidence, and the appellant’s mother-in-law’s assertion, that there is severe punishment for those who do return, having stayed away beyond the end of their exit visa. The appellant is still in communication with her mother-in-law and we have no doubt that if her former husband had been charged, or even imprisoned, as a result of returning after a long absence, she would have heard about it and we would have been told. We find there is no satisfactory evidence that it is not possible to obtain a travel document (whether it be a renewed passport or some other form of documentation). Nor is there any satisfactory evidence to show that a returnee is likely to be punished for having been out of the country longer than permitted.” 34. The AIT further held that there was no satisfactory evidence that non-Uzbeks faced discrimination of such a nature as to amount to persecution, or serious harm, or a breach of their Article 3 rights. Furthermore, it held that, whilst followers of all religions, save for Muslims who attend registered mosques, were subject to a degree of harassment, it did not in general amount to persecution, serious harm or a breach of a worshippers’ human rights. Finally, it held that ministers of religion, those who practise religion in unregistered premises, particularly active members of evangelical Christian congregations, and proselytising or fundamentalist denominations of any religion could be at risk depending on the facts in every case. 35. In his report of 3 February 2003, the Special Rapporteur concluded that torture or ill-treatment was “systematic” in Uzbekistan. He also stated that “the pervasive and persistent nature of torture” throughout the criminal investigative process in Uzbekistan could not be denied. Uzbekistan has not extended a further invitation to the Special Rapporteur on Torture to visit the country, despite repeated requests. 36. In its Concluding Observations upon Uzbekistan of 26 February 2008, the Committee against Torture set out its concerns about, inter alia, “numerous, ongoing and consistent” allegations concerning the routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings. 37. Furthermore, after setting out information about the numerous allegations of excessive use of force and ill-treatment by Uzbek military and security forces during the May 2005 events at Andijan (when at least several hundred protesters were killed by the Uzbek authorities), the Committee reported that it had received credible reports that some persons who had sought refuge abroad and had been returned to the country had been kept in detention in unknown places and possibly subjected to breaches of the Convention. 38. In its Concluding Observations upon Uzbekistan of 7 April 2010, the Human Rights Committee set out various concerns, including, inter alia: “the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations.” 39. The Committee also concluded that it remained “concerned about the need for individuals to receive an exit visa in order to be able to travel abroad”. 4. Reports of non-governmental organisations 40. In its submissions to the United Nations Human Rights Committee dated 28 April 2009 and January 2010, Amnesty International remained seriously concerned about persistent allegations of widespread torture and other ill-treatment of detainees and prisoners by law enforcement personnel and prison guards, reports of which stemmed from all layers of civil society. Allegations had also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests were held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated. The submission also set out that illegal exit abroad or illegal entry into Uzbekistan, including overstaying the permission to travel abroad or failure to renew it, are punishable under Article 223 of the Criminal Code with imprisonment from three to five years or in aggravated circumstances by up to ten years’ imprisonment. Returned asylum seekers were considered to be particularly vulnerable to being charged under Article 223, as many would not have renewed their permission to travel abroad. 41. In its submissions to the United Nations Human Rights Committee of June 2009 and February 2010, Human Rights Watch set out its concerns about the “atrocious” human rights record of Uzbekistan. It noted that the Government of Uzbekistan continued to refuse access to the country to no fewer than eight United Nations special procedures (the human rights mechanisms established by the United Nations to address either specific country situations or thematic issues) despite their repeated requests for invitations to visit Uzbekistan. It also reported that torture and ill-treatment remained endemic to the criminal justice system in Uzbekistan, and stated that another distinct concern relating to torture and ill-treatment is that of Uzbek refugees and asylum seekers forcibly returned by neighbouring countries, despite the risk of torture and ill-treatment that they face upon return. | 0 |
train | 001-94843 | ENG | RUS | CHAMBER | 2,009 | CASE OF ROMANENKO AND OTHERS v. RUSSIA | 3 | Violation of Art. 10;Pecuniary and non-pecuniary damage - award | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 7. The applicants live in Vladivostok and Arsenyev in the Primorskiy Region. They are founders of the Arsenyevskie Vesti weekly newspaper. 8. Ms P. published an article under the title “All Power Comes from the Forest” («Вся власть из леса») in issue no. 4 of the applicants' newspaper, dated 24-30 January 2002. The article stated that, while the town of Dalnerechensk suffered from underfunding, massive and unlawful felling of trees and illegal sales of timber to China thrived. A regional roundtable (panel) on the rational use and protection of forests revealed that representatives of Chinese companies were constantly present at many timber yards in Dalnerechensk and offered cash dollars for timber, whether documented or not. Such companies were registered at fictitious addresses outside the region. 9. The article went on to quote from an open letter which had been adopted by the participants in the panel: “All these irregularities have clearly been on the rise since the town's police department (timber purchasing quota of 4,500 cubic metres) and the courts' management department of the Supreme Court of the Russian Federation (timber purchasing quota of 3,000 cubic metres) became the forest operators.” The quotation was bold-faced and the source was clearly identified. The letter had been signed by seventeen individuals, including the head of the Dalnerechensk municipal council and his first deputy, the deputy head of the town police, the deputy head of the local department of the Federal Security Service, the deputy head of the tax police, a senior State tax inspector, the deputy head of the department for environmental resources, two directors of regional forest operators, and others. The letter had been sent on behalf of the Dalnerechensk municipal council to the Presidential Envoy in the Far Eastern Federal Region and also made public at a press-conference held on the premises of the Press Development Institute. 10. On 28 March 2002 the courts' management department of the Primorskiy Region (Управление судебного департамента при Верховном Суде РФ в Приморском крае) brought a civil action against the applicants – as the founders of the newspaper – for the protection of its professional reputation and compensation for non-pecuniary damage. They submitted that the impugned extract had impaired the professional reputation of the department and undermined the authority of the courts' management department of the Primorskiy Region and that of the judicial system as a whole. 11. Following the institution of the civil action, the applicants printed the letter in full in issue no. 17 of the newspaper, dated 25 April – 1 May 2002, under the headline “Ghost Companies and Courts' Management Department at Timber Yards” («Фирмы-призраки и Управление судебного департамента на лесозаготовках»). The letter was followed by an editor's note under the headline “It was not about you. Refutation” («Вас тут не стояло. Опровержение»). The note emphasised that the quoted letter did not specify which courts' management department had purchased timber. It went on as follows: “It is certainly easier for the head of the Department, Mr V.A. Shulga, who lodged the [defamation] action, to tell who[se department], in addition to its principal functions, has been a forest operator and whose professional reputation has been impaired when a newspaper brought this fact into the limelight... This is why the editor's office decided not to wait for a court decision and considered it necessary to refute conjectures that readers might have made about the Department of the Primorskiy Region. Having regard to potential adverse consequences of the publication, we officially announce - THAT WE DID NOT MEAN THE COURTS' MANAGEMENT DEPARTMENT OF THE PRIMORSKIY REGION.” 12. On an unspecified date Mr Shulga, the director of the courts' management department of the Primorskiy Region, filed a civil action, in his personal capacity, for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. He alleged that the refutation had not been valid because it had been clear for a reasonable reader that his department had been targeted in the publication. He contended that he was personally responsible for his department and that the publication had caused substantial non-pecuniary damage to his reputation. 13. On 14 June 2002 the Arsenyev Town Court of the Primorskiy Region granted Mr Shulga's action against the applicants. The court found that the publication had targeted Mr Shulga's department because it had been the only courts' management department in the region that had been allocated a timber purchasing quota of 3,000 cubic metres for construction of a new courthouse. On the other hand, the applicants had failed to show that the inclusion of the department in the number of forest operators had given rise to “irregularities”. The court held that the disseminated information could not have been the applicants' opinion or value judgment because they had disseminated it without verifying its truthfulness. 14. The court rejected the applicants' defence that they had quoted from an official statement which did not require additional verification under section 57 §§ 3 and 4 of the Mass-Media Act. In the court's view, the Press Development Institute that had circulated the letter was an “autonomous non-commercial organisation” rather than a “public association”, as provided in section 57 § 3, and the head of the municipal council who had signed the letter was a municipal employee rather than an official of a State authority, as required by the same section. 15. The court ordered the applicants to publish a refutation and each of them to pay 10,000 Russian roubles to Mr Shulga. 16. On 28 August 2002 the Primorskiy Regional Court upheld, on an appeal by the applicants, the judgment of 14 June 2002. 17. On 11 October 2002 the Arsenyev Town Court granted the defamation action lodged by the courts' management department. The court held that the contested information had originated from a letter approved by the participants in a regional roundtable (panel) held in the Press Development Institute, which was not a State authority, organisation or a public association. Therefore, in the court's opinion, it was incumbent on the applicants to verify the truthfulness of the information before publishing it. Since the applicants had failed to do so and had also failed to prove before the court that the information had been true, they were at fault for the dissemination of information damaging the reputation of the courts' management department. 18. The court ordered the applicants to publish a refutation and each of them to pay 15,000 Russian roubles to the department and also bear the legal costs and expenses. 19. On 15 January 2003 the Primorskiy Regional Court upheld, on an appeal by the applicants, the judgment of 11 October 2002. 20. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 21. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. The same rules are applicable in cases where the plaintiff is a legal entity. 22. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7). 23. The founder (co-founders) of a newspaper is a person or a group of persons who applied for registration of the newspaper (section 7). The founder may not interfere with the functioning of the newspaper unless otherwise provided by law and by the articles of association (section 18). The founders, editors, publishers, journalists, and authors, may be held liable for breaches of Russian legislation on mass-media (section 56). 24. The editor's office and journalists may not be held liable for dissemination of information which is untrue and damaging to the honour or reputation of citizens and organisations if such information originated in press-releases of State bodies, organisations, agencies, companies or public associations (section 57 § 3) or if such information is a verbatim reproduction of official statements by officials of State bodies, organisations or public associations (section 57 § 4). 25. A report on the honouring of obligations and commitments by the Russian Federation, presented by co-rapporteurs of the Monitoring Committee to the Parliamentary Assembly of the Council of Europe (doc. 10568, 3 June 2005), noted as follows: “Libel lawsuits 389. We are concerned by the current defamation legislation and its application by the Russian judiciary and executive powers. Journalists are often prosecuted through libel suits (approximately 8-10,000 lawsuits a year)... 392. Also the legislation concerned should not grant any special protection against criticism to public officials... Finally, the possibility of filing lawsuits against media and journalists by public authorities should be abolished as the latter per se cannot possess any dignity, honour, or reputation. 393. Therefore, we urge the Russian authorities to reform its defamation legislation, inter alia: ... to introduce a clear ban on public bodies to institute civil proceedings in order to protect their 'reputation' (without hindrance to the right of public officials to litigate in their private capacity), to clearly establish that no one should be liable under defamation law for the expression of an opinion ('value judgements')...” | 1 |
train | 001-5622 | ENG | ESP | ADMISSIBILITY | 1,999 | VIDACAR S.A. and OPERGRUP S.L. v. SPAIN | 1 | Inadmissible | null | The applicant companies are Spanish commercial companies whose registered offices are in Palma de Mallorca (Spain). They are represented before the Court by Mr A. Salva Martín of the Palma de Mallorca Bar. The facts of the case, as presented by the applicant companies, may be summarised as follows. The applicant companies operate gaming concerns equipped, in particular, with fruit machines. They are consequently required to pay duty – known as “gaming duty” – in the form of an annual lump sum on each fruit machine. The amount is reviewed each year in Spain’s annual budget. In the present case, the amount of duty payable on each fruit machine for 1990 was set at 141,750 pesetas (ESP) by Article 39 § 2 of the Legislative Decree of 24 December 1989. However, an additional increase for 1990, raising the annual duty for each fruit machine to ESP 283,250, was imposed by section 38(2)(2) of Law no. 5/90 of 29 June 1990 on the adoption of urgent budgetary measures. The first applicant company paid the Treasury ESP 19,359,750 in duty for 1990, and the second ESP 12,608,000. The applicant companies, who did not accept the additional increase and had unsuccessfully attempted to obtain its reimbursement by the Treasury, brought applications for judicial review in the Balearic Isles Higher Court of Justice maintaining, inter alia, that there had been a violation of the principle that increased penalties should not be applied with retrospective effect, a failure to ensure legal certainty and a breach of the principle that rates of duty should be consistent with those imposed on other gaming activities. To that end, they invited the court to refer the issue whether section 38(2)(2) of Law no. 5/90 was compatible with Articles 9 § 3, 14 and 31 of the Constitution to the Constitutional Court before deciding their application for judicial review. In a judgment of 17 December 1993 the Balearic Isles Higher Court of Justice refused to refer the constitutionality issue to the Constitutional Court and dismissed the application on the merits. As regards its refusal to make a referral, it cited a decision of 16 July 1987 in which the Constitutional Court had held that a statute of 29 June 1983 imposing an additional increase in duty on fruit machines was not unconstitutional; it observed, too, that the Constitutional Court had decided that the Constitution did not preclude retrospective effect being given to tax legislation. The applicant company lodged an amparo appeal against that judgment with the Constitutional Court. It contended that the refusal of the Balearic Isles Higher Court of Justice to make a constitutionality referral regarding section 38(2)(2) of Law no. 5/90 infringed its right to the protection of the courts and to a fair hearing (Article 24 of the Constitution). It complained, too, that it had been the victim of discriminatory treatment when compared to other firms engaged in the gaming sector (Article 14 of the Constitution). It also argued that another Spanish court, the Catalonia Higher Court of Justice, had decided to refer to the Constitutional Court the issue of the constitutionality of section 38(2)(2) of Law no. 5/90 in the context of an application for judicial review lodged by another gaming company. In the light of that referral, the Constitutional Court decided to adjourn consideration of the applicant company’s appeal until it had decided the issue that had been referred to it by the Catalonia Higher Court of Justice. In the latter proceedings the Constitutional Court declared section 38(2)(2) of Law no. 5/90 unconstitutional and therefore null and void as its effect was to cause an unforeseeable and insufficiently justified increase in tax liability that amounted to a violation of the principle of legal certainty. Notwithstanding that decision, the Constitutional Court, sitting as a full court, decided on 2 October 1997, by seven votes to four, to dismiss the applicant company’s amparo appeal. The complaint regarding the failure to observe the non-discrimination principle was rejected by the Constitutional Court, inter alia, on the ground that a finding that section 38(2)(2) of Law no. 5/90 was unconstitutional could not be founded on the basis of the principle of equality stated in Article 14 of the Constitution but on objectively established factors showing inequality contrary to Article 31 § 1 of the Constitution. While any such inequality could be remedied by other constitutional procedures – such as an appeal or a referral of a constitutionality issue – it could not be remedied through an amparo appeal. As to the complaint under Article 24 of the Constitution, the Constitutional Court reiterated that under its settled case-law it was solely for trial courts to decide whether to make a constitutionality referral and their decision was final. Consequently, a refusal to make a referral did not in principle entail a violation of any fundamental right, even if other courts had decided to make a referral regarding the constitutionality of the same provision of Law no. 5/90. In the instant case, the Constitutional