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train | 001-71343 | ENG | UKR | CHAMBER | 2,005 | CASE OF RUDENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1;Damage, costs and expenses - global award | null | 4. The applicant was born in 1951 and lives in the village of Kosharivka, the Kharkiv region, Ukraine. 5. In 2000 the applicant instituted proceedings in the Kupyansk Town Court against the Joint Stock Company “Kupyanskyi Liteinyi Zavod” (the “KLZ”), in which the State held about 41% of the share capital. She sought the recovery of salary arrears. On 18 December 2000 the court awarded her UAH 1,400 in salary arrears and other payments. 6. On 22 January 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of that judgment. 7. In 2001 the applicant filed an application with the labour disputes commission of the KLZ, seeking recovery of salary arrears. On 17 May 2001 the labour disputes commission allowed the applicant’s claims and ordered the KLZ to pay the applicant UAH 857 in arrears. On 23 May 2001 the commission issued a certificate in respect of its decision of 17 May 2001, which had the same status as a writ of execution issued by a court. 8. On 8 June 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of the commission’s decision. 9. In June 2001 the applicant instituted proceedings in Kupyansk City Court against the KLZ, seeking compensation for non-pecuniary damage. On 5 July 2001 the court found against the applicant. On 25 October 2001 the same court rejected the applicant’s request for leave to appeal for failure to comply with procedural formalities. The applicant did not appeal against this decision. 10. On 8 July 2002 the Bailiffs’ Service informed the applicant that the decisions of 18 December 2000 and 17 May 2001 could not be executed due to the large number of enforcement proceedings against the KLZ and the fact that the procedure for the forced sale of assets belonging to the debtor company had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Order of the President of Ukraine of 23 May 2001. 11. By two decisions of 28 January 2005, the Bailiffs’ Service discontinued the enforcement proceedings on the ground that the decisions had been enforced in full. 12. The applicant did not challenge these decisions of the Bailiffs’ Service before the domestic courts. 13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 18-22, 26 April 2005). | 1 |
train | 001-81994 | ENG | NOR | CHAMBER | 2,007 | CASE OF EKEBERG AND OTHERS v. NORWAY | 2 | Violation of Art. 6-1 (one applicant);No violation of Art. 6-1 (other applicants);No violation of Art. 6-1 | Christos Rozakis | 7. All the applicants, but the fifth, were members of a motor cycle club named “Screwdrivers”, which was based in Hamar and was, at the time of the events giving rise to the proceedings described below, the “Hang-Around Club” of the Hells Angels. On 8 November 1997 it became a Prospect Club of the latter and, as from 8 May 1999, a “Chapter”. The fifth applicant was a member of Hells Angels in Oslo. 8. On 18 March 2002 the applicants, along with two other defendants, B. and M., were indicted (count I) under Article 148 (1) (second alternative) of the Penal Code for having instigated fire or explosion capable of causing loss of human life and extensive material damage and resulting in death, or for aiding and abetting in this. On Wednesday, 4 June 1997 at around 11.45 pm in Drammen, they had, after having planned the operation, blown up parts of the club house in 25, Konnerud Street, of another motor cycle club, named Bandidos. A Volkswagen Transporter had been placed in the latter's courtyard, loaded with explosives that were detonated. The force of the explosion had been such that metal and rubber parts of the vehicle had hit and killed the driver of a passing car. The building in question had in part subsided and a massive fire had broken out, putting at risk the lives of three persons inside the building. The building had burned down to the ground and a neighbouring property had been severely damaged, several vehicles had been totally or largely destroyed. The total damage had amounted to at least NOK 2,000,000. Moreover, the applicants were indicted (count II) under Article 161(1) and (2) for the acquisition, confection or storage of explosives, or for aiding or abetting thereto, with the knowledge that the explosives had been intended to be used for the commission of the offence described under count I above, during the period before 4 June 1997. Furthermore, the applicants were indicted (count III) under Articles 291 and 292 for aggravated offences of serious material damage in respect of 25, Konnerud Street and a number of properties adjacent to or in the vicinity thereof, amounting to NOK 285,386,387 (approximately EUR 40 million). 9. By a judgment of 10 June 2002, the Drammen City Court (tingrett) acquitted the first, second and third applicants of counts I and II but convicted them of count III and sentenced each of them to 3 years' imprisonment. The fourth applicant was acquitted of count II but convicted of counts I and III and sentenced to 8 years' imprisonment. For each of them the time spent in pre-trial detention was to be deducted. The fifth applicant was acquitted of all the charges. 10. The two co-defendants, B. and M., were convicted of all the charges and were sentenced respectively to 10 and 5 years' imprisonment. 11. On 1 July 2002 the Borgarting High Court (lagmannsrett), sitting with three judges, including Judge G., rejected an appeal by the fourth applicant against a decision of 10 June 2002 by the City Court to prolong his provisional detention. The decision included the following reasons: “The City Court has ordered detention of [the fourth applicant] on the ground of danger of evasion, see Article 171 (1) no. 1 of the Code of Criminal Procedure, and the defence counsel's first supporting letter concerned imprisonment on this ground. The High Court found it correct to assess whether there were grounds for imprisonment on the basis of law enforcement considerations pursuant to Article 172, and notified the defence counsel and prosecutor of this by telephone. The defence counsel's second supporting letter concerns this issue. According to the City Court's convicting judgment, the basic condition for remanding the prisoner in custody pursuant to Article 171 (1) [...] on ground of reasonable suspicion has been fulfilled. The High Court does not find it necessary to consider whether the danger of evasion ought to lead to imprisonment, but points out that if [the fourth applicant] does not attend court for the hearing of the appeal, his conviction will remain in force. This, and his personal circumstances as described by the defence counsel, are factors which indicate that the danger of evasion is not sufficiently great. The defence counsel has stated that the basic condition for imprisonment pursuant to Article 172 [...], namely the existence of factors which particularly strengthen the suspicion, has not been met and has alleged that the conviction is based on the statement of a co-defendant which is contradicted by other statements and evidence. The High Court bases its judgment, as in the Borgarting High Court's ruling of 28 June 2001 in the Orderud case (appeal case 01-02109) on the fact that when there is a convicting judgment, the qualified requirement of suspicion stated in Article 172 has usually been fulfilled. It is true that in that case this was not contested by the defence counsel, nor during the subsequent hearing by the Appeals Leave Committee of the Supreme Court (see Norsk Retstidende (“Rt”) 2001, page 940), but this is a matter the courts must consider of their own motion. In the High Court's opinion, there are no grounds for taking a different view in this case either. The basic condition stated in Article 172 is regarded as having been met. As regards the discretionary decision regarding whether imprisonment under Article 172 should take place, the High Court refers to the extensive discussions in the case mentioned above. The present case was widely covered by the media just after the explosion, regularly during the subsequent period, and later in connection with the arrest and the City Court proceedings. It appears from the judgment that this was a planned crime, within the meaning of section 148 of the Penal Code, organised by several persons where a passer-by lost her life. The explosion took place in a town and could easily have led to the loss of more lives. Damage amounting to great sums was caused. The City Court based its ruling on the fact that the matter arose out of rivalry between two Motor Cyclist milieus. The High Court adds, as a factor when assessing the case pursuant to Article 172, that this rivalry in Nordic countries has led to a number of violent confrontations, including several deaths. This case is undoubtedly likely to cause such a reaction among the general public as Article 172 is intended to counteract and must be said to lie in the core area for the application of this provision. On the basis of an overall assessment, the High Court has found that the law enforcement considerations which form the basis of Article 172 are so prominent here that the accused should remain in prison also after judgment. The accused's personal and family circumstances pointed out by the defence counsel cannot be given sufficient weight in the opposite direction, and continued imprisonment cannot be said to be a disproportionate measure under Article 170A. The decisions by the Appeals Leave Committee of the Supreme Court to which the defence counsel has referred – reported in Rt 1994, page 88, Rt 1998, page 470, Rt 1999, page 2102, and Rt 2000, page 1136 - cannot lead to any different result. The High Court has also considered decisions included in Rt 2000, page 371, page 1664 and page 1905. Unless it is of importance for the decision regarding whether or not the accused is to be released, especially in relation to the consideration of proportionality, where the accused is placed during the remand period is outside the High Court's control. The regime he is now subject to is found to be of no importance to the High Court's assessment.” 12. The first, second and third applicants appealed to the High Court against the City Court's assessment of facts concerning the question of guilt and the application of the law with respect to count III. The fourth applicant appealed against the assessment of facts concerning the question of guilt, the application of the law and sentencing with regard to counts I and III. The prosecution appealed against the acquittals of the first, second and third applicants on count II and that of the fifth applicant's acquittal on counts I and III. M did not appeal whereas B only pursued an appeal against the sentence which the High Court dismissed by a separate decision of 5 February 2003. 13. As for the appeal brought by the applicants, the High Court held an oral hearing between 24 February and 21 March 2003. The High Court was sitting with a jury of 11 members (reduced to 10 on the fifth day as one of the jury members was disqualified, see below) and with 3 professional judges, one of whom was Judge G. In the questions put to the jury the offences were described in the way set out in the indictment. The jury answered all the questions in the affirmative, except for one regarding count II with respect to the fourth applicant. The professional judges decided to pass judgment on the basis of the jury's verdict (Article 376B, first section, of the Code or Criminal Procedure) and, by a judgment of 24 March 2003, convicted all five applicants on counts I and III. 14. Thereafter, the High Court, composed of the three professional judges, the jury chairperson and three other jurors drawn by lots among the jury (Article 376E of the Code or Criminal Procedure), unanimously sentenced the first, second and third applicants to 6 years' imprisonment and the fourth and fifth applicants to 12 and 16 years, respectively. For each applicant, the number of days spent in provisional detention was to be deducted from the sentence. Finally, the three professional judges awarded NOK 120,000 in compensation for non-pecuniary damage to the husband of the woman killed by the explosion. The issue of compensation for pecuniary damage was postponed. 15. The applicants all appealed to the Supreme Court against the High Court procedure and the sentences. As regards the former appeal ground they all argued that they had not been afforded an impartial hearing before the High Court. 16. Firstly, they argued that Judge G. had taken part in the High Court decision of 1 July 2002 rejecting an appeal against a prolongation by the City Court of the fourth applicant's provisional detention. Unlike the City Court, which had applied the ordinary grounds for such detention in Article 171 of the Code of Criminal Procedure, the High Court had applied a special ground contained in Article 172, which authorised such detention, even if the ordinary grounds under Article 171 were not fulfilled, namely where it concerned an offence punishable by imprisonment for 10 years or more and provided that there was a confession or (as found here) other circumstances which strengthen particularly the suspicion (som i særlig grad styrker mistanken) against the defendant. The decision of 1 July 2002, it was argued, had also had implications for the other defendants. 17. Secondly, they submitted that on the fifth day of the trial hearing, after having taken part for four full hearing days, a member of the jury had stated that on 10 July 1997 she had made a witness statement to the police that related to the case. Her name had not been included on the list of witnesses. The High Court had then discharged the jury member in question and had continued the trial, despite a request by the defence to postpone it and to have the case tried by a differently composed court. 18. However, on 25 September 2003 the Supreme Court unanimously rejected both appeal grounds, on procedure and sentencing, subject to certain adjustments to the number of days to be deducted on account of provisional detention. The first voting judge, Mr Justice Støle, gave inter alia the following reasons: “(13) I will first deal with the allegation that High Court judge, Judge G., was disqualified. ... (14) From the outset, I find reason to point out that our rules of procedure for criminal cases in a High Court that sits with a jury are based on a distribution of functions. The decision regarding the question of guilt is the jury's alone, while the court proceedings are determined by the High Court's three professional judges. These decide on the issue of sentencing together with the jury's foreman and three members of the jury. In cases that are heard and ruled on in the first and second instance by a court sitting with professional judges and lay judges, the lay judges and professional judges have the same authority regarding all issues, which are decided on jointly. (15) Following the landmark judgment by the European Court of Human Rights on 24 May 1989 in the case Hauschildt v. Denmark (application no. 10486/83) regarding disqualification by reason of prejudice due to participation in decisions regarding remand in custody, there is extensive Supreme Court case law on this. In criminal cases which at first and second instance are heard and decided on by a court sitting with professional and lay judges, a professional judge who has previously taken part in a remand case in which imprisonment has been ordered under Article 172 of the Code of Criminal Procedure is regarded as being disqualified and shall therefore not take part in any subsequent main hearing to determine, inter alia, the question of the guilt of the same accused in the same body of cases. In Rt1996261, the Supreme Court has stated that the same applies to the presiding judge in a High Court case involving a jury. The first voting judge stated, on page 265, the following regarding the relationship to section 108 of the Administration of Courts Act: 'As regards the relationship with section 108 of the Administration of Courts Act, I would point out: Article 172 of the Code of Criminal Procedure stipulates that there must be a very strong probability that the accused is guilty, see the wording of the section according to which, in the serious crimes covered, there must be 'a confession or other circumstances that strengthen the suspicion to a particularly high degree'. This is clearly a stronger suspicion than the one which is sufficient pursuant to Article 171 of the Code of Criminal Procedure, which stipulates 'reasonable grounds' for suspicion.' (16) ... (17) In the above-mentioned judgment, the question of imprisonment was decided during the investigation and without a conviction by any court. In Rt-1996-925, the presiding judge of the High Court was, with dissenting votes, also regarded as being disqualified in a situation where the order to remand the accused in custody pursuant to Article 172 of the Code of Criminal Procedure had been made after there was a conviction by a first instance court. (18) In our case too, the relevant remand order had been made after a conviction by the court of first instance. But here the objection on the grounds of disqualification is not aimed at the presiding judge of the High Court, but at one of the other two professional judges who took part. It appears from what I have previously quoted from the first voting judge's vote in Rt-1996-261, that the emphasis was placed on the fact that the presiding judge in a jury case had a key function, with particular emphasis on his/her instructions to the jury, in which the evidence in the case was regularly reviewed. The question now is whether the other professional judges in a High Court that is convened with a jury are to be regarded as disqualified under section 108 of the Administration of Courts Act due to the fact that they have previously been involved in applying Article 172 of the Code of Criminal Procedure as a basis for imprisoning one or more of the accused in the same criminal case. (19) I find that there are insufficient grounds for regarding the other professional judges as being disqualified in such a situation, and refer to what I have already stated about the distribution of functions in criminal cases that are heard by a jury. It is for the presiding judge to give instructions to the jury, see Article 368 (2) of the Code of Criminal Procedure, and this is his responsibility alone. It is true that all the professional judges take part in the subsequent assessment of whether the jury's decision is to form the basis of the judgment, or in exceptional cases be set aside, see Articles 376A, 376B and 376C of the Code of Criminal Procedure. However, such a setting aside of decisions does not determine the question of guilt and is also so exceptional that, in my opinion, it cannot be given any significance worth mentioning in this context. (20) ... (21) My conclusion is thus that Judge G. of the High Court was not disqualified. (22) I will now deal with the allegation that the jury members were disqualified. The factual basis for this allegation is as follows: (23) W. went to the police at an early stage of the investigations, due to a newspaper article on 9 July 1997 which described, inter alia, the car that was used in the explosion. She believed she had seen such a car on two occasions at the Statoil petrol station on the E-18 near Lier toll station, on Saturday 30 May and on Wednesday 4 June 1997, when the explosion took place. She gave a statement regarding this to one of the detectives on Thursday 10 July 1997. When questioned by the police, she described three people she had seen both near the car and inside the shop, and stated she believed she had seen that one of them was carrying a black petrol can. She also stated what she believed she remembered of the car's licence number. (24) When the High Court's presiding judge discussed the impartiality rules with the jury members on the first day in court, on 24 February 2003, W. did not give any account of her previous statement to the police. She had not heard any more from the police and was not on the list of witnesses. The jury was constituted with 11 members, according to Article 355 (2) of the Code of Criminal Procedure. (25) After the hearing had been adjourned on 27 February 2003, juror W. contacted a policeman she knew and asked if she could sit on the jury even though she had been questioned by the police on one occasion. This question was then put to the public prosecutor, and the matter was made known to the High Court when it convened on 28 February 2003. Her statement to the police, which was given on 10 July 1997, was read out and the parties were given the opportunity to make a statement. The High Court thereafter ordered that W. was to withdraw from the jury, and stated: 'It has become known that jury member W. gave a statement to the police on 10 June [presumably July] 1997. She has not been called as a witness in the case, and her impartiality must be assessed under section 108 of the Courts Act. According to this provision, no one can be a jury member if there are special circumstances that may weaken confidence in the impartiality of the person concerned. All the defence counsel have petitioned for her to withdraw and have also stated that the entire jury is disqualified. The High Court finds that such special circumstances exist in this case. It bases its decision on the fact that the jury member reported to the police as a witness and told the police about her observations in close connection to the day of the explosion. Her observations are of such a nature that it can be questioned whether she is impartial in this case. However, the High Court does not find that the jury member may, by having possibly stated her observations to the other members of the jury, have influenced the other jury members so that they are disqualified. It must be assumed that the jury members will be able to disregard any information she may have told the jury, as they are assumed to be able to disregard other information on the case that has arisen outside the court room, for example in the media.' (26) After this, W. withdrew from the jury and the hearing continued with the remaining 10 jury members. (27) I agree with the High Court that W. was prejudiced. The question is then whether the other 10 members of the jury became prejudiced as a result of W. serving on the jury for the four first days of the hearing. (28) ... (29) ... (30) ... (31) ... (32) What is decisive for our case is therefore whether the aforementioned matter can be regarded as a procedural error that may be considered pursuant to the provision stated in Article 343 (1) of the Code of Criminal Procedure. The question here is whether W.'s presence as a member of the jury during the first four days of the hearing may have influenced the jury's verdict. (33) The defence counsel have alleged to the Supreme Court that the High Court has, in its reasons for regarding the other jury members as being impartial, incorrectly treated any information from W. on the same footing as information on the case that arose outside the court room, for example in the media. I agree that, when considering the impartiality issue, one cannot always treat these matters as being equal. The jury members will regularly be told by the presiding judge that, when deciding on the question of guilt, they must only place emphasis on what is stated as evidence in court, and that they must not discuss the case with third parties. There is no corresponding barrier to the jury members discussing the case among themselves – even continuously during the court hearing – and it is realistic to expect that this actually happens to a certain extent. (34) ... (35) When I nonetheless have decided that the jury members cannot be regarded as having been disqualified to serve as a result of jury member W.'s disqualification, I have placed decisive emphasis on the following: the statements that the foreperson of the jury and W. have given to the police for use in the Supreme Court do not provide any basis for assuming that she had given the other members of the jury factual information regarding her private knowledge of the case or in any other way influenced the others before she withdrew on 28 February 2003. I refer to the fact that W. was at no time called as a witness in the case, by either the prosecuting authority or the defendants. The prosecutor has stated to the Supreme Court that the observations she had told to the police on 10 July 1997 – including about parts of the vehicle in question's licence number – were clarified early on as being of no importance to the further investigation. (36) The jury foreperson has explained that the situation that arose after W. had withdrawn was discussed by the jury members and that they agreed that her participation during the first few days had not had any effect on the jury's verdict. (37) Accordingly, I cannot see that W.'s presence as a member of the jury during the introductory presentation of evidence in the first days of the hearing can be regarded as a procedural error to which Article 343 (1) of the Code of Criminal Procedure applies.” 19. Rules on the impartiality of judges and jurors are set out in sections 106 to 108 of the Administration of Courts Act (domstolloven - Law of 13 August 1915 no. 5). In the present case, the national courts relied in particular on section 108, which reads: Section 108 “Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken the confidence in his impartiality. This applies in particular if a party requests that he withdraws on this ground.” 20. The conditions for provisional detention were set out in Articles 171 and 172 of the Code of Criminal Procedure, the relevant parts of which provided: Article 171 “Any person who on reasonable ground is suspected of one or more acts which according to statute is or are punishable with more than 6 months' imprisonment, may be arrested if: 1) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautionary measures, 2) there is an immediate risk that he will spoil the evidence in the case, e.g. by removing clues or influencing witnesses or accomplices, 3) it is deemed to be necessary in order to prevent him from re-committing a criminal act punishable by ore than 6 months' imprisonment, 4) he himself has requested it for reasons that are found to be satisfactory. ...” Article 172 “When a person is suspected of a crime punishable by imprisonment for 10 years or more, or of an attempt to commit such a crime, or a criminal offence under Articles 228 (2), second alternative, see Article 232, Article 229 second alternative, see Article 232, or Article 229 third alternative, s/he may be arrested even if the conditions in Article 171 are not fulfilled, provided that s/he has made a confession or there are other circumstances which to a particularly high degree strengthen the suspicion. In the assessment emphasis shall be placed particularly on whether it would provoke the public's perceptions of justice or create insecurity if the suspect is at large. Any increase of the maximum penalty because of any repetition or concurrence of offences shall not be taken into account.” 21. The relationship between Article 172 of the Code of Criminal Procedure and section 108 of the Administration of Court Act was dealt with by the Norwegian Supreme Court in a landmark judgment reported in Rt 1996-261, several passages of which were quoted in the Supreme Court's judgment in the present case (see paragraph 18 above, paragraph (15) of the Supreme Court's judgment). In another part of the 1996 judgment, the Supreme Court took note of a Circular (G-140/89) issued by the Ministry of Justice informing the national courts about the Haushcildt judgment. It quoted inter alia the following statement, with respect to the High Court proceedings conducted without a jury: “A decision on detention on remand is normally taken by the district-or city court ... However, if the High Court has examined the question of detention on remand under Article 172, the same judge may not take part in the decision on the question of guilt under the main hearing.” 22. The following provisions of the Code of Criminal Procedure pertaining to jury trials are of relevance: Article 355 “... Before the hearing begins, the president of the court shall ascertain whether any of the jurors or their deputies are disqualified, cf. section 115 of the Courts of Justice Act.” Article 359 “The President of the court shall inform the members of the jury of the course of the court proceedings and of the jury's tasks and responsibility. He shall especially impress on the members of the jury that until the verdict of the jury has finally been pronounced, they must not have any discussion or contact with any person other than the court as regards the case, and that they must not without the permission of the President of the court leave the conference room after they have retired to answer the questions put to them.” Article 360 “The President of the court shall then ask the members of the jury: 'Do you affirm that you will pay close attention to the whole proceedings in the court and answer the questions that will be submitted to you as truthfully and justly as you can according to the law and the evidence in the case?' The members of the jury standing and each in turn shall answer: 'I do so affirm.' ...” Article 363 “After the production of evidence relating to the issue of guilt is completed, the prosecutor shall submit a draft of the questions to be put to the jury. Defence counsel shall be given an opportunity to comment on the said draft. When required, a short adjournment shall be granted in order to study the draft. The President of the court shall formulate the questions and submit them to the parties. If any of them raises any objection to the questions, the court shall decide the matter.” Article 368 “When the questions have been defined, the President of the court shall read them aloud. Each member of the jury shall receive a transcript of the questions. The President of the court shall sum up the evidence in the case and explain the questions and the legal principles applicable. The parties may request further explanation on specific points. They may also submit proposals concerning amendments to the questions. The parties may require that specially indicated parts of the explanation of the legal principles shall be entered in the court record. Any such application must be submitted before the jury has retired to consider its verdict, see Article 369.” Article 369 “The jury shall then retire to a secluded room to consider its verdict. The jury shall take with it the written list of questions signed by the President of the court. When retiring to consider its verdict the jury may take with it pictures, drawings, maps, and other objects that have been produced during the main hearing. The jury may also take with it written exhibits and other written evidence that has been produced when the court finds this appropriate. As a general rule, the jury should not be permitted to take with it statements previously made by the person indicted, witnesses or experts.” Article 370 “The foreperson of the jury shall be in charge of the jury's consideration of its verdict. If the jury finds that it needs further clarification of the questions, of the legal principles applicable, or of the procedure to be followed, or if it finds that the questions should be amended or that new questions be put, it shall return to the courtroom so that the President of the court may do what is required. The jury may summon the President of the court in order to receive guidance concerning the questions referred to in the first sentence. If it is to be decided whether the questions are to be amended or new questions put, the parties shall be given the opportunity to express their views.” Article 371 “When it has finished considering its verdict, the jury shall under the leadership of its foreperson vote on the individual questions in the order in which they are put. ...” Article 373 “After the voting the members of the jury shall return to their places in the courtroom. The foreperson shall rise and say: 'The jury has on its honour and in good conscience given the following answers to the questions that have been put.' He shall then read aloud the answers that have been given to each of the questions. The foreperson shall deliver the written list of questions and the signed answers to the court.” 23. Under Articles 376, 376A, 376B and 376C of the Code of Criminal Procedure, the professional judges shall pronounce judgment in accordance with the jury's verdict, unless they decide differently on the conditions set out in these provisions. The professional judges may set aside a jury verdict concluding with the indicted person being found not guilty, if they find that he is undoubtedly guilty (Article 376A) and may also set aside a “guilty” verdict, if they find that insufficient evidence has been produced (Article 376C). In both situations the case is tried anew by other judges in a composite court. Article 376C reads: Article 376C “If the jury's verdict is that the person indicted is guilty, but the court finds that insufficient evidence of his guilt has been produced, the court may decide that the case shall be retried before other judges. The provisions of Article 376A, first paragraph, final sentence, and second and third paragraphs, shall apply correspondingly.” | 1 |
train | 001-99033 | ENG | SWE | ADMISSIBILITY | 2,010 | GASHI v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra | The applicants, Mr Besim Gashi, Ms Sylvana Osmanis and their four children are Serbian nationals of Roma origin, born 1981, 1981, 2002, 2003, 2005 and 2007. It appears that the first applicant was born in Kosovo. The applicants currently live in Ryd, Sweden. s, may be summarised as follows. The applicant spouses and their two eldest children entered Sweden in September 2004 and requested asylum. In support of their application they maintained that, being Roma, they would be harassed and discriminated against upon return to Serbia. Their request was refused by the Migration Board (Migrationsverket) on 11 April 2005. The spouses re-applied and included their other two children, who were born in Sweden in 2005 and 2007. Their request was refused by the Migration Board on 29 June 2007 and this decision was upheld on appeal by the Migration Court (Migrationsdomstolen) on 13 July 2007. At some point, leave to appeal was refused by the Migration Appeal Court (Migrationsöverdomstolen). Their request was also refused by the Migration Board on 28 February 2008, and this decision was upheld on appeal by the Migration Court on 22 October 2008 and by the Migration Appeal Court on 26 November 2008. On 9 December 2008 the Migration Board refused to revoke the deportation order in respect of the first applicant. Originally, the applicants were to be deported to the then State Union of Serbia and Montenegro. On 28 May 2009 the Swedish Government informed the Court that the applicants had said that they were willing to cooperate in their return to Serbia. They had not, however, submitted any documents regarding their identity. They had visited the Embassy of Serbia in order to obtain travel documents, but Serbia is not prepared to receive them as it cannot find the applicants in its registers and the applicants have no identity papers which show that they are from Serbia. The enforcement of the expulsion order will therefore be turned over to the police. To sum up, it was not possible to be more exact as regards the destination to which the applicants would be deported, but the efforts will be focused on Serbia, unless the applicants show that some other country is prepared to receive them. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”). Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act). Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien's health status. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien's home country could constitute a reason for the grant of a residence permit. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). In the UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Individuals from Kosovo, 9 November 2009, the UN High Commissioner for Refugees states as follows: “III. Eligibility for International Protection All claims by asylum-seekers from Kosovo should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures. Some of the claims lodged by asylum-seekers from Kosovo may give rise to possible exclusion from refugee status. UNHCR considers that groups set out in this section face a particular risk of persecution or serious harm in Kosovo, including through cumulative discriminatory acts. This listing is not to be construed as exhaustive and is based on information available to the UNHCR at the time of writing. A. Main Groups at Risk 1. Serbs and Albanians in Minority Situations, and Roma Kosovo Serbs and Kosovo Albanians inhabiting areas where they are in the minority, and Kosovo Roma inhabiting any part of Kosovo, continue to face serious restrictions to their freedom of movement and the exercise of fundamental human rights, including serious societal and sometimes administrative discrimination that would limit in particular their ability to exercise their political, social and economic rights. Furthermore, there are reports of threats and physical violence perpetrated against these communities. The Ashkali and Egyptian minorities, due to their racial and ethnic characteristics, may be confused with Kosovo Roma. Similarly to the Kosovo Roma, the Ashkali and Egyptian minorities often lack identity papers and are therefore placed in difficult circumstances with regard to access to social services, health care and education. Asylum applications from members of these communities should be assessed carefully in order to evaluate whether there is a need for international protection, based on a risk of persecution on grounds of actual or perceived race or nationality.” | 0 |
train | 001-93159 | ENG | SRB | CHAMBER | 2,009 | CASE OF BODROZIC v. SERBIA | 3 | Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicant was born in 1970 and lives in Kikinda. 6. The applicant is a journalist and member of a political party. At the time of the impugned events, he was also the editor of the local weekly newspaper, Kikindske. 7. On 3 October 2003 the applicant published an article about a certain historian, J.P., entitled ‘The Floor is Given to the Fascist’ (‘Reč ima fašista’). In his article the applicant wrote: “J.P., a historian, who during the 1980s and 1990s... used to write kilometres of various insults and defamation concerning the opponents of Milošević and his... regime, has again come to the centre of public attention thanks to... the journalist of Novi Sad TV..., who had invited him as a guest on the show ‘Unbuttoned’. And J.P. would not have been himself (an idiot), if he had not used another opportunity to express his fascist-oriented points of view. This is how he, on a national TV channel..., stated that Baranja was under Croatian occupation and that Slovaks, Romanians and above all Hungarians in Vojvodina were colonists... According to [J.] P., there are no Croats in Vojvodina..., whereas the Hungarians are mainly Slavs... because they have ‘such nice Slavic faces’... In these three weeks following the show, many NGOs and individuals, as well as a few political parties, uttered their opinions.... [They] requested the Radio Broadcasting Council, relying on point 6 of its recommendation which provides... that ‘all broadcasters were under the obligation to respect... the provisions restraining hate speech’, to take appropriate measures against the [national] TV... The Minister of Culture and Media and other officials also reacted ... The latest news indicates that the Radio Broadcasting Agency has been collecting relevant information about the show... Meanwhile, J.P. must be gloating because he has managed once again to launch his twisted attitudes into the public domain. Following the changes of 5 October, this professional ‘long spitter’ was... appointed head of the Serbian History Archive... until recently, when the Government discharged him. He was then granted the opportunity in some tabloids ... to [criticise] the existing Government and the “non-existent nations”. ‘Unbuttoned’ was just the last episode of this activist... who will undoubtedly... contaminate our environment for a long time to come.” 8. On 10 October 2003 J.P. instituted private criminal proceedings for insult against the applicant in the Kikinda Municipal Court. 9. At the hearing held on 17 November 2003, the applicant stated that “he did not wish to settle the matter with the private prosecutor [J.P.] because he was a member of the fascist movement in Serbia”. On account of this statement, on 5 January 2004 J.P. instituted new private criminal proceedings for defamation against the applicant. 10. Territorial jurisdiction in the matter was subsequently transferred to the Zrenjanin Municipal Court, which decided to join the two cases. 11. The court scheduled a hearing for 15 April 2004, the summons for which was served on the applicant along with J.P.’s second criminal bill of indictment on 11 March 2004. The applicant did not attend the hearing. 12. The court scheduled the next hearing for 23 September 2004, for which the applicant received the summons on 24 June 2004. He again failed to appear in court. 13. The applicant submits that none of those court summons were served on him properly, since they had been sent to the address of the newspaper, where he was no longer employed. However, he appears to have personally signed acknowledgments of receipt forms for both summons. 14. At the next main hearing on 15 December 2004, the applicant was escorted to court by the police. His lawyer met him in the court building and made a request to the judge for a postponement of the hearing with a view to acquainting himself with the charges at issue. 15. The presiding judge granted the applicant and his lawyer 30 minutes to prepare the applicant’s defence. After 20 minutes the applicant’s lawyer stated that they were ready for the hearing. 16. The court held the main hearing and gave judgment that same day, finding the applicant guilty of insult for the published article and of defamation for the statement given at the court hearing of 17 November 2003. The court fined the applicant 15,000 Serbian dinars (RSD, approximately 162 euros (EUR)), and ordered him to pay J.P. another RSD 20,700 (approximately EUR 225) in respect of the costs of the proceedings. 17. In its judgment the Zrenjanin Municipal Court held, inter alia, that describing someone as a “fascist” was offensive, given the historical connotations of that expression “representing tragedy and evil”. The court rejected the applicant’s argument that he was merely expressing his own political views, since forming fascist political parties or movements was illegal under domestic law. The applicant had consequently failed to respect the human dignity of J.P. If he had felt personally offended by any of J.P.’s statements made on the television programme or elsewhere, the applicant should have sought appropriate judicial relief. 18. On an appeal by the applicant, on 9 March 2005 the Zrenjanin District Court upheld the first-instance judgment. The court concluded that J.P.’s statements were a product of his expert findings as a historian. Since the word “fascism” meant the extinction of people based on their nationality and/or religion, this had clearly not been the object of J.P.’s statements. The applicant’s article had thus the sole aim of insulting J.P. by using this term and additionally calling him “an idiot”. 19. The second-instance court further found the applicant’s allegations of improper summoning and an inability to prepare his defence ill-founded, establishing that he had been duly summoned twice but had failed to appear in court. Moreover, at the hearing on 15 December 2004 the applicant and his lawyer had been given the opportunity to consult and prepare his defence, and they had stated after 20 minutes that they were ready for the hearing. 20. It appears that J.P. instituted another set of proceedings against the applicant – a civil claim for compensation for non-pecuniary damage – and that the domestic courts ordered the applicant to pay him compensation in the sum of RSD 50,000 (approximately EUR 540). However, the applicant did not include these proceedings in his complaints raised before the Court. 21. The relevant provisions of the Criminal Code of the Republic of Serbia (Krivični zakon Republike Srbije; published in the Official Gazette of the Republic of Serbia - OG RS - nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) provide as follows: “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months.” “1. Whoever insults another shall be fined or punished by imprisonment not exceeding three months. 2. Whoever commits an act described in [the above] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding six months.” “1. ... [no one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage. 2. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” 22. The relevant provisions of the General Criminal Code (Osnovni krivični zakon; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94, 61/01 and OG RS no. 39/03) provide as follows: “...3. If the fine cannot be collected, the court shall order a day of imprisonment for each 200 dinars of the fine, providing that the overall term of imprisonment does not exceed six months. 4. If the convicted person pays only a part of the fine [imposed], the rest shall ... be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his imprisonment shall be discontinued.” 23. The relevant provisions of the Criminal Procedure Code (Zakonik o krivičnom postupku, published in OG FRY nos. 70/01, 68/02 and 58/04) provide as follows: “Documents which need to be served in person pursuant to the provisions of this Code shall be served directly on the addressee. If the person to be served cannot be reached at the place where the service is to be effected, the process server shall inquire when and where that person can be found and leave with one of the persons stated in Article 161 of this Code a written notice inviting the recipient to be in his flat or place of work on a specified date and hour for the purpose of receiving the document. If even after this the server of process does not find the addressee, he shall act in accordance with section 161 (1) of this Code and it shall be deemed that by such acts the document is served.” “1. A document which does not have to be served in person pursuant to the provisions of this Code shall also be served in person, but if the addressee is not found at his flat or place of work the documents can be served on any adult member of his household who is obliged to receive it. If no members of the addressee’s household are found in the flat, the document may be served on the housekeeper or a neighbour, if they accept it. If the service is attempted at the addressee’s place of work and he cannot be found there, service can be effected on a person authorised to receive mail therein, who is obliged to receive the document, or to any other employee, if he is willing to accept the service. 2. If it is established that the recipient is absent and that the persons from paragraph 1 of this section are unable to deliver the document to him in due time, it shall be returned with a notice containing information on the recipient’s whereabouts.” “The summons... for the main hearing shall be served on the defendant in person.” 24. Article 419 provides, inter alia, that the competent public prosecutor “may” (može) file a Request for the Protection of Legality (zahtev za zaštitu zakonitosti) against a “final judicial decision”, on behalf of or against the defendant, if the relevant substantive and/or procedural “law has been breached” (ako je povređen zakon). 25. On the basis of the above request, under Articles 420, 425 and 426, the Supreme Court may uphold the conviction at issue or reverse it. It may also quash the impugned judgment in its entirety, or in part, and order a retrial before the lower courts. If the Supreme Court finds, however, that there has been a violation of the law in favour of the defendant, it may declare this but leave the final judgment standing. 26. Under sections 199 and 200 of the Obligations Act (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93), inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 27. Section 13 of the Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime has been committed, as well as the criminal liability of the person convicted. 28. The relevant provisions concerning the Court of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). | 1 |