Court observed that the applicant company had been in a position to put to the Balearic Isles Higher Court of Justice all the arguments it considered appropriate in support of its case that the relevant provisions of Law no. 5/90 were unconstitutional and that that court had carried out a reasoned analysis of the merits of those arguments before rejecting them. As regards the argument that the Constitutional Court itself had in the meantime declared section 38(2)(2) of Law no. 5/90 unconstitutional, it held that the fact that a specific provision had been declared unconstitutional could not be used by itself in amparo appeals since the scope of such appeals was restricted by the Constitution to certain fundamental rights and freedoms. It added that where a decision on an amparo appeal came after another decision, in proceedings regarding constitutionality, the Constitutional Court was not always able to refer to the earlier decision in deciding the amparo appeal even where both sets of proceedings concerned the same statutory provision; that applied especially where, as in the instant case, the decision on the constitutionality issue was based on Article 9 § 3 of the Constitution (principles of legal certainty and of the rule of law), since that provision was not included in the rights and freedoms that were covered by amparo appeals. The Constitutional Court added that, as no reduction of a sentence or penalty was at stake, a subsequent declaration that a statutory provision was unconstitutional could not have any effect on proceedings that had ended in a final judgment. It concluded by saying that the Balearic Isles Higher Court of Justice had applied the impuned provision of Law no. 5/90 after finding that it was consistent with the Constitution and, accordingly, that there was no point in making a constitutionality referral to the Constitutional Court. The applicant company submitted that, unlike other firms in the gaming sector, it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section 38(2)(2) of Law no. 5/90. In a judgment of 16 September 1996 the Balearic Isles Higher Court of Justice refused to refer the constitutionality issue to the Constitutional Court and dismissed the second applicant company’s application on the same grounds as those set out in its judgment of 17 December 1993 in the first applicant company’s case. The second applicant company lodged an amparo appeal against that judgment with the Constitutional Court. It contended that the refusal of the Balearic Isles Higher Court of Justice to make a referral regarding the constitutionality of section 38(2)(2) of Law no. 5/90 had infringed its rights to the protection of the courts and to a fair hearing (Article 24 of the Constitution). It complained, too, that it had been the victim of discriminatory treatment when compared to firms engaged in other areas of the gaming sector (Article 14 of the Constitution). In a decision (auto) of 16 December 1997 the Constitutional Court decided to dismiss the second applicant company’s appeal and in so doing referred to the grounds set out in its decision of 2 October 1997 on the first applicant company’s appeal. The second applicant company submitted that, unlike other firms in the gaming sector, it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section 38(2)(2) of Law no. 5/90. The relevant Articles of the 1978 Constitution provide: “The Constitution guarantees the rule of law, the application of norms according to rank, their publication, the non-retrospective nature of provisions laying down increased penalties or restricting individual rights, legal certainty, the accountability of public authorities and the prohibition of any arbitrary act on their part.” “Spanish nationals shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights. 2. Likewise, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent. ...” “Everyone shall contribute towards the financing of public expenditure according to their financial means through a fair tax system based on the principles of equality and graduation and which, under no circumstances, shall incorporate a power to confiscate.” The jurisdiction of the Constitutional Court is defined as follows: “The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear: (a) appeals against the alleged unconstitutionality of laws and regulations having the force of law ...; (b) individual appeals for protection (recurso de amparo) against infringements of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law; (c) disputes between the State and an autonomous community or between different autonomous communities over the scope of their powers. ...” Amparo appeals lie only in respect of the rights guaranteed under Articles 14 to 29 of the Constitution; the principles of the rule of law and legal certainty guaranteed by Article 9 § 3 are therefore beyond the scope of such appeals. “If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.” “1. Judgments of the Constitutional Court shall be published in the Official State Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone. 2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.” Chapter III of Title II of the Institutional Law on the Constitutional Court is entitled “Questions of constitutionality referred by judges and courts” and is worded as follows: “1. When a judge or court, of his or its own motion or at the request of a party, considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, he or it shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law. 2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. It shall identify the laws or provisions having the status of law in issue and the articles of the Constitution that are considered to have been violated and shall indicate and explain why the outcome of the proceedings depends on the validity of the provisions concerned. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel’s Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment shall have become final.” “A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.” “1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the referral inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the referral is manifestly ill-founded. 2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective speakers), the Attorney General and the Government (through the Ministry of Justice) of the referral. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.” | 0 |
train | 001-66663 | ENG | SWE | ADMISSIBILITY | 2,004 | JOHANSSON v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Birger Johansson, is a Swedish national who was born in 1943 and lives in Vedum. He was represented before the Court by Ms S. Westerberg, a lawyer practising in Göteborg. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In February 1994 the applicant had an accident at work and injured his back. As a consequence thereof, he received a sickness allowance (sjukpenning). On 26 April 1996 the Social Insurance Office (försäkrings-kassan; hereinafter “the Office”) of Skaraborg sent a letter to the applicant informing him that he had been referred to a physician, a psychologist and a physiotherapist for examinations of his health condition and the possibilities for rehabilitation, to be conducted on 2 and 3 May 1996. He was further informed that failure to appear without a valid reason could result in a withdrawal or reduction of his sickness allowance. On 29 April 1996 the applicant, questioning the competence of the persons supposed to examine him and the need for and expediency of those examinations, stated that he refused to appear without his legal counsel and asked for the examinations to be postponed. On 30 April 1996 the Office replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to a continued sickness allowance and that the aim of the requested medical examinations was to remedy those deficiencies. On 2 May 1996 the applicant appealed against the request for medical examinations. On 3 May 1996 the County Administrative Court (länsrätten) of the County of Skaraborg dismissed the appeal stating that the Office could, under the Social Insurance Act (Lagen om allmän försäkring, 1962:381), request that the applicant undergo an examination of his health situation and the possibilities for rehabilitation. According to the preparatory works to the relevant provisions, measures taken by the Office should be seen as part of the handling of the case and could thus only be subject to appeal when there had been a decision to withdraw or reduce the allowance in question. Since the measure in question had not had any direct consequences for the applicant, the County Administrative Court found that it was prevented from examining the applicant’s appeal and thus dismissed it. The applicant did not appear for the medical examinations and was given a new appointment, with three chief physicians, for 19 June 1996. In letters to the physicians, he again criticised the examinations. He eventually appeared for the appointment accompanied by his legal counsel. He declared that he was not opposed to being examined but that he was not there of his own free will but under the threat of having his allowance withdrawn. The physicians considered that the applicant was not consenting to the measure and therefore did not proceed with the examination. Meanwhile, on 14 May 1996 the applicant had appealed against the County Administrative Court’s decision to dismiss the appeal regarding the request for medical examinations. On 19 June 1996 the Administrative Court of Appeal (kammarrätten) in Jönköping remitted the case to the Office for a re-examination as, according to the legal procedure, the Office should have reconsidered (omprövat) its decision before the examination by the County Administrative Court. On 2 July 1996 the Office, upon reconsideration, drew the same conclusion as the County Administrative Court had done on 3 May 1996. On 14 August 1996 the County Administrative Court again dismissed the appeal. On 6 February 1998 the Administrative Court of Appeal upheld the County Administrative Court’s decision of 14 August 1996. On 29 April 1999 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on this issue. On 7 November 1996 the Office informed the applicant that it was considering discontinuing payment of his sickness allowance and invited him to submit observations. The applicant availed himself of that opportunity. By a decision of 4 December 1996 the Office discontinued payment of the applicant’s sickness allowance as from 7 December 1996 as it had not been shown that his ability to work was reduced to such an extent that he was entitled to such an allowance. The Office had regard to complementary medical records and reports which it had obtained concerning the applicant and the opinion of one of its own medical doctors (försäkringsläkare). Upon the applicant’s request, the Office reconsidered its decision on 11 February 1997. It upheld the decision, stating, inter alia, that there had been reasons to request complementary examinations, that the applicant had refused to cooperate and, that, accordingly, his entitlement to an allowance had not been shown. On 21 March 1997 the applicant lodged an appeal with the County Administrative Court. Observations received by the court from the Office were submitted to the applicant. The applicant later lodged appeals with the court against other decisions taken by the Office. Thus, on 6 June 1997 he appealed against a decision concerning the level of income on the basis of which his sickness allowance was to be calculated (sjukpenninggrundande inkomst) and on 9 December 1998 he appealed against a decision by which the Office rejected his applications for a disability pension (förtidspension) and a life annuity (livränta). The applicant’s appeals were considered in parallel by the County Administrative Court. The applicant submitted observations to the County Administrative Court on 14 April, 2 and 5 May and 18 August 1997. On the latter date he requested an extension until 1 November 1997 of a time-limit to submit further observations. This was granted by the court. On 11 November 1997 he submitted observations and requested a further extension until 1 February 1998, noting that there was no opposite party in the proceedings who could be harmed thereby. Also this request was granted by the court. Further submissions were made by the applicant on 20 November 1997 and 22 January 1998. On 26 January 1998 the applicant’s case file was sent on loan to the Administrative Court of Appeal for use in the proceedings concerning the request that the applicant undergo medical examinations. The file was later forwarded to the Supreme Administrative Court for the same purpose. The file was returned to the County Administrative Court on 3 May 1999. On 22 May and 15 September 1998 and on 8 June and 8 September 1999 the County Administrative Court received additional observations and documents from the applicant. On 25 November 1999 the County Administrative Court delivered judgments in all the applicant’s cases. In upholding the Office’s decision to withdraw the applicant’s sickness allowance, it found that the Office had had reasons to request complementary information in order to determine whether his health situation had improved to such an extent that he would be able to go back to work. Although a medical examination could probably not be performed against a person’s will, the refusal to undergo such an examination could, under the provisions of the Social Insurance Act, lead to the loss of the benefits in question. The applicant’s stance in this regard had led the physicians to conclude that it was not possible to conduct an examination and he had consequently prevented the Office from obtaining the necessary medical evidence which, by law, it was competent to request. For these reasons, the applicant’s entitlement to a sickness allowance under the Social Insurance Act could not be properly assessed. On 23 December 1999 the applicant lodged appeals with the Administrative Court of Appeal against the County Administrative Court’s judgments. He also asked for time until 10 February 2000 to specify the relief sought and the grounds for the appeals. The court granted his request. Observations were received from the applicant on 8 February 2000 and, on the same day, the court asked the Office to comment before 10 April 2000, a time-limit later extended twice, ultimately until 15 May 2000. The Office’s reply was received on the latter date and sent to the applicant for information. On 16 February, 17 March and 16 May 2000 the applicant submitted observations and medical certificates to the appellate court. On 6 June 2000 he requested time until 1 October 2000 to submit further observations. This was granted by the court. On 30 August 2000 the applicant submitted observations and medical certificates. He also asked for a further extension until 1 September 2001, again noting that this would not cause detriment to any opposing individual party. By a decision of 30 August 2000 the appellate court ordered the applicant to conclude his case no later than 29 December 2000. The receipt of the order was acknowledged by the applicant on 20 October 2000, following two reminders sent by the court. On 9 November 2000 the applicant submitted observations and reiterated his request for an extension, at least until 1 April 2001. The Office submitted comments on these observations on 17 November 2000 which were forwarded to the applicant for information. On 29 December 2000 the appellate court granted an extension until 2 March 2001 and informed the applicant that further extensions were unlikely to be granted. On 31 January 2001 the applicant submitted further observations and again reiterated the request for an extension until 1 April 2001. By a decision of 5 February 2001 the appellate court ordered him to submit any additional material within one month of receiving the order. On 19 February 2001 the appellate court received observations from the applicant in which he requested an extension until 15 May 2001. He stated that he did not consider it correct to deny him the extension which he had requested and needed, as the opposing party in the case would not be harmed thereby but rather favoured by such a measure. By a decision of 9 March 2001 the appellate court ordered the applicant to submit any additional material by 15 May 2001. On 9 April 2001 the appellate court received observations from the applicant in which he requested an extension of the time-limit until 1 September 2001. He maintained that the court could not be criticised for having protracted the proceedings, since he had himself asked for the extension and his request was well-founded. On 17 April 2001 the appellate court ordered the applicant to submit any additional material by 1 September 2001. It also stated that it might rule on the question of leave to appeal even if he failed to abide by the order. By decisions of 29 January 2002 the Administrative Court of Appeal refused the applicant leave to appeal in all cases. On 19 February 2002 the applicant lodged appeals with the Supreme Administrative Court. He asked, inter alia, that the cases be remanded to the Administrative Court of Appeal for further extensions of the time-limit to submit observations. He also requested an extension before the Supreme Administrative Court until 15 June 2002 in order to submit additional medical evidence. The latter request was granted. On 24 May and 15 August 2002 the applicant requested further extensions until 15 September and 1 November 2002, respectively. Also these requests were granted. On 3 October 2002 the applicant submitted observations to the Supreme Administrative Court. On 25 October 2002 he requested a further extension of the time-limit until 1 February 2003. The request was granted. On 30 December 2002 and 15 January 2003 the applicant submitted further observations and a medical certificate. On 17 February 2003 he requested an extension until 5 May 2003. The request was granted. On 17 March 2003 the applicant submitted further observations. On 28 April 2003 he requested an extension of the time-limit until 15 August 2003, noting that it would not cause detriment to anyone but himself. The request was granted. On 25 August and 21 October 2003 the applicant requested further extensions until 15 October 2003 and 15 January 2004, respectively. The requests were granted. On 27 November 2003 the applicant submitted observations to the Supreme Administrative Court and requested that the previously granted extension until 15 January 2004 should continue to apply. On 12 January 2004 the applicant requested a further extension until 15 April 2004. On the latter date, he submitted his final observations in all cases, including the case concerning the sickness allowance. The cases are at present pending before the Supreme Administrative Court. Sickness allowances are, insofar as relevant to the present case, regulated in chapter 3, sections 7 and 8 a and chapter 20, section 3 of the Social Insurance Act. A person is entitled to such an allowance if his or her sickness reduces the ability to work by at least 25%. The Social Insurance Office should, if necessary for the assessment of an application for an allowance, request the person in question to undergo an examination of his medical state and working disability and the need and possibility for rehabilitation. If the person refuses without a valid reason to undergo treatment, examination or rehabilitation, the sickness allowance may be refused, entirely or partially, until further notice, provided that he or she has been notified of this consequence. According to the preparatory works of chapter 3, section 8 a of the Social Insurance Act, the decision of a local insurance office to request an individual to undergo additional medical examinations is to be regarded as constituting part of the office’s procedure for dealing with the matter of the individual’s entitlement to a continued sickness allowance. The preparatory works therefore conclude that such an action by the office should be subject to appeal only in connection with a subsequent decision to reduce or discontinue payment of the allowance in question (Government Bill 1994/95:147, p. 35). | 0 |