train | 001-88621 | ENG | GBR | ADMISSIBILITY | 2,008 | SMITH v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Brian Smith, is a British national who was born in 1941 and lives in Southshields. He was represented before the Court by Mr P. Durkin, an appeals tribunal representative in Southshields. 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 9 April 1998. In 2002, the applicant made a claim for widows’ benefits, namely Widow’s Payment and Widow’s Pension. On 13 June 2002 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 2 August 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-114080 | ENG | RUS | CHAMBER | 2,012 | CASE OF ZENTSOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The first applicant was born in 1982 and lives in Novosibirsk. The second applicant was born in 1982 and lives in Kazan. The third applicant was born in 1984 and lives in Roshal, Moscow Region. 6. The applicants are members of the National Bolsheviks Party. 7. On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor. 8. They asked for a meeting with the President, the deputy head of the President’s administration and the President’s economic adviser. They handed out leaflets through the windows featuring a printed letter to the President which listed ten ways in which he had allegedly failed to comply with the Constitution and which called for his resignation. 9. The intruders stayed in the office for an hour and a half until the police broke down the locked door and arrested them. They did not offer any resistance to the authorities. 10. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicants’ detention on the ground that they were suspected of an especially serious criminal offence. 11. The applicants were charged, on 21 December 2004, with the attempted violent overthrow of State power (Article 278 of the Criminal Code) and the intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 12. By separate decisions of 8, 9 and 11 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicants’ detention until 14 April 2005 on the basis of the gravity of the charges. The court also found that the second applicant had no registered place of residence in Moscow or the Moscow region, and therefore there was a possibility that she might abscond or interfere with the investigation. In respect of the third applicant the court held that his permanent place of residence in the Moscow region, ongoing studies at a university in Moscow, previously clean criminal record and good character references were insufficient to warrant his release, given the gravity of the charges laid against him. 13. On 16 February 2005 the applicants’ charge was amended to that of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code. 14. By separate but identically worded decisions of 7 April 2005 the District Court granted the prosecution’s request for an extension of the applicants’ detention until 14 July 2005, for the following reasons: “The court takes into account that the case involves forty defendants who have just started, together with their counsel, to study the case file which comprises twelve volumes ... Moreover, the prosecution needs additional time in order to prepare the bill of indictment ... Having regard to the fact that [the first and the second applicants] are not registered with a permanent place of residence in Moscow or the Moscow region and taking into account the gravity of the charges and the prosecutor’s arguments that [the applicants], once released, might flee from justice, the court considers that [the applicants] should remain in custody. ” 15. On appeal, counsel for the applicants asked for their release as they had no previous criminal record, had good character references and a permanent place of residence and were in employment or studying at the university. He further submitted that the applicants did not require much time to study the case file. At the appeal hearing before the Moscow City Court the applicants confirmed that they had finished studying the case file. 16. On 11 May 2005 the Moscow City Court upheld the decisions of 7 April 2005, finding that they had been lawful, sufficiently reasoned and justified. 17. The investigation was completed on 7 June 2005 and thirty-nine persons, including the applicants, were committed for trial. 18. On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and held that all the defendants should meanwhile remain in custody. 19. On 30 June 2005 the District Court held a preliminary hearing. It rejected the defendants’ requests for release, taking into account their character, young age, frail health, family situation and stable way of life. However, it found, referring to the gravity of the charges, that “the grounds on which the preventive measure [had been] previously imposed still persist[ed]” and that “the case file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all the defendants should remain in custody pending trial. 20. The applicants lodged applications for release. On 27 July 2005 the District Court rejected these requests, finding that their detention was lawful and justified. 21. On 10 August 2005 the applicants filed new applications for release. On the same day the District Court rejected the requests. It held: “The court takes into account the defence’s argument that an individual approach to each defendant’s situation is essential when deciding on the preventive measure. Examining the grounds on which ... the court ordered and extended the detention of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered on their behalf by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct the course of justice in some other way... In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant ...” 22. On 8 December 2005 the District Court found the applicants and their co-defendants guilty of participation in mass disorder. It gave each applicant a suspended sentence of three years and released them all on probation. 23. The first and third applicants were held in remand prison no. IZ-77/2 in Moscow. 24. The Government provided the following description of the conditions of detention in respect of the first and third applicants. 25. As regards the number of inmates sharing a cell with the first applicant, the Government relied on a number of excerpts from the prison population register in respect of fourteen days and the certificates prepared by the remand prison administration in April 2009. 26. As regards the number of inmates sharing a cell with the third applicant, the Government relied on a number of excerpts from the prison population register in respect of four days and the certificates prepared by the remand prison administration in April 2009. 27. According to the Government, the first and third applicants were each provided with their own bed and bedding, a mug, a dish and a spoon. 28. The lighting in the cells was in compliance with applicable standards. At night low-voltage bulbs were used to maintain lighting for surveillance purposes. The cells were serviced by a ventilation system in good working order. The inmates were allowed exercise for one hour per day in the prison yard. The cells were regularly disinfected. 29. The first and third applicants contested the Government’s submissions. According to them, the cells where they were detained were overcrowded at all times and infested with insects. The toilet had only been separated by a screen from the living area of the cell and did not offer any privacy. The applicants had been allowed to take a ten-minute shower once a week. The food was scarce and no medicine, other than aspirin and other analgesics, was available. The applicants had been permitted a walk for about an hour per day. The exercise yard was sheltered and measured 15 square metres in area. No books or newspapers had been available. 30. The second applicant was detained in remand prison no. IZ-77/6 in Moscow. According to the Government, she was held in cells nos. 202 and 204 which measured 131.1 and 131.3 square metres respectively. Cell no. 202 was equipped with forty-four beds and housed thirty-one inmates. Cell no. 204 was equipped with forty-two beds and housed from twentynine to thirty-two inmates. The second applicant had been provided with bed sheets, soap and personal hygiene products. The ventilation system in the cells had been in good working order. Additional access to fresh air was possible through the windows. The cells were disinfected once a month. 31. According to the second applicant, the cells were infested with cockroaches and crickets. The toilet was separated from the living area of the cell by a screen – one metre in height – which did not offer any privacy. She had been allowed to take a ten-minute shower once a week. The food was of poor quality. No books were available. The inmates received one periodical a month behind publication. 32. For a summary of the relevant domestic provisions governing conditions and length of pre-trial detention, see the cases of Dolgova v. Russia, no. 11886/05, §§ 26-31, 2 March 2006, and Lind v. Russia, no. 25664/05, §§ 47-52, 6 December 2007. | 1 |
train | 001-114666 | ENG | SVK | CHAMBER | 2,012 | CASE OF HARABIN v. SLOVAKIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria | 6. The applicant was born in 1957 and lives in Bratislava. 7. The applicant is a Supreme Court judge. He was the president of the Supreme Court between 1998 and 2003. Between July 2006 and June 2009 he was the Minister of Justice. Since 23 June 2009 he has again been the President of the Supreme Court. 8. The Supreme Court of the Slovak Republic has been entered in the official register of the Statistical Office as a budgetary organisation, its activity being justice and the judiciary. For the purpose of national accountkeeping it has been classified in the Statistical Register of Organisations as falling within the sector of central public administration. Its budget forms a separate chapter of the State budget in accordance with section 9(1)(f) of Law no. 523/2004 on Budgetary Rules in Public Administration (“the Public Administration (Budgetary Rules) Act 2004”). 9. Following the entry into force of the Audit Act 2001 (for further details see below), the Ministry of Finance carried out financial controls of the Supreme Court in 2004 and 2007. 10. Between 23 January 2009 and 27 April 2009 the Ministry of Finance carried out a governmental audit at the Supreme Court, focused on the use of public funds and efficiency of financial management during 2007, and on the manner in which the shortcomings identified during the previous financial control had been eliminated. On 16 April 2009 the preliminary report was submitted to the Supreme Court, then headed by its VicePresident. Subsequently, in September and October 2009 and March 2010 the Director of the Supreme Court submitted to the Ministry of Finance documents indicating what measures had been taken aimed at elimination of the shortcomings found, and how those measures had been implemented. The documents were signed by the applicant as President of the Supreme Court. 11. On 21 July 2010 the Minister of Finance instructed a group of auditors to carry out an audit at the Supreme Court pursuant to section 35a(1) of the Audit Act 2001. Its aim was to examine the use of public funds, efficiency of financial management, use of State property and to check on compliance with measures which had been indicated in the course of the preceding audit of 2009. 12. The applicant in his capacity as President of the Supreme Court did not allow the Ministry’s auditors to carry out the audit on 29 July 2010, or on 2, 3 and 4 August 2010. 13. On 2 August 2010 the applicant asked the President of the Supreme Audit Office (Najvyšší kontrolný úrad) to carry out a check on how public funds were administered and used by the Supreme Court. He referred to the above instruction of the Minister of Finance and to Constitutional Court judgment PL. 97/07. The reply he received, dated 27 August 2010, stated that the Constitution guaranteed the independence of the Supreme Audit Office, and that it had no spare capacity for additional supervisory activities in 2010. 14. By letters dated 3 and 6 August 2010 the applicant informed the Minister of Finance that Ministry of Finance auditors lacked the power to carry out the audit. The applicant argued that it was the Supreme Audit Office which had the authority to supervise the administration of public funds by the Supreme Court. 15. On 11 August 2010 the Ministry of Finance issued a decision fining the applicant 995.81 euros (EUR), on the ground that by refusing the audit he had failed to comply with his obligations under the Audit Act 2001. The applicant lodged an objection. On 29 September 2010 the Minister of Finance decided to discontinue the proceedings, on the ground that his ministry lacked the power to sanction the applicant as a judge. 16. In parallel, by a decision issued on 11 August 2010, the Ministry of Finance fined the Supreme Court EUR 33,193.91 for failure to comply with its obligations under the Audit Act 2001. On 29 September 2010 the Minister of Finance dismissed the objection to the decision on the fine lodged by the Supreme Court. 17. On 18 January 2011 the Bratislava Regional Court quashed the above two decisions and returned the case to the Ministry of Finance. It held that the Supreme Court was the highest body within the ordinary judiciary, and that it did not engage in public administration. The relevant provisions of the Audit Act 2001 did not extend to it. Public funds administered by the Supreme Court formed a part of the budget approved by Parliament. Monitoring of the use of those funds lay therefore with the Supreme Audit Office. On 28 April 2011 the Supreme Court upheld the first-instance judgment. 18. In July and December 2011 the Supreme Court did not allow the Ministry of Finance to carry out an audit. Reference was made to the aforesaid judgments of the ordinary courts. On 27 February 2012 the Ministry of Finance fined the Supreme Court EUR 33,193.91 on that account. Reference was made, inter alia, to Constitutional Court decision PL. ÚS 92/2011 of 29 June 2011 (for further details see below). 19. On 23 April 2012, following a parliamentary election, the newly appointed Minister of Finance, upon the advice of a special commission, allowed the Supreme Court’s objection and quashed the fine of 27 February 2012. The Minister’s decision referred to the judgments of the Bratislava Regional Court and the Supreme Court, which were considered binding. The Constitutional Court proceedings, filed as PL. ÚS 92/2011, concerned a different issue, namely establishing whether the President of the Supreme Court had committed a disciplinary offence. The Constitutional Court’s decision in those proceedings had no legal effect on the judgments of the Regional Court or Supreme Court. 20. From 2 February to 26 April 2012 the Supreme Audit Office carried out an audit at the Supreme Court, focused on financial management under the corresponding chapter of the State budget and the closing accounts for 2011. 21. On 18 November 2010 the Minister of Justice initiated disciplinary proceedings against the applicant before the Constitutional Court. She did so upon a submission by the Minister of Finance and also following a notification by a police investigator who had dismissed the latter’s criminal complaint against the applicant, while holding that the applicant’s conduct might be qualified as a disciplinary offence. 22. The submission indicated that the applicant had four times prevented a group of auditors from the Ministry of Finance from carrying out an audit at the Supreme Court in July and August 2010. The audit had been focused on use of public funds and other State property, efficiency of financial management, and elimination of the shortcomings which had been identified in the previous audit by Ministry of Finance auditors in 2009. It was proposed that the applicant should be sanctioned by a reduction of his yearly salary by 70%, as by preventing the audit from taking place he had committed a serious disciplinary offence. 23. On 16 March 2011 the applicant submitted arguments in writing. He maintained that he had acted in conformity with the law and the Constitution, as the relevant law could not be interpreted as allowing the Ministry of Finance to carry out an audit of the Supreme Court. The applicant submitted detailed arguments in support of that view. In particular, he submitted that the Supreme Court functioned on the basis of a budget approved by the Parliament. Responsibility for audit of the use of those funds lay with the Supreme Audit Office. Governmental audit and other measures had no legal basis and were contrary to the principle of independence of the judiciary. The Supreme Court was neither a public administration body nor a central authority within the meaning of the relevant provisions of the Audit Act 2001. The applicant also relied on the Venice Commission Report on the Independence of the Judicial System and on Constitutional Court decision PL. ÚS 97/07 of 20 September 2007. 24. The differing views as to which body was entitled to carry out the audit at the Supreme Court concerned interpretation of the relevant law. The applicant expressed the view that the Ministry of Finance and the Ministry of Justice had attempted to cast doubt on the management of public funds which had been allocated to the Supreme Court in a separate chapter of the State budget, with a view to undermining the economic independence of that court. The disciplinary proceedings initiated against the applicant pursued the aim of sanctioning him for his opinions on the law. 25. On 17 March 2011 the Minister of Justice challenged three constitutional judges for bias, on the ground that they had had a personal relationship with the applicant for several years and that they had been nominated to posts in the judiciary and public administration by the same political party. She pointed out that there had been earlier decisions in which two of those judges had been excluded for similar reasons. 26. On 5 April 2011 the applicant challenged four different constitutional judges for bias. In particular, he argued that Judge G. had made negative statements about the applicant’s professional skills in the context of the election of the President of the Supreme Court. The applicant noted that there had been statements in decision II. ÚS 5/03 of 19 February 2003. That decision had been given by a chamber of the Constitutional Court which included Judge G. 27. As regards Judge O., the applicant submitted that he had made several negative statements in the media about the applicant. Thus in 2000 that judge had stated, at the time as chairman of a parliamentary committee, that the way the applicant had acted as President of the Supreme Court was such that the interest of the judiciary would be best served by replacing him. In a different statement Mr O. had indicated that the applicant could be removed under the law in force and in compliance with the Constitution. In different proceedings involving the applicant a chamber of the Constitutional Court had excluded Judge O. (decision I. ÚS 352/2010 of 20 October 2010). 28. The applicant further objected that Judge L. was a member of the same chamber to which Judges G. and O. belonged. Their relations were not neutral. 29. Finally, Judge H. had been convicted of a criminal offence, that of failure to pay tax, and had ignored the document of 31 December 2007 in which the Constitutional Court (in plenary session) had invited him to consider his position as a constitutional judge. The applicant had criticised Judge H. on several occasions earlier on that ground. He therefore feared that that judge would lack impartiality in his respect. 30. In reply to the applicant’s objection all the judges stated that they did not consider themselves biased. Judge G. indicated that the decision on which the applicant relied contained no statements about his professional skills and that she had never made any such statements personally. Judge O. stated that his involvement in different proceedings concerning the applicant was not a relevant reason for his exclusion. Judge L. considered irrelevant the applicant’s argument based on the fact that he belonged to the same chamber as Judges G. and O. Judge H. rejected the applicant’s objection concerning his standing to act as a constitutional judge as unsubstantiated. He acknowledged that the applicant enjoyed freedom of expression, which included the freedom to make critical remarks about constitutional judges. Such criticism did not affect the ability of Judge H. to carry out his duties in an impartial manner. 31. On 10 May 2011 the Constitutional Court found that the seven judges challenged by the parties were not excluded from dealing with the case. The fact that four of those judges (including Judges O. and H.) had earlier been excluded from other sets of proceedings involving the applicant could not affect the position. The Constitutional Court had found in particular that the determination of the disciplinary offence allegedly committed by the applicant was within the exclusive jurisdiction of its plenary session. Excessive formalism and overlooking the statements of the individual judges posed the risk that the proceedings would be rendered ineffective. Examination of the case by a plenary session of the Constitutional Court represented a guarantee that constitutional principles, including independence, would be respected. Furthermore, all the constitutional judges had pledged to decide cases independently and impartially, to the best of their abilities and conscience. 32. On 10 May 2011 the Constitutional Court declared the Ministry of Justice representation admissible. 33. On 13 June 2011 the applicant again challenged the constitutional judge, H. He argued that the Constitutional Court had excluded that judge in different proceedings, in which the applicant had been involved as President of the Supreme Court (III. ÚS 257/11). 34. The applicant further challenged the Minister’s standing to initiate disciplinary proceedings against him. He relied on the Bratislava Regional Court judgment of 18 January 2011 and the Supreme Court judgment of 28 April 2011 (see paragraph 17 above), and argued that he had not acted in a manner contrary to the law. 35. On 15 June 2011 the Constitutional Court heard the parties and two witnesses. 36. On 29 June 2011 the Constitutional Court (plenary session in which all thirteen judges took part) found the applicant guilty of a serious disciplinary offence (závažné disciplinárne previnenie) under section 116(2)(c) of the Judges and Assessors Act 2000. In particular, the applicant had failed to comply duly, conscientiously and in timely fashion with his obligations relating to court administration as laid down in section 42(2)(a) of the Courts Act 2004 and section 14(2)(a) in conjunction with section 35d(7) of the Audit Act 2001, in that he had four times prevented a group of auditors of the Ministry of Finance from carrying out an audit at the Supreme Court in July and August 2010. 37. The Constitutional Court imposed a disciplinary sanction on the applicant under section 117(5)(b) of the Judges and Assessors Act 2000, which consisted of a 70% reduction of his annual salary. The applicant indicated that that sanction corresponded to EUR 51,299.96. 38. In the reasons for its decision the Constitutional Court referred to its decision PL. ÚS 97/07 of 26 September 2007 and examined the case from the point of view of the principles of independence of the judiciary, independence of judges, and separation of powers. 39. It held that any external audit in respect of the judicial branch of power had to be limited. Any such audit must have an unequivocal legal basis and a clearly defined scope. Those criteria had been met in the case under consideration. 40. In particular, the Constitutional Court referred to sections 2(2) and 35a(1) of the Audit Act 2001, and noted that the Slovak Statistical Office had entered the Supreme Court in the register of public administration bodies. That register had been established in accordance with rules applicable within the European Union pursuant to Council Regulation (EC) No. 2223/96. As an organisation using public funds the Supreme Court was therefore to be considered a public administration body within the meaning of section 2(2)(c) of the Audit Act 2001. At the same time, it was a central authority within the meaning of section 2(2)(p) of the Audit Act 2001, as it administered part of the State budget. 41. These matters did not affect the position of the Supreme Court as the highest judicial authority within the system of ordinary courts. The Supreme Court’s independence in that respect was ensured by constitutional and other legal rules, irrespective of how it was financed. The way the Supreme Court was financed and subsequent monitoring of how it used public funds did not therefore affect its independence as a judicial authority. 42. The position of the Supreme Court as regards its administration and functioning was similar to that of other legal persons using public funds. The audit which the Ministry of Finance had intended to carry out did not therefore threaten the judicial independence of the Supreme Court, as it exclusively related to the way public monies had been spent and how State property was administered, including audit of the elimination of the shortcomings which had been identified in the course of the previous audit, in 2009. 43. The Constitutional Court considered it irrelevant that the ordinary courts were of a different legal opinion as to the power of the Ministry of Finance to carry out an audit, and that they had quashed the decision by which the Minister of Finance had imposed a fine on the Supreme Court. 44. In accordance with section 32(3) of the Constitutional Court Act 1993, the decision was taken by a secret vote. It indicated that for that reason judges’ separate opinions would not be attached to it. 45. In respect of the above proceedings the applicant further submitted that one of the constitutional judges who had found him guilty of a serious disciplinary offence, Mr K., lacked impartiality. That judge had been an unsuccessful candidate in the election in which the applicant had been elected President of the Supreme Court. Mr K. had subsequently challenged that election before the Constitutional Court. The applicant had not challenged Judge K., as he had expected that the latter would withdraw, as he had in several other constitutional proceedings to which the applicant was or had been a party. 46. In 2006, following a submission by two former employees of the Supreme Court, the applicant, in his capacity as Minister of Justice, ordered the Ministry of Justice to conduct a check of how the Supreme Court was complying with the legislation and regulations governing civil servants. The applicant initiated disciplinary proceedings against the then President of the Supreme Court, who had refused to allow the check to be conducted. The Constitutional Court discharged the President of the Supreme Court in proceedings filed as PL ÚS 97/07 (see paragraphs 94-98 below). 47. In addition to the above submission of 18 November 2010 the then Minister of Justice made three other representations in which she asked the Constitutional Court to find the applicant guilty of serious disciplinary offences. 48. In the representation dated 25 November 2010 it was imputed to the applicant that he had failed to ensure the allocation of cases to judges within the Supreme Court by means of random assignment. On 11 May 2011 the Constitutional Court declared the representation admissible (proceedings PL. ÚS 93/2011). It dismissed the Minister’s and the applicant’s requests for exclusion of constitutional judges on the basis of the same facts as in the disciplinary proceedings relating to the present case. The proceedings were stayed on 14 December 2011 pending the outcome of the proceedings before the Court on the present application. 49. In her representation of 28 November 2011 the Minister of Justice imputed serious disciplinary offences to the applicant on six counts. They related to allocation of cases to judges. The Minister relied, inter alia, on the Constitutional Court’s finding of 18 October 2011, concluding that a party’s right to a hearing by a tribunal established by law had been breached as a result of a change in Supreme Court judges. 50. In the context of the proceedings on that representation (PL. ÚS 116/2011) the Minister of Justice challenged three judges for bias. The applicant raised a similar objection in respect of five different judges. On 14 December 2011 the Constitutional Court excluded two of the judges challenged by the Minister of Justice and one of the judges challenged by the applicant (Judge H.). Those judges had been excluded earlier, in different sets of proceedings, because of their relationship with the applicant or their attitude towards him. It further dismissed the applicant’s request for exclusion of Judges K. and O., as no majority had been reached in the vote. Finally, it held that the other three judges challenged by the parties had not been shown to lack impartiality. The decision indicated that several constitutional judges had criticised the decision taken in proceedings file no. PL. ÚS 92/2011 not to exclude any of the judges challenged by the parties. The view was expressed that although the four judges who had been found to lack impartiality in earlier sets of proceedings due to their relation to or attitude towards the applicant were excluded from the proceedings filed as PL. ÚS 116/2011, the plenary session of the Constitutional Court would still have enough judges to decide on the Minister’s representation of 28 November 2011. Six judges joined dissenting opinions to that decision. On 11 April 2012 the Constitutional Court decided that it was not appropriate to stay the proceedings filed as PL. ÚS 116/2011. 51. On 3 August 2011 the Minister of Justice initiated a new set of disciplinary proceedings, on the ground that the applicant had failed to lodge an appeal in the civil proceedings in which the first-instance court had ordered the Supreme Court, as the authority representing the State who was the defendant, to pay compensation for non-pecuniary damage to the plaintiffs, amounting to one million euros (proceedings filed as PL. ÚS 6/2012). On 11 April 2012 the Constitutional Court, in a similar decision to that of 14 February 2011 in proceedings filed as PL. ÚS 116/2011, excluded Judge H. and two other judges, dismissed the applicant’s request for exclusion of Judges K. and O., and held that the three other judges challenged did not lack impartiality. On 25 April 2012 the Constitutional Court admitted the Minister’s representation and dismissed the applicant’s request for the proceedings to be stayed. 52. The applicant further submitted a compilation of media articles and transcripts of broadcasts covering the period from 30 July 2010 to 19 June 2011. It is 101 pages long and relates mainly to the differences of opinion as to what authority should carry out the audit of the Supreme Court and the ensuing disciplinary proceedings against the applicant, including statements by the Minister of Finance and the Minister of Justice. 53. In particular, the applicant indicates a press conference on 18 November 2010 at which the Minister of Justice stated that she had initiated disciplinary proceedings, as she considered that by not allowing the auditors to carry out their task the applicant had acted contrary to the law. The Minister was persuaded that such an audit would not in any way undermine the Supreme Court’s independence. The audit concerned exclusively the use of public funds, and the applicant’s position cast serious doubt on the trustworthiness and functioning of the judiciary as a whole. The Minister of Justice stated that she had made the representation on the initiative of the Minister of Finance and also on the basis of information she had obtained from the files of the Anti-Corruption Office. Two articles published on 4 August 2011 quoted the statement “I consider that [the applicant] has committed a serious disciplinary offence” which the Minister of Justice had made when commenting on the representation she had made relating to the applicant’s failure to appeal against a first-instance judgment. 54. Pursuant to Article 124, the Constitutional Court is an independent judicial authority authorised to protect compliance with the Constitution. It comprises thirteen judges (Article 134). No remedy lies against its decisions (Article 133). 55. Article 136 § 3 entitles the Constitutional Court to carry out disciplinary proceedings against the President and Vice-President of the Supreme Court and the General Prosecutor. Article 131 § 1 lists such proceedings among those where the Constitutional Court decides at a plenary session. 56. Pursuant to Article 141a § 1, the President of the Supreme Court presides over the Judicial Council of the Slovak Republic. 57. Pursuant to Article 145 § 3, the President and Vice-President of the Supreme Court are appointed by the President of the Slovak Republic from among the Supreme Court judges proposed by the Judicial Council. 58. Under Article 147 § 1 the President of the Slovak Republic has to remove a judge upon the Judicial Council’s proposal, inter alia, on the basis of a decision by a disciplinary chamber that the judge has acted in a manner incompatible with the exercise of judicial function. 59. Article 56 §§ 1 and 2 provide for the possibility of punishing a criminal offender by a pecuniary penalty. Its amount may vary from EUR 160 to EUR 331,930. 60. Article 394(1) and (3) provides for allowing proceedings leading to a final judgement or penal order to be reopened when the existence of new facts is established. A finding by the Court concluding that the fundamental rights of an accused have been breached by a decision of a court or public prosecutor or in proceedings preceding such a decision is to be considered as a new fact within the above meaning, provided that its negative consequences cannot be redressed by other means. 61. Section 4(2) provides that the Constitutional Court has the power to proceed and take decisions at a plenary session subject to the participation of at least seven judges. 62. Pursuant to section 4(3), at plenary sessions the Constitutional Court takes decisions by a majority of all judges. Where such a majority is not achieved, the matter under consideration is to be dismissed. 63. Section 16 governs the disciplinary liability of constitutional judges. Disciplinary proceedings against a Constitutional Court judge are conducted by a disciplinary chamber composed of three judges of that court. The judge concerned may lodge an objection to a disciplinary chamber’s decision within fifteen days. The objection is to be decided upon by a plenary meeting of the Constitutional Court. 64. Pursuant to section 27(1), a judge of the Constitutional Court is excluded from dealing with a case where there can be doubts about his or her impartiality in view of his relation to the subject matter of the proceedings, the parties or their representatives. The judge concerned has to inform the President of the Constitutional Court of the reasons for his or her exclusion without delay (section 27(2)). 65. Section 28(1) entitles a party to challenge a judge for bias. Pursuant to section 28(2), where the Constitutional Court is to determine a case at a plenary session, the decision on his or her exclusion for bias is to be taken at the plenary session; the judge concerned does not take part in the vote. If no majority is obtained, the President’s vote is decisive. Section 28(3) provides for the same way of proceeding where a judge declares himself or herself biased. 66. Under section 31a, except where otherwise provided or where the nature of the matter at hand precludes their application, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure are to be applied accordingly in proceedings before the Constitutional Court. 67. Section 32(3) provides that decisions in proceedings under Article 136 §§ 2 and 3 of the Constitution are taken by a secret vote. 68. Pursuant to section 74e, special legal rules are to be applied in an appropriate manner to disciplinary proceedings against the President and Vice-President of the Supreme Court and the General Prosecutor. Reference is made to the Judges and Assessors Act 2000. 69. Part Three deals with disciplinary liability of judges in general and governs disciplinary proceedings. 70. Section 116(2)(c) qualifies as a serious disciplinary offence repeated breaches of obligations in the context of administration of a court under special law, continued breach of duties of a court office holder (súdny funkcionár) despite earlier warning, or a breach of duties of a court office holder such as to pose a serious threat to the trustworthiness and functioning of the judiciary. 71. Under section 116(3)(b) a serious disciplinary offence committed by a judge who has earlier been sanctioned for a serious disciplinary offence is deemed incompatible with that judge’s continuing in office. 72. Section 117(5) provides for the following sanctions for serious disciplinary offences or for minor offences which, at the same time, have the nature of a serious disciplinary offence: a) transfer of the judge to a lower court; b) reduction in salary by 50% to 70% for a period of three months to one year; c) removal from the post of president or vice-president of a court if a serious disciplinary offence has been committed under section 116(2)(c) of the Judges and Assessors Act 2000 (by virtue of section 117(6) this sanction is not applicable to the President and Vice-President of the Supreme Court); and d) publication of a decision indicating that a judge had failed to provide information about an increase in his property as required by the law. 73. Section 117(7) provides that the sanction for a serious disciplinary offence which is deemed incompatible with a person’s continuing as a judge has always to be the removal of that person from his or her post as a judge. 74. Pursuant to section 119(2), disciplinary proceedings against the President and Vice-President of the Supreme Court are carried out by the Constitutional Court. 75. Section 119(9) and (10) provides that while first-instance chambers dealing with judges accused of disciplinary offences (other than the President and Vice-President of the Supreme Court) comprise three judges, those dealing with such cases at second level consist of five judges. 76. Section 120(2)(a) lists the Minister of Justice as one of the persons entitled to submit a representation for disciplinary proceedings to be brought against a judge. 77. Section 121(1) allows a person concerned to challenge for bias a judge of a disciplinary chamber. The matter is to be decided by a different disciplinary chamber at the same level or, where that is not possible, a second-instance disciplinary chamber (sub-section 2). Where the number of judges lacking impartiality prevents a disciplinary chamber from deciding, the election of a disciplinary chamber for that purpose and its composition are to be decided upon by the Judicial Council (sub-section 3). 78. An appeal is available against a decision of a first-instance disciplinary chamber, and is to be examined by an appellate disciplinary chamber (section 131(1) and (3)). 79. The judge concerned may request reopening of disciplinary proceedings within three years of the final disciplinary chamber’s decision taking effect (section 132(1)). 80. Section 150(2) provides that the provisions of the Code of Criminal Procedure relate to disciplinary proceedings in an appropriate manner unless the Judges and Assessors Act 2000 provides otherwise. 81. Section 35(1) provides that the presidents of courts ensure management and administration of their courts in accordance with the Courts Act 2004. 82. Under section 42(2)(a) presidents and vice-presidents of courts are obliged to carry out the duties of their office conscientiously and to discharge those duties in due and timely fashion as the authority responsible for the management and administration of courts. 83. Pursuant to section 74(1)(c), presidents ensure the economic, material and financial aspects of the functioning of courts. 84. The Law on Financial Control and Internal Audit (“the Audit Act 2001”) governs the financial control, internal and governmental audit in respect of use of public funds and other activities of public administration bodies. It provides for the powers of the Ministry of Finance and other public administration authorities in the sphere of financial control and internal and governmental audit, as well as for the rights or obligations of persons who are subjected to such control or audit. 85. Pursuant to section 2(2)(c), read in conjunction with section 3 of Law no. 523/2004 to which it refers, public administration bodies are legal persons appearing on the register of organisations of the Statistical Office and which are classified, in accordance with the rules in force within the European Union, as playing, inter alia, a central administration role. 86. Section 2(2)(p) defines as a central authority a public administration body which administers a separate chapter of the State budget. 87. Section 14(2)(a) obliges entities and their employees subject to audit to set up conditions permitting a financial audit and to abstain from any action which might threaten the setting up and smooth conduct of such an audit. 88. Section 35a(1)(a), as in force since 1 June 2008, entitles the Ministry of Finance to audit central authorities in the context of governmental audit. 89. Pursuant to section 35b, its purpose is to monitor and assess the financial management, efficiency and appropriateness of the use of public funds and human resources, security of information systems and their functioning, availability and completeness and correctness of information on financial transactions and economic management, as well as the manner in which shortcomings identified during earlier audits have been eliminated. 90. Section 35d(7) provides that obligations under, inter alia, section 14(2)(a) are incumbent equally on the body subject to audit and its employees. 91. Pursuant to section 35d(8), persons subject to audit are obliged, inter alia, to inform the auditor in writing within the period set in the audit report whether and how they have taken into consideration the recommendations formulated in the report, and what measures they have taken with a view to eliminating the shortcomings identified during the audit. 92. Section 1 defines the Supreme Audit Office as a State body which is independent and bound only by law when carrying out its control activities. 93. Pursuant to section 2(1)(a) the Supreme Audit Office controls the management of funds from budgets which under the relevant law are approved by the National Council or the Government. 94. Proceedings PL. ÚS 97/07 concerned a representation in which the applicant, then the Minister of Justice, initiated disciplinary proceedings against the President of the Supreme Court. The alleged disciplinary offence concerned the latter’s refusal to allow a group of supervisors of the Ministry of Justice to check how the Supreme Court was complying with the legislation and regulations governing civil servants. 95. In its decision of 26 September 2007, adopted at a plenary session, the Constitutional Court concluded that the facts in issue did not amount to a serious disciplinary offence within the meaning of section 116(2)(c) of the Judges and Assessors Act 2000. 96. The Constitutional Court expressed the view that the principle of independence of the judiciary implied that the Ministry of Justice must not influence, by its supervisory or other activities, the internal situation within the judiciary. It was the main task of the State administration to serve the courts in the discharge of their duties by providing the necessary material, logistical and organisational support at the level required for the efficient functioning of the judiciary. 97. In the case under consideration, allowing such check was beyond a constitutionally acceptable interpretation of the supervisory powers of the Ministry of Justice. It would result in the President of the Supreme Court being deprived of guarantees linked to the relations between the judiciary and State administration. 98. Lastly, the decision stated that the President of the Supreme Court had refused to allow the check on the basis of his legal opinion as to the relevant statutory provisions, and that he had so informed the Minister of Justice. The request under consideration therefore related to a difference of opinion as regards the interpretation and application of the relevant law. Such an issue, however, could not be the subject matter of disciplinary proceedings. Such proceedings must not be allowed to bring about a weakening of the principles of separation of powers and independence of the judiciary. 99. The applicant relied on the following decisions on exclusion of constitutional judges who had been involved in proceedings leading to the imposition of a disciplinary sanction on him in the present case. 100. On 3 April 2007 the Constitutional Court (Third Chamber) excluded Judge K. from a case to which the applicant was one of the parties. In his statement Judge K. explained that he and the applicant had been candidates for election as President of the Supreme Court in 2003 and that that election had been the subject matter of earlier proceedings before the Constitutional Court. In its decision (III. ÚS 72/07) the Constitutional Court admitted that further involvement of Judge K. might raise doubts as to his objective impartiality. 101. On 7 February 2008 the Constitutional Court excluded Judge H., at his own request, from a case with a bearing on the applicant (decision III. ÚS 49/08). It noted in particular that Judge H. considered himself biased due to the applicant’s public and personal statements about him. 102. On 7 June 2011 a chamber of the Constitutional Court excluded Judge H. from a case in which the Supreme Court was a defendant and where the applicant was acting on the latter’s behalf (decision III. ÚS 257/2011). The chamber held that the critical statements of the applicant in respect of Judge H. justified the conclusion that from an objective point of view the latter was not impartial. The decision also stated that the situation was different from that in the above-mentioned disciplinary proceedings against the applicant, as there was no risk that the Constitutional Court would be unable to deal with the case because of the exclusion of several judges. 103. On 21 June 2011 the Third Chamber of the Constitutional Court excluded Judge H. from different proceedings to which the applicant was a third party (decision III. ÚS 292/2011) despite his statement that he did not consider himself biased. The chamber held that the critical remarks of the applicant in respect of Judge H. justified the applicant’s fear that that judge might not decide on the case in an impartial manner. 104. The recommendation was adopted on 17 November 2010. Its relevant parts provide: “5. Judges should have unfettered freedom to decide cases impartially, in accordance with the law and their interpretation of the facts ... 11. ... Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts ... 13. All necessary measures should be taken to respect, protect and promote the independence and impartiality of judges ... 22. ... In their decision making judges should be independent and impartial ... 32. The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality ... 60. Judges should act independently and impartially in all cases, ensuring that a fair hearing is given to all parties ... 61. Judges should adjudicate on cases which are referred to them. They should withdraw from a case or decline to act where there are valid reasons defined by law, and not otherwise ... 69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.” 105. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Their relevant part reads as follows: “2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” 106. The Magna Carta of Judges (Fundamental Principles) was adopted by the Consultative Council of European Judges (CCJE) in November 2010. It provides in paragraph 1 that the mission of the judiciary is to guarantee the very existence of the rule of law, and thus to ensure the proper application of the law in an impartial, just, fair and efficient manner. Pursuant to paragraph 2, judicial independence and impartiality are essential prerequisites for the operation of justice. 107. The Bangalore Draft Code of Judicial Conduct 2001 was adopted by the Judicial Group on Strengthening Judicial Integrity, and it was revised at the Round Table Meeting of Chief Justices held in The Hague in November 2002. The relevant principles contained therein read as follows: “Value 2: IMPARTIALITY Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Application: 2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice. 2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary ... 2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where 2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; ... Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.” 108. In March 2007 the Judicial Group on Strengthening Judicial Integrity adopted the Commentary on the Bangalore Principles of Judicial Conduct. Its relevant parts read as follows: “81. The generally accepted criterion for disqualification is the reasonable apprehension of bias. Different formulae have been applied to determine whether there is an apprehension of bias or prejudgment. These have ranged from ‘a high probability’ of bias to ‘a real likelihood’, ‘a substantial possibility’, and ‘a reasonable suspicion’ of bias. The apprehension of bias must be a reasonable one, held by reasonable, fair minded and informed persons, applying themselves to the question and obtaining thereon the required information. The test is ‘what would such a person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly’. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by other judges of the capacity or performance of a colleague ... 90. Depending on the circumstances, a reasonable apprehension of bias might be thought to arise (a) if there is personal friendship or animosity between the judge and any member of the public involved in the case; (b) if the judge is closely acquainted with any member of the public involved in the case, particularly if that person’s credibility may be significant in the outcome of the case; (c) if, in a case where the judge has to determine an individual’s credibility, he had rejected that person’s evidence in a previous case in terms so outspoken that they throw doubt on the judge’s ability to approach that person’s evidence with an open mind on a later occasion; (d) if the judge has expressed views, particularly in the course of the hearing, on any question at issue in such strong and unbalanced terms that they cast reasonable doubts on the judge’s ability to try the issue with an objective judicial mind; or (e) if, for any other reason, there might be a real ground for doubting the judge’s ability to ignore extraneous considerations, prejudices and predilections, and the judge’s ability to bring an objective judgment to bear on the issues. Other things being equal, the objection will become progressively weaker with the passage of time between the event which allegedly gives rise to a danger of bias and the case in which the objection is made ... Doctrine of necessity 100. Extraordinary circumstances may require departure from the principle discussed above. The doctrine of necessity enables a judge who is otherwise disqualified to hear and decide a case where failure to do so may result in an injustice. This may arise where there is no other judge reasonably available who is not similarly disqualified, or where an adjournment or mistrial will work extremely severe hardship, or where if the judge in question does not sit a court cannot be constituted to hear and determine the matter in issue. Such cases will, of course, be rare and special. However, they may arise from time to time in final courts of small numbers charged with important constitutional and appellate functions that cannot be delegated to other judges.” 109. In 2010 the General Assembly of the European Network of Councils for the Judiciary (ENCJ) adopted a declaration approving the ENCJ report “Judicial Ethics - Principles Values and Qualities”. The principles included in the report comprise, among others, the following: “Impartiality and people’s perception of impartiality are, with independence, essential to a fair trial. The impartiality of the judge represents the absence of any prejudice or preconceived idea when exercising judgment, as well as in the procedures adopted prior to the delivery of the judgment ... To guarantee impartiality, the judge: - Fulfils his judicial duties without fear, favouritism or prejudice; - Adopts, both in the exercise of his functions and in his personal life, a conduct which sustains confidence in judicial impartiality and minimises the situations which might lead to a recusal; - Recuses himself from cases when: he cannot judge the case in an impartial manner in the eyes of an objective observer; he has a connection with one of the parties or has personal knowledge of the facts, has represented, assisted or acted against one of the parties, or there is another situation which, subjectively, would affect his impartiality; ... A judge has a duty of care to prevent conflicts of interest between his judicial duties and his social life. If he is a source of actual or potential conflicts of interest, the judge does not take on, or withdraws immediately from, the case, to avoid his impartiality being called into question.” ... 110. At a meeting in Istanbul the European Association of Judges, at the request of the Association of Slovak Judges, considered developments in the legislation concerning the judiciary and the Government’s proposed legislative amendments. The relevant parts of the resolution adopted on 4 September 2011 read: “7. The European Association of Judges underlines once again that independence has to be accompanied by accountability. Under the pretext of accountability, however, this should never result in the other powers of the state gaining undue influence on the judiciary. Transparency of procedures and proper reasoning of decisions are a means of guaranteeing accountability and increasing trust in the judiciary ... 8. ... Disciplinary proceedings, or importantly, the threat of such proceedings, must not risk being misused by placing improper pressures on the judge concerned. Accordingly international documents not only place the jurisdiction to hold disciplinary procedures on a court or an independent body, but also promote the establishment of an independent body or person to initiate such procedures (Art. 69 of the Recommendation CM/Rec (2010)12, para. 68, 69 and 77 ii and iii CCJE Opinion 3 (2002) and Art. 6 of the Magna Charta of Judges (fundamental principle). To place the power to commence proceedings with a member of the government infringes the balance of powers. Such an arrangement does not help to increase trust in the judiciary and may increase the suspicion of political interference. What is necessary are quick and fair proceedings before a disciplinary court.” | 1 |
train | 001-84054 | ENG | TUR | CHAMBER | 2,007 | CASE OF NURETTIN ALDEMIR AND OTHERS v. TURKEY | 3 | Preliminary objection joined to merits (victim) and dismissed;Violation of Art. 11;Remainder inadmissible | null | 5. The applicants are members of “EĞİTİM-SEN” (Eğitim ve Bilim Emekçileri Sendikası – The Education Workers’ Trade Union), a trade union which is a member of “KESK” (Kamu Emekçileri Sendikaları Konfederasyonu – The Confederation of Public Employees’ Trade Unions). 6. In 2001 the Turkish Parliament prepared a draft bill to amend the Act on Trade Unions. While this bill was being discussed in the Parliament, “KESK” decided to organise meetings in Ankara to protest the bill. The aim was to draw public attention to and achieve the withdrawal of this bill, which in their view did not meet international standards. 7. In the meantime, on 18 December 2000, the Governorship of Ankara had issued a circular, providing guidelines on meetings and demonstrations organised in the city of Ankara, in accordance with the Law on Meetings and Demonstration Marches (Law no. 2911). According to this circular, the meeting place chosen by KESK was not among the permitted areas. 8. On 7 June 2001 Nurettin Aldemir, Şehrinaz Artar, Ömer Buzludağ, Sami Evren and Ali Rıza Özer, and on 25 June 2001 Arzu Doğan, Tacettin Yağdıran and Elif Akgül, gathered in Kızılay together with other persons. 9. On both occasions, while the president of “KESK” was reading out press statements, police officers warned the demonstrators that their action was contrary to the law and that they had to disperse. The demonstrators blocked the main street of the Kızılay district (Atatürk Avenue) and attempted to march towards the Prime Minister’s Office. The police officers then intervened and used truncheons, sticks and tear gas with a view to dispersing the crowds. Some of the demonstrators attacked the security forces using pavement stones and sticks which caused the injury of seven police officers and the destruction of a police vehicle. The applicants were also wounded during the incidents. 10. On 7 June 2001 Şehrinaz Artar and Ömer Buzludağ were examined by a doctor from the Hacettepe University Hospital. The doctor noted an ecchymosis of 2x2 cm on the left eyebrow of Şehrinaz Artar. As regards Ömer Buzludağ, he noted an abrasion of 3 cm on his right eyebrow. Nurettin Aldemir, Sami Evren and Ali Rıza Özer did not submit any medical evidence to the Court in support of their subsequent allegations of ill-treatment. 11. On 25 June 2001 Arzu Doğan was examined by a forensic medical expert from the Ankara Forensic Medicine Institute who observed an ecchymosis on her lip, a hyperaemic graze on her left wrist and superficial abrasions on her right wrist and arm. The expert concluded that the injuries rendered Arzu Doğan unfit for work for one day. 12. On the same day, Tacettin Yağdıran was examined by a forensic medical expert from the Ankara Forensic Medicine Institute. The doctor observed a sutured injury on the occipital lobe of his head and a haematoma under the injury, and considered that his injuries rendered the applicant unfit for work for seven days. 13. Also on the same day, Elif Akgül was examined by a doctor from the Ankara Forensic Medicine Institute. The doctor observed abrasions on the skin on the left scapula and on the back, and a haematoma of 2x2 cm on the right frontal lobe. He concluded that the injuries rendered Elif Akgül unfit for work for five days. 14. On an unspecified date, the applicants filed a complaint with the Ankara public prosecutor’s office against the Ankara Governor, the director of the Ankara Security Directorate, the director of the Rapid Intervention Force branch of the Ankara Security Directorate and the police officers who were involved in the incidents. 15. In the meantime, on 26 June 2001 the Ankara public prosecutor brought charges against twenty-seven demonstrators, including Arzu Doğan and Sami Evren, for violation of the Law on Meetings and Demonstration Marches. 16. On 23 July 2001, pursuant to Law no. 4483 on the prosecution of civil servants, the Ankara public prosecutor transferred the file to the Ministry of Interior seeking an authorisation to initiate criminal proceedings. 17. On 9 October 2001 the Ministry of the Interior, relying on Article 4 of Law no. 4483, decided not to take an action against the officials and officers accused by the applicants as it found that the allegations were of an “abstract nature”. The Ministry considered that the force used by the police was lawful and justified in the circumstances of the case and that the officers had been under an obligation to disperse the demonstrators who had organised an illegal meeting. This decision was sent to the Ankara public prosecutor’s office on 19 December 2001. 18. In a decision of 14 November 2001 the Ankara Criminal Court acquitted the applicants Arzu Doğan and Sami Evren, as well as other demonstrators, of the charges. The court decided that the demonstrators enjoyed a right to hold unarmed and peaceful meetings and demonstrations without prior permission. 19. On 29 January 2002 the Ankara public prosecutor issued a decision of non-prosecution as regards the applicants’ complaints. 20. Article 34 of the Constitution provides: “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.” 21. At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows: “In order for a meeting to take place, the governor’s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...” 22. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals’ movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor’s office and after the demonstrators had been warned. According to a circular issued by the Governorship of Ankara on 18 December 2000, which provides guidelines on meetings and demonstrations, Kızılay avenue is not among the permitted areas for demonstrations. “The police may use firearms in the event of: (a) self defence, ... (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.” 23. According to Article 165 of the now defunct Code on Criminal Procedure, a complainant may file an appeal against the decision of a public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days from the day of notification of the decision to the complainant, with the president of the assize court in whose jurisdiction the public prosecutor works. | 1 |
train | 001-96671 | ENG | BGR | CHAMBER | 2,010 | CASE OF TSONYO TSONEV v. BULGARIA (No. 2) | 3 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance;Legal assistance of his own choosing;Required by interests of justice);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Preparation of defence;Article 6 - Right to a fair trial);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Free legal assistance;Insufficient means;Required by interests of justice;Article 6 - Right to a fair trial);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1977 and lives in Gabrovo. At the relevant time he was unemployed. 6. At about 9 p.m. on 11 November 1999 the applicant and Mr D.M., after having consumed alcohol, went to the flat of Mr G.I., apparently with the intention of recovering certain items which Mr D.M.’s former girlfriend had left there. A violent incident ensued and the police, who were called by neighbours, arrested the applicant and Mr D.M. 7. On 12 November 1999 a police officer drew up a report describing the applicant’s conduct on the previous evening. On the basis of this report, in a decision of 19 November 1999 the mayor of Gabrovo found the applicant guilty of breaching section 2(1) of municipal by-law no. 3 (see paragraph 25 below) and fined him 50 Bulgarian levs (BGN). The mayor explained that, while drunk, the applicant had broken down the door of Mr G.I.’s flat and had beaten him up. These actions had constituted a breach of public order and an expression of manifest disregard towards society, contrary to the above-mentioned provision. The decision, which specified that it was subject to judicial review within seven days after being served on the offender, was not served on the applicant, whose address was unknown. It was put in the file and considered as constructively served under section 58(2) of the 1969 Administrative Offences and Penalties Act (see paragraph 28 below). The applicant did not learn about it within the timelimit for seeking judicial review and the decision became final. 8. Some time later the prosecution authorities charged the applicant with inflicting “intermediate” bodily harm on Mr G.I., contrary to Article 129 § 1 of the 1968 Criminal Code, and breaking into his home, contrary to Article 170 § 2 of that Code (see paragraphs 18 and 19 below). They alleged that he had acted in concert with Mr D.M. 9. The applicant’s trial took place before the Gabrovo District Court between 9.30 a.m. and 12.40 p.m. on 1 December 2000 and between 1.30 p.m. and 4 p.m. on 14 November 2001. He was represented by two lawyers. It is unclear whether they were retained by him or appointed by the court. The court heard the two coaccused, three experts and five witnesses. It admitted numerous documents in evidence and heard the parties’ closing argument. 10. In a judgment of 14 November 2001 the Gabrovo District Court found the applicant guilty of inflicting “intermediate” bodily harm on Mr G.I. It found him not guilty of committing this offence in concert with others and not guilty of entering another’s home by force. It sentenced him to eighteen months’ imprisonment. The court found that Mr D.M. alone had broken down the door of Mr G.I.’s flat and that the applicant had entered the flat after him. The court further found that in the ensuing scuffle the applicant had broken two of Mr G.I.’s teeth, which amounted to “intermediate” bodily harm, but at the same time held that in committing this act the applicant had not acted in concert with Mr D.M., because the latter had not hit Mr G.I. in the head. 11. The applicant appealed to the Gabrovo Regional Court. He drafted the appeal himself. Mr D.M. did not appeal. 12. The Gabrovo Regional Court held a hearing on the morning of 2 April 2002. The counsel previously appointed by the court for the applicant did not show up and new counsel was thus appointed. The applicant said that the new counsel was acquainted with his arguments and the case, and that he agreed to be defended by her. The record of the hearing says that the newly appointed counsel took half an hour to acquaint herself with the file; according to the applicant, she only had ten minutes to do so, because, as shown by the record, the hearing started at 10 a.m. and finished at 10.10 a.m. 13. In her closing speech, counsel for the applicant argued that it was not certain whether he had hit Mr G.I. in the head. Even if that had been so, he had done so in selfdefence, because Mr G.I. had tried to shoot him with a gas pistol and he had panicked. It was furthermore unclear whether the blows allegedly administered by the applicant could result in the type of injuries sustained by Mr G.I. The experts’ statements on this point had not been properly recorded. Counsel later filed a memorial previously drawn up by the applicant. 14. In a judgment of 9 April 2002 the Gabrovo Regional Court upheld the lower court’s judgment. It found that it had assessed the evidence properly and had established the facts correctly, and went on to say that there was no indication that the applicant had acted in selfdefence. 15. On 23 April 2002 the applicant appealed on points of law, again drafting the appeal himself. On 26 August 2002 he asked the Supreme Court of Cassation to appoint counsel for him. He relied on Article 70 § 1 (7) of the 1974 Code of Criminal Procedure (see paragraph 20 below) and asserted that he had no legal knowledge and could not afford to retain counsel, whereas the interests of justice required that he be legally represented because he risked imprisonment. 16. In a letter of 9 September 2002 the president of the Second Criminal Division of the Supreme Court of Cassation advised the applicant that it was not possible to appoint counsel for him, as the prerequisites of Article 70 of the 1974 Code of Criminal Procedure were not met. 17. The Supreme Court of Cassation held a hearing on 14 October 2002. The applicant acted pro se. The prosecution argued that his appeal should be dismissed. On 22 October 2002 the Supreme Court of Cassation, which had the power to quash, vary or reverse the lower court’s judgment, decided to uphold it. It found that the lower court had properly established the facts, had fully examined all relevant issues, and had not breached the rules of procedure. 18. Article 129 § 1 of the 1968 Criminal Code makes it an offence to inflict “intermediate” bodily harm on another. Article 129 § 2 defines “intermediate” bodily harm as, among other things, the knocking out of teeth whose loss makes chewing or speaking more difficult. 19. By Article 170 § 1 of the Code, it is an offence to enter another person’s home using force, threats, dexterity, abuse of power, or special technical devices. Article 170 § 2 provides that the offence is aggravated if it has been committed at night or by an armed individual. 20. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed situations in which the appointment of counsel for the accused was mandatory: (i) the accused was a minor; (ii) the accused suffered from a disability preventing him or her from defending himself or herself in person; (iii) the accused was charged with an offence punishable by more than ten years’ imprisonment; (iv) the accused did not speak Bulgarian; (v) another accused who had diverging interests had already retained counsel; or (vi) the case was heard in the absence of the accused. On 1 January 2000 a new point (7) was added. It was part of a comprehensive overhaul of the Code intended to bring it in line with the Convention, based on Article 6 § 3 (c), and it provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required. 21. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure. The text of its Article 94 § 1 (9) matches exactly that of Article 70 § 1 (7) of the 1974 Code. Article 94 § 1 (7) provides that the participation of counsel in the proceedings before the Supreme Court of Cassation is compulsory. Where the participation of counsel is compulsory, the competent authority has to appoint counsel when not retained by the accused (Article 94 §§ 2 and 3). 22. Article 269 § 2 (3) of the 1974 Code provided that a hearing had to be adjourned if counsel for the accused failed to appear and if such counsel could not be replaced without causing prejudice to the accused’s defence. 23. In 1997 the text was amended, providing that an adjournment was only necessary where the case could not proceed without the accused being legally represented. In a decision of 14 April 1998 (решение № 9 от 14 април 1998 г. по к. д. № 6 от 1998 г. обн., ДВ, бр. 45 от 21 април 1998 г.) the Constitutional Court declared the amendment unconstitutional, finding that it made it possible to hold hearings in which the accused would not be legally represented and that this would certainly prejudice the defence. It was true that certain limitations on the rights of the defence were permissible under the Constitution in the interest of the proper administration of justice. However, this particular limitation was disproportionate, because it made it harder to ascertain the truth and put the accused at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms. 24. Article 21 § 1 (6) of the 1974 Code (whose text has been copied almost verbatim into Article 24 § 1 (6) of the 2005 Code) provided that criminal proceedings could not be opened or had to be discontinued if in respect of the same person and in respect of the same offence there existed a final judgment or decision. The former Supreme Court – in a binding interpretative decision –, and later the Supreme Court of Cassation, have construed this provision as not barring the opening of criminal proceedings in respect of persons who have already been punished in administrative proceedings (тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/1960 г., ОСНК на ВС; реш. № 348 от 29 май 1998 г. по н. д. № 180/1998 г., ВКС, II н. о.; и реш. № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о.). 25. Bylaw no. 3 for safeguarding public order on the territory of the municipality of Gabrovo (Наредба № 3 за опазване на обществения ред на територията на габровската община, приета с решение № 50, протокол № 10 от 26 март 1992 г.) was adopted by the Gabrovo Municipal Council on 26 March 1992 pursuant to section 22(1) of the 1991 Local SelfGovernment and Local Administration Act, which, as worded at the material time, empowered municipal councils to make bylaws concerning local issues. Section 2(1) of the bylaw provided that citizens were prohibited from committing acts which breached public order and expressed manifest disregard towards society. Section 27(1) provided that violations of the by-law were punishable with a fine of up to BGN 50. Under section 30 of the bylaw, the procedure for establishing such violations and their punishment was governed by the 1969 Administrative Offences and Penalties Act. 26. Section 2(3) of the 1969 Administrative Offences and Penalties Act provides that municipal councils may, in issuing bylaws, determine the elements of administrative offences and provide for penalties among those envisaged by the Local SelfGovernment and Local Administration Act of 1991. Under section 22(2) of that Act, as in force at the material time, the breach of a municipal by-law was punishable with a fine of up to 500 Bulgarian levs. 27. The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. It defines them, in section 6, as acts or omissions which run counter to the established order, have been committed wilfully and are punishable with administrative penalties. Section 11 provides that, absent specific provisions in the Act, the 1968 Criminal Code governs all questions concerning mens rea, capacity, exculpating circumstances, complicity, preparation and attempts. 28. Under section 58(1), a decision imposing an administrative penalty must be served on the offender. If, however, the offender cannot be found at the address he specified and his new address is unknown, a note to this effect is made on the decision and it is considered as served on the date of the note (section 58(2)). The decision may be challenged by way of judicial review (section 59(1)) within seven days after it has been served (section 59(2)). Under section 64, decisions imposing administrative penalties become final when (i) they are not subject to review, (ii) have not been challenged within the statutory timelimit, or (iii) have been challenged but have been upheld or varied by the competent court. | 1 |
train | 001-90129 | ENG | HUN | CHAMBER | 2,008 | CASE OF LASZLO NEMETH v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1961 and lives in Szomód. 5. In the context of a real estate dispute, on 13 August 1993 the applicant brought an action claiming partial ownership of a house. 6. After having held several hearings and obtained the opinions of two experts, on 27 August 1998 the applicant was granted one fifth of the property in question. 7. On appeal, on 17 March 1999 the Komárom-Esztergom County Regional Court quashed this decision. 8. In the resumed proceedings, the Tata District Court held several hearings and obtained the opinion of an expert. On 12 June 2003 it gave judgment, granting the applicant partial ownership. Simultaneously, it dissolved the common ownership thus created, gave the part allocated to the applicant to the respondent, and ordered the latter to compensate the former. 9. On appeal, on 4 February 2004 the Regional Court amended this decision and gave a final judgment. 10. The applicant filed a petition for review with the Supreme Court. 11. On 31 January 2005 the Supreme Court dismissed the petition in preliminary proceedings. In a reasoned decision, it held that the applicant’s petition was inadmissible because it did not disclose a breach of the relevant law, in particular the rules concerning the termination of common ownership. The Supreme Court’s order was served on him on 17 February 2005. | 1 |
train | 001-77396 | ENG | RUS | CHAMBER | 2,006 | CASE OF ESTAMIROV AND OTHERS v. RUSSIA | 2 | Preliminary objection partially dismissed (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (inadequate investigation);Violation of Art. 2 (deaths of the applicants' relatives);Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Christos Rozakis | 8. The applicants are relatives. They are: 1) Ruslan Khasmagomedovich Estamirov, born in 1965; 2) Leyla (also spelled Layla) Khasmagomedovna Yandarova (maiden name Estamirova), born in 1961, the first applicant'sister; 3) Sovdat Khasmagomedovna Dakayeva (maiden name Estamirova), born in 1970, the first applicant'sister; 4) Yakha Estamirova, born in 1934, their mother; 5) Khuseyn Khozhakhmedovich Estamirov, born in 1996, the first applicant's nephew; 6) Khabirat Khasmagomedovna Zaurbekova (maiden name Estamirova), the first applicant's sister, born in 1960; 7) Khabira Khasmagomedovna Tatasheva (maiden name Estamirova), the first applicant's sister, born in 1958. 9. Until 1999 the applicants were residents of Grozny, Chechnya. The first, the fourth and the fifth applicants now live in the United States of America, where they were granted political asylum. The other applicants live in Ingushetia and in Moscow. 10. The facts surrounding the deaths of the applicants' relatives and the ensuing investigation were partially disputed. In view of this the Court requested the Government to produce copies of the entire investigation file opened in relation to the applicants' relatives' deaths. 11. The submissions of the parties on the facts concerning the circumstances of the applicants' relatives' deaths and the ensuing investigations are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B. 12. The applicants' family lived in the Oktyabrskiy district of Grozny at 1 Podolskaya Street. The household consisted of two houses, built by the family over a period of 15 years, since the end of 1980s, and united by a common courtyard. During the hostilities in 1994 - 1996 one house was burnt and the second one was hit by a shell. After 1996 the applicants' family restored one house. They attempted to obtain compensation for the lost property, but failed to comply with the procedural requirements. 13. In November 1999 the first applicant, his mother and his four-year old nephew (the fourth and fifth applicants) left Grozny for Ingushetia because of the renewed hostilities. A part of the family remained in Grozny to look after the house and property. They were the first applicant's father, Khasmagomed Estamirov (born in 1933), the first applicant's brother Khozhakhmad (also spelled as Khozhakhmed) Estamirov (born in 1963), his pregnant wife Toita Estamirova (born in 1971) and their son Khasan Estamirov (born in January 1999), and Khasmagomed Estamirov's cousin Said-Akhmed Masarov (born in 1950). The first applicant submits that they tried to convince their father, who was partly disabled, to move to Ingushetia, but he decided to remain in the house, and one of his sons with his family stayed to look after him. 14. Some time in February 2000 the first applicant's aunt went to Grozny. She met another relative, the first applicant's uncle Vakhid M., who told her that the family members who remained in Grozny had been killed by the Russian soldiers on 5 February 2000. M., who had suffered a nervous breakdown, told her that he went to the house on 5 February 2000 in the afternoon and found the Estamirov family members dead. The bodies of the first applicant's father and brother were in the courtyard, his uncle's body in the doorway of the house, partly burned. The bodies of the first applicant's sister-in-law, who was at the ninth month of pregnancy, and her one-year old son were in the corner of the courtyard. All bodies had gunshot wounds. The woman's ring and earrings were gone. In the courtyard he found the first applicant's father's purse lying empty on the ground. Many items from the house were missing. Their car in the garage and the cowshed with two calves inside were burned. On the same day M. buried the bodies on a patch of land by the house, having wrapped them into pieces of cloth. 15. The first applicant's aunt returned to Ingushetia and told the other family members about the deaths. On 22 February 2000 the fourth applicant sent a request to the Prosecutor General to initiate criminal proceedings into the killings of five members of her family, looting and destruction of their property on 5 February 2000 by the Russian troops during a “mopping up” operation in Grozny. 16. On 4 April 2000 the first and the second applicants travelled to Grozny. There they sought permission to exhume the bodies and to bury them at the Prigorodnoye cemetery. At first the district military commander refused the permission, because the cemetery could have been mined. But then the head of the city administration gave the permission and ordered that the investigators and the police attend the exhumation. 17. On 8 April 2000 the applicants went to the Oktyabrskiy temporary district office of the interior (VOVD) of Grozny and produced the permission for exhumation. Several policemen accompanied them to 1 Podolskaya Street, one of them had a camera. 18. Once the bodies were exhumed, the cloths enveloping the bodies were lifted only from the faces to take photographs. No pathologist was present, and no forensic examination took place. The bodies were then brought to the Prigorodnoye cemetery and buried. A certificate was issued to the first applicant by the investigator of the Oktyabrskiy VOVD Major S. to confirm that on 8 April 2000 the exhumed bodies of Estamirov Kh., born in 1933, Estamirov Kh. Kh., born in 1963, Estamirov Kh. Kh., born in 1999, and Estamirova T., born in 1971, were handed over to the first applicant for burial. It also stated that “the bodies were examined by the investigator of the Oktyabrskiy VOVD, evidence of a violent death was established, material was handed over to the Grozny prosecutor's service”. 19. After the exhumation the police wanted to leave, but the first applicant interfered and asked them to examine the courtyard for relevant evidence: tank or armoured personnel carrier (APC) tracks in front of the house, empty alcohol bottles, a pair of shoes in the courtyard. The policemen drew a report of the site and collected some other evidence, such as cartridges and bullets. 20. On 4 July 2000 the Malgobek Town Court in Ingushetia, at the first applicant's request, certified the deaths of Khasmagomed Estamirov, born in 1933, Khozhakhmed Khasmagomedovich Estamirov, born on 12 February 1963, Toita Khavazh- Bagaudinovna Estamirova, born in 1971, Khasan Khozhakhmedovich Estamirov, born on 20 January 1999, which had occurred on 5 February 2000 in the Oktyabrskiy district of Grozny, Chechnya. The court based its decision on the statements of the applicant and two witnesses in which they testified that the applicant's father, brother, sister-in-law and nephew had remained in Grozny in the winter of 1999-2000. In March 2000 the first applicant learned from his uncle M. that his family had been shot by the Russian OMON (special police force). The court also reviewed the applicant's internal passport with registered residence in Grozny at 1 Podolskaya Street, the exhumation certificate issued by the Oktyabrskiy VOVD on 8 April 2000, the certificate of the Malgobek town administration confirming that the first, the fourth and the fifth applicants had been registered there as forced migrants from Chechnya since 26 September 1999. The court noted that the death certificates were required to apply for allowances for loss of bread-winner. 21. In August 2000 the Oktyabrskiy district civil registration office of Grozny issued four death certificates for the applicants' relatives. They also recorded the date of death as 5 February 2000. 22. The applicants submit that other civilians were killed on the same day in the Novye Aldy suburb of Grozny, which is only 10-15 minutes walk (1,5 kilometres away) from Podolskaya Street. They refer to the Human Rights Watch report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldy”, which puts the blame for extra-judicial execution of about sixty civilians in the suburbs of Grozny, Novye Aldy and Chernorechye, on the Russian OMON and military forces. The document reports the deaths of the five Estamirov family members, based on the interviews with the family members in Ingushetia, and mentions copies of the reburial photographs. 23. They also refer to the Human Rights Centre Memorial report entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 - Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 - преднамеренные преступления против мирного населения), which lists five members of their family together with other civilians murdered on that day in Novye Aldy – in total 56 names. 24. On 21 April 2000 the office of the Military Prosecutor for the North Caucasus military circuit wrote to the NGO Memorial stating that the military prosecutor of military unit no. 20102 had reviewed information related to the crimes against civilians committed in Aldy on 5 and 10 February 2000. The military units of the Ministry of Defence and of the Ministry of the Interior, over which the military prosecutor's office had competence, had not conducted military operations or checked passports in the area on the given dates. In view of this, on 3 March 2000 the criminal proceedings opened by the military prosecutor were closed due to the absence of corpus delicti. The letter further stated that it was established that the “mopping up” (“zachistka”) in Aldy on 5 and 10 February 2000 had been conducted by the servicemen of OMON of the Ministry of the Interior from St. Petersburg and Ryazan, over whom the military prosecutor had no competence. The case file had been forwarded to the Grozny Town Prosecutor for appropriate action. All further requests should be addressed to him or to the Prosecutor of the Chechen Republic. 25. On 8 August 2000 the first and the fourth applicants filed a civil claim against the Ministry of Defence, the Ministry of the Interior and the Ministry of Finance with the Supreme Court of Russia. They submitted that five members of their family had been murdered on 5 February 2000 in their house in Grozny, during a so-called “mopping up” operation. Their house and car had been set on fire and their property looted. They referred to the Malgobek Town Court decision of 4 July 2000 and the certificate of exhumation issued by the Oktyabrskiy VOVD. They submitted that these acts must have been committed by the federal servicemen, because on that date Grozny had already been under control of the Russian forces. On the same day summary executions took place in Aldy, which is 15 minutes away from their home on foot. They submitted that on 22 February 2000 they had applied to the General Prosecutor requesting a criminal investigation, but no proper investigation had taken place. They also stated that there were no courts in Chechnya, and that many of the relevant documents were burnt in the house. They sought compensation for pecuniary and non-pecuniary damage. It appears that on 31 August 2000 the Supreme Court refused to consider the claim for lack of jurisdiction and the applicants were advised to apply to a competent district court. 26. On 16 October 2000 the NGO Human Rights Watch wrote to the Prosecutor General and asked for information about the investigation into the Novye Aldy murders. On 31 October 2000 the General Prosecutor replied that the request had been forwarded to the Prosecutor of the Chechen Republic, who should reply in substance. 27. On 4 December 2000 the Chechnya Prosecutor replied to the Human Rights Watch that on 14 April 2000 the Grozny Town Prosecutor's Office had initiated criminal proceedings no. 12023 under Article 105 part 2 of the Criminal Code (murder of one or more persons) and that the investigation was under their supervision. 28. On 8 August 2001 the second applicant wrote to the Chechnya Prosecutor asking for information about the investigation. She inquired what measures had been taken to identify and prosecute the culprits, if the investigation had been suspended, and asked the Prosecutor to forward her a copy of the appropriate order. She received no answer to that request. 29. On 14 August 2001 the SRJI wrote to the Chechnya Prosecutor asking for up to date information on the criminal proceedings no. 12023 opened into the murder of five members of the Estamirov family. They received no answer to that request. 30. On 11 October 2001 the second applicant wrote to the General Prosecutor, saying that she had received no reply to her letter to the Chechnya Prosecutor of 8 August 2001. On 16 November 2001 the Prosecutor General's office informed her that her inquiry had been forwarded to the Chechnya Prosecutor. 31. In a letter of November 2001 the Chechnya Prosecutor's Office informed the second applicant that the investigation was conducted by the Grozny Town Prosecutor's Office, that the Chechnya Prosecutor's Office monitored its progress and that “investigative measures aimed at establishing the perpetrators were being conducted”. The letter also stated, mistakenly, that the applicant's relatives were murdered in April 2000. 