train | 001-76925 | ENG | DEU | ADMISSIBILITY | 2,006 | KONRAD v. GERMANY | 1 | Inadmissible | null | The four applicants are Mr Fritz Konrad, a Swiss and German national born in 1951, Mrs Marianna Konrad, a Swiss national born in 1956, and their children, Rebekka, a Swiss and German national born in 1992, and Josua, a Swiss and German national born in 1993. They live in Herbolzheim (Germany) and were represented before the Court by Mr W. Roth and Mr R. Reichert, two lawyers practising in Bonn. The applicants belong to a Christian community which is strongly attached to the Bible and reject the attendance of private or State schools for religious reasons. The applicant parents find that school education does not suit their beliefs since sex education is taught, mythical creatures such as witches and dwarfs appear in fairy tales during school lessons, and physical and psychological violence among pupils at school is on the increase. They educate their children at home in accordance with the syllabus and materials of the “Philadelphia School”, an institution based in Siegen which is not recognised as a private school by the State. The institution specialises in assisting devout Christian parents in educating their children at home. The school’s syllabus contains both books and materials which are used by State or private schools and materials specially prepared to support the education of religious beliefs. Teaching by parents is supervised by staff trained by the Philadelphia School. The teaching is supplemented by occasional gatherings of parents, children and staff members. The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home. The third and fourth applicants reached the age for compulsory school attendance in 1999 and 2000 respectively. At present, they do not attend a private or State school. On 28 August 2000 the Offenburg Education Office (Staatliches Schulamt Offenburg) rejected the application pursuant to section 72(1), in conjunction with section 76(2), of the Baden-Württemberg School Act (Schulgesetz Baden-Württemberg). The Freiburg Regional Education Office (Oberschulamt Freiburg) dismissed an objection by the applicants on 30 October 2000. On 11 July 2001 the Freiburg Administrative Court dismissed a request by the applicants for exemption from compulsory primary-school attendance. The court noted that the Basic Law granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions, which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion. That freedom, however, was restricted by the State’s obligation to provide education and tuition. Hence compulsory schooling was not a matter for the parents’ discretion. The applicant parents’ wish to let their children grow up in a “protected area” at home without outside interference could not take priority over compulsory school attendance. Even if the children could be sufficiently educated at home, the State’s obligation to provide education under the Basic Law would not be met if the children had no contact with other children. Attending a primary school, with children from all backgrounds, would enable the children both to gain their first experiences of society and to acquire social skills. Neither would be possible if the parents were authorised to educate the children at home, in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children. The court noted that the State’s obligation to educate would also further the children’s interests and served the protection of their personal rights. Because of their young age, the applicant children were unable to foresee the consequences of their parents’ decision to opt for home education. Therefore, they could hardly be expected to make an autonomous decision for themselves. Moreover, the applicant parents’ right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school, as well as at weekends. They were also free to send their children to a denominational school, which would possibly be more sensitive as to sex education than a State school, although the court questioned whether the issue of sex education would be of any relevance in a primary school’s syllabus. On 18 June 2002 the Baden-Württemberg Administrative Court of Appeal dismissed an appeal by the applicants. It found that, even though the applicant parents’ right to educate their children included religious education, they were not exclusively entitled under the Basic Law to educate their children. The State’s constitutional obligation to provide the children with an education was on an equal footing with the parents’ right. The court stressed that the decisive point was not whether home education was equally as effective as primary school education, but that compulsory school attendance required children from all backgrounds in society to gather together. Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus, even if their disagreement was religiously motivated. The applicant parents could not be permitted to keep their children away from school and the influences of other children. Schools represented society, and it was in the children’s interests to become part of that society. The parents’ right to provide education did not go so far as to deprive their children of that experience. Parents could require the State to take positive measures in order to prevent their children being ill-treated by other children. The applicant parents had not, however, argued that the school authorities in Baden-Württemberg would fail to do so. Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views. The school’s obligation of religious neutrality would prevent the applicant children from any indoctrination against their will. In so far as the applicants complained that the school’s syllabus was too scientific and denied any divine influence on the creation and the history of the world, the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion. The “mythical figures” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairy tales and children’s books which were well known to all children. At school, they would be introduced to children as fictional characters. Hence the State did not promote superstition through its schools. On 7 January 2003 the Federal Administrative Court dismissed an application by the applicants for leave to appeal on points of law. On 29 April 2003 the Federal Constitutional Court refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case-law. It pointed out that the administrative courts’ decisions had neither violated the applicant parents’ right to educate their children nor the applicants’ freedom of religion. The balance of interests between the applicants’ rights on the one hand and the State’s obligation to provide school education on the other did not require exemption from compulsory school attendance. The Federal Constitutional Court stressed that the State’s obligation to provide education did not only concern the acquisition of knowledge, but also the education of responsible citizens to participate in a democratic and pluralistic society. To hold that home education under the State’s supervision was not equally effective for pursuing these aims was at least not erroneous. The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society. Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim. The Federal Constitutional Court found that the interferences with the applicants’ fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions. Moreover, society also had an interest in the integration of minorities. Such integration required not only that minorities with separate religious or philosophical views should not be excluded, but also that they should not exclude themselves. Therefore, the exercise and practising of tolerance in primary schools was an important goal. Lastly, the Federal Constitutional Court considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside school hours, and the school system was obliged to be considerate towards dissenting religious beliefs. The relevant provisions of the Basic Law are the following: “1. Marriage and the family shall enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall supervise them in the performance of this duty. ...” “1. The entire school system shall be under the supervision of the State. 2. Parents and guardians shall have the right to decide whether children should receive religious instruction. 3. Religious instruction shall form part of the regular curriculum in State schools, with the exception of non-denominational schools. Without prejudice to the State’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged to give religious instruction against their will. 4. The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to State schools shall require the approval of the State and shall be subject to the laws of the Länder. Such approval shall be given where private schools are not inferior to State schools in terms of their educational aims, their facilities, or the professional training of their teaching staff, and where segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured. ...” Article 14 § 1 of the Constitution of the Land of Baden-Württemberg provides: “School attendance is compulsory.” The relevant provisions of the Baden-Württemberg School Act are the following: “(1) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in the Land of Baden-Württemberg. ... (4) Pupils are required to attend a German school. The school supervisory authority shall decide on any exemption. ...” “(1) All children and juveniles are obliged to attend schools within the meaning of section 72(2)2 of this Act, unless provision is otherwise made for their education and tuition. Alternative tuition instead of primary-school attendance may only be granted in exceptional circumstances by the school supervisory authority. ...” | 0 |
train | 001-102328 | ENG | RUS | ADMISSIBILITY | 2,010 | KHALIN v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | The applicant, Mr Vladimir Ivanovich Khalin, is a Russian national who was born in 1963 and lives in Staryy Oskol. He was represented before the Court by Mr A. Malykhin, a lawyer practising in Staryy Oskol. The Russian Government (“the Government”) were represented by Mr G. Matushkin, 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 repeatedly sued the regional social authorities for payment of various benefits on account of his participation in the cleaning-up operation following the Chernobyl nuclear disaster. In 2000 – 2005 the Staryy Oskol City Court of the Belgorod Region delivered five judgments in the applicant’s favour, awarding him several lump-sums in arrears and certain regular monetary payments. The judgments became final but their enforcement was delayed by the authorities. On 15 January 2009 the Court delivered the Burdov (no. 2) pilot judgment cited above. It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. It also ordered the Russian Federation to grant adequate and sufficient redress, within one year from the date on which the judgment became final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who had lodged their applications with the Court before the delivery of the present judgment and whose applications had been communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court. The present case was communicated to the Government on 4 June 2008. The Court’s proceedings in the case were adjourned until 4 May 2010 pending the implementation of the pilot judgment (see Burdov (no. 2), cited above, § 146, and point 8 of the operative part). The applicant was informed accordingly. On 26 April 2010 the Staryy Oskol City Court of the Belgorod Region granted the applicant’s claim for damages resulting from delayed enforcement of the five judgments in his favour. It found that the five judgments had been fully enforced with various delays ranging between one and seven years, and ordered the authorities to pay a total of 235,000 Russian Roubles (approximately 6,000 Euro) in compensation for non-pecuniary damage. In so deciding, the court relied on Article 46 of the Russian Constitution, Articles 151 and 1069 of the Civil Code, and on the Convention provisions, as interpreted in the Court’s case-law. On 22 June 2010 the judgment was upheld on appeal by the Belgorod Regional Court and became final. On 24 August 2010 the court award was paid to the applicant. | 0 |
train | 001-23340 | ENG | ROU | ADMISSIBILITY | 2,003 | MIHAILESCU v. ROMANIA | 2 | Inadmissible | null | The applicant, Mr Florin Mihăilescu, is a Romanian national, who was born in 1924 and lives in Fălticeni, Suceava county. The respondent Government are represented by their Agent, Mr Bogdan Aurescu. The facts of the case, as submitted by the parties, may be summarised as follows. In 1967 the applicant applied for a patent for an invention. In 1971 the State Patent Office issued the patent to the applicant. In 1972 the Ministry of Finance and the National Council for Science and Technology fixed the royalties to be paid to the applicant for the exploitation of the invention covered by the patent. The exploitation of the invention was then assigned to a State enterprise, together with a special fund to cover the royalties due to the inventors including the applicant. In 1973, after the applicant had received 95,000 Romanian lei (ROL), the payment of further royalties was suspended. In 1974 Parliament adopted law no. 62/1974 which considerably reduced the royalties payable for the use of inventions. In 1991 Parliament adopted law no. 64/1991 which provided, inter alia, for compensation to be given to persons who had suffered loss as a result of the prejudicial effects of law no. 62/1974. On 18 October 1993 the applicant lodged with the Regional Court of Bucharest a claim for the royalties which the above-mentioned State enterprise owed him under the original patent for the use of the invention. On 31 January 1996, the Regional Court of Bucharest allowed the claim and ordered the enterprise to pay the applicant ROL 43,082,257 in royalties as well as court fees amounting to ROL 200,000. Both parties appealed. The applicant, being dissatisfied with the amount awarded, argued that the first instance court had failed to take account of the need to index-link the hourly rate and the minimum wage when calculating the compensation due to him on the basis of his original patent. The defendant argued that, in 1986, it had stopped using the method which was the central feature of the applicant’s invention. For that reason, the applicant’s entitlement to compensation after that date was time-barred. On 15 January 1997 the Bucharest Court of Appeal allowed the applicant’s appeal and amended in part the decision of the Regional Court of Bucharest by awarding him ROL 73,761,200 in compensation. The court rejected the defendant enterprise’s appeal and upheld the remainder of the decision. The defendant lodged an appeal with the Supreme Court against both decisions, arguing that the applicant’s action had been lodged out of time. On 19 June 1997, the Supreme Court rejected the appeal as unfounded and upheld the decisions of the Regional Court and the Court of Appeal, finding that the applicant had lodged his action in time. On 15 September 1997 the applicant and the chief-engineer employed by the defendant enterprise signed the minutes of a preliminary settlement meeting wherein it was stated that State funds for payment of inventors’ royalties had never been made available to the enterprise. The minutes further mentioned that, before drawing up the record of negotiations, the Ministry of Finance and the State Property Fund were to specify the manner in which the sum due to the applicant was to be paid. In 1997 the applicant complained to the Ministry of Finance about the non-enforcement of the original judgment. In a letter of 19 September 1997 the Ministry informed the applicant that the judgment had to be implemented, failing which the applicant could lodge a further claim for damages. On 14 April 1998, following the applicant’s request, the bailiffs of the Regional Court of Bucharest drew up a minute on the enforcement of the judgment of 31 January 1996. The minute mentioned inter alia that the director general of the enterprise had declared that he was aware of the sum owed to the applicant pursuant to that judgment, but that the sum in question could not be paid on account of lack of funds; the bailiffs had therefore seized two items of the enterprise’s stock valued at ROL 416,803,322 and ROL 223,011,794, respectively. These items remained on the enterprise’s premises. The bailiffs also fixed a 30 days’ time limit for the enforcement of the judgment. On an unspecified date in 1998, the bailiffs informed the applicant that they had failed to sell the goods seized from the enterprise as no potential purchasers had been found. In a letter dated 2 September 1998, following the applicant’s complaint about the non-enforcement of the above judgment, the Vrancea Office of the State Property Fund informed the applicant that it was a minority shareholder in the enterprise, that the enterprise was in financial difficulties and was not therefore in a position to satisfy the applicant’s judgment debt. The letter mentioned that the Fund had decided that the enterprise should pay the applicant an advance of ROL 2,000,000 by 8 September 1998, the rest being paid once the seized goods had been sold. However, no action was ever taken to enforce that decision. On an unspecified date in 2001, one of the enterprise’s creditor companies instituted bankruptcy proceedings against the enterprise. On 4 December 2001, in accordance with the Government Ordinance no. 11 of 23 January 1996 concerning the enforcement of debts payable to the State budget, various assets of the debtor enterprise were sold at a public auction. On 17 January 2002 the Vrancea Regional Court made the debtor enterprise subject to liquidation proceedings in accordance with law no. 64/1995 concerning judicial reorganisation and bankruptcy. The court also appointed one of the creditor companies as administrator of the assets of the debtor enterprise. On 21 March 2002 the Vrancea Regional Court declared the debtor enterprise bankrupt. The relevant provisions of Law no. 64 on patents of 11 October 1991 read as follows: Section 61 “Disputes concerning the capacity of an inventor or patent holder, other rights arising from a patent, including the inventor’s pecuniary rights, as well as from contracts of assignment and licence (...), fall within the competence of the courts of law (...).” Section 66 (2) “Pecuniary rights due to inventors on the basis of patents granted to them for their inventions which have been exploited, partially remunerated or unremunerated, prior to the entry into force of the present law, shall be negotiated between the inventor and the entity which has used the invention. (...) Should the parties fail to reach an agreement, the pecuniary rights shall be established pursuant to the provisions of Article 61 of this law.” The relevant provisions of the Decision of the Government of Romania of 30 April 1992 approving the Regulation concerning the application of Law no. 64 on patents of 11 October 1991 read as follows: Chapter 5 “The pecuniary rights of inventors provided in Article 66 § 2 of the Law Rule 53 - Inventions applied and unremunerated or partially remunerated (1) (...) These pecuniary obligations shall be considered due as a result of the non-fulfilment by the State, represented by the entities to which the patent had been granted and other entities which have exploited the inventions, of its legal and contractual obligations (...).” The relevant provisions of the Romanian Code of Civil Procedure read as follows: “Any enforcement proceedings may be challenged by any aggrieved person or other person concerned.“ The relevant provisions of Law no. 64 on judicial reorganisation and bankruptcy of 22 June 1995 read as follows: Section 1 “The present Law shall be applicable to commercial entities - natural persons or commercial enterprises -, which are unable to meet their commercial debts (...). Section 29 (1) Any creditor, which has a specific, liquid and enforceable debt, shall be entitled to bring before a court a claim against the debtor, which for at least 30 days has ceased to make payments. Section 31 (2) Within 48 hours from the registration of the creditor’s claim (...), the judge appointed to administer the assets of the debtor shall forward a copy of the claim to the debtor (...).” | 0 |
train | 001-60867 | ENG | ITA | CHAMBER | 2,003 | CASE OF CICCARIELLO v. ITALY | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1946 and lives in Naples. 9. She is the owner of an apartment in Naples, which she had let to L.T. 10. In a writ served on the tenant on 24 October 1986, the applicant communicated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 11. On 3 November 1986, the Naples Magistrate did not uphold the validity of the notice to quit and declined jurisdiction on account of the value of the case. 12. On 11 November 1986, the applicant resumed the proceedings before the Naples District Court. In a judgment of 10 July 1987, deposited with the registry on 22 July 1987, the court declared that the lease would terminate on 4 November 1987 and ordered that the premises be vacated by 31 December 1988. 13. On 20 February 1992, the applicant served notice on the tenant requiring him to vacate the premises. 14. On 8 April 1992, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 April 1992. 15. On 28 April 1992, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter. 16. On 29 April 1992 and 12 February 1993, the bailiff made two attempts to recover possession. 17. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 18. Thereafter, the applicant decided not to pursue the enforcement proceedings, in order to avoid useless costs, given the lack of prospects of obtaining the assistance of the police. 19. On 27 June 1995, the applicant served again notice on the tenant requiring him to vacate the premises. 20. On 5 July 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 24 July 1995. 21. Between 24 July 1995 and 7 October 1998, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 22. On 28 October 1998, the tenant vacated the premises. 23. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
train | 001-88365 | ENG | GBR | ADMISSIBILITY | 2,008 | RENNISON v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Michael Rennison, is a British national who was born in 1950 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 1 February 2000. His claim for widows’ benefits was made on 21 October 2000 and was rejected on 16 November 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-22799 | ENG | MKD | ADMISSIBILITY | 2,002 | NAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Georg Ress | The applicant, Mr Dimitar Nakov, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1942 and lives in Štip. He is represented before the Court by Mrs Lenče Sofronievska and Ms Ana Sofronievska, lawyers practising in Skopje. The facts of the case, as submitted by the applicant, may be summarised as follows. On 21 October 1983 the Štip Municipal Public Prosecutor (Општинскиот јавен обвинител од Штип) filed a request with the Štip Municipal Court (Општински суд во Штип) to open an investigation procedure against the applicant on the basis of serious and well-reasoned suspicions that the applicant had abused his official duty as a Deputy General Manger of “MK Astibo” company and had thus committed the criminal offence proscribed in Section 177 § 4 in conjunction with § 1 of the Criminal Code (Кривичен закон на Социјалистичка Република Македонија). In addition, the prosecutor proposed to the court to issue an order for the detention of the applicant on remand because there were reasonable suspicions that he might impede the investigation by influencing witnesses and destroying material evidence. On 26 October 1983 the Štip Municipal Court rendered a decision for opening investigation proceedings against the applicant and ordered his detention on remand for 30 days, effective on the same date. On 24 November 1983 that court quashed the detention order, finding that the grounds for maintaining the applicant in detention had ceased to exist. On 9 December 1996 the Štip Basic Court (Основен суд во Штип) rendered a decision closing the investigation proceedings against the applicant because, as indicated in the statement of the Štip Higher Public Prosecutors Office (Вишо јавно обвинтелство во Штип) supplied to the court on 6 December 1996, the statutory time-limit for prosecution had expired. The applicant submits that subsequently, on 6 May 1997, he filed a civil action against the State before the Štip Basic Court (Основен суд во Штип) for the compensation of pecuniary and non-pecuniary damages suffered during investigation and for deprivation of liberty. He further maintains that he instituted the court proceedings following a request filed with the Ministry of Justice (Министерство за правда) to which there was no reply within the statutory time-limit. The total amount of the applicant’s claim for just compensation was 1,224,000 denars. On 15 September 1998 the Štip Basic Court rendered a judgment by which it partially accepted the applicant’s claim and awarded him compensation of a total amount of 950,440 denars. The amount of 50,440 denars was awarded as compensation for the pecuniary damages related to defence expenses incurred in the investigation proceedings, whereas the remaining portion of 900,000 denars was awarded in compensation for the mental sufferings and pain caused by the impairment of the applicant’s honour, reputation, and fundamental rights and freedoms experienced during the investigation proceedings, which lasted for almost 13 years. The court also imposed an obligation on the defendant State to pay to the applicant a statutory default interest computed as of 7 May 1997, the date when the applicant lodged his complaint with the court. In addition, it awarded the applicant costs and expenditures incurred in these proceedings amounting to 89,620 denars. On 14 December 1998 the Štip Appellate Court (Апелационен суд Штип) partially accepted the appeal lodged by the defendant State, finding that the lower court erred in the application of the law. It reversed the judgment of the first-instance court and substantially reduced the amount of compensation awarded to the applicant, by holding that the applicant was to receive compensation only for non-pecuniary damage suffered on account of his deprivation of liberty during the 30-day detention on remand, of an amount of 100,000 denars, coupled with statutory default interest which was to be computed from the date of delivery of the first-instance judgment. It also reduced the procedural costs awarded to the applicant to 38,500 denars. On 15 March 2000 the Supreme Court (Врховен суд на Република Македонија) refused to entertain the applicant’s appeal on points of law and refrained from examining the merits of the applicant’s case on the basis of Article 368 § 2 of the Code of Civil Procedure (Закон за парничната постапка), which provides that such an extraordinary judicial remedy may be used only in disputes whose value, as set out in the impugned part of the final judicial decision, exceeds a certain value prescribed by law. The court found that the value of the applicant’s dispute as set out in the impugned Appellate Court’s decision was lower than that set by law, which according to the new procedural rule amounted to 1,000,000 denars. The applicant alleges that he was served with that decision on 30 May 2000. Article 13 § 2 of the Constitution of the Republic of Macedonia (Устав на Република Македонија), published in the Official Gazette no.52/91, provides, inter alia, that a person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law. The provision contained in Section 530 § 1, item 1, of the Code of Criminal Procedure (Закон за кривичнатa постапка), which, in accordance with the Law on the Implementation of the Constitution of the Republic of Macedonia (Закон за спроведување на Уставот на Република Македонија), published in the Official Gazette no.52/91, has continued to be applied after the independence of the FYR of Macedonia, presribes that the person entitled to compensation for damages shall be the person who was detained on remand and gainst whom no criminal proceedings were instituted or were terminated by a final court decision, or the person who was acquited by a final judgment or the criminal charges against whom were rejected. The relevant parts of Section 382 of the Code of Civil Procedure (Закон за процесната постапка) which, in accordance with the Law on the Implementation of the Constitution has continued to be applied after the independence of the FYR of Macedonia, and which has governed the procedural rules concerning appeals on points of law (hereinafter referred as revision) prior to the enactment of the new law by which the financial threshold for its admissibility was increased, read as follows: “The parties may lodge a request for revision against a final judgment rendered at second instance within 30 days from the date when the party was served with a certified copy of the judgment. The revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 8,000 dinars.” Section 368 of the Code of Civil Procedure (Закон за парничната постапка), published in the Official Gazette no.33/98, applicable as of 19 July 1998, provides inter alia that revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 1,000,000 denars. The transitional and final provisions contained in Section 475 of the Code of Civil Procedure inter alia state that if the first-instance judgment was brought after the date of entry into force of the new Code, the proceedings shall continue to be conducted according to its provisions. | 0 |
train | 001-78989 | ENG | POL | CHAMBER | 2,005 | CASE OF BRUDNICKA AND OTHERS v. POLAND | 1 | Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Non-pecuniary damage - financial award | Georg Ress | 8. The applicants are relatives of sailors who lost their lives in a shipwreck. 9. On 14 January 1993 the vessel Jan Heweliusz sank in the Baltic Sea. It belonged to the company Polskie Linie Oceaniczne, whose registered office is in Gdynia, and was operated by the company Euroafrica, with its registered office in Szczecin. Of the 35 passengers and 29 crew members on board, 55 died in the shipwreck and 9 survived. 10. Several commissions of inquiry were set up to establish the cause of the shipwreck. The commission set up by the Prime Minister suspended its inquiry in March 1993 without producing a report. The commission set up by the Ministry of Transport and Maritime Affairs submitted a report in April 1993 in which it found that the shipwreck had been due to force majeure. The special commission set up within the National Labour Inspectorate concluded in May 1993 that the owner of the vessel and the crew were jointly responsible. 11. The Maritime Chamber attached to the Szczecin Regional Court (Izba Morska przy Sądzie Wojewódzkim) instituted proceedings seeking to establish the cause of the shipwreck. The relatives of the crew members who had died took part in the proceedings. 12. On 11 January 1994 the Maritime Chamber delivered its decision, attributing liability to the ship's captain, its technical team, the Polish Shipping Registry, which had inspected the vessel before the disaster, and the Polish rescue services. 13. On 18 November 1994 the Maritime Appeals Chamber of the Gdańsk Regional Court (Odwoławcza Izba Morska przy Sądzie Wojewódzkim), sitting in Gdynia, set aside the decision of 11 January 1994 and referred the case to the Maritime Chamber for a fresh examination. 14. The Gdańsk Maritime Chamber, sitting in Gdynia, examined the case between 20 March 1995 and 9 February 1996. On 23 February 1996 it gave a decision in which it held that the crew had been partly liable, that the vessel's operator had been at fault for failing to undertake the necessary repair work, and that the natural elements had also played a part. 15. The operator, the ship's owner, the representative of the Ministry of Transport and Maritime Affairs and the other parties to the proceedings appealed. In a decision delivered on 26 January 1999 and served on the parties on 19 November 1999, the Gdańsk Maritime Appeals Chamber partly upheld the finding of liability with regard to the operator. It also upheld the finding that certain acts of negligence on the part of the crew, in particular the captain and the chief officer, had contributed to the disaster, as had the fact that the rescue operation had not been properly coordinated. The relevant passages of the decision read as follows: page 2 “The most likely cause of the capsize of the car and train ferry the Jan Heweliusz and of the death by drowning and hypothermia of 27 passengers and 18 crew members and the disappearance of 8 passengers and 2 crew members was: ... the fact that the ferry turned into the wind while unevenly ballasted (towards the port side), resulting in the shifting of the ballast towards the port side; violent gusts of wind on that side; the shifting of the vehicles' loads and the vehicles themselves to the port side; the discharge of bilge water to the outside on the port side of the ferry.” page 4 “The Jan Heweliusz left the port of Świnoujście at 11.35 p.m. on 13 January 1993, bound for the port of Ystad, in an unseaworthy condition, as the safety requirements were not met in the following respects: 1. measures to stabilise the vessel in the event of an accident; 2. measures to ensure that the rear door was watertight; 3. the securing of the vehicles to the deck in accordance with maritime best practice.” page 6 “Irregularities have been found in the conduct of: 1. the operator of the Jan Heweiusz, Euroafrica Shipping Lines, a limited liability company based in Szczecin, which allowed the ferry to be operated while in an unseaworthy condition owing to the damage sustained to the door on 10 January 1993 in Ystad, following which its class had been suspended and the safety certificate had ceased to be valid, in that it (a) omitted to declare the ferry to the Szczecin Maritime Bureau for an interim inspection and to the Polish Shipping Registry for immediate inspection; (b) failed to take the agreed action to repair the rear door in the proper manner; 2. the captain of the above-mentioned ferry, a Master Mariner ... who, on 13 January 1993, left the port of Świnoujście, bound for the port of Ystad, while the ferry was in an unseaworthy condition, in that he (a) omitted to declare the ferry to the Consulate in Malmö and later to the Szczecin Maritime Bureau for an interim inspection following the damage sustained to the rear door on 10 January 1993 in Ystad, the suspension of class after the accident and the cessation of validity of the ship's safety certificate; (b) allowed the vessel to depart without the vehicles being secured to the deck, in spite of the gale warning that had been issued; 3. the chief officer, a Master Mariner ... who, on 13 January 1993, before the ferry left the port of Świnoujście bound for Ystad, and despite the issuing of a gale warning, did not supervise the securing of the vehicles to the deck before the ferry left port.” page 8 “The lack of effectiveness of the rescue operation was the result of ... 3. the clothing of the passengers and some crew members, which did not protect them against hypothermia; 4. the inadequate training of the crew in the use of the life-saving equipment.” page 109 “ ... In the Chamber's view, the evidence cited demonstrates that ... (ii) the cargo was not secured before the vessel left dock despite the gale warning issued by the meteorological office...” pages 129-30 “... The causes of the vessel's having turned into the wind can only be established with a high degree of probability; the possibility that the persons steering the ferry failed to observe the rules cannot be discounted ...” page 162 “... The rescue operation revealed that, in a situation of the utmost danger, some members of the crew did not know how to use the lifejackets ...” 16. The maritime chambers were introduced into the Polish legal system by an Act of 18 March 1925 which provided for the establishment of chambers at two levels of jurisdiction, attached to the courts and with jurisdiction “in cases relating to maritime incidents and accidents at sea”. The maritime chambers were considered as maritime administrative bodies. 17. The Maritime Chambers Act of 1 December 1961 incorporated most of the rules laid down in the 1925 Act and transferred powers to them which had previously been vested in the courts. Its relevant provisions read: “The maritime chambers shall be composed of a president, one or more vicepresidents and lay members.” “(1) The president and vicepresident shall be appointed and removed from office by the Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, from among the judges of the ordinary courts who have knowledge of the maritime issues dealt with in the cases before the maritime chambers. (2) The other members [pracownicy] of the maritime chambers shall be recruited and dismissed by the president of the chamber concerned.” “(1) The presidents and vicepresidents of the maritime chambers shall retain their judicial posts and, unless the law stipulates otherwise, the rights and duties set out in the legislation applicable to judges. (2) The status of the other members of the maritime chambers shall be governed by the legislation governing officials of State administrative bodies.” “The Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, shall determine, by decree, the extent of the participation of the presidents and vicepresidents of the maritime chambers in the activities of the courts, taking account of the extent of their involvement in the maritime chambers and the need to have working professional judges involved in the administration of justice.” “Subject to contrary provisions of the present Act, the provisions of the Code of Criminal Procedure shall apply to proceedings in cases before the maritime chambers concerning accidents at sea.” “Once a case has been brought before the maritime chamber, it shall be investigated by the president or the vicepresident either directly or through the intermediary of the harbourmaster's office.” “The investigation shall be aimed at establishing the sequence of events and the causes and circumstances of the accident by gathering the necessary information and preserving the evidence.” “After the decision has been signed by the members of the bench who decided the case, the president shall deliver the decision, citing the main grounds. The grounds of the decision shall then be set down in writing ...” “The decision and the reasons shall be communicated to the Minister of Transport and Maritime Affairs, his or her deputy, the maritime department concerned and the individuals concerned. In the cases referred to in section 15(4), they shall also be communicated to the Labour Inspectorate.” 18. The regulations adopted by the Minister of Transport and Maritime Affairs on 12 November 1996 incorporated the rules set down in the 1961 Act. However, no express provisions were laid down concerning appeals to the maritime appeals chambers against decisions given by the maritime chambers at first instance. The chief task of the maritime chambers remains the determination of cases concerning maritime incidents and accidents at sea. Under the terms of the 1996 regulations, in cases relating to accidents at sea not governed by the 1961 Act, the rules of ordinary law and the Code of Criminal Procedure apply. 19. On 12 July 2001 a preliminary question was referred to the Supreme Court in a different case from the one before the Court, concerning the possibility of an appeal on points of law against a decision given by a maritime appeals chamber. The Supreme Court replied that no such possibility existed (IIICZP 22/01 OSNC 2001, no. 158). It observed that there had been a longrunning debate among Polish commentators on the legal status of the maritime chambers, which were sometimes regarded as administrative bodies and sometimes as judicial bodies. 20. On 18 December 2002 the Government communicated to the Court a bill on maritime chambers, indicating that it would be put before the Council of Ministers for approval in early 2003, before being tabled in the Sejm. The Act of 5 March 2004 was published in the Official Gazette on 14 April 2004. It provides a detailed definition of maritime disasters, listing in detail the conduct and facts falling within the remit of the maritime chambers. The only possibility of appeal is with the Gdańsk Court of Appeal against decisions of the maritime appeals chamber withdrawing navigation rights. Finally, it includes a new chapter on the procedure for enforcing decisions of the maritime chambers concerning the withdrawal of navigation rights. However, the new legislation has not made provision for an appeal on points of law against decisions of the maritime appeals chambers and has not amended the procedure for appointing and removing from office the presidents and vicepresidents of the maritime chambers. | 1 |