32. The investigation into the applicants' relatives' deaths was adjourned and reopened several times. The investigation carried out by the Grozny Town Prosecutor's Office produced no tangible results. It appears that it focused on the version of events initially submitted by the applicants, alleging that the killings had been committed by a Russian military detachment, but that it also considered other possible versions. The investigation did not identify the detachment which was responsible and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file). It does not appear that the investigation connected the murder of the applicants' family members with the investigation of the killings in the Novye Aldy settlement of 5 February 2000. 33. In March 2003 the seventh applicant applied to the Leninskiy District Court of Grozny, asking for a review of the prosecutor's decision to suspend the investigation in the criminal case concerning the killing of her relatives. 34. In June 2003 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 12023. In September 2003 the Government submitted a copy of the file as summarised below. In May 2005 the Court declared the application admissible and requested the Government to submit an update of the investigation. 35. The Government responded in August 2005 that the investigation was pending, but no final conclusions as to the identity of the perpetrators were reached. They also stated that the investigation had examined the criminal investigation file no. 12011 concerning the mass murder of civilians in Novye Aldy on 5 February 2000. It had obtained no evidence to conclude that the murders had been committed by the same persons, and therefore no grounds were established to join these proceedings. The Government further stated that the disclosure of the latest documents from the criminal investigation file no. 12023 would be in violation of Article 161 of the Code of Criminal Procedure, because they contained sensitive information of military and security nature, as well as names and addresses of witnesses who had participated in the counter-terrorist operation in Chechnya and other participants of the proceedings. 36. The parties submitted a number of documents concerning the investigation into the killings. The main documents of relevance are as follows: 37. The Government submitted a copy of the investigation file in criminal case no. 12023, which comprised one volume, and a list of 97 documents contained therein. Of those, 50 documents are dated 20-24 July 2003. The most important documents contained in the file can be summarised as follows. 38. On 14 April 2000 the investigator of the General Prosecutor's Office Department for the Northern Caucasus opened a criminal investigation under Article 105 § 2 (a) and (j) of the Criminal Code into the murder of five members of the Estamirov family, found on 8 April 2000 at 1 Podolskaya Street with signs of violent death. 39. In May 2000 the investigation was transferred to the Grozny Town Prosecutor's Office. 40. On 8 April 2000 two documents were drawn up by the investigators of the Oktyabrskiy VOVD of Grozny at 1 Podolskaya Street. 41. The first report was written and signed by an investigator, two witnesses and an expert. It contains the following text: “Examination of the site 6 by 4 metres in the courtyard of 1 Podolskaya Street, Grozny. ... An excavation is made of an opening 1,5 by 2 metres, 50-60 cm deep. The pit is covered with wooden planks and corrugated iron. In the opening there are four bodies of different sizes wrapped in cellophane. Mr. Vakhid M., taking part in the excavations, explained that on 9 February 2000 he had buried those bodies in the pit. From left to right these are: Estamirov Kh. Kh. born in 1931, Masarov S.A., born in 1951, Estamirov Kh.Kh., born in 1963, Estamirov Kh.Kh., born in 1999. The bodies are wrapped in cellophane and tied with ribbons of white cloth. The second opening is 50 cm by 1,5 metre, about 2 metres away from the first pit, depth about 40-50 cm. In the pit there is a cellophane bundle wrapped with white cloth ribbon, about 160-165 cm long. Mr M. explained that here on 9 February 2000 he had buried Estamirova T. Kh.-B., born in 1971. The bodies were taken out of the pits so that the relatives could organise a burial in the village of Prigorodnoye. Photographs were made. No additions or corrections.” 42. The second document was drawn up at the same location, and contains a description of the household, traces of fire and bullets, and a burnt vehicle Zhiguli VAZ-2106. The document further lists 18 cartridges and one bullet taken from the site, collected and sealed for further expertise. Several photographs of the site, the bodies and the bullet traces were appended to the documents, as well as a sketch plan of the household. 43. On the same day the investigator of the Oktyabrskiy VOVD in charge of the exhumation procedure submitted a report to the head of the VOVD, where he stated that five bodies of the Estamirov family members had been exhumed and transferred to the relatives for burial. The bodies bore signs of violent death, and the deaths most probably had occurred between 4 and 9 February 2000. 44. On 24 July 2003 an investigator of the Grozny Town Prosecutor's Office again inspected the site at 1 Podolskaya Street and produced a report. The report noted that the house was burnt and abandoned, and described numerous bullet holes in the walls and furniture and the burnt car in the courtyard. Four bullets from an AK-7,62 sub-machine gun were collected. The report was accompanied by photographs of the site and sketches of the house. 45. On 8 April 2000 investigators of the Oktyabrskiy VOVD questioned the fourth applicant about the known circumstances of the murder of her husband and other family members. She stated that while she stayed in Ingushetia, her husband Khasmagomed Estamirov, her son Khozhakmed Estamirov with his wife Toita and son Khasan, and her husband's cousin Said-Akhmed Masarov, remained in Grozny in the family house at 1 Podolskaya Street. She did not therefore witness the killings herself, but was informed of it by her other relatives from Grozny. On 4 April 2000 she arrived in Grozny and saw the place of her relatives' burial. Her relative Vakhid M. asked VOVD officers to attend the exhumation on 8 April 2000. She further stated that she was told by others that on 4 February 2000 there had been a “sweeping” operation in the neighbourhood, during which the drafted soldiers checked the residents' documents and left. Later there came “contract” soldiers and killed everyone who was there. By that time the district was under firm control of the federal forces, and there was no more fighting. 46. On 8 April 2000 Vakhit M. explained that he lived in the Oktyabrskiy district of Grozny. On 9 February 2000 he came to visit his relative Said-Akhmed Masarov, who had sent his family to Ingushetia and remained with his cousin Khasmagomed Estamirov at the latter's house. He found the gates opened and a sign on the gates said “People live here”. Inside the courtyard he saw a burnt car, behind the car there were two bodies – of Khasmagomed Estamirov and his son Khozhakhmed Estamirov. Khasmagomed Estamirov's body was partially burnt, his left hand and left foot were missing, there were gunshot wounds to his body. Khozhakhmed Estamirov's body was badly burned. Further, in about six metres, was the body of Toita Estamirova, who had been eight months pregnant. She was lying face down in a pool of blood, and when M. lifted the body he saw numerous gunshot wounds to the chest. Nearby was the body of her one-year old son, Khasan, with gunshot wounds to the head and leg. Then M. walked into the house and at the entrance to the bathroom found the body of his relative Said-Akhmed Masarov, which had been badly burnt. He buried the bodies in the courtyard of the house. He had not seen the perpetrators and did know who they were. 47. Also on 8 April 2000 the investigators questioned the mother of Toita Estamirova, resident of the nearby Zavodskoy district of Grozny, the settlement of Aldy. In February 2000 the witness was in the Tver region. On 25 February 2000 she was told by her relatives that her pregnant daughter had been killed together with her husband, son and other relatives. The witness did not know who had killed them but had heard from other residents that it were soldiers of the federal forces. 48. On 22 July 2003 Vakhit M. was granted victim status in the proceedings, as a close relative of Said-Akhmed Masarov. On the same day he was questioned for the second time about the circumstances of the killings. He confirmed his statements concerning the discovery of the bodies on 9 February 2000. He also testified about the exhumation of the bodies on 8 April 2000 in the presence of the officials, and added that they had been buried on the same day in the Prigorodnoye cemetery. He did not permit the exhumation of his relative's body. 49. On 23 July 2003 the investigators questioned Rashid M., another relative of Said-Akhmed Masarov. He stated that in the winter of 1999 – 2000 he, a resident of Grozny, was in Ingushetia with his family. In April 2000 he learnt that his relative and the Estamirov family had been killed in Grozny. They arrived there and on 8 April 2000 in the presence of the VOVD officials unearthed the bodies. He described in more details the wounds on the bodies of his relatives. According to the witness, the bodies of Khasmagomed Estamirov, Khozhakhmed Estamirov and Said-Akhmed Masarov were burnt, but the witness could recognise and identify them. The bodies of Toita and Khasan Estamirov were not burnt. He then gave detailed submissions about the apparent gunshot wounds to the heads and bodies of his relatives. He also explained that the bodies were found in two pits, Toita Estamirova's body was buried in a separate place, about one metre away. He confirmed that the house and the car in the courtyard were burnt, and stated that there were lots of cartridges from Kalashnikov sub-machine guns on the ground. He also noted empty vodka bottles and clearly visible APC or tank tracks on the ground. He also recalled that on the gates of the house at 1 Podolskaya Street there was a sign in chalk “4.II. 2000.” The witness further stated that he was aware from other residents, whose names he could not recall, that on 4 February 2000 there was a “sweeping” operation in the district, and that the soldiers were moving from Podolskaya Street towards Kirova Street in the Oktyabrskiy District. Rashid M. objected to the exhumation of his relative's remains. On the same day he was granted victim status in the proceedings. 50. On 24 July 2003 the investigators questioned another local resident, who stated that on 8 April 2000 he was present at 1 Podolskaya Street at the time of the excavations. He confirmed other witnesses' statements about the circumstances of the discovery of the five bodies. 51. On 4 and 5 May 2000 an investigator of the Grozny Town Prosecutor's Office ordered forensic reports of the bodies and of the cartridges and bullet collected at the site. 52. In June 2000 the ballistic experts concluded that the 18 cartridges and one bullet had been used by at least four Kalashnikov sub-machine guns, calibre 7,62 mm and 5,45 mm. 53. On 24 July 2003 four more bullets collected at 1 Podolskaya Street were sent for a ballistic report. 54. As to the forensic reports, it appears that none were drawn up, and on 21 July 2003 they were again ordered by the investigator in charge of the case. The experts were asked to resolve questions related to the cause and date of the victims' deaths on the basis of the site reports drawn on 8 April 2000 by the officers of the Oktyabrskiy VOVD. On 21 July 2003 the investigators questioned a forensic expert in Grozny, who explained that the documents given to him contained no description of the bodies and could not serve as grounds for a forensic report. He also stated that an exhumation would be useless, because no forensic laboratory was functioning in Grozny. On 22 July 2003 the expert produced five identical reports, which stated that the questions could not be resolved on the basis of the submitted documents, because they contained no description of the bodies. 55. On 22 July 2003 the investigator of the Grozny Town Prosecutor's Office applied to the Oktyabrskiy District Court of Grozny seeking to obtain a permission for exhumation of the five bodies of the Estamirov family buried on 8 April 2000 at the Prigorodnoye cemetery. 56. On 20-24 July 2003 the Grozny Town Prosecutor's Office sent a number of requests to various authorities in an attempt to identify and question the applicants, other victims and witnesses of the crime. Among others, the requests were sent to find the officers of the Oktyabrskiy VOVD who had been at the time on mission in Chechnya from the Khanty-Mansiysk Region. The investigators also requested information from the Chechnya Department of the Federal Security Service (FSB) if they had any information about Khozhakhmed Estamirov's and Said-Akhmed Masarov's possible involvement in the illegal armed groups. 57. On 22-24 July 2003 the investigators questioned a number of local residents, who stated that the Estamirov family had been killed in early February 2000, apparently by the “contract” soldiers of the federal forces. All the witnesses spent the winter of 1999 – 2000 outside of Grozny, and could not testify about the events of February 2000 other than by hearsay. The witnesses denied that anyone from the Estamirov family was ever involved in the illegal armed groups or any other illegal activities, or that they could have had a personal feud with anyone. 58. On several occasions the investigators in charge of the criminal case raised the question of identifying the units of the army (Ministry of Defence) or of the Ministry of the Interior, possibly involved in the killings. 59. On 14 February 2001 the Grozny Town Prosecutor's Office put this question to the Oktyabrskiy VOVD of Grozny. In response, on 16 March 2001 the head of the VOVD replied that “on 4-9 February 2000 no 'sweeping' operations or recognisance action were undertaken by the officers of the Oktyabrskiy VOVD, which was set up on 17 February 2000”. 60. On 21-22 July 2003 the investigator in charge of the case sent requests to the Ministry of the Interior, the military prosecutor of the Northern Caucasus, the commander of the United Group Alliance, chief of staff for the Northern Caucasus military circuit. The letters requested to identify military units deployed in Grozny “in the end of February 2000, during the fighting to liberate Grozny from illegal armed groups,” and to find out whether any special operations had been carried out by them around Podolskaya Street in the Oktyabrskiy district. The letters further referred to the results of the ballistic expertise and requested to identify military units that could possibly use cartridges with recorded numbers. 61. At different stages of the proceedings several orders were produced by the prosecutors of the Chechnya Prosecutor's Office enumerating the steps to be taken by the investigators. The order of 30 November 2000 instructed them to question and grant victim status to the relatives of the killed, to find out if any military or “sweeping” operations had taken place in the area on the given dates, to locate the bodies and to obtain from the relatives a permission for exhumation, to identify other witnesses of the crime. Similar directions are contained in the orders of 20 August 2002 and 20 July 2003. 62. The case was adjourned three times and four times reopened. At least on seven occasions it was transferred from one investigator to another. On 23 July 2003 a group of eight investigators was put in charge of the case. More then half of the documents in the criminal case file submitted by the Government were produced on 20-24 July 2003. The submitted case-file contains no documents dated after 24 July 2003, though it appears that the investigation continued after that date. 63. The applicants submitted a number of additional documents relating to the circumstances of their relatives' murder and discovery of the bodies. In particular, they submitted a number of press reports concerning the progress of the Russian troops in their fight for control over Grozny, which indicate that different parts of the city came under Russian control at the end of January – beginning of February 2000. On 1-3 February 2000 several reports mentioned a retreat or withdrawal of a large group of Chechen fighters from Grozny, following which the control over the city was largely taken by the Russian troops. 64. The applicants also submitted a number of reports about the events of 5 February 2000 in the southern suburbs of Grozny, notably in the Novye Aldy settlement. The reports by the Human Rights Watch, Memorial and media spoke of a “pattern of summary executions” carried out by the Russian troops in the suburbs of Grozny, and linked the killing of the Estamirov family members with the murders committed in Aldy on 5 February 2000. 65. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 66. The 1960 CCP required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3, 108-09). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209). 67. During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53 of the old CCP). Similar provisions were contained in the new CCP. 68. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of the data of the preliminary investigation. Under part 3 of the said Article, the information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited. 69. Article 214 part 4 of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР), which was in force until 1 February 2003, provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil, criminal or administrative proceedings. | 1 |
train | 001-115672 | ENG | TUR | ADMISSIBILITY | 2,012 | ERKUŞ v. TURKEY | 4 | Inadmissible | Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 1. The applicant, Mr Adnan Erkuş, is a Turkish national, who was born in 1960 and lives in Mersin. He was represented before the Court by Mr T. Benhür, a lawyer practising in Ankara. 3. The applicant is a professor at the University of Mersin. During a meeting in preparation for a national congress he had a verbal disagreement with another professor (“Mr A.T.”), who was the Dean of the Faculty in which the applicant worked. The applicant called Mr A.T. a “thief” for having allegedly distributed to students, without his permission, several pages of a book written by the applicant (as well as an article) under Mr A.T.’s own name. 4. Following the disagreement, the applicant initiated civil proceedings against Mr A.T. for plagiarism and Mr A.T., in turn, lodged a complaint against the applicant with the public prosecutor, alleging defamation and threatening behaviour. 5. On 15 June 2011 the Ankara Civil Court found against Mr A.T. in respect of plagiarism. 6. During the criminal proceedings conducted against him at the Mersin Criminal Magistrates’ Court, the applicant, in his defence statements dated 27 June and 22 October 2010, requested the court to suspend the pronouncement of the judgment if he could not be acquitted. 7. On 30 June 2011, after having heard the testimonies of seven witnesses, the Mersin Criminal Magistrates’ Court acquitted the applicant of threatening behaviour, but convicted him of defamation. However, having recourse to the provisions of Article 231 of the Code of Criminal Procedure, the court suspended the pronouncement of the judgment on account of the applicant’s previous good record and the unlikelihood of his committing a further offence. On 15 July 2011 the Mersin Criminal Court dismissed an objection lodged by the applicant and upheld the decision. 8. The relevant parts of Article 231 of the Code on Criminal Procedure (Law no. 5271) provide as follows: “(5) If the accused, who had been tried on the charges brought against him, has been sentenced to a judicial fine or to a term of imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment .... The suspension of the pronouncement of the judgment means that the judgment would not have any legal consequences for the offender. (6) A decision to suspend the pronouncement of the judgment may be given provided that: (a) the offender has never been found guilty of a deliberate offence; (b) the court is convinced, taking into account the offender’s character and his behaviour during the proceedings, that there is little risk of any further offence being committed; (c) the damage caused to the victim or to society is repaired by way of restitution or compensation. (Additional Sentence: Article 7 of Law no. 6008 – entered into force on 25 July 2010) If the accused does not agree to this, the pronouncement of the judgment shall not be suspended. (...) (8) If the pronouncement of the judgment is suspended, the offender shall be bound by a supervision order for the following five years. (...) (10) If the offender does not commit another deliberate offence and abides by the obligations of the supervision order, the suspended judgment shall be cancelled and the case discontinued. (11) If the offender commits another deliberate offence or breaches the obligations of the supervision order, the court shall then impose a sentence of imprisonment. Nevertheless, after evaluating the offender’s situation, the court may decide to reduce up to half of the term imposed. If conditions so permit, the court may also choose to suspend the sentence or commute it to other optional penalties. (12) An objection may be lodged against the decision to suspend the pronouncement of the judgment.” 9. Provisional Article 2 of Law no. 6008, which entered into force on 25 July 2010, provides as follows: “If persons in respect of whom pronouncement of the judgment has been suspended apply to the courts within fifteen days after the entry into force of this section, the decision shall be retracted by the court and a judgment will be rendered.” | 0 |
train | 001-61763 | ENG | BGR | CHAMBER | 2,004 | CASE OF TOTEVA v. BULGARIA | 3 | Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 9. The applicant was born in 1928 and lived in Sevlievo. 10. On 5 April 1995, at 8 a.m., the applicant, at that time 67 years old, was taken by three police officers, lieutenant R., chief-sergeant D., and a driver, to the District Police Department in the town of Sevlievo. The arrest took place in connection with a complaint filed the previous evening by one of the applicant’s neighbours, Mrs T., in which she had alleged that the applicant had beaten her with a stick. 11. Once on the premises of the District Police Department, the applicant was placed in a detention room, where she spent some time. Then she was brought into the office of lieutenant R. Present in the room were also Mrs T., Mr T. (her husband) and chief-sergeant D. The applicant was confronted with Mrs T. in order to establish whether the facts alleged in the complaint were true. The applicant denied the allegation and an argument erupted between her and Mrs T. Lieutenant R. left the room to take some documents from another office. As the argument between the applicant and Mrs T. continued, chief-sergeant D. led the applicant out of lieutenant R.’s office, into the corridor. 12. According to testimony given later by chief-sergeant D. and another police officer, sergeant U., after being led out of the office and into the corridor, the applicant, who was irritated, called chief-sergeant D. a “brat”, a “piss-pants” and a “sniveler”, and slapped him on the face. He then grabbed her hands and pushed her back but she kicked him in the ankle. Then sergeant U. intervened to help chief-sergeant D., and the two forced the applicant into a detention room, from where she continued screaming insults at them. Then both officers left the detention room. Both officers denied having hit the applicant or having pushed her to the floor. 13. The applicant’s version of the facts significantly differed. She denied having insulted or hit chief-sergeant D. She submitted that after taking her out of lieutenant R.’s office, chief-sergeant D. and sergeant U. had guided her to a detention room, where they had started beating her in order to extract a confession. The applicant stated that sergeant U. had been holding her while chief-sergeant D. had been hitting her face and temple and kicking her torso. Her nose had started bleeding and sergeant U. had taken her to the toilet to wash the blood. He had also made the applicant wash the basin and had brought her back to the detention room, where the two had continued beating her. Chief-sergeant D. had kicked her and, while falling on the floor, the applicant had bumped her head against the edge of a table. She had lost consciousness for some time. After that she had spent an unspecified amount of time lying in the detention room. 14. In his testimony given at the applicant’s trial lieutenant R. relayed that around 12 noon he had come to the detention room and had found the applicant squatting on the floor. The applicant had told him that she “[had been] killed, [that] her waist [had been] broken ... that she [had been] beaten”. He had not seen any blood or visible traces of injury on the applicant but she had told him that her nose and mouth had been injured. The lieutenant had helped her sit on a chair. He had presented her a procèsverbal establishing the fact that the previous evening the applicant had beaten Mrs T. and had asked her to sign it. The applicant had written “I am not guilty” and had signed. Lieutenant R. had led the applicant to the hallway of the police station and had left her there. She had told him that she could not walk. 15. After being left by lieutenant R. at the hallway, the applicant asked several police officers to call an ambulance or a taxi to take her to hospital, but apparently no one responded to her request. Then the applicant crawled out of the police station on her hands and knees. She was seen crawling by a boy, G.A., whom she asked to help her reach the nearest payphone by letting her lean against his bicycle. Shortly thereafter a driver, Mr Y., came across them with his car and took the applicant to the surgical ward of the local hospital. Mr Y. later testified that he had not seen visible traces of injury on the applicant but that she had been crying and had said that she had been beaten at the police. 16. The on-duty surgeon, Dr S., arrived at the hospital at around 4 p.m. and examined the applicant. For the investigation Dr S. stated that at the time of the examination he had not observed visible traces of injury, but at the applicant’s trial he testified that she had come to him with traumas on her head and back. The one on the head had been a dull trauma in the left temporal zone, without skin rupturing. The one on the back had been also a dull trauma under the right scapula, with a visible sub-cutaneous haematoma. In his view, the injuries in question could have been caused by a blow with or against a blunt object. 17. Dr S. directed the applicant to a consultation with a neurologist from the local emergency ward. The neurologist examined her at 6.15 p.m. and noted that the applicant had “[c]ontusio capitis. ... [c]ommotio cerebri”. His opinion was that she had to be hospitalised and treated. 18. In the evening the applicant went back to her house and spent the night there. 19. The following morning, on 6 April 1995, the applicant was admitted to the surgical ward of the District Hospital in Sevlievo. The doctors found: “Head – painfulness upon palpation in the left temporal zone; behind and above the left ear – sub-cutaneous haematoma ... Thorax – sub-cutaneous blue-yellowish haematoma, measuring 5 to 4 centimetres in the right thoracic half, in the lower end of the right scapula.” 20. The applicant stayed in hospital until 14 April 1995. She was treated with analgesics and neuroleptics. The doctors also prescribed rest and calm. On 8 May 1995 the applicant went to the hospital for an examination. The report drawn by the examining doctor stated that at that time the applicant was complaining of “strong vertigo, headache, nausea and vomiting”. The diagnosis again was “[c]ontusio capitis ... [c]ommotio cerebri.” 21. On 16 June 1995 the applicant was admitted to the neurological ward of the District Hospital in Sevlievo. It appears that at that time the applicant was treated mainly for high blood pressure. She remained in hospital until 17 July 1995. 22. On the day of incident, 5 April 1995, chief-sergeant D., the police officer who had allegedly beaten the applicant, submitted a report to the head of the District Police Department in Sevlievo. He alleged that the applicant had hit him and had used abusive language against him and asserted that he had put her in the detention room to prevent her from carrying on. 23. On the basis of this report the District Police Department initiated an inquiry and charged lieutenant R., one of the officers who had arrested the applicant, to conduct it. The lieutenant finished the inquiry in one day and on 7 April 1995 submitted a report concluding that the facts warranted the opening of a criminal investigation against the applicant. 24. On 13 April 1995 an investigator from the District Investigation Service in Sevlievo opened a criminal investigation against the applicant for having caused a light bodily injury to an official and for having insulted him during the performance of his duties, offences under Articles 131 § 1 (1) and 148 § 1 (3) of the Criminal Code (“CC”). The injury in question was the result of the applicant having allegedly slapped chief-sergeant D. on the face and kicked him in the ankle. No medical evidence was presented. On the same day the investigator heard chief-sergeant D., lieutenant R., sergeant U., Mr T. and Mrs T. A week later, on 20 April 1995, the investigator sent the material to the Sevlievo District Prosecutor’s Office with a recommendation that the applicant be indicted. The case was assigned to prosecutor G. who filed a bill of indictment with the Sevlievo District Court. 25. When the applicant’s trial opened her counsel requested a medical expert report in order to determine whether the injuries sustained by the applicant could have been the result of beating by the police officer accusing her of violence against him. The District Court did not appoint an expert but instead remitted the case to the prosecution with instructions to carry out the steps requested by the applicant’s defence. However, no report was made, as the prosecutor in charge of the case held that the mechanism of the injuries had already been ascertained by the doctors who had examined the applicant upon her admitting to hospital. 26. When the trial resumed on 4 and 17 April 1996, counsel for the applicant renewed her request for an expert report but it was denied by the court, which held that the facts of the case had already been established on the basis of the available evidence. 27. In the proceedings before the District Court the applicant testified that she had been beaten by chief-sergeant D. 28. In her closing argument at trial counsel for the applicant pointed out that the applicant had been beaten, had sustained injuries, had been treated for them in hospital and that a complaint had been filed with the District Prosecutor’s Office. 29. On 17 April 1996 the District Court found the applicant guilty as charged and sentenced her to six months’ imprisonment, suspended for three years. On the basis of the testimony given by chief-sergeant D. and sergeant U. (the court held that Mrs T.’s and Mr T.’s testimony was not credible because their relations with the applicant had been strained) the court found that the officers had led the applicant out of lieutenant R.’s office and into the corridor. There, some verbal exchange had taken place between the applicant and chief-sergeant D., while sergeant U. had stepped aside. The applicant had then slapped chief-sergeant D. on the face, had tried to kick him and had called him a “brat” and a “sniveler”. The court noted that the applicant presented a completely different version of the facts, namely that it was her who had been subjected to violence. However, it went on to hold that Dr S., the surgeon who examined the applicant on the day of the incident, had not found blood on the applicant but only a dull trauma on her right scapula. That could have been occasioned by a blow by or onto a blunt object. Thus, it was possible that the applicant had inflicted the injury on herself. Therefore her allegations of savage beating, kicks, pushing, falling down etc. did not correspond to the testimony of the doctors who had examined her. The fact that there had been no visible traces of beating on the applicant was also established through the testimony of G.A., the boy who had helped her move out of the police station, and of Mr Y., the driver who had taken her to the hospital. However, the court noted that the inquiry whether the applicant had been subjected to violence was not part of the subject-matter of the case before it. 30. The applicant appealed to the Gabrovo Regional Court, which upheld the conviction and sentence on 18 July 1996. The court noted, inter alia, that if the applicant’s allegations of police ill-treatment were true, she could request the opening of criminal proceedings against the police officers involved. 31. The applicant then petitioned the Supreme Court of Cassation for review. At the hearing before that court a prosecutor of the Chief Prosecutor’s Office appeared who pleaded for the dismissal of the applicant’s petition. The Supreme Court of Cassation dismissed the petition in a judgment of 25 July 1997. In its judgment the Supreme Court of Cassation held, inter alia: “Counsel for [the applicant] calls into question the testimony of [chief-sergeant D.], who, she asserts, is ‘very interested in the outcome of the case’, this interest being presumed from the allegations of [the applicant] that D. had ‘savagely beaten her’. This argument is groundless ... The [applicant’s] assertions that she had been beaten are completely unsubstantiated. In fact, the traces of the ‘savage beating’ were a subcutaneous haematoma above the left ear and an identical haematoma in the lower part of the right thoracic half ... That could have been caused by a blow or a self-inflicted blow with or onto a blunt object ... These injuries and the statements of [the applicant] that she fell unconscious, had vertigo, nausea and had vomited – for the ascertaining of which no objective medical criteria exist – led to her hospitalisation during which no indications of brain damage were found... Beside being unproven, the allegation of [the applicant] that ... she was the victim of an offence on the part of the police officers is also illogical. The police officers did not have any reason to be rude toward [the applicant], or, in any event, not until [she] by words and conduct demonstrated her disparagement toward [them] and their work...” 32. On 6 April 1995, after the applicant was admitted to hospital, her daughter filed a complaint with the Sevlievo District Prosecutor’s Office, alleging that her mother had been beaten by chief-sergeant D. The complaint was dealt with by prosecutor G., the same prosecutor who drew up the indictment in the criminal case against the applicant. On 26 April 1995 he ordered that the complaint be sent for verification to the District Police Department. In the accompanying letter he requested that the following facts be established within fourteen days: “Who brought [the applicant] to the Police Department[?] When and for what reasons[?] Was she hit[?] With what[?] In which part of the body[?] What injuries did she sustain[?]” 33. On 27 April 1995 the head of the District Police Department assigned the verification to lieutenant R., the officer who had arrested the applicant and who had conducted the inquiry against her. 34. On 5 May 1995 lieutenant R. concluded the verification. He sent a report to the head of the District Police Department, asserting that the applicant had not been beaten and recommending that no criminal investigation be opened. The applicant submits that the lieutenant did not independently establish the facts but instead relied on testimony given in the criminal investigation against her to corroborate his conclusion. 35. On 1 June 1995 the results from the verification were sent to the District Prosecutor’s Office and given to prosecutor G. Apparently no further investigative actions were undertaken by the prosecution with regard to the complaint. No decision to open or to refuse the opening of a criminal investigation was issued. 36. In a separate effort to initiate an investigation, on 11 April 1995 the applicant’s daughter filed a complaint with the Ministry of Internal Affairs in Sofia. The Ministry requested information form the District Directorate of Internal Affairs in Gabrovo, which in turn requested information from the Sevlievo District Police Department. 37. On 17 April 1995 the applicant’s daughter also filed a complaint with the Directorate of the National Police in Gabrovo, which three days later ordered the District Directorate of Internal Affairs to conduct an inquiry. 38. On 11 May 1995 the District Directorate of Internal Affairs wrote to the applicant’s daughter and to the Ministry, stating that it had not been established that chief-sergeant D. had engaged in any unlawful actions. The letter added that an investigation had been opened into the matter, citing the case-number of the criminal investigation against the applicant. 39. On 17 May 1995 the Ministry sent a reply to the applicant’s daughter, stating that the prosecution authorities were handling the case and that the Ministry would announce its position after they prosecution had finished dealing with it. 40. In June 1996 Amnesty International published a report under the heading: “Bulgaria: Shootings, deaths in custody, torture and ill-treatment” (AI Index: EUR 15/07/96), in which, on page 23, the case of the applicant was described. Upon receiving a query from Amnesty International, the Ministry of Internal Affairs sent a reply, in which it relayed that the applicant had been put in the detention room by sergeants D. and U., but asserted that the applicant had not been beaten or ill-treated during her stay in the police station. 41. In its issue of 22-28 July 1996 a national weekly newspaper, “168 Hours”, published an article describing the case of the applicant, the criminal prosecution against her and the investigation into her daughter’s complaints under the heading “A granny battered a police officer on his place of work”. 42. Section 40(1) of the National Police Act, as in force at the material time, read, as relevant: “... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of: 1. resistance or refusal [by a person] to obey a lawful order; ... 5. attack against citizens or police [officers]; ... Section 41(2) provided that the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used].” 43. Articles 128, 129 and 130 of the CC make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties the offence is an aggravated one. This offence is a publicly prosecuted one (Article 161 of the CC). 44. Under Bulgarian law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure (“CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP). During the relevant period the CCP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP). | 1 |
train | 001-98293 | ENG | HRV | ADMISSIBILITY | 2,010 | KACINARI v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mr Anton Kačinari, is a Croatian citizen of Albanian origin who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr Zlatko Kušan and Mrs Lovorka Kušan, lawyers practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 March 1992 the applicant reported to the police that on that same day at about 11 a.m. he had had a fight with a certain P.G. and that P.G. had fired two shots. Several other individuals had joined P.G. and together they had hit and kicked the applicant who, according to the medical documentation submitted, suffered grave injuries such as concussion, a broken nose, lacerations to his head and broken teeth. On 17 March 1992 the police lodged a criminal complaint with the Zagreb State Attorney’s Office. The Government submitted that on 24 June 1998 the competent State Attorney’s Office had dropped the charges and that the case file had meanwhile been destroyed. The applicant submitted that he had never been informed of the said decision to drop the charges. On 6 July 2004 the applicant lodged a criminal complaint against K.G. and P.G., alleging that at the beginning of 2004 K.G. had threatened to kill him and that in May 2004 both K.G. and P.G. had threatened to kill him. On 7 July 2004 he lodged a further complaint stating that on 6 July 2004 K.G. had said in front of one M.M. that he would kill the applicant. On 20 July 2004 the Zagreb State Attorney’s Office ordered the police to collect information in relation to the applicant’s allegations. In their report of 24 October 2004 the police informed the State Attorney’s Office that they had interviewed the applicant and two witnesses. On 7 March 2005 the State Attorney’s Office ordered the police to interview P.G. and K.G. On 9 June 2005 the police submitted a report and enclosed the record of the interviews with the alleged perpetrators. On 13 July 2005 the State Attorney’s Office requested an investigating judge of the Zagreb County Court (istražni sudac Županijskog suda u Zagrebu) to hear evidence from the perpetrators. The investigating judge heard their evidence on 27 September and 17 October 2005 respectively. On 28 November 2005 the State Attorney’s Office indicted P.G. and K.G. in the Zagreb Municipal Court (Općinski sud u Zagrebu) on charges of uttering threats against the applicant. Hearings before that court were held on 19 November 2007 and 7 January, 11 February, 2 April and 20 May 2008. The court heard evidence from five witnesses and the defendants and on the last-mentioned date gave a judgment acquitting K.G. for lack of evidence. P.G. was found guilty of making death threats to the applicant and was given a suspended sentence of three months’ imprisonment with a probation period of two years. The State Attorney lodged an appeal which was dismissed by the Zagreb County Court on 3 March 2009. On 25 July 2005 the applicant lodged a criminal complaint against B.Š., alleging that at around 6 p.m. on that same day B.Š. had threatened to kill him, telling him that he was a “newcomer” and a “shiptar”, a derogatory term for persons of Albanian origin. He had also warned the applicant that he had “warrior experience” and “was in the war”. On 12 October 2005 the Zagreb State Attorney’s Office requested an investigating judge of the Zagreb County Court to hear evidence from the defendant and the applicant. The investigating judge heard their evidence on 27 January and 20 March 2006 respectively. On 14 April 2006 the Zagreb State Attorney’s Office indicted B.Š. in the Klanjec Municipal Court on the charge of making death threats to the applicant. The factual basis of the offence as described in the indictment reads: “... that on 25 July 2005 in Zagreb, ..., with the intention of scaring him, [B.Š.] told Anton Kačinari that he had “war experience”, that he had participated in the Homeland War, that he knew how to kill and that he was going to kill him and that he had no rights as an Albanian because this was Croatia and he was a Croat, which caused Anton Kačinari to fear for his personal safety” After the indictment, the Zabok State Attorney’s Office took over the prosecution. The Klanjec Municipal Court held hearings on 6 June, 4 July, 12 September, 15 October and 14 November 2007 and on 19 February 2008. It heard evidence from seven witnesses, the defendant and the applicant. On 5 May 2008 the Zabok State Attorney’s Office informed the Municipal Court that it no longer wished to continue the prosecution of B.Š. on the grounds that the evidence of the witnesses heard had not shown that B.Š. had seriously threatened to kill the applicant. Accordingly, on 8 May 2008 the Klanjec Municipal Court terminated the proceedings because the State Attorney’s Office had dropped the charges. The applicant was informed that he could take over the prosecution within eight days of the date on which the decision was served on him. He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings. On 11 June 2007 the applicant lodged a criminal complaint against P.G., alleging that on 8 March 2007 at about 10 p.m. he had met P.G. in the street. P.G. had made a gesture as if he were going to pull a gun on the applicant, saying that he was going to kill him. On 21 June 2007 the Zagreb State Attorney’s Office ordered the police to collect information about the applicant’s allegations. The police submitted their report on 2 August 2007. On 23 August 2007 the Zagreb State Attorney’s office indicted P.G. in the Zagreb Municipal Court on the charge of threatening behaviour against the applicant. These proceedings are currently pending. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows: “(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.” | 0 |
train | 001-69290 | ENG | POL | ADMISSIBILITY | 2,005 | URBANIAK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Kazimierz Urbaniak, is a Polish national who was born in 1955 and lives in Kowary. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 June 1991 the applicant's former wife lodged a motion with the Bydgoszcz District Court (Sąd Rejonowy w Bydgoszczy) claiming that the joint property of the spouses be divided. The proceedings were terminated on 26 September 2002. On 12 May 2002 the date on which the application was lodged with the Court, they were pending before the Bydgoszcz Regional Court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