train | 001-5188 | ENG | BGR | ADMISSIBILITY | 2,000 | O.N. v. BULGARIA | 4 | Inadmissible | Matti Pellonpää | The applicant is a Bulgarian national, born in 1957 and living in Vratsa. A. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Background On 8 April 1975 the applicant was adopted by Mrs F. Under a contract concluded on 30 April 1975 the applicant undertook to provide daily care for Mrs F. and for her ill sister until the end of their lives and to pay 3,800 levs, in exchange of Mrs F.'s undertaking to transfer the ownership of her apartment to the applicant. The applicant paid 3,800 levs and discharged his care obligations properly until the end of 1981 when his relations with Mrs F. deteriorated. Since 1981 the applicant and Mrs F. have been parties to several civil proceedings such as proceedings for annulment of the adoption, for enforcement and for rescinding of their 1975 contract and for payment of compensation. A judgment of 12 March 1986 established that the 1975 contract was to be considered rescinded. 2. The proceedings between 1987 and 1992 On 12 January 1987 the applicant brought an action before the Vratsa Regional Court (Окръжен съд) against Mrs F. and two other persons seeking, inter alia, restitution of the 3,800 levs paid and of the value of the care and services furnished by him under the 1975 contract. His action was based on the rule of prohibition of unjust enrichment (неоснователно обогатяване) as enshrined in Section 55 of the Law on Obligations and Contracts (Закон за задълженията и договорите). The court heard numerous witnesses and experts who established the services performed by the applicant and their value. The court held its last hearing on 15 September 1989 and announced that the judgment would be delivered soon thereafter. In 1991 the applicant twice addressed the court asking for a speedy delivery of the judgment. In February and June 1991 he also sought to amend his claim arguing that the sharp increase in inflation since 1989 had led to seven fold devaluation of the real value of the Bulgarian currency. The judgment, which was dated 15 January 1991, was delivered on 8 July 1991. The court found that the applicant was entitled to restitution of all that he had given under the 1975 contract. This right had arisen on 12 March 1986, the date on which the judicial decision confirming the rescission of the 1975 contract had been delivered. It was further established that the services performed by the applicant and the food, heating fuel and other products provided by him to Mrs F. and her sister for the period 1975 - 1981 amounted to 14,442.65 levs (the 3,800 levs paid by the applicant included), according to prices from the relevant period. The court therefore awarded to the applicant this amount, together with the established interest rate (законна лихва), to be counted as from 12 January 1987, the date of bringing of the applicant's action. The parties appealed to the Supreme Court (Βърховен съд) which on 31 January 1992 quashed the Regional Court's judgment under Section 208 § 3(b) of the Code of Civil Procedure (Граждански процесуален кодекс) and returned the case for renewed examination as there had been certain procedural irregularities. The Supreme Court was composed of three justices, Mr Shivachev, Mr Belchev and Mrs Krasteva. 3. The proceedings before the Montana Regional Court The referred case was taken by the Montana Regional Court as there was not a sufficient number of judges at the Vratsa Regional Court. The Montana Regional Court held 13 hearings. At most of the hearings witnesses and experts were heard, evidence was admitted and oral submissions were made. At the first hearing on 13 July 1992 the applicant stated the evidence on which he would rely. He later decided to request the appointment of an expert and submitted a motion in writing on 24 August 1992. The court granted the request by decision of 9 September 1992. On 25 September 1992 the expert's report was submitted to the court. The hearing listed for 5 October 1992 was adjourned as there was no confirmation that one of the defendants had received the summons. On 15 October 1992 and 23 November 1992 the applicant made submissions in writing amending his claim to reflect the inflation and requested the appointment of another expert. On 24 November 1992 the request was granted. On 14 December 1992 the proceedings were suspended due to the death of one of the defendants. The applicant was instructed to state whether he wished to pursue the action against the heirs and to provide their names and addresses. He did so on 18 January 1993. On 15 February 1993 the expert appointed by the court filed his report. The fourth hearing took place on 22 March 1993. Both parties requested leave to submit further evidence and to question witnesses. The applicant requested additional reports from the experts. The hearing was adjourned. On 17 May 1993 the court held a hearing. One of the experts and one of the witnesses for the applicant did not appear. The court decided to hold another hearing. On 2 June 1993 the applicant requested in writing that additional questions be put to the experts. Their answers were filed with the court on 29 June 1993. On 5 July 1993 the court held a hearing. An expert did not appear. The case was listed for a further hearing. By written motion of 20 August 1993 the applicant increased the amount of the claim in view of the inflation and requested leave to question three additional witnesses. The next hearing was on 20 September 1993. The applicant sought leave to put additional questions to one of the experts and requested an adjournment as one of his witnesses had not been able to attend. On 12 October 1993 the applicant requested in writing leave to have another witness examined. On 19 October 1993 an additional expert's report was filed. The hearing on 25 October 1993 was adjourned upon the request of the applicant who insisted on the questioning of a witness who had not appeared. On 25 October and 1 November 1993 the court rejected the applicant's request for additional questions to one of the experts. On 17 November 1993 the applicant requested in writing leave to have re-examined a witness who had already been questioned. At the hearing on 29 November 1993, the ninth hearing in the case, one of the witnesses was unable to attend. An expert's opinion which was due had not been filed. The court listed the case for a further hearing. On 16 March 1994 the applicant made submissions in writing requesting further reports from the experts. This request was rejected. The failure of a witness and of an expert to appear at the tenth hearing, which was held on 4 April 1994, prevented the conclusion of the proceedings. On 19 April 1994 the applicant requested in writing leave to have two additional witnesses summoned and examined. The request was granted. In the course of the eleventh hearing, on 9 May 1994, the applicant sought to increase the amount of the claim in view of the inflation. The case was adjourned as one of the defendants had not appeared and the relevant law required that all defendants be provided with an opportunity to comment on any amendment of the claim. On 21 May 1994 the applicant successfully requested the court to order an additional expert's opinion. This was filed on 3 June 1994. The hearing on 13 June 1994 could not conclude the proceedings for the same reasons as those, which caused the adjournment of the hearing of 9 May 1994. On 20 June 1994 the applicant requested the further questioning of two witnesses. This was granted. The last hearing before the Regional Court took place on 12 September 1994. Following all amendments of the amount of the claim, it was finally set by the applicant at 595,365.55 levs as he insisted that the price levels of 1994 should be used. On 27 September 1994 the Regional Court delivered its judgment. It found that the applicant's right to restitution of what he had given under the 1975 contract had arisen on 12 March 1986. The court awarded to the applicant 15,036.33 levs, together with the established interest rate, to be counted as from 12 January 1987, the date of the submission of the applicant's action. Addressing the applicant's argument that the inflation should be taken into account the court found, inter alia: "... upon the rescission of a contract the parties are under the obligation to return whatever they have exchanged in order to restore the situation as it was prior to the execution of the contract. Therefore, the Court finds that the claim is well-founded for its part up to 15,036.33 levs ... and should be dismissed as ill-founded in its remaining part." 4. Appeal and review (cassation) proceedings The applicant and the defendants appealed to the Supreme Court. On 3 January 1995 the applicant requested in writing a speedy examination of the case. The appeal was examined by a chamber of the Court, which was composed of three justices, two of whom, Mrs Krasteva and Mr Belchev, had also participated in the examination of the case in 1992. The applicant did not request their removal. The Supreme Court heard the appeals on 17 February 1995. On 7 March 1995 the Supreme Court dismissed the appeals. According to the Code of Civil Procedure the award of 15,036.33 levs plus interest became enforceable on the same date. The Supreme Court found inter alia: "The [Regional] Court correctly awarded restitution of the benefits on the basis of their value as of the moment of their bestowal, as this is the amount with which the [applicant] has actually become poorer. If the pecuniary equivalent of the furnished services were to be awarded under up-to-date prices, the [applicant] would have received more than that of which he was actually deprived. [In cases] of unjust enrichment the benefits bestowed are to be restituted up to the amount of the deprivation suffered." In May 1995 the applicant and the defendants submitted to a five-member chamber of the Supreme Court petitions for review (cassation) (преглед по реда на надзора) against the judgments of 27 September 1994 and 7 March 1995. A hearing was listed for 16 November 1995. It was adjourned until 18 January 1996 upon the applicant's request in view of the unavailability of his legal representative. The hearing on 18 January 1996 was adjourned as the defendants had not been properly summoned. The hearing eventually took place on 7 March 1996. On 10 June 1996 the Supreme Court, sitting in a five-member chamber, dismissed the applicant's petition for review The Court confirmed that according to the relevant law the applicant could not claim re-evaluation according to up-to-date prices. Also, dealing with the applicant's complaint that the same justices decided twice in his case, the court stated inter alia: "... the examination of the [second appeal] by the same chamber which had previously quashed the lower court's judgment and had returned the case to it under Section 208 § 3 of the Code of Civil Procedure not only is not a breach of procedure, but is desirable in view of the [chamber's] cognizance of the matter and the [need for] economy ... The grounds under Section 208 § 3 for returning a case to the first instance court are such that the [appellate] court does not decide on the merits." On 30 July 1996 the defendants paid to the applicant the amount of 68,676 levs, which represented the principal sum due plus interest. B. Relevant domestic law and practice The relevant provisions of the Law on Obligations and Contracts read as follows: Section 55 "Anyone who has received something without a causa or pursuant to a causa which has not realised or has ceased to exist, shall be under the obligation to return it..." Section 57 § 2: "If the object to be restituted has been ... consumed by the beneficiary when he already knew that he possessed it without causa, the latter owes its real value ... However, if the object [to be restituted] has been ... consumed by the beneficiary before the invitation [to return it] the latter owes only that of which he has benefited ..." According to the practice of the Supreme Court (реш. No.65 от 8.12.1981г. на ОСГК на ΒС по гр.д. No. 30/81): "The consequence of the rescission of a bilateral contract is that the parties shall return whatever they have exchanged in order to restore the situation as it was prior to the execution of the contract. The restitution is due because the contract which had been the legal ground of the exchange has ceased to exist. The restitution ... is due under Section 55 § 1 of the Law on Obligations and Contracts..." The statutory default interest rate applicable to judicial awards is established by acts of the Council of Ministers (Министерски съвет). It was 6 percent per annum between 1987 and mid-1991 and was, thereafter and during the relevant period of time, equal to the basic interest rate, as established by the Bulgarian National Bank, increased by three points. At different periods of time between 1991 and 7 March 1995, when the judgment awarding 15,036.33 levs to the applicant became enforceable, the interest rate thus varied between 15 and 60 percent per annum. Section 208 § 3(b) of the Code of Civil Procedure provides that the appellate court has to refer the case back for renewed examination by the lower court where the latter's judgment has been quashed because of a violation of the party's right to fully participate in the proceedings. | 0 |
train | 001-5796 | ENG | GBR | ADMISSIBILITY | 2,001 | BRADY v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1946 and living in Prudhoe. He is represented before the Court by Mr D. Johnson, a solicitor practising in Newcastle upon Tyne. The facts of the case, as submitted by the applicant, may be summarised as follows. James Frederick Brady, the son of the applicant, died on 24 April 1995 having been shot by an armed police officer at Westerhope Excelsior Working Men’s Club (‘WEWM’) in Newcastle. The background to the shooting is described as follows, the details largely taken from the evidence given at the inquest. At approximately 7.45 p.m. on 23 April 1995, an Inspector Fullerton contacted Police Superintendent Jean Austin, with information which he considered to be ‘reliable’ and which had been received from a registered informant. The applicant claims that DC Reay of the Crime Team South of Northumbria police was aware of this information on 19 April, but only passed on the information to a more senior police officer on 23 April 1995. The information was that Alan Barker and the deceased, James Brady, were planning a ‘tie-up’ robbery that evening at the WEWM after midnight. The plan was forcibly to enter the residential steward’s house adjacent to the club and, with the aid of an imitation firearm, to tie-up the steward’s father and cause the steward to open the safe and hand over the cash contents. On the strength of this information, Superintendent Austin decided to target a Firearms Operation on the Westerhope club that evening with the purpose of protecting the occupants of the steward’s house, protecting the officers involved in the operation and effecting the arrests of those involved in the planned offence. Superintendent Austin thereafter held several briefings with the firearms unit and was assisted by two senior trained firearms officers, PS Palmer and PS Davidson. The first briefing was at 9 a.m. The police officers on the operation were instructed to treat all imitation firearms as if they were real firearms unless and until proven otherwise. In particular, Superintendent Austin pointed out that Brady had received training in the army, and read out the record of Alan Barker which detailed that a sawn-off shotgun had been found in the bathroom of his house. By the time of the first briefing, the police were in receipt of further information about the robbery which was planned. They were now aware that James Brady, Alan Barker and one other man planned to enter the steward’s house via a downstairs kitchen window, before proceeding upstairs to commit the robbery. The imitation firearm which they would be carrying would possibly be a starting pistol. The amount of money involved was estimated to be between eight and ten thousand pounds. The police discussed the following options at the briefing which was tape recorded: A – an armed ambush inside the club. This would involve placing 5 armed police officers at various vantage points inside the club. When the last intruder had entered the kitchen window and stepped onto the floor, the ambush team leader (PC Davidson) would call a ‘strike’. Accordingly, the lights of the premises would be switched on together with a shout of the warning ‘stand still armed police’. The armed officers in the premises would come from behind closed doors of the kitchen with weapons drawn and would stop and apprehend the intruders. A second team of firearm officers (the backup team) would arrive outside the premises