train | 001-57637 | ENG | NLD | CHAMBER | 1,990 | CASE OF KEUS v. THE NETHERLANDS | 3 | No violation of Art. 5-2;No violation of Art. 5-4;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3 | N. Valticos | 6. Mr Jacobus Keus, a Dutch national, currently resides in the Netherlands. 7. On 15 December 1981 the District Court (Arrondissementsrechtbank) of The Hague sentenced him, for murder and a number of attempts to commit armed robbery, to four years’ imprisonment, to be followed by two years’ placement at the Government’s disposal (see paragraph 12 below). The judgment became final on 30 December 1981. 8. While he was serving his sentence, the applicant absconded on several occasions; he remained at liberty a total of 109 days. On 1 May 1984 the Minister for Justice ordered his conditional release with effect from 3 May. This measure was however purely formal because the applicant had been placed in a psychiatric clinic on 18 February 1983. He absconded regularly from this establishment too. In its decision extending the confinement (see paragraph 10 below), the court noted that, according to the director of the clinic, Mr Keus had spent, since his admission, approximately 19 months at the clinic and 13 months outside. On 22 May 1984 the Ministry of Justice - in accordance with an administrative practice not provided for by law - wrote to the Crown Prosecutors of The Hague and of Utrecht, and to the director of the clinic, informing them that, unless extended, the applicant’s placement would come to an end in 1986, on 14 January and not 3 May. The applicant was, in the Ministry’s view, to be regarded as having been held at the Government’s disposal during the periods which he had spent outside prison following his escapes. Neither Mr Keus nor his counsel had any knowledge of this letter. On 14 October 1985 Mrs Later informed the District Court of The Hague that she would be the applicant’s lawyer in the proceedings relating to the extension of the confinement. It appeared from her letter that she expected the proceedings to open in April or May 1986. On 29 November 1985 the applicant escaped from the clinic once more. According to the authorities, he remained in hiding. 9. On 4 December 1985 the Crown Prosecutor requested the District Court of The Hague to extend by two years the applicant’s placement; he informed neither Mr Keus nor his lawyer of this. By a letter dated 18 December 1985, Mr Keus’s lawyer requested the Minister for Justice to order her client’s release. 10. On 7 January 1986, following a hearing which was attended only by a member of the hospital staff and the Crown Prosecutor, the court granted the request for an extension. According to the Government, the Crown Prosecutor had instructed the police to serve on Mr Keus a summons to appear at this hearing, but they had not succeeded in contacting him. Mr Keus was notified of the decision - which described him as having no known address - on 19 January, when he telephoned the clinic. After having returned to it, he was held there from 22 February in pursuance of the court’s order. 11. By a letter of 20 August 1986 the Secretary of State for Justice informed the applicant’s lawyer that the order placing her client at the Government’s disposal would not be lifted in the immediate future. Having observed a significant improvement in his behaviour, the authorities released him provisionally in January 1987. In 1988 the Crown Prosecutor decided not to seek a second extension of the placement at the Government’s disposal. 12. Since 1928 the Netherlands Criminal Code (Wetboek van Strafrecht) has contained special provisions applying to persons suffering from a mental deficiency or mental illness. The provisions were substantially amended by an Act of 19 November 1986, which came into force on 1 September 1988. According to Article 37 (as applicable to the events in the present case), the perpetrator of an offence which cannot be imputed to him because he suffers from a mental deficiency or mental illness is not liable to punishment. If the protection of public order so requires, the court may direct that such a person be placed at the Government’s disposal so that he can receive treatment at the Government’s expense. Such a measure may also be taken in conjunction with a criminal sanction if the convicted person’s responsibility was merely diminished at the time of the offence (Article 37 (a)). Under Article 37 (b) § 1, the placement lasts for two years unless the Government terminates it earlier. This period commences as soon as the judgment ordering it has become final (paragraph 2 thereof); it is suspended by any other deprivation of liberty resulting from a judicial decision (paragraph 3, according to the most widely accepted interpretation). 13. The court which makes the initial order may extend the confinement, on each occasion for one or two years (Article 37 (b) § 2), on an application by the crown prosecutor, himself acting on the opinion of the director of the clinic. To this end, the crown prosecutor has to submit an application to the court in question not more than two months and not less than one month before the placement period is due to expire (Article 37 (f) § 1). According to case-law, failure to comply with this requirement renders the application inadmissible. The prosecutor must attach to his application a copy of the clinic’s report on the physical and mental health of the person concerned together with a reasoned declaration - preferably by the doctor treating the patient - on the appropriateness of extending the confinement (Article 37 (f) § 2). 14. Article 37 (g) governs the procedure to be followed for the examination of the application: if possible the court is to hear the person in question and, if it considers additional information to be necessary, interview witnesses and experts. The crown prosecutor and the lawyer of the person confined may attend any hearing, of which a record is drawn up. By a circular of 16 April 1980, the Minister for Justice issued instructions to the courts to hear the person concerned before extending his placement. 15. By virtue of Article 37 (h) § 1, the court is to give its decision within two months following the lodging of the application. However, Article 37 (b) § 4 states that the person concerned remains at the Government’s disposal until the court has ruled on the extension. In a judgment of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no 436), the Supreme Court (Civil Division) took the view that the last-mentioned rule applied even if the court exceeded the two-month time-limit, which was merely of an exhortatory nature. While recognising how inconvenient this interpretation might be for the person concerned, the court noted that this did not mean that the latter was entirely without a remedy against such a breach: "if, once the time-limit laid down in Article 37 (h) has expired, the decision provided for in that provision is arbitrarily delayed, the Government may find itself required, if necessary as a result of legal action by the person confined, to terminate the placement extended pursuant to Article 37 (b) § 4." By a judgment of 29 September 1989 (NJ 1990, no. 2) the Supreme Court (Civil Division) gave the following clarification regarding the 1974 decision: in itself, the failure to comply with the time-limit laid down in Article 37 (h) does not give rise to an obligation to terminate the placement; the existence of such an obligation depends in particular on the extent to which, and the reasons for which, the time-limit is exceeded as well as the personal and social interests at stake. According to a judgment of the Supreme Court (Civil Division) of 9 January 1970 (NJ 1970, no. 240), it falls to the court to decide to what extent it must state its reasons in the order extending the confinement, which is neither delivered in public nor appealable (Article 37 (h) § 2), but is served on the person concerned (Article 37 (h) § 3). 16. A person placed at the Government’s disposal may at any time request the Minister for Justice to revoke the measure. By virtue of Article 37 (e), the Minister may terminate the confinement at any moment, unconditionally or conditionally, if personal or material circumstances justify such a decision. In the above-mentioned extract from its judgment of 14 June 1974 (see paragraph 15 above), the Supreme Court was clearly alluding to interlocutory proceedings (kort geding) before the President of the District Court. Thus it confirmed the fundamental role of these proceedings in the Netherlands legal system and practice. The importance of such a remedy in the specific field which is the subject of the present case is moreover illustrated by the three judgments of the Court of Cassation referred to in paragraph 15 above. They were all delivered in interlocutory proceedings, two of which resulted in the President of the District Court ordering the immediate release of the person concerned. In addition, in the proceedings concluded by the judgment of 9 January 1970, the State had argued that the President lacked jurisdiction; its objection was dismissed in accordance with a consistent line of cases decided in interlocutory proceedings and it did not appeal. The Koendjbiharie case also shows the extent to which the "kort geding" constitutes an obvious remedy in the field in question (see the Koendjbiharie judgment given this day, Series A no. 185-B, pp. 35-37, §§ 11 and 14). Furthermore the adversarial principle is, according to the Supreme Court’s decisions, one of the basic principles of Netherlands procedural law. At the time of the events in issue in the present case, the Supreme Court had already drawn striking inferences therefrom. In a judgment of 27 November 1981 (NJ 1983, no. 56), it ruled admissible an appeal against an order extending the confinement of a "mentally ill person", on the ground that it had been made without hearing the person concerned. It did so, having regard to the importance of the principle in question, in spite of the statutory rule restricting the right of appeal to persons heard at first instance. Similarly, by a judgment of 29 March 1985 (NJ 1986, no. 242), it declared admissible, notwithstanding the express provisions of the law, the appeal against a decision ordering the provisional hearing of witnesses, on the ground that the appellant had not been heard first. | 0 |
train | 001-4647 | ENG | POL | ADMISSIBILITY | 1,999 | DOMALEWSKI v. POLAND | 1 | Inadmissible | Matti Pellonpää | The applicant is a Polish national, born in 1926 and living in Warsaw, Poland A. From 15 February 1947 to 31 December 1956, the applicant was an officer (funkcjonariusz) of the Ministry of Public Security (Ministerstwo Bezpieczeństwa Publicznego) and the Committee for Public Security (Komitet Do Spraw Bezpieczeństwa Publicznego). On 31 May 1974 the Warsaw Regional Board of the Union of Fighters for Liberty and Democracy (Zarząd Wojewódzki Związku Bojowników o Wolność i Demokrację) issued a decision granting the applicant the so-called “veteran status” (uprawnienia kombatanckie) on the basis of the fact: “ ... that he [had] served from 10 June 1944 to 9 May 1945 in the [so-called] Restored Polish Army.” On 2 June 1976 the Board issued a decision stating that the applicant should be granted “veteran status” also in view of the fact that: “... from 29 March 1946 to 10 February 1947 he [had taken] part in the armed struggle to consolidate the people’s power (brał udział w walkach o utrwalanie władzy ludowej).” On 15 July 1976 the Ministry of the Interior issued a declaration stating that, from 15 February 1947 to 31 December 1956, the applicant had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, “he had taken part in armed fighting with the reactionary underground resistance forces” (brał udział w zbrojnej walce z reakcyjnym podziemiem). On 29 July 1980 the Board issued a decision stating that the applicant should be granted “veteran status” since: “From 10 June 1944 to 9 May 1945 he [had] served in the Restored Polish Army; from 5 April 1944 to 9 June1944 he [had] served in the allied armies; from 29 March 1946 to 10 February 1947 and from 15 February 1947 to 31 December 1947 he [had taken] part in the armed struggle to consolidate the people’s power.” Later, on an unspecified date, the applicant retired and, from that date, received a retirement pension and a so-called “veteran benefit” (dodatek kombatancki), i.e. a monthly allowance to which only retired veterans were entitled. On 22 April 1994 the Director of the Office for Veterans and Persecuted Persons (Kierownik Urzędu Do Spraw Kombatantów i Osób Represjonowanych) issued a decision divesting the applicant of the status of veteran under Section 25 § 2 (1) (a) of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression (Ustawa o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego), read in conjunction with Section 21 § 2 (4) (a) of that Law. The reasons for this decision read: “[The applicant] was granted “veteran status” by virtue of the decisions issued by the Union of Fighters for Democracy and Liberty on the basis of declarations [of the relevant military authorities], stating that he had taken part in the armed struggle to consolidate the people’s power and had served in the allied army. [He was later granted such a status] on the basis of a declaration issued by the Ministry of the Interior on 15 July 1976, stating that, from 15 February 1947 to 31 December 1956, he had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, he had taken part in armed fighting with [the so-called] reactionary underground resistance forces. Under Section 21 § 2 (4) (a) of the Law of 24 January 1991 cited above anyone who has served in organs of the public security service shall not acquire “veteran status” [in any circumstances and for whatever other reasons]. Under Section 25 § 2 read together with Section 21 § 2 (4) (a) of the Law, anyone who has served in organs of the public security service shall be divested of such [previously acquired] status. That being so, the present decision is justified.” On 23 May 1994 the applicant filed an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny), submitting that the above-mentioned decision had been issued in breach of the rule of law and based on insufficient evidence. He maintained that he had been divested of his status of veteran on the basis of a single circumstance, namely, that he had served in the organs of the public security service, even though he had never committed any condemnable, illegal or immoral act. He stressed that he had never taken part in armed fighting with the underground resistance forces but had acquired “veteran status” for his fight for independence of Poland and against the Nazis. Finally, the applicant contested the accuracy of the certificates issued by the Union of Fighters for Liberty and Democracy, stating that they were inaccurate. On 21 February 1996 the Supreme Administrative Court held a hearing in the applicant’s case. On the same day the court gave judgment dismissing the appeal. It held that, under Sections 21 and 25 of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression, no one who had previously served, or been employed in, the organs of the public security service could receive or retain the status of veteran, whatever his merits. In the instant case, it was clear that the applicant had been an officer of the former Ministry of the Public Security and the former Committee for Public Security; this fact was, in itself, sufficient under the terms of the Law of 24 January 1991 to justify the decision to divest him of his previously acquired status. The impugned decision had therefore been taken in conformity with the relevant provisions of the substantive law. B. Relevant domestic law The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans (Ustawa o szczególnych uprawnieniach kombatantów). It was enacted in order to regulate the system of granting special privileges attached to the so-called “veteran status” and, partly, intended to condemn the political role played by the former Communist machinery (in particular, the so-called “Public Security Service”, “aparat bezpieczeństwa publicznego”) in establishing the Communist regime, implementing a Stalinist policy and repressing political opposition to the system. Considering that persons having served in the former organs of public security, whose task it had been, inter alia, to combat and eliminate all forms of democratic opposition, did not deserve the special privileges attached to “veteran status”, the legislator decided that they should be unconditionally deprived of that status. The “Public Security Service” consisted of State organs, comprising the political police and special armed forces. It was patterned after the NKVD and the KGB and established (under the supervision of the NKVD) on 21 July 1944 with a view to securing Communist rule and combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism and the Polish Church. In the 1950s these organs were in charge of prisons and labour camps; at that time, they were also competent to conduct criminal investigations under the rules of criminal procedure. Depending on the political circumstances, they were called by various names: “Department of Public Security” (Resort Bezpieczeństwa Publicznego), subsequently renamed “Ministry of Public Security” (Ministerstwo Bezpieczeństwa Publicznego) (July 1944-December 1954); “Committee for Public Security” (Komitet do Spraw Bezpieczeństwa Publicznego) (1954-1956); and “Security Service” (Służba Bezpieczeństwa), as a special department of the Ministry of the Interior (1956-1990; dissolved after the collapse of Communism). The Law of 24 January 1991 also established a new public organ, the Office for Veterans and Persecuted Persons, which is competent to grant “veteran status” and has the duty to verify whether persons who have previously acquired such status meet the new statutory criteria. Section 21 § 2 (4) (a) of the 1991 Law, as applicable at the relevant time, provided as follows: “2. No one shall acquire “veteran status”, if: ... (4) (a) he has served [or has been employed] in organs of the public security service. ...” In turn, Section 25 § 2 of that Law, as applicable at the relevant time, provided the following: “Anyone who has acquired “veteran status” on the basis referred to in Section 21 § 2 ... (4) shall be divested of such previously acquired status.” Under the provisions of both the repealed Law of 26 May 1982 and the new Law of 24 January 1991 (Sections 12-20), veterans were (and still are) entitled to privileged status in comparison to other employees or retired persons; this status included, for example: a lower age of retirement; a particularly favourable method for calculating periods of employment; and various financial benefits paid in addition to the normal pension calculated in accordance with the rules of the general social insurance system. At the time when the applicant was divested of his “veteran status”, a retired veteran was, inter alia, entitled to a so-called “veteran benefit” equal to 10% of the average monthly salary in the public sector; a fare discount of 50% on travel by municipal transport, rail and public long-distance buses; a special allowance covering 50% of such household expenses as electricity, gas and heating; and a discount of 50% on motor-vehicle insurance. The loss of “veteran status” did (and does) not, however, entail any legal or practical consequences in respect of the right to receive a normal pension since, under Section 26 of the Law of 24 January 1991, a person divested of that status is still entitled to his pension calculated under the rules applicable within the general social insurance scheme. | 0 |
train | 001-105284 | ENG | DEU | CHAMBER | 2,011 | CASE OF HELLIG v. GERMANY | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | 5. The applicant was born in 1953 and lives in Frankfurt/Main. 6. The applicant was serving a prison sentence in Butzbach prison. In October 2000 the Butzbach prison authorities ordered him to move from his single cell to a cell which he would have to share with two other inmates and which did not have a screen or curtain separating the toilet from the rest of the cell. 7. By letter of 11 October 2000 the applicant, referring to a decision given by the Frankfurt Court of Appeal in 1985 in a case concerning a different prisoner, informed the head of Butzbach prison that accommodation in such a cell was generally unlawful and that he refused to move. On that same date, the applicant lodged a motion with the Gießen Regional Court, which was brought to the attention of that court only after the applicant’s transfer to the multi-occupancy cell. 8. On 12 October 2000 the prison staff ordered the applicant to vacate his single cell and announced that they would use force (unmittelbarer Zwang) if he refused to do so. Accordingly, the applicant vacated his cell and was taken to the multi-occupancy cell. At the door of that cell, however, he again refused to move into the cell. Subsequently, a scuffle ensued between the applicant and prison staff. According to the applicant’s submissions, he was kicked and beaten by the prison staff, while he had merely passively resisted being placed into the multi-occupancy cell. According to the Government, the applicant kicked the prison staff. 9. Subsequently, the applicant was forcibly taken to a security cell which had no items which could cause danger (besonders gesicherter Haftraum ohne gefährdende Gegenstände), where he was strip-searched and undressed. It is not clear from the material submitted by the parties whether the applicant remained naked for the whole period of time he spent in the security cell. 10. The security cell had a size of approximately 8.46 square metres and was equipped as follows: two doors with chain link, two cameras, one milky glass pane for daylight, one mattress with fire-proof sheet, one squat toilet, one call system, two windows above the doors, aluminium ceiling with ventilation slits, tiled floor. The temperature of the cell was controlled to ensure comfort, and the meals were served at the usual times. 11. Following his placement in the security cell, the applicant was examined by the prison physician who diagnosed minor bruising on the applicant’s front and his left shin and bruising and a small hematoma on his left thorax. On 12, 13, 16, 18 and 19 October 2000 the applicant was re-examined by the prison physician. According to the physician’s report submitted on 31 October 2000, the injuries would heal without complications; the bruising in the thorax area could, according to medical experience, cause discomfort for a longer period of time. 12. On 14 October 2000 the applicant was visited by a psychiatrist. 13. On 15 October 2000 the prison pastor visited the applicant. In his letter to the police dated 12 January 2001 the pastor made the following statement: “As the security chain was locked, which permitted to open the door only slightly, I could see that the prisoner was naked. I am not sure whether he sustained injuries which exceeded bruises and refer to the medical report. However, the prisoner was in a very agitated state of mind and talked about having been beaten by prison staff.” 14. On 16 October 2000 the head of the prison administration made the following report: “Since 12 October 2000 the prisoner is placed in the specially secured room ... Following his medical examination, it was intended to transfer him today to a multi-occupancy cell on station B I. In the presence of the prison guards B. and H. and myself the prisoner Hellig declared that he insisted on his right to be attributed a single cell as provided by the case-law of the Court of Appeal and that he would not leave the specially secured room. If this should be done by force, the prison guards would have to “beat him to death”.” 15. On 17 October 2000 the applicant was visited by the prison psychologist Dr E. who made the following report on his conversation with the applicant: “I visited Mr Hellig on 17 October 2000 in the segregation cell with the intention of finding a way out of the deadlock situation. However, Mr Hellig proved to be unable to compromise and stubbornly insisted on his request to be transferred to a single cell ... He could hardly imagine to remain in this prison after having been abused in connection with his placement in the segregation cell ... I have the impression that Mr Hellig is so obsessed that he is currently unable to compromise and to discuss a temporary solution. He feels mistreated and deprived of the single cell he previously occupied as a prison worker and station aid. Being a sportsperson and non-smoker, he could not be expected to share a cell with smokers.” 16. The applicant stayed in the security cell until 11.30 a.m. on 19 October 2000 when he consented to being placed in the prison hospital. Thereafter the applicant instituted the following two sets of proceedings. 17. On 25 October 2000 the applicant requested the Gießen Regional Court to declare that his detention in the isolation cell and the force used by the prison authorities had been unlawful. He submitted that he had been kicked and beaten by prison staff even though he had not given the prison guards any reasons to use violence against him. 18. On 8 April 2004 the Regional Court rejected the request. The Court took note of the written statements made by the prison pastor, the head of the prison administration and the prison psychologist (see §§ 14-16, above). It further pointed out that it had been beyond doubt that accommodation in a multi-occupancy cell with toilets that were not separated by screens or curtains from the rest of the cell would have been unlawful, as the Frankfurt Court of Appeal had already established in its earlier case-law. 19. According to the Regional Court the fact that the applicant was taken to the isolation cell was not due to his refusal to move into the multi-occupancy cell. It was in particular not a disciplinary measure to punish him for resisting, but he was detained in the isolation cell because his behaviour constituted a specific risk of violence and physical harm to other persons (section 88 §§ 1, 2 no. 5 of the Prison Act, see “Relevant domestic law” below), which allows for temporary detention in security cells. 20. The court based its findings on the statements of the prison personnel, who had confirmed that the applicant had begun pushing and hitting prison staff and that he had become very aggressive when he was ordered to move to the multiple occupancy cell. According to the official statements made by the prison guards, only the prisoner himself had used violence. In view of the applicant’s violent behaviour it had been necessary for the prison authorities to use force to take the applicant into the security cell in order to prevent him from causing harm to the prison guards. 21. The Regional Court further considered that “it could not be established for certain” whether there was a serious danger of self-injury or suicide during the time of his detention in the specially secured room. 22. Such detention was proportionate as it had not been possible to release the applicant from the cell before 19 October 2000. The applicant had announced that the staff members would have to kill him if they wanted to transfer him forcibly into the multi-occupancy cell. It was thus very likely that he would once again have resisted any such transfer. Therefore the specific risk of violent acts by the applicant persisted until 19 October 2000. Furthermore, the prison psychologist had stated that the applicant had not at all been ready to reach a compromise and, in particular, that he had stubbornly insisted on being transferred to a single cell. 23. On 8 April 2004 the applicant filed an appeal on points of law. He submitted in particular that, under the relevant guidelines, the duration of detention in a specially secured room should not exceed twenty-four hours. It followed that his seven-day placement had been disproportionate. 24. On 27 September 2004 the Frankfurt Court of Appeal declared the applicant’s appeal inadmissible, reasoning that no decision in the matter was required for the purpose of further developing the law or to secure the consistency of the case-law. 25. On 26 October 2004 the applicant lodged a constitutional complaint. He alleged that he had been kicked and beaten before being brought in the security cell, even though he had offered to consent to his placement in the security cell. He further submitted as follows: “In the instant case, I do not complain about the deprivation of liberty as such. However, the constitutional complaint is directed against the exceptionally severe conditions of my temporary detention (“besonders einschneidende Art und Weise meiner zeitweiligen Unterbringung”) during the execution of sentence.” 26. On 28 December 2004 the Federal Constitutional Court, relying on its Rules of Procedure, refused to admit the applicant’s constitutional complaint, without giving further reasons. 27. On 12 March 2001 the Gießen Public Prosecutor’s Office discontinued the criminal proceedings against the prison staff involved in the applicant’s transfer to the security cell. The Prosecutor’s Office noted that the applicant’s medical examination on 12. October 2000 established that he had sustained bruises. An x-ray taken some days later did not reveal any fractures or other bone injuries. It was thus established that the applicant suffered injuries on the occasion of his transfer into the security cell. It could, however, not be established whether these injuries had been caused by the prison staff, in particular by kicking or beating, or if they had been the unavoidable effect of his forced transfer to the security cell. 28. The relevant provisions of the Prison Act read as follows: Section 88 (Special Precautions) “(1) Special precaution may be ordered in respect of a prisoner where, in view of his behaviour or on account of his mental state, there is increased danger of his escaping or danger of violent attacks against persons or property or the danger of suicide or self-injury. (2) The following measures shall be permissible as special precautions: ... 5. detention in a specially secured room containing no dangerous objects, ... (5) Special precautions shall be continued only as long as is required by their purpose.” Section 92 (Supervision by Medical Officer) “(1) Where a prisoner is detained in a specially secured cell or shackled (section 88 (2) nos. 5 and 6) the medical officer shall visit him soon and, if possible, daily thereafter ... (2) The medical officer shall be consulted regularly as long as a prisoner is deprived of daily outdoor exercise.” Section 96 (Principle of Proportionality) “(1) From among several possible and suitable measures of direct coercion those shall be chosen which will presumably least affect the individual and the general public. (2) Direct coercion shall not be applied where any damage likely to be caused thereby would obviously be out of proportion to the desired result.” Section 109 (Request for a Court Ruling) “(1) A measure regulating individual matters in the field of execution of imprisonment may be contested by requesting a court ruling ...” “56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their ‘dangerousness’ or their ‘troublesome’ behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement. The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary-confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible ...” From the CPT report on Finland 1998 (CPT/Inf (96)28): “102. It should be added that the unit also contained an "observation cell" in which prisoners considered to be suicidal or likely to injure themselves could be located. Surveillance was maintained via an internally mounted CCTV camera ... The delegation was informed that prisoners placed there would often be stripped of their clothes and left naked in the cell. Such a practice is completely unacceptable. The CPT recommends that the practice of placing prisoners naked in the observation cell be ended immediately; prisoners placed in this cell should be provided with tear-proof clothing and bedding ...” From the CPT report on Belgium 2009 (CPT/Inf (2010)24 (translation from the French original): “130. ... To keep a prisoner naked in a cell constitutes, according to the CPT, degrading treatment. The CPT recommends that this practice be stopped immediately. Specially adapted clothing exists which permits the prisoner to keep a minimum amount of clothing while taking into account the risk of suicide.” | 1 |
train | 001-58094 | ENG | ITA | CHAMBER | 1,997 | CASE OF TROMBETTA v. ITALY | 4 | Art. 6 inapplicable | C. Russo;N. Valticos;R. Pekkanen | 7. Mrs Maria Luisa Trombetta lives in Catania, where she is employed at the local health unit (“the USL”). 8. The present application concerns five sets of proceedings, the first two of which were instituted by the USL against the applicant in the Sicily Regional Administrative Court (“the RAC”) and the last three by Mrs Trombetta against the USL in the same court. They concern the post assigned to the applicant at the USL and her remuneration following the dissolution of the Catania Provincial Consortium for the Prevention of Tuberculosis (Consorzio provinciale antitubercolare), where she had formerly worked as an administrator. She contested in particular a series of decisions by which her new employer had assigned her to a staff category lower than the one to which she considered herself to be entitled. 9. The first set of proceedings began on 12 June 1987. In a decision of 6 November 1987 the RAC ordered a stay of execution of the decision being challenged. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited. 10. The second set of proceedings began on 20 July 1987. In a decision of 6 November 1987 the RAC ordered a stay of execution of the decision in question. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited. 11. The third set of proceedings began on 19 November 1987. In a decision of 15 December 1987 the RAC dismissed the application for execution of the decision to be stayed. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited. 12. The fourth set of proceedings began on 16 December 1988. In a decision of 23 February 1989 the RAC allowed, in part, the application for execution of the decision to be stayed. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 25 May 1994, the applicant applied to the court registry for the proceedings to be expedited. 13. The fifth set of proceedings began on 13 November 1989. In an interlocutory judgment of 13 October 1993 the RAC ordered the USL to file certain documents. On 25 May 1994 the applicant applied to the court registry for the proceedings to be expedited. 14. According to the observations submitted by the applicant in October 1996, the proceedings were then still pending. | 0 |
train | 001-107937 | ENG | MNE;SRB | CHAMBER | 2,011 | CASE OF LAKIĆEVIĆ AND OTHERS v. MONTENEGRO AND SERBIA | 3 | Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicants - Ms Nevenka Lakićević (the first applicant), Mr Borislav Vukašinović (the second applicant), Mr Veselin Budeč (the third applicant), and Mr Vlado Rajković (the fourth applicant) - are all Montenegrin nationals who were born in 1947, 1937, 1924, and 1944 respectively. They live in Herceg-Novi (the first and third applicants) and Podgorica (the second and fourth applicants). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. Between November 1989 and June 2002 the applicants closed their private law firms and submitted papers to begin their retirements. 8. Between August 1990 and September 2002 their old-age and disability pension entitlements, as well as the exact amount of their pensions (starosna i invalidska penzija), were established by decisions of the Pension and Disability Insurance Fund (Republički fond penzijskog i invalidskog osiguranja; hereinafter “the Pension Fund”). The decisions, as submitted by the second and fourth applicants, allowed the applicants to resume working on a part-time basis. 9. Between April 1996 and June 2002 the applicants reopened their own legal practices on a part-time basis. 10. On 1 April 2004, 20 July 2005, 3 June 2005 and 24 November 2005 the Pension Fund suspended (obustavlja) payment of the applicants’ pensions respectively, until such time as they ceased professional activity. These decisions were all “deemed to be applicable as of 1 January 2004”, which was when section 112 of the Pension and Disability Insurance Act 2003 (hereinafter “the Pension Act 2003”) entered into force (see paragraphs 23 and 25 below). 11. The Pension Fund’s rulings were subsequently upheld by the Ministry of Labour and Social Welfare (Ministarstvo rada i socijalnog staranja), as well as, ultimately, by the Administrative Court (Upravni sud) on 6 December 2005, 4 April 2006, 18 April 2006 and 7 February 2007 in respect of the first, second, third and fourth applicants respectively. The Administrative Court explained, inter alia, that the applicants had not been deprived of their pension entitlements as such, but that the payment of their pensions had instead been suspended on the basis of the relevant domestic legislation. 12. Finally, on 13 June 2006, 27 June 2006 and 28 May 2007 respectively, the Supreme Court (Vrhovni sud) in Podgorica dismissed the second, third and fourth applicants’ requests for judicial review of their cases (zahtjev za vanredno preispitivanje sudske odluke). In so doing, the Supreme Court essentially endorsed the reasons given by the Administrative Court. 13. The first applicant did not attempt to make use of the judicial review avenue, in view of the fact that the other applicants’ identical requests had already been rejected by the Supreme Court. 14. Payment of the second applicant’s pension was resumed with effect from 1 December 2007, which is when he ceased his professional activity. The payment of the second, third and fourth applicants’ pensions was resumed with effect from 1 January 2009, which is when the Amendments to the Pension Act entered into force, repealing section 112 of the Pension Act 2003 (see paragraph 26 below). 15. On 30 June 2004 the Pension Fund lodged a compensation claim against the first applicant, seeking repayment of the pension payments she had received for January and February 2004 in the total amount of 425.74 euros (EUR). In response, the first applicant lodged a counterclaim seeking payment of the pension which had not been paid to her between March 2004 and December 2008 due to the suspension of her pension rights, amounting in total to EUR 15,332.45. 16. On 4 November 2009 the Court of First Instance (Osnovni sud) in Herceg Novi, after joining the two proceedings, ruled in favour of the first applicant, referring, in particular, to section 6 of the Amendments to the Pension and Disability Insurance Act 2003 (hereinafter “the Amendments to the Pension Act”), section 193 of the Pension Act 2003 as well as a decision of the Constitutional Court of Montenegro (see paragraphs 26, 24 and 28 below). On 19 January 2010 the High Court (Viši sud) in Podgorica overturned this judgment and ruled against the first applicant, relying on sections 112 and 222 of the Pension Act 2003 and considering that their application was not retroactive. This judgment was upheld by the Supreme Court on 3 June 2010, which court mainly endorsed the reasons of the High Court. In doing so, the Supreme Court in particular referred to section 112 of the Pension Act 2003. 17. On 29 July 2010 the Court of First Instance issued an enforcement order providing that the Pension Fund would retain half the first applicant’s pension until the entire sum owed had been paid. On 4 November 2010 this decision was upheld by the High Court. 18. On 17 January 2007 and an unspecified date the Pension Fund lodged compensation claims against the second and third applicants respectively, seeking repayment of the pension they had received from 1 January 2004 onwards. 19. On 20 June 2007 the Court of First Instance in Podgorica ruled against the second applicant, which judgment was upheld by the High Court in Podgorica on 13 February 2009. It would appear from the case file that this decision has been enforced. 20. On 25 February 2010 the Court of First Instance in Herceg Novi ruled in favour of the third applicant. On 16 April 2010 the High Court in Podgorica overturned this decision and ruled against him. In doing so, it referred to the above decisions of the Administrative Court and the Supreme Court (see paragraphs 11 and 12 above). It would appear from the case file that this decision has been enforced in subsequent enforcement proceedings. 21. There is no information in the case file as to whether the Pension Fund instituted civil proceedings against the fourth applicant. 22. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory. 23. Section 112 paragraph 1 provided that a person’s pension shall be suspended should he or she resume working or establish a private practice, for as long as this activity continues. 24. Section 193 paragraph 1 provided that beneficiaries of, inter alia, old-age pension (starosna penzija) and disability pension (invalidska penzija), who obtained these rights in accordance with the relevant legislation in force before this Act entered into force, shall preserve these rights afterwards at the same level (u istom obimu) with appropriate adjustments [on the basis of living expenses and average salaries]. 25. Section 222 provided that this Act would enter into force on 1 January 2004. 26. Section 6 repealed section 112 paragraph 1 of the Pension Act 2003. These Amendments entered into force on 1 January 2009. 27. On 12 July 2002 the Federal Constitutional Court of Yugoslavia, Yugoslavia being comprised of Montenegro and Serbia at the time, held that section 32 of the Federal Pension and Disability Insurance Act, which essentially corresponded to section 112 paragraph 1 of the Pension Act 2003, was in breach of the Constitution of the Federal Republic of Yugoslavia. In particular, once pension entitlements had been acquired they could not be repealed or restricted by subsequent measures. Further, there was a lack of proportionality between the public interest, protection of which was allegedly the intention of the provisions in question on the one hand and the interests of individuals in respect of their property rights on the other. Lastly, the court held that the section in question was indeed retroactive in nature, since it had also been applied to pensioners who had resumed professional activities before its entry into force. 28. On 10 November 2004 the Constitutional Court of the Republic of Montenegro rejected an initiative to assess the constitutionality of section 112 paragraph 1 of the Pension Act 2003. In so doing, it held, inter alia, that it was a matter of legislative judgment whether or not to allow a person to simultaneously receive pension and resume working, and that therefore this matter fell outside the jurisdiction of the Constitutional Court. It further held: “According to the ...Constitutional Court, Article 112 § 1 of the 2003 Act does not have retroactive effect, as it does not apply to situations which came into existence before its entry into force, but only as regards those ... which have arisen ... [thereafter] ...”. 29. Articles 40-46 provide details concerning a request for judicial review (zahtjev za vanredno preispitivanje sudske odluke). 30. In particular, Articles 40-42 provide that parties may file a request for judicial review with the Supreme Court. They may do so within a period of 30 days following receipt of a final decision rendered by the Administrative Court, and only if the relevant legislation, procedural or substantive, has been breached by the lower court. 31. In accordance with Article 46, the Supreme Court shall, should it accept a request for judicial review lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a re-trial before the Administrative Court. | 0 |
train | 001-102322 | ENG | RUS | CHAMBER | 2,010 | CASE OF ALEKSEY OVCHINNIKOV v. RUSSIA | 4 | No violation of Art. 10 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1974 and lives in Ivanovo. He is a journalist writing for the Ivanovo-Press newspaper. 6. In early July 2002 a nine-year-old boy attending the Stroitel summer camp complained to his parents that he had been beaten up and sexually abused by his twelve-year-old roommates. Further to a complaint by the boy's parents, the police found evidence of criminal offences which, however, were not prosecutable because the offenders were minors. 7. One of the offenders was the son of two federal judges, Mr and Mrs B. Another culprit was the stepgrandson of the deputy head of the Ivanovo Regional Traffic Police, Mr V. 8. As the offenders' parents held prominent positions in the region, the media took an intense interest in the story. The first article about the incident was published on 26 August 2002 by the Kursiv-Ivanovo weekly newspaper. The publication listed the names and positions of the offenders' relatives. 9. After the victim's mother had brought the police reports and the relevant medical records to the applicant's newspaper, the applicant undertook independent research into the events. In particular, he interviewed the principal of the Stroitel summer camp, several of its teachers, an official responsible for the supervision of summer camps in the region, a spokesman for the police department charged with the investigation and the head of the Judicial Qualifications Board. 10. On 3 September 2002 the applicant published an article about the incident at the summer camp in the Ivanovo-Press newspaper, under the headline “Day of reckoning” (Час расплаты). He wrote, in particular, as follows: “Any story [of battery and sexual abuse] deserves the most rapt attention. This one is particularly shameful because of the fact that the parents of one little bastard work as judges in a district court, and a close relative of another is one of the heads of the regional traffic police. It is hard to write about this matter. The case affects children, their lives, their tragedy and their future. It is hard because the guilt and its extent should be determined by a court, but the underage participants in this story are, alas, not liable to prosecution ... Their parents should be responsible for their deeds vis-à-vis society and the State. This is why we have decided to take the matter up ... I believe readers will excuse me for not providing a detailed description of the abuse to which the kid was subjected (in fact, our colleagues from the Kursiv newspaper have already provided one). I will say only one thing: the circumstances of those unchildlish deeds were established by evidence. They amount to assault and battery, punishable by Article 116, and sexual assault, punishable by Article 132 of [the Criminal Code]. Thus, if those moral freaks had been charged with criminal offences and committed for trial, they would have risked long terms of imprisonment. ... [After the parents of the victim had complained to the police,] an investigation was conducted by officers from the Interior Department of the Teykovskiy District, who established that the actions of the three minor rapists indeed disclosed all the elements of criminal offences. However, no criminal proceedings were opened because the suspects were minors. Meanwhile, the press learned about the events and a scandal erupted. It is not the first time that the attention of law-enforcement bodies has been riveted to the children of high-ranking parents. However, as a rule, such cases are abandoned at an early stage of the inquiry. Even when they are referred for trial, the general public hardly ever knows about it. Without any doubt, had the administration of the Stroitel summer camp paid attention to the facts and warned the parents in time, the investigators from [the Interior Department of the Teykovskiy District] would have hardly been allowed to go on with the investigation. The events were, however, left to take their course and were made public. We must do some serious thinking here. How can it be? A kid whose parents work as JUDGES has committed a crime! Is it a coincidence or a pattern? What did his parents teach him? Perhaps they thought that the judge and the Law were one and the same thing, that the judge was not servant but master of the law, a superhuman? And that his children were superhumans, too; they could do whatever they pleased, in the knowledge that their mothers and fathers would exempt them from liability... Another [offender] has a relative in the police force. Not an ordinary one, but a bigwig sporting star-studded epaulettes. So, is anything permitted? If something happened, would he 'cover up' and 'fix' it? How will these people carry on working in the courts and the police force? Delivering judgments, sentencing men to prison terms for crimes for which their progeny could have been convicted? Or are they already used to doing this? After all, all these conjectures are based on real grounds and it is very likely that the case will be hushed up thanks to 'string pulling' by the rogues' parents. We were told that pressure was being put on the victim's parents, that their physical integrity had been threatened. What is more, while our editorial board was working on that publication, we received a number of bizarre telephone calls asking us to stop the journalistic investigation and stay out of the way of the judges and their children. It is strange that none of the 'well-wishers' who called us considered the fate of the injured child, of how he will live after what happened. Nor did they consider the fate of the underage members of the 'criminal trio'. What will become of them? Could it be that, having gone unpunished once, they will resume their 'sexual experiments' in a couple of years? ... P.S. Unfortunately, because of recent amendments to the Media Act, the newspaper may not name the young rascals or their parents and relatives ... We will carry on investigating the matter and in a future issue we will give concrete examples of how the children of judges and police officials have escaped punishment.” 11. According to the applicant, subsequent publications in the KursivIvanovo and Rabochiy Kray newspapers and on the Internet gave the names and official positions of the offenders' parents and relative. 12. On 17 September 2002 the applicant published a follow-up article, under the headline “Chocolate Kids. High-ranking parents of minor rapists seek to hush up the scandal” (“Шоколадные детишки. Высокопоставленные родители малолетних насильников пытаются замять скандал”). He wrote as follows: “The case developed into a scandal because the parents of one suspect were the spouses [Mr and Mrs B.], judges in a district court of Ivanovo, and a close relative of another, [Mr V.], was deputy head of the regional traffic police. Quite naturally, these high-ranking parents were not prepared to put up with the course of events. In addition to the ethical dimension, the scandal was a potential threat to their careers and financial well being. In the beginning they attempted to portray the events as an ordinary fist fight! With that purpose, and with the complicity of the regional administration, the prosecutor's office ordered an additional inquiry ... Judging from the diligence with which all that has been done, as well as from the fact that the official newspapers were suddenly full of lengthy articles about this year's wonderfully organised summer holidays for children, attempts are being made to exert pressure on the course of the resumed investigation. Most likely, this inquiry will establish that all the suspects are 'warm and fuzzy'. Yet, the fact that the abuse did indeed take place is confirmed by the fact that, precisely because of those scandalous events, one of the little scoundrels has been placed in a detention centre for juvenile offenders pursuant to an order of the Oktyabrskiy District Court. It follows that the son of simple factory workers is segregated from society, while his accomplices, the children of judges and bigwigs from the police, are at liberty! ... Our journalistic inquiry uncovered sensational information about [Mr V.] It turns out that this criminal scandal is not the first one in his family. His eldest son, Valeriy, has been on the list of fugitives from justice since 1995: he was suspected of assault with intent to rob. His youngest son, also a traffic police officer, caused a road accident a few years ago, in which a young woman was seriously injured ... But he managed to escape responsibility. And now this gloomy story involving [Mr V.'s] stepgrandson. It begs a question for the management of the regional police, who are certainly aware of these facts: how can such a person still work in the field of law enforcement in a position of leadership in the traffic police? This week the [judicial] qualification board will decide on the destiny of the judges [Mr and Mrs B]. If they carry on working as judges, this again begs a question: how will these people sentence others if they were unable to bring up their own child [properly]? ...” 13. Mr and Mrs B. brought a civil action for defamation and disclosure of private information on their own behalf and on behalf of their minor son. They named as defendants the founders of the Kursiv-Ivanovo newspaper and its journalists, as well as the applicant and the company that owned his newspaper. They sought a retraction and compensation for non-pecuniary damage. They enclosed the text of the retraction, containing an apology that they wished the applicant's newspaper to publish. 14. On 12 March 2003 the Sovetskiy District Court of Ivanovo gave judgment. It noted that the statements accusing Mr and Mrs B.'s son of violent acts were true because the police had found evidence of a criminal offence. The allegedly insulting statements (“little bastards”, “young rascals” and the like) were not actionable because they constituted value judgments not amenable to verification. The alleged breach of the duties of a journalist arising out of the Media Act, namely, disclosure of confidential or private information, was not actionable in civil proceedings because the Media Act provided for criminal or disciplinary, rather than civil, sanctions for such breaches. On the other hand, relying on Article 152 of the Civil Code, the court granted the claimants' request for a retraction of the allegation that they “had attempted to interfere with the investigation” because the journalists had not produced any proof of such interference. It ordered that the newspaper and the applicant publish a retraction containing an apology to Mr and Mrs B. It further ordered that the applicant pay Mr and Mrs B compensation in respect of non-pecuniary damage in the amount of 3,000 Russian roubles (RUB, approximately 85 euros (EUR)). 15. The applicant appealed. He submitted, in particular, that the articles authored by him did not contain any statements accusing Mr and Mrs B. of interfering with the investigation. He further complained that the order to publish a retraction containing an apology had had no basis in domestic law. 16. On 16 April 2003 the Ivanovo Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. As regards the order to publish an apology, the Regional Court found that it was for the District Court to determine the contents of the retraction. 17. Mr V., on his own behalf, and his daughter-in-law, on behalf of her son, brought a civil claim against the same defendants for defamation and disclosure of information about their private life. They sought compensation for non-pecuniary damage under Article 152 of the Civil Code. They also sought a retraction and submitted a draft retraction containing an apology. 18. On 19 February 2004 the Sovetskiy District Court granted the claim in part. It found that the journalists had failed to prove the allegation that Mr V. “had interfered with the investigation”, as required by Article 152 of the Civil Code. It rejected as unsubstantiated, without further reasoning, the applicant's argument that his articles had not contained any such statements. It also held the journalists liable for a violation of the claimants' constitutional right to the inviolability of their private lives, finding as follows: “Under Article 151 of the Russian Civil Code, if a citizen has incurred non-pecuniary damage through actions impairing his personal non-pecuniary rights ... the court may order the person responsible to compensate for the damage. In accordance with Articles 23 § 1 and 24 § 1 of the Russian Constitution, everyone has the right to the inviolability of his private life, to personal and family secrets, [and] to the protection of his honour and goodwill; it is an offence to collect, keep, use or disseminate information about a person's private life without that person's consent. The court has not seen any proof that the authors of the articles published in the Kursiv-Ivanovo and Ivanovo-Press newspapers obtained consent to the dissemination of information about the private lives of [Mr V. and his minor stepgrandson]. Accordingly, [their] constitutional right to the inviolability of their private lives has been breached.” 19. The court ordered that the newspaper and the applicant publish a retraction containing an apology to Mr V. and his family. It further ordered that the applicant pay compensation to Mr V. and his daughter-in-law in the amount of RUB 2,000 (approximately EUR 55). 20. In his grounds of appeal the applicant complained about the District Court's inconsistent approach to the issue of whether disclosure of private information was actionable in the civil proceedings. In holding the applicant responsible for dissemination of personal information, the District Court had disregarded the fact that the information had been first published by another newspaper, Kursiv-Ivanovo, and that from that moment it had entered the public domain. Furthermore, the District Court had not identified any statements which could be construed as implying that Mr V. had interfered with the investigation. 21. On 19 April 2004 the Ivanovo Regional Court upheld the judgment, finding that disclosure of personal information was actionable under Article 151 of the Civil Code. 22. Article 24 prohibits collecting, storing, using or disseminating information about a person's private life without that person's consent. 23. Article 29 guarantees freedom of thought and expression and freedom of the mass media. 24. Article 151 provides that a court may award compensation for non-pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal non-pecuniary rights. Article 150 lists, among other personal non-pecuniary rights, the inviolability of a person's private life, and personal and family secrets. 25. Article 152 provides that an individual may apply to a court with a request for a retraction of “statements” (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated the 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 the statements. 26. The Mass Media Act (Law no. 2124-I of 27 December 1991) provides that the mass media may not publish information which permits a minor who has committed a criminal or an administrative offence or is suspected of such an offence to be identified, directly or indirectly, unless the minor concerned and his or her guardian has consented to the publication (section 41(3)). 27. An individual or an organisation is entitled to require that the editorial board of a mass medium publish a retraction of untrue statements that are damaging to his/her/its honour, dignity or professional reputation. If the editorial board is unable to prove the truthfulness of the contested statements, it must publish a retraction in the same mass medium. If the individual or the organisation submits a draft text of the retraction, the editorial board must publish the submitted text, provided that it is compatible with the Act (section 43). A retraction must specify which statements are untrue, as well as where and when they were published (section 44(1)). 28. A journalist is entitled to express his personal opinions and valuejudgments in the publications bearing his name (section 47 (9)). 29. A journalist must check the truthfulness of the information he publishes. Before publishing information about an individual's private life, a journalist must obtain the consent of the individual concerned or his or her guardian, except in cases where the publication of such information serves the public interest (section 49(2) and (5). A journalist who has not complied with these duties may be held criminally, administratively or disciplinarily liable in accordance with the law (section 59(2)). 30. Editorial boards, editors-in-chief and journalists are not liable for untrue statements damaging the honour and dignity of individuals or organisations, or for statements infringing the rights and lawful interests of citizens, if such statements are a verbatim reproduction of statements or materials, or extracts of them, that have been published earlier by another mass medium that may be identified and held liable (section 57(6)). 31. Resolution of the Plenary Supreme Court of the Russian Federation no. 11 of 18 August 1992 (amended on 25 April 1995 and 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 (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7). 32. On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant's subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18). | 0 |
train | 001-59097 | ENG | IRL | CHAMBER | 2,000 | CASE OF HEANEY AND McGUINNESS v. IRELAND | 1 | Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 8;No separate issue under Art. 10;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Georg Ress | 8. At approximately 4.10 a.m. on 23 October 1990 a large explosion occurred at a British Army/Royal Ulster Constabulary checkpoint in County Derry. Five British soldiers and one civilian were killed and a number of other British army personnel were seriously injured. 9. Approximately an hour and a half later, Irish police officers on surveillance duty noted a light in a house approximately four miles from the scene of the explosion. At approximately 6.05 a.m. on 24 October 1990 a warrant was obtained to search the house. At or around 7 a.m. that morning the police entered the house and found an assortment of gloves (rubber and knitted), balaclavas, caps and other clothing. The seven men in the house, including the owner and the applicants, were arrested and detained by the police under section 30 of the Offences against the State Act 1939 (“the 1939 Act”). As later noted by the High Court (see paragraph 15 below), it was suspected that the bombing had been carried out by the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the applicants were, in turn, suspected by the police of membership of that organisation and of involvement in the bombing. 10. Both applicants were cautioned by police officers in the usual terms, namely that they were not required to say anything unless they wished to do so and they were also informed that anything they did say would be taken down in writing and might be given in evidence against them. Mr Heaney was then questioned about the bombing and about his presence in the house where he was arrested. He refused to answer the questions put to him. Police officers then read section 52 of the 1939 Act to him and he was requested pursuant to that section to give a full account of his movements and actions between 6 p.m. on 23 October and 6.55 a.m. on 24 October 1990. He refused to answer any questions. Mr McGuinness was also questioned about the explosion and about his presence in the house where he was arrested. He refused to answer those questions. He was then requested to account for his movements between 1 a.m. and 7.15 a.m. on 24 October 1990. He refused to answer. Police officers then read section 52 of the 1939 Act to him and he was handed a copy of the section and asked to read it. He continued not to answer questions put to him. 11. On 25 October 1990 both applicants were brought to the Special Criminal Court in Dublin and charged with the offence of membership of an unlawful organisation (contrary to section 21 of the 1939 Act) and of failing to account for their movements (contrary to section 52 of the 1939 Act). 12. On 19 April 1991 the applicants' trial in the Special Criminal Court took place. On 26 June 1991 the applicants were acquitted of the charge of membership of an unlawful organisation but each was convicted of failing to provide an account of their movements during a specified period contrary to section 52 of the 1939 Act. The court rejected their arguments that section 52 must be read as including a right to refuse to provide such information on reasonable grounds and about the confusion caused by police officers giving the usual caution about the right to remain silent and then making a request for information under section 52 of the 1939 Act. Both applicants were sentenced to six months' imprisonment. Their sentences commenced on 26 June 1991. They were released on 10 November 1991. 13. The applicants then appealed against their conviction and sentence under section 52 to the Court of Criminal Appeal. As regards their conviction, they submitted that the Special Criminal Court had erred in finding that the applicants were not confused as a result of the caution about their right to remain silent and the conflicting request for information under section 52 by the same officers. They argued that section 52 should have been read as including the possibility of a refusal to give information based on reasonable excuse. As to their sentence, they argued that the confusion caused by the caution and request for information should have been a mitigating factor; that there was no evidence that they warranted the maximum sentence; and that the court failed to take into account the time the applicants had spent in custody prior to their trial. 14. On 3 May 1992 the applicants took proceedings in the High Court challenging the constitutionality of section 52 of the 1939 Act. The proceedings pending before the Court of Criminal Appeal were consequently adjourned. 15. By a judgment dated 24 June 1994, the High Court rejected their application. It based the applicants' right not to answer questions as regards their movements on Article 38 of the Constitution rather than on Article 40, noting that their case related to suspects in custody and not to accused persons on trial. However, it was considered that section 52 constituted a proportionate interference with the applicants' right to silence, the objective being to assist police investigations into serious crimes of a subversive nature involving the security of the State. In addition, the restrictions were not considered arbitrary or irrational. The High Court also considered that the restriction did not excessively impair the right to silence given the objective pursued by section 52 and the other legal protections applicable to persons in custody under section 30 of the 1939 Act, which protections were afforded to minimise the risk of an accused wrongfully confessing to a crime and to safeguard against the possible abuse of the powers provided by section 52 of the 1939 Act. Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligation to inform the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to a court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act. 16. By a judgment dated 23 July 1996 the Supreme Court rejected the applicants' appeal, finding that section 52 of the 1939 Act was not inconsistent with the Constitution. It was noted that section 52 of the 1939 Act was silent on the use which could be made of statements provided pursuant to requests made under section 52. While the Court of Criminal Appeal had suggested in a previous case (The People (Director of Public Prosecutions) v. McGowan [1979] Irish Reports 45) that information lawfully obtained under section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not. The Supreme Court considered that the right to silence was a corollary to freedom of expression guaranteed by Article 40 of the Constitution and that the relevant assessment was to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made pursuant to section 35 of the 1939 Act remained in force. As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those with something relevant to disclose concerning the commission of a crime to remain silent must be regarded as of an even lesser order. The Supreme Court concluded that the restriction in section 52 was proportionate to the State's entitlement to protect itself. 17. The applicants' appeal to the Court of Criminal Appeal in relation to their conviction under section 52 of the 1939 Act has been adjourned generally pending the outcome of the present application. 18. Article 38 § 1 of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions. 19. The Offences against the State Act 1939 is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. 20. Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act. 21. Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances' legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph). 22. Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the government made when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date. 23. By section 36 of the 1939 Act the government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act. 24. Section 52 of the 1939 Act reads as follows: “1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the [police] may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence. 2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the [police], fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.” 25. Under the terms of the Good Friday Peace Agreement of 10 April 1998, the government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law Reform has, with government approval, established a committee to examine all aspects of the Offences against the State Acts and to report to the Minister with recommendations for reform. The committee has already commenced its work. 26. In the McGowan case cited above, the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The court did not find this argument persuasive since no section 52 requests had in fact been made. It went on to point out that, even if section 52 had been relied on by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings. 27. The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows: “The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence.” The judicial authority for that proposition was noted in the handbook as being found in the McGowan case cited above and the earlier Irish case-law approved in the McGowan case. 28. In the case of National Irish Bank Ltd (In the matter of National Irish Bank Ltd and the Companies Act 1990, [1999] 1 Irish Law Reports Monthly 343) the Supreme Court found that a confession of a bank official obtained by inspectors as a result of the exercise by them of their powers under section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it. | 1 |
train | 001-84672 | ENG | RUS | CHAMBER | 2,008 | CASE OF NAGOVITSYN v. RUSSIA | 3 | Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens | 4. The applicant was born in 1950 and lives in Kirov. 5. In 1986 the applicant took part in the cleaning up operation after the nuclear accident at the Chernobyl nuclear plant. He was subsequently registered disabled, becoming entitled to various social benefits, including the right to obtain a loan on preferential terms (льготный кредит) and free housing from the State. 6. According to the Government, the applicant lived in a four-room flat with six other members of his family. The flat measured 52 square metres. In 1996 this flat was officially categorised as a “communal dwelling” which gave the applicant the right to claim free housing from the State. 7. On an unspecified date the applicant requested Sberbank (a bank controlled by the State – hereafter “the bank”) to provide him with a preferential loan to purchase housing for himself and his family. However, he did not obtain the loan. Apparently there had been no agreement between the State and the banks regulating the allocation of such credits to Chernobyl victims. 8. In 1997 the applicant brought proceedings against the State and the bank, seeking to obtain a preferential loan, as provided by the Law on the welfare of Chernobyl victims (“the Chernobyl Law” – see “Relevant domestic law” below). 9. On 19 November 1997 the Leninskiy District Court of Kirov decided the case in his favour. It found that the applicant, as a Chernobyl victim, had the right to a preferential loan under section 14 (20) of the Chernobyl Law, but the Ministry of Finance had not yet signed an agreement with banks on the procedure for issuing such loans. The District Court ordered the Ministry of Finance to secure the applicant's right to the loan. That judgment was not appealed against and became final on 1 December 1997. The writ of execution was forwarded to the bailiff in Moscow, and on 27 July 1999 enforcement proceedings were commenced. 10. In the meantime, on 13 July 1999 the Ministry of Finance informed the applicant that the judgment of 19 November 1997 could not be enforced since the law relating to the federal budget did not allow the allocation of preferential loans to Chernobyl victims. 11. Later that year, referring to the lack of progress in the enforcement proceedings, the applicant requested the court to modify the operative part of the judgment of 1997. He sought to obtain compensation of 50% of the amount he needed to buy a flat. On 24 November 1999 the Leninskiy District Court modified the judgment of 19 November 1997 ordering the State to compensate the applicant for the cost of the flat he would buy. 12. On 27 December 1999 the applicant purchased a three-room flat in a house under construction from a developer. He paid 203,200 Russian roubles (RUB) for that flat. 13. On 10 April 2001 the Kirov Regional Court quashed the decision of 24 November 1999 and remitted the case to the district court for fresh examination. There is no information as to whether the applicant's request concerning the modification of the original judgment of 19 November 1997 was eventually satisfied. 14. On 10 October 2000, referring to the provisions of the Chernobyl Law, the applicant brought proceedings against the municipality of Moscow seeking an order to oblige them to provide him with a flat in Moscow. On 15 January 2001 the Presnenskiy District Court of Moscow dismissed his claim. On 14 May 2001 the Moscow City Court upheld the district court's decision. 15. On 8 August 2001 the applicant brought proceedings against the local municipality of Kirov claiming free accommodation. On 28 November 2001 the Leninskiy District Court of Kirov ruled in his favour and ordered the municipality to provide the applicant with appropriate housing for a family of three within three months, in accordance with existing housing and sanitary standards. That judgment was not appealed against and became final on 10 December 2001. On 11 January 2002 the bailiffs initiated enforcement proceedings. 16. On an unspecified date the municipality requested the court to stay the enforcement proceedings. They claimed that they had no free housing available to enforce the judgment of 28 November 2001. The applicant objected; he also asked the court to specify how the judgment of 28 November 2001 should be enforced. 17. By a supplementary judgment of 12 November 2002 the Leninskiy District Court dismissed the request of the municipality. The court also held that housing should be given to the applicant under a protected tenancy agreement. The court further held that the applicant had the right to acquire the housing through privatisation in accordance with section 14 (21) of the Chernobyl Law. In the operative part of the supplementary judgment the court held as follows: “[the applicant] should be provided with housing either [on the basis of] a social tenancy or ...by way of transfer [of housing] into his ownership.” That judgment was not appealed against and became final. 18. On 15 December 2002 the applicant registered himself as the owner of another flat in Kirov, which he had purchased some time earlier from a developer (see paragraph 12 above). 19. On 25 December 2002 the municipality formally deprived the applicant of the status of a person in need of better housing. On 29 May 2003 the municipality tried to reopen the case which had ended with the judgment of 28 November 2001, claiming that the applicant was no longer entitled to better housing. However, on 14 July 2003 the court refused to reopen the case. 20. On 22 June 2004 the municipality offered the applicant a two-room flat. According to the Government, since the flat offered to the applicant was smaller than the one awarded by the court judgment, the municipality also offered the applicant compensation to cover the difference. However, the applicant refused to accept the flat and the compensation. 21. In December 2004 the applicant was offered a three-room flat. However, he did not accept the offer. 22. On 5 April 2005 the municipality provided the applicant with another three-room flat. On 11 April 2005 the applicant signed a declaration which was formulated as follows: “I declare that I accept, in execution of the judgment of 28 November 2001..., ... the three-room flat situated at 9/1, Stroiteley Avenue, ... measuring 40.28 square metres. Taking into account the decision of the Leninskiy District Court of 12 November 2002, the flat should either be transferred into my ownership or the social tenancy agreement should stipulate that ... 'the owner shall transfer the flat into the ownership of the tenant at his first request.' ... Otherwise I shall not consider that the judgment of the court is executed.” 23. On 13 April 2005 the applicant received the keys to flat no. 68, 9/1, Stroiteley Avenue. However, it appears that another tenant had already obtained the title to the flat by that time. Thus, on 6 May 2005 the municipality decided to allocate another flat to the applicant (no. 72). The applicant accepted the flat, and on 19 May 2005 he signed a social tenancy agreement with the municipality. 24. On 27 May 2005 the Mayor of Kirov wrote a letter to the applicant stating that “flat no. 72 would be transferred to the applicant, free of charge”. 25. The Law on social protection of citizens exposed to radiation as a result of the Chernobyl Nuclear Power Station explosion (“the Chernobyl Law”) of 15 May 1991, as in force at the material time, provides that persons who were registered disabled following their exposure to radioactive emissions are entitled to certain social benefits. In particular, they were entitled to free housing, where their existing accommodation did not comply with minimum housing standards (“a person in need of better housing”). The State undertook to provide such persons with accommodation within three months of placing them on a waiting list. The same law entitled them to obtain preferential credit - an interest-free loan for buying or constructing a house. It also provided that fifty per cent of the amount of the loan would be paid off by the State (section 14 (20) of the Chernobyl Law), under the condition that they are in need of better housing. 26. The Law of 27 December 2000 on the federal budget for 2001 suspended the application of section 20 (14) of the Chernobyl Law until 31 December 2000 because of the lack of funds. In the following years the application of this paragraph was repeatedly suspended by the laws relating to the federal budget. 27. On 22 August 2004 the law commonly known as “the Monetisation of Social Benefits Law” was passed (Law no. 122-FZ). That Law abrogated various non-monetary social benefits granted by the previous legislation (free housing, free medicine and so on) or replaced them with monetary payments. Section 3 (8) of that Law modified the wording of section 14 of the Chernobyl Law. In particular, the right to receive preferential loans from the State was excluded from the list of social benefits to which the Chernobyl victims were entitled. 28. For provisions governing the right to “social tenancy” of State-owned housing see Malinovskiy v. Russia, no. 41302/02, §§ 20 et seq., ECHR 2005... (extracts)). 29. Under Articles 13, 209 and 338 of the Code of Civil Procedure, a court judgment which has acquired legal force is binding and must be executed. | 1 |
train | 001-77716 | ENG | SVK | ADMISSIBILITY | 2,006 | GOGA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Július Goga, was a Slovakian national who was born in 1954 and lived in Bratislava. In 2003 the applicant died. By a letter of 5 January 2005 the late applicant’s wife Mrs Jana Gogová and his children Mr Július Goga and Ms Jana Gogová informed the Court that they wished to pursue the application in his stead. The applicant is represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s family owned real estate located in Topoľčany which comprised a house and the land around it. In 1975 two contracts were made relating to the transfer of the property to the State. The first of these contracts was concluded on 1 October and the second at some unspecified point in November. The existence and validity of these contracts were later in dispute (see below). The State subsequently took over the property and, since then, it has been used by a college of agriculture in Topoľčany. The title to the property was formally vested in a special legal entity (školský majetok or, later, školské hospodárstvo) which was attached to the college. On 18 May 1994 the applicant and two of his relatives, who were all jointly represented by a lawyer, brought a civil action against the above entity which possessed the property and against the Bratislava IV District Education Authority (školská správa) in the Topoľčany District Court (Okresný súd). They originally sought an order for possession of the house, but later extended the action by also seeking a ruling declaring that the defendants were not bona fides possessors of the property. On 15 December 1995 the District Court dismissed the action but, on the plaintiffs’ appeal, the Bratislava Regional Court (Krajský súd) quashed the judgment on 17 October 1996. On 16 September 1998 the District Court found in favour of the plaintiffs but, on the defendants’ appeal, the Nitra Regional Court overturned the judgment and dismissed the action on 24 November 1999. The plaintiffs appealed on points of law to the Supreme Court. On 27 February 2001 the Supreme Court quashed the judgment of 24 November 1999 and remitted the case to the Regional Court for reexamination of the defendants’ appeal against the judgment of 16 September 1998. On 11 July 2002 the Regional Court examined the defendants’ appeal against the judgment of 16 September 1998 afresh. It again reversed the latter judgment and dismissed the action. The Regional Court examined complex documentary and other evidence, including the pleadings of the parties. It found that the contract of November 1975 had been validly concluded and approved by the competent authorities. It had lawfully conveyed the house in question to the State. As a consequence, under the laws which applied at the time, the title of the applicant’s family to the land underneath the house had been automatically extinguished. The applicant and the other plaintiffs had therefore no legal title to the property and, consequently, no right of action in the case. The plaintiffs again appealed on points of law. They contested the Regional Court’s factual conclusion as to the existence of the contract of November 1975. They maintained that the judgment was not properly reasoned, that the facts had not been established adequately and that the court’s legal assessment of the case was flawed. On 27 May 2004 the Supreme Court dismissed the appeal. Following the applicant’s death, it dealt in his stead with his surviving wife and children, being his heirs. The Supreme Court found that the facts of the case had been established adequately, the reasons given by the Regional Court were comprehensive and convincing and its conclusion was correct. On 12 October 2004 the District Court issued an order for costs against the plaintiffs. The wife and children of the applicant, who were represented by a lawyer, challenged the Supreme Court’s judgment by a complaint to the Constitutional Court under Article 127 of the Constitution. They complained that the judgment was onesided, unfair and wrong, contrary to Article 6 § 1 of the Convention and Article 46 § 1 of the Constitution. On 27 October 2004 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It found that the Supreme Court had adequately examined the plaintiffs’ arguments, its findings were not manifestly arbitrary or wrong and its conclusions had been adequately reasoned. | 0 |
train | 001-109098 | ENG | ARM | ADMISSIBILITY | 2,012 | GURURYAN v. ARMENIA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Ms Lermik Gururyan, is an Armenian national who was born in 1940 and lives in Hrazdan. She was represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan. The Armenian Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant’s late husband had worked for Hrazdanmash Closed Joint-Stock Company (hereafter “Hrazdanmash”), a company involved in manufacturing various machinery and equipment and whose majority shareholder is the State. 4. No salary was paid to the staff for the years 1998-2000, since Hrazdanmash was experiencing financial problems. In 2000 the majority of Hrazdanmash’s staff were ordered to take unpaid leave for an indefinite period. 5. On 17 May 2001 the relevant trade union instituted court proceedings against Hrazdanmash in the interests of the staff, seeking arrears for unpaid salary and other benefits. 6. On 2 July 2001 the Kotayk Regional Court granted the claim and ordered Hrazdanmash to pay a total of AMD 58,060,925, including AMD 327,073.73 to the applicant’s late husband. No appeal was lodged against this judgment which became final. 7. On 18 July 2001 the Regional Court issued the writ of execution (կատարողական թերթ). 8. On 23 July 2001 the bailiff instituted enforcement proceedings no. 738. In the course of these proceedings the bailiff decided to freeze Hrazdanmash’s property and bank accounts. 9. On 13 September 2001 the bailiff decided to stay enforcement proceedings no. 738 on the ground that bankruptcy proceedings had been instituted in respect of Hrazdanmash. It appears, however, that the enforcement proceedings were resumed on 19 October 2001 and that part of Hrazdanmash’s frozen property was sold at a public auction. On 4 February 2002 the Commercial Court decided to terminate the bankruptcy proceedings. 10. On 22 February 2002 the bailiff once again decided to stay enforcement proceedings no. 738, but later resumed them on 23 January 2003. 11. On 27 March 2003 the Government adopted decree no. 329-A, on the basis of which Hrazdanmash was allowed to sell its property. The proceeds of the sale were to be directed by the company towards paying off its debts in respect of the State budget. 12. On 7 July 2003 the bailiff stayed the enforcement proceedings on the basis of this decree. 13. On 23 July 2003 the Government adopted decree no. 955-A, according to which it decided to sell its shares in Hrazdanmash to a private company. The buyer in return undertook an obligation towards the State to make investments of various amounts, including creation of jobs. 14. It appears that enforcement proceedings no. 738 remained stayed on the basis of this decree for several years but were later resumed on 9 November 2006. 15. On 9 November 2002 the applicant’s late husband was ordered to take unpaid leave. 16. On an unspecified date thereafter he instituted proceedings against Hrazdanmash, seeking unpaid salary for the period between 1 April 2001 and 1 November 2002. 17. On 16 December 2002 the Kotayk Regional Court granted the claim and ordered Hrazdanmash to pay AMD 152,847 to the applicant’s late husband. No appeal was lodged against this judgment which became final. 18. On 8 January 2003 the Regional Court issued the writ of execution upon the request of the applicant’s late husband. 19. On 7 March 2003 the applicant’s late husband submitted the writ of execution to the bailiff. 20. On 10 March 2003 the bailiff instituted enforcement proceedings no. 353 on the basis of the above writ of execution. 21. On 14 May 2003 the applicant’s late husband requested the withdrawal of the writ of execution. 22. On 15 May 2003 the bailiff decided to discontinue the enforcement proceedings (ավարտել կատարողական վարույթը) on the ground that the applicant’s late husband had requested the withdrawal of the writ of execution. 23. On 2 December 2003 the applicant’s husband passed away. 24. On an unspecified date the applicant instituted proceedings against Hrazdanmash, claiming that the respondent owed her late husband AMD 429,955 in unpaid salary and seeking to be awarded that amount. 25. In her submissions made before the Kotayk Regional Court the applicant modified her claim, seeking a smaller amount, namely AMD 102,882, in view of the fact that a sum of money had already been awarded to her late husband by the judgment of 2 July 2001. 26. A representative of Hrazdanmash who was present at the hearing did not object to the applicant’s claim. 27. On 18 February 2005 the Kotayk Regional Court, having examined the materials of the case, including the applicant’s marriage certificate and the certificate concerning unpaid salary, found the applicant’s claim to be substantiated and ordered Hrazdanmash to pay AMD 102,882 to the applicant. No appeal was lodged against this judgment which became final. 28. It appears that the applicant did not request the Regional Court to issue a writ of execution in order to submit it to the bailiff for enforcement purposes. 29. On 2 May 2007 the application was communicated to the respondent Government. 30. On 30 July 2007 the Government submitted their observations. 31. On 25 September 2007 the applicant submitted her observations and just satisfaction claims. 32. On 29 November 2007 the Government submitted their comments on the applicant’s just satisfaction claims. 33. By a letter of 12 December 2007 the Government informed the Court that on 23 October 2007 the applicant had been recognised as her late husband’s heir. The Government submitted a copy of an inheritance certificate dated 23 October 2007 which had been issued upon the applicant’s application. The certificate was issued by the local notary in respect of the applicant and her three children and mentioned as the estate the deceased’s flat, as well as unpaid salary and other lump-sum payments owed to him by Hrazdanmash. The Government further stated that on 26 October 2007 the applicant had filed a request with the bailiff, seeking to reopen enforcement proceedings no. 353, which had been granted. As a result, all three judgments had been enforced and the applicant had received all the corresponding outstanding amounts. 34. By a letter of 4 February 2008 the applicant confirmed that the judgment debts had been paid to her on 29 November 2007. 35. For a summary of the relevant domestic provisions see the judgment in the case of Khachatryan v. Armenia (no. 31761/04, §§ 37-44, 1 December 2009). 36. According to Section 9 § 1, if a party to enforcement proceedings dies, the bailiff is obliged to replace him with a legal successor as determined by law, a court judgment or an agreement. 37. According to Section 41 § 1 (1), the bailiff shall discontinue the enforcement proceedings if the creditor has requested the withdrawal of the writ of execution. 38. According to Section 42 § 1 (2), the bailiff shall terminate the enforcement proceedings (կարճել կատարողական վարույթը) if the creditor waives his claim for recovery of the judgment award. 39. According to Section 42 § 1 (4), the bailiff shall terminate the enforcement proceedings if the creditor or the debtor has died and the claims or the debts established by the judicial act may not be transferred to his legal successor. 40. Article 197 provides that, if an employee dies, his outstanding salary and other similar payments shall be paid to a family member, provided that the latter submits the death certificate and other necessary documents certifying the family link within six months after the date of the person’s death. 41. According to Articles 1186, 1188, 1226 and 1227, the estate encompasses the property belonging to the testator on the date of opening the inheritance, including funds, securities and proprietary rights and obligations. The inheritance shall be opened on the date of a person’s death. An heir accepts inheritance by submitting an application on accepting the inheritance or on receiving an inheritance certificate from the notary of the district where the inheritance was opened. Inheritance can be accepted within six months after the date of opening the inheritance. 42. According to Article 1228, the court may recognise the acceptance of inheritance by an heir who has missed the prescribed time-limit, if it finds the reasons for missing the time-limit to be valid. An heir may accept the inheritance after the expiry of the prescribed time-limit without applying to the courts, if all other heirs who have accepted the inheritance agree. Such agreement signed by the heirs must be notarised. Based on such agreement, the notary shall annul the previous inheritance certificate and issue a new one. 43. According to Article 1249, family members of the deceased, as well as his dependents who are incapacitated, have the right to receive the outstanding salary, pensions, benefits and compensation for damage to life or health which, for whatever reason, were not paid to the deceased in his lifetime. Requests to receive these payments must be submitted within six months after the date of opening the inheritance. If no such claim is submitted within the prescribed time-limit, the relevant sums shall be included in the estate and be inherited under the general conditions prescribed by this Code. | 0 |