to prevent any intruders escaping from the premises. The backup team would move on the strike being called from within the house. It was estimated that they were less than a minute away from the scene. B – a ‘blow-out’ consisting of swamping the club and the surrounding area with a high police presence. This high profile policing would be intended to have the effect of discouraging the intruders from making entry at all, thereby preventing the robbery and protecting the safety of the steward and his father. C – arresting the intruders at their home addresses prior to the commission of the robbery. Options B and C were rejected. Option B was rejected because the Superintendent considered that even though it would prevent the robbery that night, the suspects may return at a later date or decide to rob another club. Further, it was decided that it was better to pick up the men at night and get them off the streets as they were dangerous and carrying firearms. Option C was rejected because of the possibility that there would not be sufficient evidence to mount a successful criminal prosecution against the potential intruders. At 10.45 p.m., a briefing was held with the firearms officers, at the conclusion of which the guidelines for the use of minimum force were read out. Covert surveillance officers were deployed along the route to the club. The backup team of police officers was on standby in the near vicinity of the club, and armed officers took their place inside the club before midnight on 23 April 1995. All the police officers were in their places by midnight. At 2.30 a.m., four people, including James Brady and Alan Barker, were seen to make their way along the route to the club. They were wearing dark clothing, gloves and ski-masks. They waited outside the club for 50 minutes before making an entrance, during which time they were observed. The applicant claims that the officers inside the club were made aware via radio communications of exactly what was going on. They were informed that there were more potential intruders than originally expected (four instead of the original two or three). At approximately 3.20 a.m. the intruders broke in via the ground floor window as expected. The team leader PC Davidson called the strike when the third person had entered the kitchen window, and not when all the intruders had entered the kitchen, as planned. He explained in his statement that he did not consider it safe to allow all the intruders to enter into the hallway. He called the strike as the door from the kitchen to the hallway was pushed three quarters open. He switched on the lights and shouted “Armed police. Stand still.” He heard other officers shouting “Armed police.” One of the police officers, PC Bell, who was meant to have been standing by a door just off the kitchen where the intruders would be entering was not in position. He later gave a statement to the police to the effect that the team leader had called the strike before he and his colleague Officer A were in position. Officer A and PC Bell said that when they entered the kitchen, the fourth intruder was still entering the window. Officer A said that he saw a threatening movement from James Brady that he interpreted as a threat to his life. At the subsequent inquest, Officer A said that he thought Mr Brady had a gun in his hand which he pointed at the officer. The officer said he discharged his firearm in self-defence, thereby killing James Brady. PC Bell also testified that he considered the deceased to be a threat. The autopsy revealed that the bullet entry wound was on the right side of the chest and that the bullet travelled in a downwards direction to exit from the chest wall on the left side. The pathologist who conducted the post mortem stated that this was consistent with Officer A’s description of the deceased as turning towards him at the moment at which he fired. A small black torch was found under or near the deceased’s body. Alan Barker in his statement later to the police said that James Brady had been carrying a small black torch when he entered through the kitchen window and had switched it off before the police entered the kitchen. The deceased’s accomplices, upon hearing the shot, all fled from the club premises. None were caught at the scene. The backup team failed to arrive at the club to prevent any of the intruders escaping from the scene. The deceased’s accomplices were arrested the next day. The police found an imitation firearm near the scene (a starting pistol), which was incapable of firing live rounds. The inquest into Mr Brady’s death took place at the Newcastle Coroners Court between 7 September to 24 September 1998. Several police officers gave evidence, including Officer A and PC Bell who were the only persons present when the shooting occurred. Both testified that they considered the deceased to be a threat because of a dark object in his right hand. Although they considered it to be a firearm, it later transpired that it was a small black torch. Officer A considered that he had only seen one intruder in the kitchen, even though there had in fact been 3 intruders. Further, he over-estimated the distance between himself and the intruder, could not recall how many times a colleague had shouted and could not recall when certain lights were put on. PC Bell thought that the shot that was fired had been discharged by one of the intruders; he described the sound as a ‘phut’ rather than as a loud bang. Evidence was adduced during the inquest to the effect that the police had received some total darkness training and ‘torchlight training’ to aid them to assess danger in restricted lighting conditions. However, Professor David Alexander, Professor of Mental Health at the Medical school of Aberdeen University, took part in a reconstruction of the circumstances surrounding the shooting and testified that he had no difficulty in understanding why Officer A fired his weapon. In his view, the combination of high level stress and low illumination led to a number of genuine misperceptions by the subject officer under the syndrome known as ‘visual perception distortion’. The officer’s genuine concerns about his safety (from his knowledge of the potential use of firearms by the intruders) also contributed to this misperception. The jury returned an open verdict and therefore failed to find definitively that the deceased had been unlawfully killed by Officer A. In a letter dated 20 December 1999, the Crown Prosecution Service informed the applicant that it had been decided not to prosecute Officer A on the basis that there was insufficient evidence of any crime having been committed. It also found no basis for pursuing any other officer for gross negligent manslaughter or misfeasance in public office. Section 3 of the Criminal Law Act 1967 provides inter alia: “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.” Self-defence or the defence of others is contained within the concept of prevention of crime (see e.g. Smith and Hogan on Criminal Law). | 0 |
train | 001-97395 | ENG | UKR | CHAMBER | 2,010 | CASE OF GURYNENKO v. UKRAINE | 4 | Violation of Art. 6-1 | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1947 and lives in the town of Cherkassy, Ukraine. 5. In 1987 the applicant had an accident. Later he was registered disabled. 6. On 24 April 1997 the applicant instituted proceedings against the Cherkassy Regional Department of the State Social Insurance Fund, the Cherkassy Commerce, Catering and Services Trade Union and the Cherkassy Cooperative Association in the Sosnivsky District Court of Cherkassy claiming compensation for the damage caused to him as a result of the accident. The applicants also sought the rectification of his work records. 7. On 8 July 1997 the case was transmitted to the Pridneprovsky District Court of Cherkassy (“the first-instance court”). 8. On 11 December 2002 the first-instance court partly allowed the applicant’s claims. On 27 January 2003 it gave an additional judgment by which the remainder of his claims were left without consideration. 9. On 18 April 2003 the Cherkassy Regional Court of Appeal quashed the judgment of 11 December 2002 and the additional judgment of 27 January 2003 and remitted the case to the first-instance court for fresh consideration. 10. On 16 April 2004 the first-instance court found against the applicant. 11. On 8 July 2004 the Cherkassy Regional Court of Appeal upheld that judgment. 12. The applicant lodged an appeal in cassation with the Supreme Court against the judgment of 16 April 2004 and the ruling of 8 July 2004. According to the applicant’s submissions, he also challenged a number of the procedural decisions taken by the lower courts before the Supreme Court. 13. On 22 December 2005 the Supreme Court dismissed the applicant’s appeal in cassation. 14. In respect of the applicant’s appeals in cassation against the procedural decisions, the Supreme Court informed him that they were not subject to appeal according to the provisions of the Civil Procedure Code. However, the applicant tried to institute administrative proceedings against the Supreme Court, claiming that the latter had taken no action to consider his appeals in cassation. His efforts were to no avail. 15. The applicant’s subsequent requests to have the judgment of 16 April 2004 and the rulings of 8 July 2004 and 22 December 2005 reviewed under the extraordinary review procedure were rejected by the domestic courts as unsubstantiated. 16. In October 2001 the applicant lodged a complaint against the Cherkassy Regional Federation of Trade Unions for refusing to employ him. On 3 July 2003 the Sosnivsky District Court of Cherkassy found against the applicant. On 28 October 2003 the Cherkassy Regional Court of Appeal upheld that judgment. On 6 April 2004 the Supreme Court upheld the decisions of the lower courts. Later, the applicant tried to institute criminal proceedings against the judge of the Sosnivsky District Court of Cherkassy who had considered his case, alleging that he had forged the court records and destroyed important documents. His efforts were to no avail. 17. In February 2006 the applicant instituted proceedings against the Head of the Cherkassy Regional Department of the State Social Insurance Fund, Mr D., in the Sosnivsky District Court of Cherkassy, challenging his actions. On 10 April 2007 the court partly allowed his claims. On 24 November 2008 the Kyiv Administrative Court of Appeal upheld that judgment. 18. In 2008 and 2009 the applicant instituted a number of administrative proceedings in the first-instance court complaining about actions of the judges at the first-instance court and the Supreme Court taken in their official capacity while considering his claims. These claims were rejected by the first-instance court. The applicant failed to provide detailed information about any appeals lodged with the higher courts against the rulings to reject his claims. | 1 |
train | 001-100887 | ENG | POL | COMMITTEE | 2,010 | CASE OF SZPARAG v. POLAND | 4 | Violation of Art. 6-1+6-3-c | Giovanni Bonello;Ján Šikuta;Lech Garlicki | 5. The applicant was born in 1976. He is currently serving a prison sentence in Wołów prison. 6. On 23 August 2005 the Kłodzko District Court convicted the applicant of sexual abuse of a minor and sentenced him to five years' imprisonment. The applicant appealed. 7. On 20 February 2006 the Świdnica Regional Court upheld the firstinstance judgment. On a later unknown date the applicant requested that a legalaid lawyer be assigned to the case to prepare a cassation appeal. On 10 April 2006 the court allowed his request. The court's decision was served on the applicant on 20 April 2006. 8. By a letter to the court dated 11 May 2006 the lawyer refused to prepare a cassation appeal, finding no grounds for it. This letter was subsequently forwarded by the court to the applicant. 9. On 6 June 2006 the applicant requested the court to assign a new legalaid lawyer to the case. In letters to the applicant dated 14 June and 10 July 2006 the court refused to do so. The court referred to the legal-aid lawyer's refusal of 11 May 2006. 10. Neither in the letter accompanying the lawyer's refusal of 11 May 2005 nor in its later letters the court informed the applicant of his further procedural rights. 11. On an unknown date in 2005 the applicant instituted criminal proceedings alleging that correspondence sent by him to courts, prosecutors and other authorities had been destroyed by prison officers. On 22 August 2005 the Kłodzko District Prosecutor refused to institute proceedings in the case. On 30 November 2005 the Kłodzko District Court upheld the decision of the Kłodzko District Prosecutor. 12. On an unknown date in 2006 the applicant, who was serving a prison sentence, filed a request for temporary leave. On 6 July 2006 the Gdańsk District Court dismissed his request. On 15 September 2006 the Gdańsk Regional Court dismissed his appeal as unfounded. 13. On a later date in 2006 the applicant requested the penitentiary judge to grant him another temporary leave. On 9 October 2006 the judge refused his request. On 21 December 2006 the Gdańsk Regional Court dismissed his appeal as unfounded. 14. In 2005 the applicant requested that criminal proceedings be instituted against a judge examining his case, alleging that he had destroyed certain documents from his case file. On 6 December 2006 the Kłodzko District Prosecutor refused the request. On 11 February 2008 the Nysa District Court upheld this decision. 15. In criminal proceedings concerning an assault against the applicant by his fellow-prisoner, on 29 June 2007 the Kwidzyn District Court convicted the accused and sentenced him to 10 months' imprisonment. The court also obliged him to pay the applicant damages in the amount of PLN 8,000. 16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009). 17. In particular, on 26 February 2002 the Supreme Court examined a situation where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the timelimit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer's refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer's refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time frame (II KZ 16/08). 18. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legal-aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02). | 1 |
train | 001-5668 | ENG | BGR | ADMISSIBILITY | 2,001 | ATANASSOV v. BULGARIA | 4 | Inadmissible | Georg Ress | The applicant is a Bulgarian national born in 1963 and residing in Varna. Before the Court he is represented by Mrs Z. Kalaydjieva, a lawyer practising in Sofia. The facts of the case, as submitted by the applicant and account being taken of the information provided by the parties (Rule 48 § 2 (a) of the Rules of Procedure of the European Commission of Human Rights and Rule 54 § 3 (a) of the Rules of Court), may be summarised as follows. At about 3 a.m. on 9 November 1995 the applicant was implicated in a fight in a night bar in Varna and was beaten by Mr P., the private security guard at the bar. The applicant claims that at some point he fell and lost consciousness and that he does not remember clearly the events during the remaining part of the night. He remembers that at about 9 a.m. he was on the premises of the district police, third district of Varna (Трето Районно Управление на МΒР), and that soon thereafter he went back home by taxi. When the applicant was examined at the Regional Hospital (Окръжна болница) at about noon that day, the doctors found that he had a rupture in the small intestines with a resulting haemorrhage in the abdominal area, about 500 ml of blood having been found therein. Also, the applicant had suffered from peritonitis. Moreover, he had received a blow on the head with a resulting concussion and also had several bruises on his face and chest. The applicant underwent surgery without which his life would have been in danger. Following the incident criminal proceedings were instituted against the private security guard. The applicant’s requests for the institution of criminal proceedings against police officers were refused. The procedural steps in all relevant proceedings, the applicant’s allegations, and the findings of the prosecutors, may be summarised as follows. Immediately after the incident, on 9 and 10 November 1995, written statements were taken from two witnesses and also from four police officers, who had been dispatched to the scene upon a call from the bar. On 10 November 1995 the local District Prosecutor’s Office (Районна Прокуратура) opened ex officio preliminary investigation proceedings (дознание) against Mr P., the private security guard. In these proceedings several witnesses were questioned, some of them repeatedly. The applicant was also heard. Mr P. was initially questioned as a witness. He was then charged with bodily assault and again questioned. A confrontation between the applicant and Mr P. was organised. Ms M., the bar tender, and Ms S., a waitress, testified that the applicant had entered the bar at around midnight and, in the course of the following three hours, had drunk about 300 or 400 centilitres of cognac. At 3.30 a.m. he had insisted to be served tea although he had been told that the bar had closed. Irritated by the invitations to leave the bar he had thrown a serving tray on the ground. When Mr P., the security guard, had then tried to lead him out of the bar, the applicant had seized a chair and had tried to hit Mr P. There had followed a fight between the two. A glass table had been broken. Mr P. had finally managed to tie the hands of the applicant. Mrs S. had in the meantime called a friend, a taxi driver, to come and help. Upon his arrival the taxi driver had called the police. The police had arrived and had called for an ambulance which had taken the applicant. The taxi driver, who was also questioned, stated that upon his arrival at the bar he had seen the applicant lying on the ground and had called the police. Mr P. pleaded guilty but emphasised that he had acted in self defence. He confirmed the sequence of events as described by the bar tender and the waitress. Mr P. testified that during the fight he had kicked the applicant in the stomach and that he had then hit him again in the stomach with his knee. Three police officers, who had been dispatched to the scene, and the officer on duty at the police station reported in writing that at about 4 a.m. a call from the bar had been received, alerting the police about the incident. Upon their arrival, officers T., B. and A., who had been patrolling the area, had found the applicant lying on the ground, his hands tied with a shirt, visibly seriously injured and drunk. They had then called for an ambulance which had arrived at about 4.30 a.m. and had taken the applicant to the emergency unit of the local hospital. Officers T., B. and A. had remained at the scene and had taken the written statements of two witnesses. The applicant had stayed at the hospital until about 7 a.m. At that time a police officer had visited the hospital and, having been told by Doctor K., who had examined the applicant, that he had not been in need of hospitalisation, had brought him to the police station for questioning. In his testimony the applicant stated that at about 1.30 a.m., while drinking cognac in the bar, he had suddenly lost consciousness. He could not remember whether he had been hit. He had regained consciousness in the morning, in a cell at the police station. A police officer had told him that he had been seen by a doctor during the night and had then brought him to another officer. The latter had considered