train | 001-61184 | ENG | PRT | CHAMBER | 2,003 | CASE OF MAIRE v. PORTUGAL | 1 | Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 10. The applicant was born in 1967 and lives in Larnod (France). 11. On 4 September 1993 the applicant married S.C., a Portuguese national. The couple had a child, Julien, born in 1995. 12. By a judgment of 19 February 1998, the Besançon tribunal de grande instance granted the couple a divorce based on S.C.’s fault and ordered that the child reside at the applicant’s home, with the mother to have rights of access. Earlier, on 6 August 1996, the applicant had already been granted interim custody of Julien by a decision of the same court. 13. On 3 June 1997 S.C. abducted Julien from his paternal grandmother’s home and took him with her to Portugal. The applicant filed a complaint against S.C. for child abduction and assault. By a judgment of the Besançon tribunal de grande instance of 12 June 1998, S.C. was found guilty and sentenced in absentia to one year’s imprisonment. A warrant was issued for her arrest. 14. On 5 June 1997, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and on the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983, the applicant lodged an application for the child’s return with the French Ministry of Justice, which was the French “Central Authority” within the meaning of both instruments. On the same day, the French Central Authority requested the Institute for Social Reinsertion (“the IRS”), which forms part of the Portuguese Ministry of Justice and is the Portuguese Central Authority, to secure the child’s return pursuant to the provisions of the Franco-Portuguese convention. 15. On 18 June 1997 the IRS referred the application to the prosecution service of the Oeiras judicial district, where the applicant had indicated that S.C. was living. On 16 July 1997 the prosecution service applied to that court for the judicial return (entrega judicial) of the child pursuant to section 191 et seq. of the Minors Act (Organização Tutelar de Menores) and relying on the above-mentioned Franco-Portuguese cooperation convention. 16. On 17 July 1997 the judge of the Third Civil Division of the Oeiras District Court, to which the case had been allocated, summoned the child’s mother to appear before the court to make submissions concerning the prosecution’s application. Registered letters with acknowledgment of receipt were sent on 17 and 22 July 1997 to the address given by the applicant. However, both letters were returned to the court with the acknowledgments of receipt unsigned and unclaimed. On 27 August 1997 the judge, at the prosecution’s request, asked the police to find out where Julien’s mother was living. On 10 September and 6 October 1997 respectively the security police and the republican national guard informed the court that S.C. was not living at the stated address. 17. On 23 September 1997 the IRS asked the Oeiras District Court for information about the progress of the proceedings. The judge replied on 6 October 1997 to the effect that the child’s mother had not yet been found. 18. On 21 October 1997 the prosecution service asked the judge to write to the Lisbon social security office to request information concerning S.C.’s address and workplace. On 27 October 1997 the judge ordered the registry to send the letter in question, which was sent on 7 November 1997. On 27 November 1997 the social security office replied that it had no record of S.C. on file. 19. On 5 December 1997 the judge asked the IRS to find out S.C.’s current address. When it was reported that she might be in the Oporto area, the relevant social security office was contacted but indicated in a letter of 12 January 1998 that it had no record of her. 20. On 10 March 1998 the Second Civil Division sent the Third Civil Division a copy of the decision taken on that day as part of proceedings for the award of parental responsibility (see paragraph 47 below). On 26 March 1998 the judge sent a copy of the decision to the prosecution service, pointing out that the address from which S.C. had been summoned to appear in those proceedings was the same as that originally given by the applicant. 21. On 27 March 1998 the prosecution service asked the judge to seek information from Portugal Electricity and Portugal Telecom. On 13 and 20 May 1998 those companies replied that they did not have any contracts in S.C.’s name. 22. On 25 May 1998 the judge insisted that S.C. be summoned from the address in question. The registered letter sent for that purpose was however returned to sender. 23. On 2 July 1998 S.C. informed the court that she had applied to the Oeiras District Court (First Civil Division) for a transfer of parental responsibility for Julien. 24. On 6 July 1998 the judge ordered a court bailiff to compel S.C. to appear. The bailiff went to the address in question on 1 September 1998 to be told, by one of S.C.’s aunts, that S.C. did not live there. S.C.’s aunt also said that she did not know her niece’s current address. 25. On 2 September 1998 the judge asked the civil identification services of the Ministry of Justice for information about S.C.’s whereabouts. 26. By a letter of 2 September 1998 the IRS informed the court that they had asked the police to discover S.C.’s whereabouts. They observed that the police had since told them that the child’s mother had brought proceedings for a transfer of parental responsibility for Julien and pointed out that it was now possible to locate S.C. by the address she had given when she brought those proceedings. 27. By an order of 28 September 1998 the judge decided to ask the police again for S.C.’s current address. He also asked the registry to inform the First Civil Division of the existence of the application for the child’s return with a view to securing a stay of the proceedings for the transfer of parental responsibility then pending before that division. 28. On 11 November 1998 the applicant, through his representative, filed an ad litem power of attorney and a request to be kept informed of the steps in the proceedings. He also indicated that he had lodged a criminal complaint against S.C. By a decision of 16 November 1998, the judge rejected the applicant’s request on the ground that he was not a party to the proceedings. 29. On 27 November 1998 the security police indicated that the address in question was that of S.C.’s parents, who claimed that they did not know her current address. On 11 December 1998 the judge again decided to seek information from Portugal Electricity and Portugal Telecom and from the social security offices of Lisbon, Oporto, Coimbra and Faro. Between January and March 1999 all these organisations replied that they had no record of S.C. on their files. On 18 March 1999 the judge again asked the police for information about S.C.’s current address. On 9 April 1999 the security police indicated that the address was unknown. 30. On 19 April 1999 the IRS sent the court a copy of a police report according to which Julien might be found in a flat recently purchased by one of S.C.’s sisters in Algueirão (Sintra district). 31. Acting on information supplied by the IRS the applicant travelled to Portugal, where he claimed to have seen his son and a third party in the apartment in question on 25 April 1999. He informed the French consulate general in Lisbon, which asked the Portuguese Ministry of Justice to contact the police and the Oeiras District Court as a matter of urgency in order to secure the child’s return. On 26 April 1999 the IRS informed the court and asked it to take all necessary steps to secure the child’s return. On 27 April 1999 the judge ordered that Julien be immediately handed over to the IRS and issued a warrant to that effect. On 30 April 1999 the IRS advised the court that the republican national guard had been to the address in question on the previous day. However, the warrant did not give it the power to force entry into the flat and, since Julien’s mother had refused to open the door, it had not been possible to return the child. 32. The judge subsequently asked the republican national guard why the warrant had not been executed. On 1 June 1999 the national guard stated that officers had been to the address in question several times but no one had answered the door. 33. In the meantime, on 17 May 1999, S.C. applied for the proceedings to be discontinued, relying on Article 20 of the Franco-Portuguese cooperation convention and submitting that Julien was fully integrated in his new environment. 34. The judge delivered his judgment on 15 June 1999. First he found that S.C. should be regarded as having been properly summoned to appear because she had already intervened in the proceedings. He then rejected her application for a discontinuation and ruled that Julien should be handed over immediately to the IRS. Lastly, he ruled that if she failed to comply with the decision S.C. was liable to be prosecuted under section 191(4) of the Minors Act for non-compliance with a legal order (desobediência). 35. On 25 June 1999 S.C. appealed against that judgment to the Lisbon Court of Appeal (Tribunal da Relação). On 29 June 1999 the judge found the appeal admissible and ordered that it should be referred, without suspensive effect, to the Court of Appeal. The Court of Appeal dismissed the appeal by a ruling of 20 January 2000. 36. On 7 February 2000 S.C. appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça), but on 7 April 2000 her appeal was ruled to have lapsed (deserto) for want of pleadings having been filed. 37. On 29 May 2000 the Oeiras District Court judge asked a bailiff to warn S.C. that if she failed to hand Julien over to the IRS she would be prosecuted for non-compliance. On 9 June 2000 the bailiff reported that no one seemed to be living at the address indicated. On 20 June 2000 the judge again asked the police for information about S.C.’s current address. 38. On 14 December 2001 the police found Julien and S.C. On the same day the judge ordered Julien to be placed in a children’s home under the IRS’s supervision. S.C. was permitted to remain with Julien in the children’s home. The principal of the children’s home then refused to hand Julien over to the applicant, without a “court order to that effect”. On that day S.C. lodged a summary application with the Oeiras District Court seeking to prevent Julien being handed over to the applicant. The applicant claimed that he was not told of the outcome of that application. On 21 December 2001 Julien was handed over to S.C. in accordance with the decision of the Cascais Family Court on the same day (see paragraph 50 below). 39. On 19 December 2001 the prosecution service asked the judge to suspend the 15 June 1999 judgment, on the ground that, after so much time had elapsed, Julien ought to be examined by child psychiatrists before being handed over to the applicant. 40. By a decision of the same day the judge dismissed that request, on the ground that the disputed judgment had already become res judicata. 41. On 21 December 2001 the prosecution service appealed to the Lisbon Court of Appeal. By a judgment of 9 April 2002, the Court of Appeal quashed the disputed decision. It considered, among other things, that Julien already seemed well settled in his new environment and that the examinations in question were entirely appropriate. 42. On 11 July 2002 the Oeiras District Court judge asked the Lisbon Institute of Forensic Medicine to proceed with the examinations. 43. On 4 December 2002 the applicant was advised that Julien would be undergoing a medical examination on 14 February 2003. The applicant has not been informed of the results of those examinations. The proceedings are still pending. 44. In April 1997 the prosecution service applied to the Oeiras District Court for the terms of parental responsibility for Julien to be fixed. The case was allocated to the Second Civil Division of that court. 45. S.C. was summoned to appear from the address given by the applicant when he lodged his application for the child’s return, which was pending before the Third Civil Division of the Oeiras District Court. 46. On an unspecified date the prosecution service asked the judge to stay the proceedings in view of the fact that the application for the child’s return had not yet been decided. 47. By an order of 10 March 1998 the judge stayed the proceedings. 48. Further to the 15 June 1999 ruling by the Oeiras District Court, the judge issued a decision on 5 November 2000 to discontinue the proceedings. 49. On 21 December 2001 the prosecution service lodged a further application for determination of the terms of parental responsibility for Julien at the Cascais Family Court. It sought a variation of the Besançon tribunal de grande instance’s judgment of 19 February 1998 on the ground that the child had settled in his new environment. It also asked the court to grant interim custody of Julien to S.C. 50. By a decision of the same day the court granted S.C. interim custody of Julien. 51. On 15 May 2002 a meeting (conferência) was arranged between the parents. Following that meeting, the court decided that the applicant could be granted rights of access. The applicant was thus able to visit Julien at S.C.’s home on 17, 18 and 19 May 2002 for a few hours. 52. The proceedings are still pending. 53. The French Central Authority had remained in contact with the IRS throughout all the above-mentioned proceedings. The French embassy in Lisbon and the French consulate general in Lisbon sent several requests to the Portuguese authorities for information on the progress of the case. 54. Thus, on 28 March 2000 the French embassy in Lisbon asked the Portuguese Foreign Ministry to intervene in order to “expedite enforcement of the Oeiras District Court’s decision of 15 June 1999 requiring Mrs [S.C.] to hand over the child Julien Maire to his father immediately ... pursuant to the Convention on Judicial Cooperation between Portugal and France ... The police must ... now be formally required actively to search for the child ... whose mother’s family in Oeiras seem to know where he is because last year he was located in a flat belonging to his aunt in Algueirão”. 55. By a letter of 11 June 2001 the consul general informed the applicant as follows: “... the Ambassador discussed your case with the director of the [Portuguese] Minister of Justice’s private office and with the public prosecutor. What emerged from those discussions is that recognition by the Portuguese courts of the French court decision to convict your former wife of a criminal offence is a complex issue and may not be satisfactorily resolved. However, ... the decision of the Portuguese civil courts that the child should be returned to you is final. The Oeiras prosecutor has asked the IRS and the security [police] to carry out a search. This search ... has not so far been successful, which is why the Portuguese authorities fear that mother and child may have left Portugal. Our Ambassador was nonetheless advised that the search would continue for as long as there was no proof that they had left the country ...” 56. Article 11 of the Convention on the Rights of the Child of 20 November 1989, which was ratified by France on 7 August 1990 and by Portugal on 21 September 1990, requires States Parties to “take measures to combat the illicit transfer and non-return of children abroad”. For that purpose, States “shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements”. 57. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which was ratified by Portugal on 29 September 1983 and by France on 16 September 1982, provide: “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities . ...” “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” “Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” 58. The relevant provisions of the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983 provide: Article 18 – Right of action “1. Where the voluntary return of the child is refused, Central Authorities shall refer the case without delay, through the intermediary of the court prosecution service, to the appropriate judicial authorities to secure either the enforcement in the requested State of the enforceable decisions taken in the requesting State, or a ruling on the application for the child’s return. 2. The case may also be referred to the judicial authorities by the interested party. 3. Enforcement of decisions shall be sought from the court within whose jurisdiction the minor is located or presumed to be located.” Article 19 – Protective procedure for restoring the status quo “1. The court of the State to or in which the child has been removed or wrongfully retained shall order, as a protective measure, the child’s immediate return unless the person who removed or retained the child establishes that: (a) more than one year has elapsed between the removal or retention and the making of an application to the judicial authorities of the State where the child is located; or (b) at the time of the alleged violation the person to whom custody had been awarded before such removal was not exercising his right of custody of the child either effectively or in good faith; or (c) the child’s return would seriously jeopardise its health or safety owing to the occurrence of an exceptional event since the award of custody. 2. In assessing the circumstances listed above, the judicial authorities of the requested State shall take direct account of the law and judicial decisions of the State where the child is habitually resident. They shall take into consideration the information provided by the Central Authority of the State where the child is habitually resident concerning the legislation on custody in that State and concerning the child’s social background. 3. A decision on the child’s return shall not affect the merits of the custody issue. ...” Article 20 – Variation of custody rights “Where a court in the State to or in which the child has been removed or wrongfully retained finds that one of the exceptions listed in paragraphs 1 (b) or (c) of the preceding Article applies, it may rule on the merits of custody on the expiry of a period of one year after the child’s removal or retention provided that the child has settled in its new environment.” 59. Section 191 of the Minors Act adopted by Legislative Decree no. 314/78 of 27 October 1978 provides, inter alia: “(1) If the minor has left his parents’ house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded, an application for his return shall be made to the court with jurisdiction over the area where the minor is located. (2) If proceedings are brought, the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of five days. ... (4) If there are no submissions in reply, or if such submissions are manifestly ill-founded, the court shall order the child’s return and indicate where it is to take place; the court shall order such return only where it considers it necessary; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms, on penalty of being prosecuted for non-compliance with a legal order. ...” 60. Under Article 348 of the Criminal Code, non-compliance with a legal order is punishable by a term of imprisonment of up to one year or by a fine not exceeding 120 day-fines. | 1 |
train | 001-85817 | ENG | TUR | ADMISSIBILITY | 2,008 | YILMAZ v. TURKEY | 4 | Inadmissible | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria | The applicant, Ms Gülcan Yılmaz, is a Turkish national who was born in 1948 and lives in Uşak. She was represented before the Court by Mr Atak, a lawyer practising in Uşak. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the owner of a building in Uşak. On an unspecified date, she agreed to sell this building to B.Ç. and in exchange she received a certain amount of cash and two bonds dated 23 November 1997 and 23 December 1997 respectively. She accordingly transferred the title deed to B.Ç.’s name. Shortly after this transaction, B.Ç. sold the building to a certain A.G. and the title was registered in the latter’s name. On 11 August 1997 the applicant’s lawyer filed an action before the Uşak Civil Court of General Jurisdiction against B.Ç. and A.G., arguing that B.Ç. had deceived the applicant during the transaction, and thus the transfer of the title deed should be annulled and the title re-registered in her name. In this respect, she claimed that B.Ç. had committed fraud during the purchase of the land. In the meantime, the applicant also initiated criminal proceedings against B.Ç. in the Uşak Criminal Court, accusing him of fraud (case no. 1997/691). On 18 December 1997 the Uşak Civil Court of General Jurisdiction held its first hearing and took statements from several witnesses. The court also took note of the fact that there were three separate criminal proceedings pending against B.Ç. on charges of fraud (namely case no. 1997/691 initiated by the applicant before the Uşak Criminal Court; case no. 1997/630 initiated by a certain D.D. before the Uşak Criminal Court and case no. 1997/160 before the Uşak Assize Court). It therefore decided to request copies of these case files which were found to be relevant to the instant case. Thereafter, the civil court awaited the outcome of these criminal proceedings, each time adjourning the hearings to a later date and without taking any decision on the merits of the case. B.Ç. was subsequently acquitted of the charges against him in all three cases and the Uşak Civil Court of General Jurisdiction received copies of the relevant case files and judgments on 5 March 2001, 27 November 2001 and 5 March 2002 respectively. On 13 March 2002 the Uşak Civil Court of General Jurisdiction dismissed the applicant’s case. In taking this decision, the court based itself on the acquittal decision delivered by the criminal court in case no. 1997/691. The court also held that there was nothing in the case file to suggest that the defendants had not acted in good faith during the transaction. On 12 November 2002 the Court of Cassation, after holding a hearing on the merits of the case, upheld the judgment of 13 March 2002. On 24 February 2003 the Court of Cassation further dismissed the applicant’s request for rectification. | 0 |
train | 001-75221 | ENG | RUS | CHAMBER | 2,006 | CASE OF ZASURTSEV v. RUSSIA | 3 | Violation of Art. 6-1;(legal certainty);Not necessary to examine P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1947 and lives in Ruzayevka, Republic of Mordovia. 5. In 1987 the applicant took part in emergency operations at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examination which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded special monthly benefits from the State. 6. Until March 1999 the applicant received monthly benefits in the amount of 6,685.57 roubles (RUR). However, as from March 1999 the Ruzayevka Department of Social Security decreased the amount of the benefits to RUR 1,915 and as from May 1999 to RUR 525.29 on the grounds that the amount previously paid had been miscalculated. 7. Considering the decrease of the monthly benefits unlawful, in 2000 the applicant, together with two other plaintiffs, instituted proceedings against the Ruzayevka Department of Social Security. 8. On 30 June 2000 the Ruzayevskiy District Court granted the claim and found the decrease of the monthly benefits unlawful. The court awarded the applicant arrears for the period between 1 March 1999 and the date of the judgment in the amount of RUR 95,773.46 (approximately EUR 3,568) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 6,685.57 (approximately EUR 252). The judgment was not appealed against and became final. 9. On 3 October 2000 the execution proceedings were instituted. 10. The Prosecutor of the Republic of Mordovia brought an application for supervisory review of the judgment. The application was dated 7 December 2000. The execution proceedings were stayed until the examination of the application. The order to stay the execution proceedings, which referred to the application for supervisory review lodged by the acting Prosecutor of the Republic of Mordovia, was dated 18 October 2000. 11. On 14 December 2000 the Presidium of the Supreme Court of the Republic of Mordovia granted the application. The Presidium quashed the judgment of 30 June 2000 and remitted the case for a fresh examination on the grounds that the first instance court miscalculated the amount of the monthly benefits. 12. On 22 January 2001 the execution proceedings were terminated due to the quashing of the judgment. 13. On 22 March 2001, after the new examination of the case, the Ruzayevskiy District Court dismissed the applicant’s claim. 14. On 3 July 2001 the Supreme Court of the Republic of Mordovia upheld the judgment on appeal. 15. On 11 February 2002, following the applicant’s request of 8 August 2001, the Acting Chairman of the Supreme Court of the Republic of Mordovia brought an application for supervisory review of the judgments of 22 March and 3 July 2001. 16. On 21 February 2002 the Presidium of the Supreme Court of Mordovia granted the application. The Presidium quashed the judgments of 22 March and 3 July 2001 and remitted the case for a fresh examination on the grounds that the court’s calculation of the amount of the monthly benefits was unlawful. 17. On 1 March 2002 the Ruzayevskiy District Court stayed the proceedings concerning the applicant’s claim until the Constitutional Court pronounced on the relevant issue. 18. On 12 July 2002 the Ruzayevskiy District Court renewed the proceedings. It appears that at a certain stage the proceedings concerning the applicant’s claim were severed from the proceedings concerning the claims of the other two plaintiffs. 19. On 7 October 2002 the Ruzayevskiy District Court partially granted the applicant’s claim. 20. On 3 December 2002 the Supreme Court of the Republic of Mordovia quashed the judgment on appeal and remitted the case for a fresh examination. 21. On 27 January 2003 the Ruzayevskiy District Court partially granted the applicant’s claim. The court awarded the applicant arrears in the amount of RUR 471,981.80 (approximately EUR 13,756) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 17,443.22 (approximately EUR 508). 22. On 25 March 2003 the Supreme Court of the Republic of Mordovia varied the judgment of 27 January 2003. The court awarded the applicant arrears for the period between 1 March 1999 and 31 December 2002 in the amount of RUR 433,435.04 (approximately EUR 13,012) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 20,094.60 (approximately EUR 603). The court calculated the arrears for the whole period by index-linking the amount of the monthly payments to the pensioner’s subsistence minimum set yearly by the State Statistics Committee of the Republic of Mordovia. 23. On 8 April 2003 the execution proceedings were instituted. They were closed on 23 December 2003 due to full recovery of the judgment debt. 24. On an unspecified date the applicant applied for supervisory review of the judgments of 27 January and 25 March 2003. On 6 February 2004 the Supreme Court of the Republic of Mordovia dismissed the application. 25. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 26. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. 27. Under the 1964 Code of Civil Procedure, which was in force at the material time, judgments became final as follows: “Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision...” 28. The only further means of recourse was the special supervisory-review procedure that enabled courts to reopen final judgments: “Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.” 29. The power of officials to lodge an application (protest) depended on their rank and territorial jurisdiction: “Applications may be lodged by: 1. The Prosecutor General – against judgments, decisions and rulings of any court; 2. The President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance; 3. Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court; 4. Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance; 5. The Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court; 6. The President of the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district, the Public Prosecutor of an autonomous republic, region, city, autonomous region or an autonomous district – against judgments and decisions of district (city) people’s courts and against decisions of civil chambers of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.” 30. The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review. 31. Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed. 32. Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed. 33. Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments: “The court that examines an application for supervisory review may: 1. Uphold the judgment, decision or ruling and dismiss the application; 2. Quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance; 3. Quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided; 4. Uphold any of the previous judgments, decisions or rulings in the case; 5. Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.” 41. The grounds for setting aside final judgments were as follows: “... 1. wrongful application or interpretation of substantive laws; 2. significant breach of procedural rules which led to delivery of unlawful judgment, decision or ruling...” 34. There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final. | 1 |
train | 001-113128 | ENG | TUR | CHAMBER | 2,012 | CASE OF TARKAN YAVAŞ v. TURKEY | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 5. The applicant was born in 1968 and lives in Istanbul. 6. On 12 November 1999 he was arrested on suspicion of setting up a criminal organisation, namely the Bilim Araştırma Vakfı (Foundation for Science and Research). On the same day he went through a medical examination at the Haseki Research Hospital. The medical report drafted following that examination noted that there was no sign of ill-treatment on his body. 7. During his time at police custody, on 15 November 1999, the applicant was examined once more, this time at the Şişli Etfal Research Hospital. The second report drawn up there also indicated that there existed no sign of ill-treatment on his body. 8. The applicant was released on 17 November 1999. Immediately after his release, he went through two more medical examinations at two different institutions, namely the Vakıf Gureba Hospital and the Forensic Medicine Institute. The reports drawn up after each examination indicated once again the lack of any sign of ill-treatment on his body. 9. The first three medical reports were issued in respect of the applicant together with some other persons, who were also arrested on suspicion of having committed the same offence. 10. On 11 January 2000 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant, together with several others, of setting up and running a criminal organisation. Subsequently, on 14 February 2000 the applicant was placed in pre-trial detention. The next day, on 15 February 2000 he was heard by the Bakırköy Criminal Magistrates’ Court and released pending trial. 11. In 2004, following a constitutional amendment, state security courts were abolished and the case was transferred to the Istanbul Assize Court. 12. On 9 May 2008 the Istanbul Assize Court discontinued the proceedings as the statutory time-limit for prosecuting the offence of setting up a criminal organisation had expired. 13. On 28 December 2009 the Court of Cassation upheld the judgment of the Istanbul Assize Court. 14. On an unspecified date in 2000 the applicant filed a complaint, together with the others, against several police officers, claiming that he had been subjected to ill-treatment during his time in police custody. According to his submissions, his testicles had been squeezed and he had been beaten, handcuffed to a chair and insulted. 15. On 26 October 2001 the Beyoğlu public prosecutor issued a decision not to prosecute. 16. On 21 November 2002 the Beyoğlu Assize Court rejected the applicant’s objection to the public prosecutor’s decision. 17. Nevertheless, on 5 March 2004, following an objection filed by one of the other complainants, the same court decided to extend the scope of the investigation and requested medical reports from the Forensic Medical Institute. 18. Subsequently, on 13 April 2005, although the medical reports had not yet been submitted, the court annulled the decision of the Beyoğlu public prosecutor and held that criminal proceedings would be brought against the police officers involved. 19. Accordingly, on 22 June 2005 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the police officers of torture pursuant to Article 243 § 1 of the former Penal Code (Law no. 765) as he considered that provision to be more favourable for the accused. 20. During the course of the proceedings against the police officers, the Head of the Istanbul University Forensic Medicine Department examined the applicant. In her report dated 29 March 2007 she noted that the applicant had complained that, during his police custody in November 1999 and his pre-trial detention in February 2000, his testicles had been squeezed and he had been beaten, insulted and forced to perform physical activities which would overstrain his body. After examining the medical reports which had been issued in respect of the applicant in November 1999, she reported that although those reports had indicated no sign of ill-treatment on the applicant’s body, none of them had been drafted in compliance with the general principles of forensic medicine set forth by the Ministry of Health. In this connection, she stated that each report had been issued in respect of several individuals and it was not clear whether the patients had been under psychological duress at the time or what kind of examinations had been conducted by the doctors. She concluded, therefore, that the reports issued immediately after the applicant’s release from police custody could not be accepted as proof against his allegation of ill-treatment. 21. On 4 August 2010 the Forensic Medicine Institute submitted a report to the Istanbul Assize Court upon the request of the latter. That report maintained that some lesions and problems in the applicant’s meniscus had been found in 2003. It added also that he appeared to be suffering from post-traumatic stress disorder. The report noted however that it was not possible to conclude that those conditions resulted from the alleged illtreatment inflicted on the applicant in 1999. 22. On 25 March 2011 the Forensic Medicine Institute drafted another report following the court’s request. According to that report, the first four medical reports, which stated that there was no sign on the applicant’s body, were unclear as each of them had been drawn up in respect of several individuals. 23. The Istanbul Assize Court conducted more than thirty hearings during which it heard the statements of the complainants, the accused and the witnesses. It also evaluated medical reports in respect of each complainant as well as the above-mentioned expert reports. The proceedings are still pending before that court. 24. Article 243 § 1 of the former Penal Code (Law no. 765) which regulated torture committed by civil servants read as follows: “Any public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats a person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.” | 1 |
train | 001-4797 | ENG | SWE | ADMISSIBILITY | 1,999 | JAMA v. SWEDEN | 4 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is a national of Ethiopia, born in 1958. At present he is imprisoned. Previously he resided in Gothenburg, Sweden. The facts of the case may be summarised as follows. The applicant came to Sweden in 1989 and applied for asylum. He stated that he had not been involved in any direct political activities in Ethiopia but that he had encountered problems due to his Somalian origin. He maintained furthermore that he had assisted the resistance movement by transporting necessities of life to people in the Ogaden province. The applicant was considered a de facto refugee by the Swedish authorities, and was granted a permanent residence permit. His request for a travel document and a declaration of refugee status was, however, rejected. The applicant was convicted of theft in 1993 and of petty larceny and aggravated assault in 1995. For the last two crimes he was, on 1 December 1995, sentenced to one year and ten months’ imprisonment by the District Court (tingsrätten) of Gothenburg. On 30 September 1996 the District Court of Gothenburg convicted the applicant of attempted manslaughter (försök till dråp). He was sentenced to four years’ imprisonment. As regards the question of expulsion the court found, with its chairman and one of the lay assessors dissenting that, being of Somalian origin from the Ogaden province, the applicant would risk persecution if he returned to Ethiopia. The court, therefore, did not issue an expulsion order also bearing in mind that the applicant had resided in Sweden since 1989. The applicant appealed against the judgment to the Court of Appeal (hovrätten). During the proceedings before the Court of Appeal the court obtained an opinion from the National Immigration Board (Statens invandrarverk) as to the applicant’s need for protection. In its opinion of 23 August 1996 the Board submitted that it had formed its opinion on the basis of an overall assessment of the political situation in Ethiopia. The assessment was founded on several reports from the Swedish foreign administration covering the political situation after the fall of the Mengistu regime in May 1991. According to those reports the human rights situation had improved considerably. A new Constitution had been adopted in 1994 which established, both generally and in detail, that human rights should be respected. The Ethiopian Government had also signed all essential conventions on human rights. The Board therefore considered that the applicant was no longer in need of protection in Sweden. On 6 December 1996 the Court of Appeal of Western Sweden, at the same time reviewing the judgment of 1 December 1995, sentenced the applicant to five years’ imprisonment to be followed by expulsion. The Court took into consideration, inter alia, that the applicant during one year had committed two serious crimes of violence, that it could be assumed that he would pursue his criminal activities in Sweden if he was allowed to stay there, that he, whilst residing in Sweden, had been working for only a limited time, that he did not have any relatives in Sweden and that he had not learned Swedish although he had been living in the country for seven years. Furthermore the court took into consideration the the National Immigration Board’s opinion that the applicant, due to the new conditions in Ethiopia, was no longer in need of protection in Sweden as a de facto refugee. The applicant appealed to the Supreme Court (Högsta domstolen). On 30 January 1997 he was refused leave to appeal. On 2 October 1997 the Government rejected the applicant’s petition to have the expulsion order revoked. The applicant may be released on probation on 16 October 1999 at the earliest. An expulsion may take place as from that date. The enforcement will be carried out by the local police authority. | 0 |
train | 001-5491 | ENG | HRV | ADMISSIBILITY | 2,000 | STRUNJAK AND OTHERS v. CROATIA | 1 | Inadmissible | Georg Ress | The applicants are Croatian citizens living in various parts of Croatia. They are represented before the Court by Ms Tatjana Burjačenko Grubiša and Ms Beti Korać-Zuppa, lawyers practising in Zagreb (Croatia). A. The facts of the case, as submitted by the applicants, may be summarised as follows. In the Socialist Federal Republic of Yugoslavia, i.e. until the independence of the Republic of Croatia, the applicants had specially protected tenancies on privately-owned flats. These flats have always been privately-owned, i.e. they have never been taken from the ownership of their owners by acts of nationalisation, confiscation or any other form of expropriation. The applicants still occupy those flats. On 3 June 1991, the Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo) and on 22 October 1996, the Leases Act (Zakon o najmu stanova). While the first one regulates the sale of publicly-owned flats previously let under a specially protected tenancy, the second regulates the conditions of leasing of privately-owned flats, including those previously let under a specially protected tenancy. The applicants lodged a constitutional claim with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that certain provisions of the Leases Act and the Specially Protected Tenancies (Sale to Occupier) Act violated the constitutional guarantees of the right to enjoy their possessions, the respect and protection for family life and discriminated against former holders of specially protected tenancies on privately-owned flats. The Constitutional Court ruled on 31 March 1998, and its decision was published in the Official Gazette (Narodne novine). The Court quashed several provisions of the Leases Act and dismissed the request to examine the constitutionality of the Specially Protected Tenancies (Sale to Occupiers) Act. As to the Leases Act, the Court quashed Article 21 § 2, which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another adequate flat before cancelling the lease, if the owner intended to live in the flat himself or intended to install in the flat his children, parents or his dependants. The Court also quashed Article 31 § 2, point 3, which excluded from the right to “protected rent” a lessee who had ceased to use the flat during the six months preceding the enactment of the Act in question. Furthermore, the Court quashed Articles 39 and 40 § 2. Article 39 restricted the lessor's right to terminate the lease of a lessee who does not pay the rent and charges, and is over sixty years of age or receiving social security benefits, only to cases where the municipality provides such a lessee with another adequate flat with a right to “protected rent” in an amount affordable to the lessee. Article 40 § 2 provided in substance the same as the above-mentioned Article 21 § 2. B. Relevant domestic law before amendments by the Constitutional Court The Specially Protected Tenancies (Sale to Occupier) Act regulates the conditions of sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly-owned flat to purchase it under favourable conditions of sale. However, the Act excludes from such favourable treatment the holders of specially protected tenancies on most privately-owned flats. The provisions of the Act challenged by the applicants before the Constitutional Court provide as follows. Article 3 § 1 point 2 provides, inter alia, that the Act does not concern privately-owned flats let under specially protected tenancies. Article 7 provides that where the tenant of a publicly-owned flat has not applied to purchase it under the Act, the tenant of any privately-owned flat may lodge a request to buy it. Furthermore, this provision establishes the criteria for priority in the purchase of such flats. Article 27 regulates the spending of the funds collected through the sale of flats let under specially protected tenancies. It requires 90 % of such funds to be used, inter alia, to provide flats for the former holders of specially protected tenancies of privately owned-flats, while 10 % of the funds must be used to help provide flats for families with three or more children. If the funds originate from the sale of flats in culturally protected buildings, 20 % of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria. Article 34 provides that the private owners of rented flats may, within two years of the Act's enactment, sell their flats to the municipality. The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality. The price of such a flat will be fixed according to the provisions for determining prices of publicly-owned flats let under specially protected tenancies. The Leases Act in general regulates the legal relationship between lessee and lessor in regard to the lease of flats. It recognises a special category of lessees, those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, such as an obligation for the owners to contract a lease for an unlimited period of time, the payment of a so called “protected rent”, the amount of which is to be prescribed by the Government, and strictly limited reasons for termination of the lease. This Act abolishes the specially protected tenancy as such. Article 7 § 2 provides that the criteria for establishing the amount of “protected rent” are the condition of the flat in question, expenses for maintenance of the building and the lessee's financial situation. Article 30 provides that, by enactment of the Act in question, specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees. Article 31 provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time, and the lessee is entitled to pay the so-called “protected rent”, except where the lessee is using a part of the flat for some business-related activity; or where the lessee is the owner of an inhabitable house or flat; or where the flat has not been used by the lessee or any members of his family, during the six months preceding the entry into force of the Leases Act, unless the owner had permitted their absence. | 0 |