that the applicant had not been fit for questioning and had called a taxi for him. A summons for questioning on the following Monday had been given to the applicant. On 13 November 1995 the applicant was examined by a forensic doctor. He found a cut on the applicant’s head, which had been surgically treated and bruises of purple-bluish colour around the left eyebrow, the eyelids, the nose and the chin. There was also a superficial cut of the skin of the cheek 2 cm long and a 15 mm long cut on the upper lip. The rim of a tooth had been broken. Several small cuts were found on the palm and a finger of the applicant’s left hand. Bruises were also found on the chest and the left side of the waist. The forensic expert concluded that the injuries must have been caused on 8/9 November, as stated by the applicant. Another medical opinion, ordered in the course of the investigation, found, inter alia, that there was no indication of a complete loss of consciousness having occurred as a result of the injuries. On 2 April 1996 the preliminary investigation was completed. The investigator proposed to the competent prosecutor to indict Mr P. On 17 April 1996 the District Prosecutor’s Office ordered the discontinuation of the criminal proceedings against Mr. P. Based on the evidence collected in the course of the investigation it was established inter alia that the applicant had been heavily drunk and had attacked Mr. P. when he had attempted to lead him out of the bar; that Mr. P. had reacted by kicking the applicant in the abdominal area and that a fight had followed. At some point a taxi driver had called the police who had then called an ambulance. The prosecutor concluded from these findings that Mr P., albeit having acted in self- defence, had administered blows which had not been strictly necessary to counter the attack. Mr P. had thus caused bodily harm of medium level gravity, temporarily endangering the applicant’s life. Since under the relevant law bodily harm caused in such circumstances was a crime punishable by way of private prosecution, it was unnecessary to continue the public prosecution in the case. It appears that at least until March 1996 the applicant had not mentioned any suspicion on his part that he might have been beaten by the police. On 22 March 1996 he wrote to the Regional Military Prosecutor’s Office (Окръжна Βоенна Прокуратура) requesting an investigation against the police. On 23 April 1996 he appealed to the Regional Prosecutor’s Office (Окръжна Прокуратура) against the discontinuation of the criminal proceedings against Mr P. In these submissions he stated, inter alia, that he had decided to verify himself certain facts about the events in the night of 9 November 1995 and that he had sought information from the Regional Hospital and from the local ambulance service. The applicant enclosed medical certificates reflecting entries in the registers of the Hospital and of the ambulance service. The register of the ambulance service recorded that a sergeant M. from the police had called on 9 November 1995 at 4.25 and had asked for an ambulance to be dispatched to the bar where the fight had taken place that night. According to the certificate the ambulance had arrived at 4.34 at the bar. The applicant had been examined on the spot by Doctor R. from the ambulance service. Doctor R. had noted that the applicant had received a blow on the head with a resulting concussion and also that there had been an appearance of food poisoning. The certificate further recorded that the applicant had been brought by the ambulance to the urgent surgery unit at the Regional Hospital, to Doctor K. The ambulance had then returned to the premises of the ambulance service, at 5 a.m. The records of the urgent surgery unit of the Regional Hospital revealed that the applicant had been brought there and had been examined by Doctor K. The certificate stated that the applicant had been injured in the head which had necessitated stitching up, performed by Doctor K. There had been no indication of an acute abdominal condition. The applicant’s arrival had been recorded as having happened at 3.45 a.m. on 9 November 1995. The preceding record in the register was for the examination of a Ms N. at 2.25 a.m. The entry which followed the registration of the applicant’s arrival was for a Ms G., who had been admitted at 5.40 a.m. The register of the ambulance service did not mention any stitching on the applicant’s head having been found when he had been examined by Doctor R. at about 4.34 a.m. On the basis of these certificates, and referring to the findings of the forensic examination of 13 November 1995 (see above), the applicant claimed that it had been apparent that he had been beaten for a second time following his visit to the urgent surgery unit of the Regional Hospital at 3.45 a.m. and that this had been done by the police in whose hands he had been at that time. The applicant considered that after his examination by Doctor K. at 3.45 a.m. he must have been transported back to the bar and beaten again, whereupon an ambulance had been called. The applicant accordingly requested the reopening of the investigation or the transmission of the file to the Regional Military Prosecutor’s Office, which was competent to open criminal proceedings against police officers. On 2 May 1996 the Regional Prosecutor’s Office refused to reopen the criminal proceedings, stating that the applicant could bring a private prosecution action in court and that the facts as regards Mr P. had been established. Insofar as the applicant had made new allegations these had been within the competence of the Military Prosecutor’s Office. Upon the applicant’s appeal this decision was confirmed on 13 September 1996 by the Chief Public Prosecutor’s Office (Главна Прокуратура). In view of the applicant’s allegations that he had been beaten by police officers the file was transmitted to the Regional Military Prosecutor’s Office. The Office conducted a preliminary inquiry (предварителна проверка). Five police officers were questioned. They confirmed their testimony given during the investigation against Mr P. and added that the applicant had not been beaten by the police. They also stated that the applicant had not been put in a cell at the police station, but had waited for a while in the corridor. On 30 May 1996 the opening of criminal proceedings against the police officers was refused. The decision stated that the applicant had been beaten by Mr P., that he had been brought to the hospital and that the five police officers questioned had denied having beaten the applicant. Furthermore, the applicant having been drunk and in a helpless state, it was illogical to consider that using force against him could have become necessary. On 12 June 1996 the applicant appealed against this decision to the General Military Prosecutor’s Office (Прокуратура на въоръжените сили) stating inter alia that the facts had not been clarified, that he had not been questioned and that Doctors K. and R. had not been questioned either. The Regional Military Prosecutor’s Office replied that they had taken into account the applicant’s testimony given in the course of the investigation against Mr P. By decision of 1 July 1996 a prosecutor of the General Military Prosecutor’s Office dismissed the appeal stating that the witnesses examined in the course of the criminal proceedings against Mr P., Mr P.’s own admissions, and the applicant’s testimony showed that all injuries had been caused by Mr P. On 24 September 1996 the applicant appealed against this decision. The appeal was examined on the merits and dismissed on 16 October 1996 by decision of a senior prosecutor at the General Military Prosecutor’s Office who in substance repeated the findings of the lower prosecutor. He stated, inter alia, that the applicant’s allegations were devoid of any serious foundation. None of the decisions addressed the applicant’s allegation that he had been brought to the hospital twice during the night. Nor did any of the decisions deal with the applicant’s request that Doctors K. and R. be questioned. On 21 March 1997 the applicant instituted private prosecution proceedings against Mr P. The Varna District Court heard witnesses, including Doctors R. and K. and the police officers involved, and collected other evidence. By judgment of 19 May 1999 Mr P. was convicted of bodily assault committed in circumstances of overstepping the necessary defence against an attack. He was acquitted insofar as it had been alleged that he had also caused a loss of consciousness, as it had not been proven that the applicant had lost consciousness at any moment. Mr P. was ordered to pay 300,000 old Bulgarian levs (about 1,050 FRF) to the applicant and a fine. The District Court found, inter alia, that after the call for an ambulance the applicant had been seen by Doctor R. who had noted a head injury and the applicant’s intoxication. Doctor K., who had seen the applicant at the hospital, had treated the wound on the applicant’s head and had examined his general state of health. He had not detected an acute abdominal condition. That had been diagnosed later, when the applicant’s condition had deteriorated. The District Court further found that there were no contradictions arising from the evidence in the case, including all medical certificates. It rejected Mr P.’s assertion that it had been unclear whether the applicant’s injuries had been caused by him. The applicant did not appeal. Upon the appeal of Mr P., on 18 April 2000 the Regional Court quashed the District Court’s judgment as it found that the amount of the fine had been unclear, different figures having been mentioned in the operative part and in the reasoning of the judgment. The proceedings are pending before the District Court, where a hearing was listed for 7 December 2000. | 0 |
train | 001-97000 | ENG | AUT | CHAMBER | 2,010 | CASE OF PUCHSTEIN v. AUSTRIA | 3 | Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant lives in St Oswald. 6. The applicant is a medical practitioner. He has an individual contract (Einzelvertrag) with the Lower Austrian Health Insurance Board (Niederösterreichische Gebietskrankenkasse). 7. In two submissions to the Joint Arbitration Committee (Paritätische Schiedskommission) dated 7 September 1998 and 5 October 1998, the applicant demanded payment for laboratory tests carried out in the first and second quarters of 1998. The claims against the Lower Austrian Health Insurance Board amounted to 8,022.41 euros (EUR) and EUR 6,603.81, respectively. 8. The Lower Austrian Health Insurance Board claimed that the applicant had not participated in the test series for quality checking of laboratory parameters in 1997, and refused to pay for the tests. 9. The applicant argued that he had participated in the quality checks in previous years with positive results and had – as previously – submitted the relevant samples for the period in question. 10. The Joint Arbitration Committee held an oral hearing and on 25 February 1999 it dismissed the applicant’s claim of 7 September 1998. 11. The applicant appealed against that decision to the Regional Appeals Commission (Landesberufungskommission). 12. On 17 May 1999 the applicant filed an application for transfer of jurisdiction (Devolutionsantrag), requesting a decision on his submission of 5 October 1998 from the Regional Appeals Commission, as the Joint Arbitration Committee had failed to decide within the statutory six-month time-limit. 13. The Regional Appeals Commission held a hearing and rejected both of the applicant’s claims. The decision was dated 24 August 1999, and was served on the applicant on 7 July 2000. 14. The applicant complained about this decision to the Constitutional Court (Verfassungsgerichtshof). On 27 November 2000 the Constitutional Court set aside the decision for violation of the right to a fair hearing before an independent and impartial tribunal established by law. It noted that one of the assessors of the Regional Appeals Commission had negotiated the clause on remuneration for laboratory tests on behalf of the Lower Austrian Medical Association (Ärztekammer für Niederösterreich), and thus the tribunal could not be regarded as impartial and/or independent. 15. An amendment to the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) entered into force on 1 September 2002; it provided for changes in the composition of, inter alia, the Regional Appeals Commission. 16. The newly composed Regional Appeals Commission held a hearing on 15 May 2002, during which the applicant gave evidence. 17. On 24 March 2003 the applicant requested that the decision be served on him. As the Regional Appeals Commission did not react, the applicant repeated his demand on 18 July 2003. 18. The applicant was summoned to another hearing by a newly composed Regional Appeals Commission on 26 November 2003. During that hearing the entire subject was examined anew. Apparently the Regional Appeals Commission reached a decision on the same day. It dismissed the applicant’s claims, finding that he had failed to participate in the required tests and had therefore not complied with the conditions for payment of the laboratory tests. The Regional Appeals Commission did not find any reasons to doubt the lawfulness of the underlying provision of the Remuneration Regulation (Honorarordnung). The decision was served on the applicant’s counsel on 30 November 2004. 19. On 15 December 2004 the applicant complained to the Constitutional Court claiming that the Regional Appeals Commission lacked independence and impartiality. The former rejected the applicant’s complaint in a decision of 27 September 2005. It observed that the members of the Regional Appeals Commission were not bound by any instructions. They were independent and impartial unless special circumstances, for instance the fact that one member of the Regional Appeals Commission had been involved in the negotiation of the general agreements, gave rise to legitimate doubts about that member’s independence and impartiality. Such special circumstances had not been shown by the applicant in the present case. The mere fact that the assessors were members of Regional Medial Associations or Regional Health Insurance Boards which had provisions with the same content in their general agreements, did not suffice to cast doubt on the independence and impartiality of the Regional Appeals Commission. The decision was served on counsel on 29 November 2005. 20. The Social Insurance Act, which governs the composition of the Regional Appeals Commission, provides as follows: “341. (1) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the Association [of Social Insurance Boards] on behalf of the insurance boards. General agreements shall require the consent of the health insurance boards on behalf of which they are concluded. The Austrian Medical Association may conclude the general agreements on behalf of the medical associations concerned, with their consent ... (3) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice. Any provisions of the individual contract which are contrary to the provisions of a general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect. ... 344. (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land in individual cases. ... (2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the local Medical Association and two by the Insurance Board, which is a party to the individual contract. ... (4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ... 345. (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Justice Minister. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.” 21. The above version of section 345(1) of the Social Insurance Act entered into force on 1 September 2002. Before that date the Regional Medical Association and the Association of Social Insurance Boards each appointed two assessors to the Regional Appeals Commission and there had been no provision that members and employees of the parties to the general agreement would be excluded. 22. According to section 347(4) of the Social Insurance Act, the Regional Appeals Commission decides by a simple majority of votes; abstention from voting is not possible. 23. The assessors of the Regional Appeals Commission are appointed for a renewable period of five years. They are not subject to the hierarchical authority of the bodies which proposed their appointment (Article 20 of the Federal Constitutional Law). 24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 § 4 of the Federal Constitutional Law. | 1 |
train | 001-60979 | ENG | TUR | CHAMBER | 2,003 | CASE OF ÖCALAN v. TURKEY | 2 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Death penalty);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Elisabeth Palm;Gaukur Jörundsson | 8. The applicant is a Turkish national who was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey). Prior to his arrest he was the leader of the Workers' Party of Kurdistan (“the PKK”). The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities requested him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision. 10. On 12 November 1998 the applicant went to Rome where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia he returned to Greece, probably on 1 February 1999. The following day (2 February 1999) the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek Embassy and put up at the Greek Ambassador's residence. He lodged an application with the Greek Ambassador for political asylum in Greece, but never received a reply. 11. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed at Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. The announcement added that the Minister of Foreign Affairs had convened the Greek Ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the new arrival was not Mr Öcalan, on being pressed by the Kenyan authorities the Ambassador had gone on to acknowledge that he was. The Minister of Foreign Affairs had been informed by the Greek Ambassador that the authorities in Athens agreed to arrange for Mr Öcalan's departure from Kenya. The Kenyan Minister of Foreign Affairs also said that overseas Kenyan diplomatic missions had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan Government were surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek Ambassador's role in the events, the Kenyan Government said that they had serious reservations about his credibility and had requested his immediate recall. The Kenyan Minister of Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in his final destination. The Minister had not been informed of any operations by Turkish security forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish Governments on the subject. 12. On the final day of his stay in Nairobi, the applicant was informed by the Greek Ambassador after the latter had returned from a meeting with the Kenyan Minister of Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands was prepared to accept him. On 15 February 1999 Kenyan officials went to the Greek Embassy to take the applicant to the airport. The Greek Ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the Ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport the car in which the applicant was travelling left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m. 13. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice (“red notice”) had been circulated by Interpol. In each of those documents the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the State and of instigating various terrorist acts that had resulted in loss of life. From the moment of his arrest the applicant was accompanied by an army doctor throughout the flight from Kenya to Turkey. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons. 14. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed directly the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. The applicant was taken into custody at İmralı Prison on 16 February 1999. While being transferred from the airport in Turkey to İmralı Prison he wore a hood. On photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek Embassy in Nairobi. 15. From 16 February 1999 onwards the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed. 16. The judges and prosecutors, who were from the Ankara State Security Court, arrived on the island of İmralı on 21 February 1999. 17. According to the applicant, sixteen lawyers instructed by his family sought leave from the State Security Court on 22 February 1999 to see him. They were told orally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval. 18. As soon as the applicant was detained, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life. Likewise according to the Government, it was precisely for security reasons that lawyers were searched. 19. On 22 February 1999 the Public Prosecutor at the Ankara State Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK used violent methods against the civil population, in particular from 1987 onwards; he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted some of their pressure on the Kurdish population; some of them had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish Government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate; that the actual number might even be higher; and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services. 20. On 23 February 1999 the applicant appeared before a judge of the Ankara State Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the State Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him for final approval as founder and leader of the organisation. In 1973-78 the PKK's activities had been political. In 1977 and 1978 the PKK had organised armed attacks on the agalar (major landowners). In 1979, after the applicant had gone to Lebanon, the PKK had begun its paramilitary preparations. Since 1984 the PKK had carried on an armed struggle within Turkey. The persons in charge in each province decided on armed actions and the applicant had confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions. 21. On the day after he arrived in Turkey the applicant's Turkish lawyer, Mr Feridun Çelik, asked to visit his client. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers. 22. On 17 February 1999 the Turkish authorities at Istanbul Airport refused Ms Böhler, Ms Prakken and their partner Mr Koppen leave to enter Turkey to visit the applicant, on the ground that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) gave rise to the risk of prejudice to public order in Turkey. 23. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the State Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later. 24. During the preliminary investigation from 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve interviews with his lawyers. The dates and duration of those interviews were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour, 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour). 25. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits the applicant's contact with his lawyers was restricted to two visits a week, lasting an hour each. On each visit the lawyers were searched five times and required to fill in a very detailed questionnaire. Likewise according to the applicant, he and his advisers were not allowed to exchange documents or take notes during these interviews. The applicants' representatives were unable to give him either a copy of his case file (other than the indictment, which was notified by the prosecution) or any other material which would allow the applicant to prepare his defence. 26. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their length. Apart from the first visit, which took place under the supervision of a judge and members of the security forces who were present in the same room as the applicant and his lawyers, the interviews were held in accordance with the provisions of the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. Likewise according to the Government, no restrictions were placed on the applicant's correspondence. 27. In the meantime, on 2 March 1999 delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Turkish Government they indicated that the applicant was physically in good health and that he had said that he had not suffered any ill-treatment since his arrest. His cell was of a high standard. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically. 28. The last visit by the CPT delegates to İmralı Prison, of which the applicant is the sole inmate, took place during their visit to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. On the other hand, he received twice daily medical checks by doctors and was visited by his lawyers once a week. 29. According to the applicant, even before his trial began he was portrayed by a section of the media as a “baby-killer”. His statements made as an accused during the preliminary investigation were disclosed to the press even before they had been made available to his lawyers. 30. According to the Government, the media and journalists had shown avid interest in the Öcalan case and all sorts of comments were made as to whether or not the applicant should be found guilty. The applicant's lawyers brought an action against a journalist whom they considered to have libelled the applicant. 31. In an indictment submitted on 24 April 1999 (and joined to several others drawn up in the applicant's absence by various public prosecutors' offices between 1989 and 1998) the Public Prosecutor at the Ankara State Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code. 32. The case file ran to 17,000 pages and had been prepared by joining the files of seven sets of proceedings already instituted against the applicant by the various state security courts. The applicant's lawyers were given access to the case file and the indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had failed to place certain documents in it, such as those concerning the applicant's arrest in Kenya and transfer to Turkey. 33. The first two hearings held in Ankara on 24 and 30 March 1999 in the applicant's absence were taken up with procedural matters, such as third-party applications to intervene in the proceedings and the measures to be taken for the hearings to be held on the island of İmralı and for the attendance of the parties and the public at those hearings. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 are currently the subject of a criminal investigation. 34. The State Security Court, composed of two civilian and one military judge, held nine hearings on the island of İmralı from 31 May to 29 June 1999 and these were attended by the applicant. The applicant told the court, among other things, that he reiterated the statements he had made to the prosecutor and the judge. He confirmed that he was the most senior PKK agent, that he led the organisation and that he had instructed the members of the organisation to carry out a number of acts. He stated that he had not been ill-treated or insulted since his arrest. Furthermore, the applicant's representatives argued that the State Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction. 35. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and he promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been as a reaction to the Government's political pressure on that population. When circumstances had changed, he had altered his aim and limited his claims to autonomy or a recognition of the Kurds' cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy but disclaimed criminal liability for the acts of violence which went beyond the PKK's declared policy. In order to highlight the rapprochement between the PKK and the Government, he applied to have the Government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the State Security Court. 36. The applicant's lawyers' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the State Security Court on the ground that they were delaying tactics. 37. The applicant's lawyers complained to the State Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the State Security Court at the hearing on 1 June 1999. On 2 June 1999 the State Security Court ruled that the applicant was to be given access to the case file under the supervision of two staff members and that the applicant's lawyers were to be allowed to provide him with copies of documents from the case file. The lawyers did not appear at the hearing on 3 June 1999. At their request, the transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the State Security Court for having instilled an atmosphere of calm. 38. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant, pursuant to Article 125 of the Criminal Code. The applicant's advisers requested a one-month's adjournment to enable them to prepare their final submissions. The State Security Court granted them fifteen days, the statutory maximum allowed. 39. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution and excluded military members (whether of the bench or of the prosecutor's office) from state security courts. Similar amendments were made on 22 June 1999 to the Law on the State Security Courts. 40. At the hearing on 23 June 1999 the judge appointed to replace the military judge sat for the first time on the bench of the State Security Court. The State Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and that he had followed the proceedings from the outset and had attended the hearings. The applicant's counsel opposed the appointment of the non-military judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the State Security Court. 41. Also on 23 June 1999 the applicant's counsel set out the applicant's substantive defence to the charges. 42. On 29 June 1999, after hearing the applicant's final representations, the Ankara State Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death, pursuant to Article 125 of the Criminal Code. The State Security Court held that the applicant was the founder and principal leader of the unlawful organisation the PKK. The aim of the latter was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The court held that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard to, among other things, the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed. 43. The applicant appealed on points of law against that judgment, which, on account of the gravity of the sentence, was in any event subject to review by the Court of Cassation automatically. 44. In a judgment adopted on 22 November 1999 and delivered on 25 November the Court of Cassation affirmed the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again seeing that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara State Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction, among other reasons on security grounds. 45. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and chairman of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory which Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces and industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK) and a military wing (the ARNK), which operated under its control. Its income was derived mainly from “taxes”, “fines”, gifts, subscriptions and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groupings. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his men to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to translate words into deeds. As a result of the acts of violence carried out by the PKK from 1978 up until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings) 4,472 civilians, 3,874 soldiers, 247 policemen and 1,225 village guards had died. 46. The Court of Cassation held that the PKK, founded and led by the applicant, had represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused matched those which constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order that that provision should apply, for the applicant – the founder and chairman of the PKK and the instigator of the acts of violence committed by that organisation – to have used a weapon himself. 47. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war or for acts of terrorism. By Law no. 4771, which was published on 9 August 2002, the Turkish Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of an imminent threat of war) by amending the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. In a letter to the Court of 19 September 2002, the Government declared: “Abdullah Öcalan no longer faces the execution of the death penalty as finalised on 22 November 1999 by the judgment of the Turkish Court of Cassation”. By a judgment of 3 October 2002 the Ankara State Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant was accused had been committed in peacetime and constituted terrorist acts. The Nationalist Action Party (MHP, Milliyetçi Hareket Partisi), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002. On 9 October 2002 two trade unions – the Public-Sector Workers Union and the National Education Union (representing teachers) – which had intervened in the criminal proceedings on behalf of their deceased members, appealed on points of law against the judgment of 3 October 2002 by which the applicant's death sentence had been commuted to life imprisonment. They argued that the PKK's activities in south-east Turkey should be regarded as constituting “an imminent threat of war”. Those proceedings are still pending. 48. Before the Constitution was amended on 18 June 1999, Article 143 provided that State Security Courts were composed of a president, two other regular members and two substitute members. The President of the State Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges. 49. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides: “... State Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors. The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and public prosecutors of the first rank and public prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the National Legal Service Council, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable...” 50. The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the State Security Courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the State Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the State Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date. 51. Article 125 of the Turkish Criminal Code provides: “Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.” 52. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested or in respect of whom a prosecutor has made an order for him or her to remain in police custody may challenge the measure in question before the appropriate district judge and, if successful, be released. In proceedings in State Security Courts (governed by Law no. 2845 of 16 June 1983) Article 128 of the Code of Criminal Procedure applies only as it was worded before the amendments of 18 November 1992, when it did not provide any right of appeal to persons arrested or held in police custody on the orders of a prosecutor. 53. Section 1 of Law no. 466 on the Award of Compensation to Persons Arrested Unlawfully or Held in Detention without Due Cause 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 law; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” 54. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, without any need for the latter to have an authority to act. As regards the procedure in proceedings before the State Security Courts, Article 144 of the Code of Criminal Procedure is applicable only as worded prior to the amendments made on 18 November 1992. That version provides that a member of the state legal service may be present at meetings between the accused and his or her lawyer before the criminal proceedings have commenced. 55. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides: “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.” Protocol No. 6 has been ratified by forty-one of the forty-four member States of the Council of Europe and signed by all States, most recently on 15 January 2003 by Turkey. Only Turkey, Armenia and Russia have not yet ratified the Protocol. 56. Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads: “The member States of the Council of Europe signatory hereto, Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as 'the Convention'); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows...” Article 1 of Protocol No. 13 states: “The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.” In accordance with Article 7 of the Protocol it shall “enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Protocol.” 57. In Opinion No. 233 (2002) of the Parliamentary Assembly of the Council of Europe on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances the Assembly recalled: “... its most recent resolutions on the subject (Resolution 1187 (1999) on Europe: a death penalty free continent, and Resolution 1253 (2001) on the Abolition of the death penalty in Council of Europe Observer states), in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law” (paragraph 2). The Assembly further noted: “The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions” (paragraph 5). 58. Article X § 2 of the “Guidelines on Human Rights and the Fight Against Terrorism” issued by the Committee of Ministers of the Council of Europe on 15 July 2002 reads: “Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.” 59. By its Resolution 1984/50 of 25 May 1984 on Safeguards guaranteeing protection of the rights of those facing the death penalty, the Economic and Social Council of the United Nations set out a series of standards to be observed by States which retained capital punishment. Article 5 of the Resolution provides as follows: “Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.” 60. In a number of cases involving application of the death penalty, the United Nations Human Rights Committee observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant which delineates the circumstances when it is permissible to give effect to the death penalty. 61. In the case of Reid v. Jamaica (no. 250/1987), the Committee stated as follows: “[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.” 62. Similar observations were made by the Committee in the case of Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, U.N. Doc. Supp. no. 40, [A/38/40], at 134 [1983])) and Wright v. Jamaica (Communication no. 349/1989, U.N. Doc. CCPR/C/45/D/349/1989 [1992]). 63. In an Advisory Opinion on “The right to information on consular assistance in the framework of the guarantees of due process of law” (Advisory Opinion OC-16/99 of 1 October 1999) the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure with Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated: “134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that '[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to 'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. 135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life. 136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.” 64. In its Hilaire, Constantine and Benjamin et al v Trinidad and Tobago judgment of 21 June 2002, the Inter-American Court stated: “Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake” (at § 148). | 1 |
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