train | 001-114452 | ENG | UKR | CHAMBER | 2,012 | CASE OF KOVAL AND OTHERS v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | André Potocki;Angelika Nußberger;Dean Spielmann;Mark Villiger;Paul Lemmens;Stanislav Shevchuk | 5. The applicants were born in 1944, 1955, 1977 and 1980 respectively and live in the city of Chernigiv, Ukraine. The third and fourth applicants are children of the first and second applicants. 6. In the morning of 14 August 2001 two private individuals, R. and O., acquaintances of the third applicant, went to the applicants’ apartment and said that the third applicant should return an electric drill to them. The third applicant was absent but R. and O. insisted and tried to enter the apartment. The first applicant picked up a gas gun and requested them to leave. 7. R. went to the police station and complained that the first applicant had threatened him with a weapon. It could be also understood from the available materials that R. and O. had bribed the police officers to go and seize the drill (see paragraph 31). 8. At around 7 p.m. on the same day the same two people, accompanied by police officers G., D. and F., went to the applicants’ apartment. R. and O. again asked for the drill and when the first applicant tried to close the door a fight broke out. 9. According to the first applicant, when he opened the door, he was knocked down but managed to break free and shouted for help. He was knocked down again and his attackers tried to push him into the apartment. One of them sat on the applicant, put his knee on the first applicant’s neck and hit him on the head with a gun handle. The third applicant tried to free his father but was handcuffed. 10. According to the second applicant, when she was returning from work, she saw “that something was going on near their apartment and that several people were beating her son in the corridor of their apartment”. She tried to separate the third applicant and the attackers. One of the attackers (who, it emerged later, was the private individual, O.) allegedly kicked her in the stomach and hit her on the head. The applicants’ neighbours heard the noise and came out on to the stairs. The police officers asked them to call the police station. More police officers arrived and the first and third applicants were taken to the police station. According to the Government, they were taken “to give explanations”. The second applicant accompanied them but was not allowed to stay. 11. Upon arrival, the first and third applicants were allegedly beaten up in the police station by eight or ten people. They were hit on the head, in the chest, on the ribs and in the stomach and also hit on the head with a plastic bottle filled with water. The third applicant was hit on the ears. According to him, he was handcuffed the whole time. According to the applicants, they were threatened with being injected with drugs and with being put in a cell where they would be raped by other detainees. The first applicant was allegedly forced to sign a document stating that he had voluntarily handed over a gas gun and an electric drill to the police officers. 12. At around 11 p.m. the first applicant was taken home by police officers S. and T., where he gave them the drill and the gas gun. The drill was later handed over to R. The third applicant was released the same evening. 13. On 15 and 16 August 2001 the first and second applicants requested the prosecutor to arrange a forensic medical examination for them. In particular, the second applicant submitted that she “had been beaten by the bandits who had beaten her husband and son”. She further noted that she had been beaten by O. 14. On 15 August 2001 the first applicant underwent a forensic medical examination, which concluded that the first applicant had concussion, a broken rib, bruises and scratches on the head. These injuries were of medium severity and could have been inflicted by the first applicant’s falling against some objects. 15. The first applicant was in hospital between 16 August and 7 September 2001. 16. On 17 August 2001 the second and third applicants were examined by a forensic expert, who found that the third applicant had bruises on and behind the ears, a black eye and bruises on his chest. They were classified as light bodily injuries. The second applicant told the expert that she had been hit on the head and kicked in the stomach. She had not sought medical assistance at the time. The expert examined the second applicant and found no visible injuries. The second applicant was advised to consult a neurosurgeon, and later the expert added that “by 3 September 2001 no neurosurgeon’s opinion had been received”. 17. Between 22 August and 6 September 2001 the second applicant was treated in the neurological department of Chernigiv Regional Hospital. She was diagnosed with a closed craniocerebral injury. The second applicant told doctors that on 14 August 2001 she had been hit on the left temple by an unknown person. 18. On 23 August 2001 the police office decided not to institute criminal proceedings against the first applicant for threatening R. with a gas gun. It was also found that the first applicant’s licence to keep such a gun had expired. 19. On 24 August 2001 the Head of the Criminal Investigation Department of the Chernigiv City Police Department (начальник відділу кримінального розшуку Чернігівського міського відділу УМВС України в Чернігівській області) terminated an internal investigation into the events of 14 August 2001. It was found that R. had complained to the police that the first applicant had threatened him with “an object which looked like a gun and with an object which looked like a sword”. Following this complaint police officers had gone to the first applicant’s apartment. When they identified themselves and showed their police cards, the first and third applicants began fighting and swearing. The police officers used martial arts techniques and handcuffs. 20. On 26 August 2001 the first applicant complained to the Chernigiv City Prosecutor that he and his son had been unlawfully arrested and beaten up, and that their property had been seized unlawfully. In particular, the first applicant submitted that at around 7 p.m. on 14 August 2001 somebody had rung their doorbell. When the first applicant opened the door he was knocked down, dragged into his apartment and threatened with a gun. When neighbours appeared because of the noise and wanted to call the police, the attackers said that they themselves were police officers. They were accompanied by R. and O., who kicked the second applicant. The first and third applicants were beaten, put into a police car which had arrived by this time, and taken to the police station. In the police station the first applicant was also beaten and told to give up any weapon he had. According to the first applicant, the beatings were “directed” by the police officer who had earlier hit him with a gun handle. Later the first applicant stated that a certain police officer, A., had also “joined in torturing him”. A couple of hours later the first applicant was brought home where, in the presence of two witnesses, he handed over to police a gas gun and an electric drill. 21. On 31 August 2001 the second and fourth applicants lodged similar complaints. In particular, the second applicant complained that O. had hit her on the head and kicked her in the stomach. She further complained that her son had been beaten up. 22. On 6 September 2001 the third applicant complained to the Chernigiv Prosecutor’s Office that he had been beaten up by police. On an unidentified date he also stated that O. had pushed his mother and kicked her. 23. Written explanations were collected from the participants of the events in question. In particular, on 11 September 2001 O. submitted that the first and third applicants started to fight, that the third applicant had broken the glasses of one of the police officers and that the second applicant had sworn at him. O. did not mention that he had fought with anybody. 24. On 20 September 2001 the Head of the Chernigiv Regional Department of Internal Affairs ordered that police officers G., D. and F. be dismissed. It was found that: (i) the conflict between R., O. and the third applicant was of a civil-law nature, and R. was not the owner of the drill; (ii) police officers D. and F. submitted reports about use of force against the third applicant and, according to findings of the internal investigation, their actions were considered lawful. G. did not submit any report; (iii) D., F. and G. were not equipped “properly” when leaving to check R.’s complaints of threatening behaviour with a firearm. It was concluded that the events in question happened because of “lack of discipline and legal knowledge”. As a result D., F. and G. were to be dismissed for “personal misconduct and an unsatisfactory level of professionalism”. Police officers T. and S. received a warning. 25. On 20 September 2001 a decision was adopted not to institute criminal proceedings. On 31 October 2001 this decision was quashed by the Chernigiv City Prosecutor. 26. On 9 November 2001 the Chernigiv City Prosecutor instituted criminal proceedings for abuse of power following infliction of bodily injuries on the first and third applicants. 27. Between 15 and 28 December 2001 the second applicant was in Chernigiv Regional Hospital. She was diagnosed with “after-effects of a repeated head injury (last injury August 2001)”. A medical certificate issued on an unknown date stated that in August 2001 the applicant had received a head injury. 28. On 29 December 2002 the Chernigiv City Prosecutor’s Office terminated criminal proceedings for absence of evidence of a crime. The first and third applicants were questioned, as was G. The latter testified that the first applicant had opened the door and together with the third applicant had tried to hit the police officers and to grab G.’s gun, so force had been used on the applicants and the third applicant had been handcuffed. Other police officers confirmed G.’s statements. According to this decision, the first applicant refused to have confrontations with the police officers. It was also noted that the second applicant had no visible injuries. 29. On 15 January 2003 the decision of 29 December 2002 was quashed and the case remitted for further investigation as “not all necessary investigative actions had been taken”. 30. On 2 October 2003 these proceedings were again terminated for lack of evidence of a crime in the police officers’ actions. 31. On 22 December 2003 the decision of 2 October 2003 was quashed by the Chernigiv Regional Prosecutor’s Office and the case sent for additional investigation. It was noted, inter alia, that R. had allegedly paid 300 Ukrainian hryvnias (UAH) to G. as “financial assistance to cover petrol cost” and that this information had not been checked. 32. On 19 March 2004 the criminal proceedings were again terminated. The investigation officer of the Chernigiv City Prosecutor’s Office found that the electric drill was jointly owned by the third applicant, R. and O. Since the third applicant had refused to give it back and the first applicant had threatened them with a gun, R. and O. had gone to the police station and lodged a complaint. According to O., the police officers showed the first applicant their identity documents but the latter refused to let them in, tried to grab G.’s gun and started a fight. The second applicant arrived and started shouting. Following the noise, the neighbours came and the police officers asked them to call for reinforcements. All this happened on the staircase in front of the applicants’ apartment. R., who, according to O., stayed in the car, confirmed O.’s statements. Police officers G., D. and F. also confirmed this version of events. D. also submitted that the first applicant had fallen down the stairs in the police station. Police officers M., Sy., Gr., S. and T. stated that nobody had beaten the applicants. S. and T. testified that on 14 August 2001 on G.’s orders they had visited the first applicant’s apartment where he had given them a gas pistol and a drill. They also said they had seen the first applicant fall down the stairs. The applicants’ neighbours stated that they did not see the beginning of the fight so they could not say who had started it. It was finally concluded that the first and third applicants had been taken to the police station because they were suspected of unlawful possession of firearms. 33. On 30 June 2004 the Chernigiv Regional Prosecutor’ 34. On 30 November 2004 the Chernigiv City Prosecutor’s Office again terminated the criminal proceedings. This decision was identical to that of 19 March 2004 but contained an additional paragraph which stated a further investigation had not revealed any evidence of a crime. 35. On 1 March 2005 the Desnyanskiy District Court (Chernigiv) quashed this decision and remitted the case for further investigation. The court found that the investigating authorities had failed to comply with the prosecutor’s decision of 22 December 2003. In particular, the legal grounds for the police entering the applicants’ apartment and seizing the drill and the gas gun had not been checked. Also, one of the police officers, So., should be questioned since, according to the first applicant, he had seen the first applicant being beaten up. 36. On 19 May 2005 the investigation in the applicants’ case was suspended. It was noted in particular that although the applicants’ neighbours had seen the fight between the applicants and the police officers, nobody had witnessed the beginning of this fight and they could not say who had initiated it or why. It was also stated that the first applicant had fallen down the stairs in the police station. 37. Subsequently the investigation was resumed. So. was questioned and said that he had not seen the applicants being beaten up. 38. In the conclusion of 14 June 2005 certified by the Head of the Chernigiv Regional Police Department (начальник Управління Міністерства внутрішніх справ України в Чернігівській області) it was noted that police officers G., D. and F. had not been dismissed, because the dismissal order had been lost. 39. On 14 December 2009 a decision to stay the investigation was adopted since “it was impossible to identify the perpetrator”. There is no evidence that any procedural actions have been taken in the applicants’ case since that time. 40. On 27 September 2005 the first applicant was interviewed by a television company. He said that he had been beaten up by police officers at the police station and called police officer A. “his torturer”. 41. On 19 October 2005 A. instituted defamation proceedings against the first applicant and the television company. 42. On 30 December 2005 the Desnyanskiy Court found against A. It held that there was enough information to suspect that the first applicant had indeed been ill-treated, but that his statements were value judgments and not established facts. 43. On 14 March 2006 the Chernigiv Regional Court of Appeal upheld this judgment. 44. In March 2008 the third applicant instituted proceedings in the Desnyanskyy Court against R. and Chernigiv City Police Office (Чернігівський міський відділ УМВС України в Чернігівській області) for the return of the electric drill. The drill was currently in the possession of R., who was its co-owner. On 10 November 2008 the court rejected this claim since the drill was not solely the third applicant’s property but was jointly owned by a team of construction workers. The third applicant and R. had previously been members of this team. On 6 February 2009 the Court of Appeal upheld this decision. On 5 June 2009 the Supreme Court of Ukraine rejected the third applicant’s request for leave to appeal on points of law as unsubstantiated. 45. The relevant provisions of the Code read as follows: “A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempts to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest warrant (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel with effect from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest warrant shall be signed by the person who drew it up and by the detainee. A copy of the arrest warrant with a list of the arrested person’s rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest may also be sent to him... Within seventy-two hours of the arrest, the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her... Preliminary detention of a suspect shall not last for more than seventy-two hours...” 46. The procedure for search and seizure is set out in Chapter 16 of the Code of Criminal Procedure. In accordance with Article 178 of the Code seizure is ordered by a reasoned decision of an investigation officer. Unless urgent, the seizure is to be performed during the day. 47. According to Articles 356 – 358 of the Code, two and more individuals may jointly own a property. They have equal parts in this property unless determined otherwise by law or by their agreement. The owners may also determine the way the property is used. | 1 |
train | 001-98627 | ENG | GBR | ADMISSIBILITY | 2,010 | HICKEY v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicants, Mr Michael Joseph Hickey and Vincent James Hickey, are British nationals who were born in 1961 and 1954 respectively and live in Birmingham. They were represented before the Court by Ms S. Labinjoh, a lawyer practising in London. The two applicants, together with James Robinson, were convicted on 9 November 1979 of murdering Carl Bridgewater, a thirteen year-old newspaper boy, during the course of a burglary at Yew Tree Farm, in the West Midlands. At the time of conviction, the first applicant was just under eighteen years old. He had accrued fifteen previous convictions, most of which were minor, between 1976 and 1978. He had not previously served a custodial sentence. For the Bridgewater murder, he was sentenced to detention at Her Majesty's Pleasure, along with eight years' detention for the robbery at Yew Tree Farm and two sentences of twelve years' detention, to be served concurrently, for two armed robberies, at Chapel Hill Farm and a Tesco supermarket, to which he had earlier pleaded guilty. The second applicant, who was twenty-five years old at the time of conviction, was sentenced to life imprisonment for the Bridgewater murder, and given a concurrent sentence of ten years for the aggravated burglary at Yew Tree Farm. He was also given twelve months for an offence of deception. The second applicant also had a previous criminal record, with seventeen convictions, mostly minor, accrued between 1970 and 1978. He had served a short custodial sentence as a juvenile, and been given a suspended sentence of twelve months' imprisonment as an adult. James Robinson, the man convicted alongside the two applicants, was forty-five years old at the time and had a more serious criminal record, having been convicted of various offences between 1954 and 1958 for which he received suspended sentences, and of various offences of dishonesty including burglary in 1966, for which he received a three-year prison sentence. James Robinson was sentenced to life imprisonment for the Bridgewater murder; ten years' imprisonment for the aggravated burglary at Yew Tree Farm; and fifteen years concurrently for each of the Chapel Hill Farm and Tesco armed robberies. The applicants and James Robinson sought to challenge their conviction of the murder and aggravated burglary at Yew Tree Farm, of which they maintained they were innocent. However, leave to appeal to the Court of Appeal was refused in December 1981 and, upon reference of their cases to the Court of Appeal by the Secretary of State, their appeals were dismissed in March 1989. The Secretary of State again referred their cases to the Court of Appeal and, on this occasion, serious irregularities in the conduct of the investigation and the trial emerged. The prosecution accepted that the convictions had been fundamentally flawed. All three were released on unconditional bail in February 1997 and their appeals were allowed, and their convictions quashed, on 30 July 1997. The Secretary of State decided that the applicants and James Robinson were entitled to compensation. The assessment of compensation for James Robinson was conducted by Sir David Calcutt QC on 7 June 2000. The assessment was made on the basis that Mr Robinson had spent ten years wrongfully imprisoned, allowing for the time that he would have served in any event for the other robberies. The assessor made a deduction from the award of non-pecuniary losses to reflect Mr Robinson's previous criminality, but this deduction was “comparatively modest” - namely 10% - reflecting the fact that his previous offences had all been non-violent. The assessor awarded GBP 115,000 in basic damages and GBP 172,000 in aggravated damages. The aggravated damages were stated as being to take account of the conduct of the police in investigating and prosecuting the offences, which had involved forgery, deceit and violence, and the constant intimidation and violence to which Mr Robinson had been subjected in prison as a result of being labelled a “child killer”. The assessment of compensation for the applicants was conducted by Lord Brennan QC on 15 June 2002. The assessor concluded that Michael Hickey had been wrongfully detained for twelve years and ten months, having regard to the time that he would have served in any event for the other robberies. With regard to the appropriate deduction to be made from the non-pecuniary losses to reflect previous criminality, the assessor noted that the applicant had been just under eighteen years of age at the time he was convicted, but that he had already accrued five convictions for offences of dishonesty, burglary and driving offences, for which he had variously received fines and supervision orders. He had also, more significantly, been convicted of two robberies with a firearm at the same time as his wrongful conviction. Finding that there was no way in which such serious convictions could be ignored, he made a deduction of 20% to reflect the first applicant's past criminality. The assessor went on to find that conviction and imprisonment had had consequences of the gravest kind for Michael Hickey, not least because his imprisonment had resulted in serious psychiatric illness, which was likely to endure for the remainder of his life. He awarded the first applicant a total of GBP 250,000 for non-pecuniary loss, which was broken down into GBP 140,000 for all factors other than psychiatric illness; GBP 35,000 as a moderate uplift for aggravating factors of the case; and GBP 75,000 for psychiatric illness. The first applicant was also awarded GBP 770,000 in respect of pecuniary loss. This incorporated a figure to reflect his past loss of earnings, from which a deduction of 25% was made to reflect saved living expenses. The assessor noted that a deduction for saved living expenses had not been made from Mr Robinson's award; however, he considered that each case had to be decided on its own merits at the time of assessment. It was correct that living expenses should be deducted, since common law principles prohibited double compensation, and the award for loss of earnings should reflect the facts that living expenses would normally be paid for out of earnings, and that the first applicant had not incurred such expenses by reason of his imprisonment. The assessor found that Vincent Hickey had been wrongfully detained for thirteen years and eight months, bearing in mind the time he would have served for the Chapel Hill robbery, to which he had pleaded not guilty but had later admitted, and which had been ordered to lie on his file. He was older than the first applicant at the time of his conviction and had a more significant offending history, consisting of seven previous convictions for thirteen offences including dishonesty; burglary; assault; and driving whilst disqualified. For these offences he had variously received fines, supervision orders and a suspended prison sentence. The Chapel Hill robbery had therefore marked the culmination of significant criminal behaviour, and the assessor deducted 25% from his non-pecuniary award to reflect this. The assessor found that the second applicant had had to endure harsh conditions and treatment, which had included sexual assault, in prison due to being perceived as a child murderer. As a result of such treatment, he had suffered depression and post-traumatic stress disorder. He had become addicted to heroin whilst in prison, an addiction which continued after his release until he underwent rehabilitation treatment. The assessor awarded the second applicant GBP 190,000 in respect of non-pecuniary loss, of which GBP 50,000 was for past and present psychiatric injury, and to which the 25% deduction for past criminality applied, making a total for non-pecuniary loss of GBP 144, 936. The assessor did not specify whether any part of the award reflected aggravating factors. A total of GBP 361,284.20 was awarded for pecuniary loss, incorporating a deduction of 25% from the loss of earnings to reflect saved living expenses. The reasoning behind the deduction was identical to that in the first applicant's assessment. In response to representations by the applicants' The applicants sought judicial review of Lord Brennan's decisions and their applications were heard in the High Court in March 2003. Insofar as is relevant to the complaints pursued by the applicants before the Court, the High Court held that Lord Brennan had, by relying on common law principles derived from personal injury cases, which were not analogous to the cases in hand, misdirected himself in law in deducting a proportion from the award of pecuniary losses relating to loss of earnings for each applicant in order to reflect saved living expenses. The High Court also found that the deductions made by Lord Brennan to reflect each applicant's past criminality were unobjectionable in themselves. The only grievance that each applicant could have was in comparing the deduction applied to them with the smaller deduction applied by Sir David Calcutt QC to James Robinson. The assessor was not bound by a principle of consistency and could depart from the findings of his predecessor if he considered that he had good reason to do so. Since the applicants could not have a justified sense of grievance about their own awards, viewed alone, their challenge on this ground failed. The applicants appealed against the High Court's failure to quash the assessment on the grounds of the inconsistent deduction for past criminality; the assessor appealed against the quashing of the part of his assessment which dealt with saved living expenses. The cross appeals were disposed of by the Court of Appeal on 29 July 2004. With regard to the assessor's appeal, Auld LJ, who gave the lead speech, held that Lord Brennan had correctly regarded the deduction he imposed, on its facts and in accordance with the law, as being necessary to avoid compensating the applicants for a loss which they had not sustained. The deduction had been taken from the pecuniary loss award for loss of earnings, and had had no impact on the non-pecuniary loss award, which took account of the applicants' suffering as a result of imprisonment. Longmore LJ concurred, adding that the cost of basic living expenses had not been set off because the applicants had received a benefit; rather it had been set off because the applicants had not incurred expenses that they would have incurred had they been at liberty and in gainful employment. Given that the overall assessment separated the awards for loss of liberty – which was addressed under non-pecuniary loss – and for loss of earnings – which was addressed under pecuniary loss – and that the former was entirely appropriate, it was inevitable that the latter should take account of saved living expenses. Gage LJ also concurred. Lord Brennan's appeal on this ground was therefore allowed. As regards the alleged inconsistency involving the deductions made for past criminality, Auld LJ stated that judicial consistency was always desirable, but not always achievable where decisions were taken by different decision-makers. Lord Brennan had reached a reasonable figure for the deduction, and had given his reasons for departing from the approach of his predecessor. The situation was akin to differences in sentencing. There the test for overturning a sentence was whether the person felt a justified sense of grievance. Here, the applicants had been subjected to deductions which, viewed on their own and objectively, were reasonable. They did not therefore have a justified sense of grievance. Auld LJ and Gage LJ concurred. The applicant's appeal on this ground was therefore dismissed. The applicants then appealed both issues to the House of Lords. Judgment was handed down on 14 March 2007, and the applicants' appeals on each ground were dismissed by a majority of 4:1. Lord Bingham, who gave the lead speech for the majority, stated with regard to the first issue that: “It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state.” However, to award the full amount of lost earnings without making any deduction for living expenses would, in reality, leave the applicants better off than if they had actually earned the money. The deduction led to the applicants being put in the position that they would have been in had they not been imprisoned and therefore they were compensated for their actual loss. Lords Scott and Carswell agreed with Lord Bingham's analysis. Lord Brown also agreed, adding that the deduction was plainly a reflection of the basic expenses of living in freedom, rather than a credit impermissibly claimed by the State to repay a supposed benefit. However, Lord Rodger disagreed on this ground of appeal, holding that it was both unattractive and an infringement of constitutional principle to regard the deduction of living expenses from the applicants' awards as being necessary to avoid double compensation. The Government was not permitted to charge prisoners for their board and lodging, as previous case-law dealing with prisoners' earnings in prison had established. The case-law in respect of personal injury, which had been relied on by both sides throughout the instant proceedings, if properly understood, held that the normal expenditure of a plaintiff on food and accommodation was of no concern to the defendant. Deductions were admittedly made in situations where it was necessary to avoid double compensation; that is, where an award for loss of earnings and an award for future care were both given. Since the applicants in this case had no claim for future care, no deduction was necessary to avoid double compensation. The cases regarding personal injury also differed from that of the applicants in an important way: whereas in personal injury claims the wrong had been done and the issue was how to treat their maintenance at public expense thereafter, the applicants in this case had been subjected to an ongoing wrong. They were being wronged whilst being maintained at public expense. Lord Rodger stated: “Justice, reasonableness and public policy dictate that no allowance should be made for so-called savings which the applicants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.” In reality, it did not matter whether the cost of board and lodging was treated as a benefit that the applicants had received or as a deduction from their compensation for loss of earnings; the result was that they were penalised for the time spent in prison, which was the very thing that their awards were designed to compensate them for. Lord Rodger would therefore have upheld the applicants' appeal on this ground, while dismissing their appeal on the ground of the deduction for past criminality. With regard to this second ground of appeal, Lord Bingham held that while it was generally desirable that decision makers, whether judicial or administrative, should act in a broadly consistent manner, the assessor who dealt with the applicants' claims for compensation had not been bound to follow the previous decision dealing with their co-accused if he considered it to be erroneous. The matter of the appropriate deduction to be made for past criminality was a highly judgmental matter, and the assessor's deductions, in themselves, were not impugned. The applicants' only basis for complaint was the lesser deduction applied to their co-accused and this was not sufficient to give rise to a justified sense of grievance. Lords Brown and Rodger agreed with Lord Bingham on this ground of appeal; Lord Brown adding that, while at first blush the inconsistency between the deductions imposed by the different assessors appeared unfair to the applicants, in fact it had been done for good reason. Lord Brennan had either found his predecessor's deduction to be irrationally low, or the two assessors had taken a different approach to the overall calculation of non-pecuniary loss; either way, the applicants' appeal on this ground could not succeed. Lord Carswell also agreed that this ground of appeal should fail; however, he expressed some doubts as to the sense of deducting a proportion for past criminality from the total award for non-pecuniary loss. He considered that it would make more sense to take the claimants' criminal history into account when determining each of the various heads of loss than to apply a flat percentage deduction afterwards. However, the inconsistency in the deductions applied did not vitiate the assessor's conclusions; consistency was desirable but it had sometimes to yield to the larger imperative of delivering justice in the particular case. Lord Scott, on the other hand, dissented on this ground. He found that the deductions for past criminality should not have been applied to the portion of non-pecuniary loss which related to the conduct of the authorities who prosecuted the crime. There was no reason that a hardened criminal would suffer less than a person of previously good character in being unfairly convicted of a crime that he did not commit. Nor should the deduction for past criminality be applied to a claimant who had never been imprisoned before. The suffering inherent in being incarcerated for the first time would be just as abject, whether or not the person had a previous criminal record. Lord Scott considered that the claimant's history should be taken into account when calculating the non-pecuniary harm done to them, and that no further deduction was therefore necessary. On the issue of the consistency of the applicants' awards with their co-accused, he found that compensating a person for wrongful conviction was designed to ameliorate an existing and justified sense of grievance; therefore, if the award of compensation was not perceived as fair, then the aim of addressing a grievance had not been properly met. The deduction applied to the applicants did not appear to be fair, given the significantly smaller deduction applied to Mr Robinson, and his significantly more serious criminal record. The applicants' appeal on this ground should therefore be upheld. The right to compensation is contained in section 133 of the Criminal Justice Act 1988, which so far as relevant provides: Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State. The question whether there is a right to compensation under this section shall be determined by the Secretary of State. If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State. The Criminal Appeal Act 1995, by section 28, added a new subsection to follow subsection (4), above. The new subsection provides: (4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to: the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction; the conduct of the investigation and prosecution of the offence; and any other convictions of the person and any punishment resulting from them. Section 133 of the Criminal Justice Act 1988 was enacted in order to give effect to Article 14(6) of the International Covenant on Civil and Political Rights, to which the United Kingdom is a party. Article 14(6) provides: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. This Article closely resembles Article 3 of Protocol No. 7, which the United Kingdom has not ratified. | 0 |
train | 001-78275 | ENG | TUR | ADMISSIBILITY | 2,006 | YALÇIN v. TURKEY | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Yakup Yalçın, is a Turkish national who was born in 1937 and lives in Istanbul. He was represented before the Court by Mr H. Çınar and Mr E. Çınar, lawyers practising in Ankara. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was one of the partners of a company named Balıkçılık İstihsal ve Satış Kooperatifi ve Ocak Pastanesi Kollektif Şirketi (“the Company”). The Company, together with a joint venture partner, leased the Tuzla Lagoon in Keşan, Edirne, for seafood production for a period from 1976 to 1987. In October 1976, the Turkish, the United States and the NATO forces carried out military exercises in the area. As a result of wastes discharged by military vessels, the lagoon was polluted, which had detrimental effects on the Company’s investment. On 19 October 1979, the applicant applied to the Keşan Civil Court for an assessment of the level of the pollution and the amount of damages that his enterprise had suffered. An expert report was prepared and submitted to the court on 10 March 1980. Relying on such report, the applicant applied to the Ministry of Defence for compensation. Upon the Ministry’s refusal to compensate him, the applicant brought an action before the Keşan Civil Court, which held its first hearing on 9 March 1981. In the meanwhile, the Company became bankrupt and went into liquidation. Pursuant to the applicable bankruptcy laws, the Keşan Civil Court ruled that the applicant no longer had standing and suspended the proceedings on 23 May 1983. The court held that only the liquidator (iflas idaresi) who was in charge of the management and liquidation of the assets of the bankrupt Company, was eligible to resume the proceedings. The court relied on a bankruptcy law principle under which all receivables including the rights, interests and claims relating to ongoing litigation automatically become part of the bankruptcy estate (iflas masası), created in the name and for the benefit of the creditors of a given bankrupt company. On 23 May 1984, the liquidator applied to the Keşan Civil Court in order to resume the proceedings. From that date on, the proceedings continued with the liquidator being the only eligible plaintiff. From 14 September 1984 to 16 July 1990, the court held a total of thirtyfour hearings, at least ten of which the liquidator failed to attend. Throughout these hearings, the court suspended the proceedings more than once in view of the liquidator’s failure to attend the hearings, but later resumed them upon the liquidator’s petition. On 8 June 1990, the court held a hearing which the liquidator did not attend. The court postponed the hearing to 16 July 1990. The liquidator also failed to attend the postponed hearing. On 19 July 1991, the court struck the case off, ruling that the plaintiff, i.e. the liquidator, failed to pursue his case. This decision was not notified to the liquidator. On 18 January 1995, having heard about this decision, the applicant filed an application with the Keşan Civil Court to contest its strike-off decision. On 27 January 1995, the court dismissed the application holding that the applicant lacked standing and that the liquidator alone could bring such an application. The court also decided to notify the strike-off decision of 19 July 1991 to the liquidator. The applicant and the liquidator jointly appealed. On 25 May 1995, the Court of Cassation quashed the civil court’s decision on a ground unrelated to the questions raised in the appeal. It ruled that under Article 62 § 1 of the “Act on the National Defence Duty” (Milli Müdafaa Mükellefiyeti Kanunu) the State’s liability for military operations had to be first examined by a national defence commission. The court found that the Keşan Civil Court’s hearing of the case without referring the matter to such a commission first was a procedural defect warranting quashing. Yet, the Court of Cassation has not made a ruling granting the applicant standing. On re-examination, the Keşan Civil Court decided that an application needed to be made to a national defence commission. This court did not grant the applicant standing either. On 13 February 1996, the liquidator applied to the Ministry of Defence. The Ministry clarified on 4 March 1996 however that no such commission existed. On 19 July 1996, the Keşan Civil Court decided to dismiss the case on the ground that a national defence commission’s assessment has not been submitted to it and that the prescribed time period had expired. On 14 October 1996, the applicant and the liquidator jointly appealed this decision. On 27 June 1997, the Court of Cassation upheld it and dismissed an application for rectification on 25 December 1997. This latter ruling was served on 27 November 1998. | 0 |
train | 001-103647 | ENG | AUT | CHAMBER | 2,011 | CASE OF KLEIN v. AUSTRIA | 3 | Violation of P1-1;Just satisfaction reserved | Anatoly Kovler;Christos Rozakis;Ewald Wiederin;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen | 7. The applicant is a former lawyer who was born in 1932 and lives in Vienna. 8. On 24 March 1964 he was admitted to the bar and started to practice as a lawyer in Vienna. 9. On 15 November 1995 the Disciplinary Council (Disziplinarrat) of the Vienna Chamber of Lawyers (Rechtsanwaltskammer) provisionally suspended the applicant's right to practice and on 18 December 1995 bankruptcy proceedings were opened against him. Taking note of that fact, on 23 January 1996 the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) decided that the applicant had lost his right to practise as a lawyer pursuant to section 34(1a) of the Practising Lawyers Act (Rechtsanwaltsordnung). This provision, as in force at that time, provided that the right to exercise the profession of a practising lawyer shall be revoked following the binding opening of bankruptcy proceedings until their binding termination and the final dismissal of a request to open bankruptcy proceedings for lack of sufficient means. It further appears that, in connection with the bankruptcy proceedings, the applicant was convicted of embezzlement by the Vienna Regional Court on 28 January 1997 and sentenced to four years imprisonment and on 28 October 1997 an additional sentence of one year was imposed on him. 10. On 31 March 1996 the applicant asked the Chamber of Lawyers to strike him out of the List of Lawyers (Rechtsanwaltsliste) for health reasons. On 30 April 1996 the Chamber of Lawyers informed the applicant that it had taken note of his request. However, the Government submitted that the plenary assembly of the Chamber of Lawyers had struck the applicant out of the List of Lawyers on 16 April 1996. The applicant though submitted that no such decision had been taken by the plenary assembly. 11. It appears that the Chamber of Lawyers continued to address invoices for membership fees (including contributions to the pension fund) to the applicant until August 1997. The Government submitted that those requests were based on a clerical error by the Chamber's administration and that the respective invoices were subsequently declared void. 12. On 4 August 1997 the applicant made an application to the Vienna Chamber of Lawyers asking it to grant him an old-age pension. In his request he referred to the fact that he had practised as a lawyer between 1964 and 1995. 13. On 16 June 1998 Division IV of the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) dismissed the applicant's application. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, an old-age pension is granted to a lawyer when he or she reaches the retirement age, that is, sixtyfive years old. However, he or she must also have renounced his or her right to practise as a lawyer. Given that, before he reached the retirement age, the applicant had already lost his right to practice as a lawyer, he was not entitled to an old-age pension. 14. On 3 July 1998 the applicant filed an objection (Vorstellung). He submitted that the above-mentioned decision had been unlawful. If, however, the findings of Division IV were correct, the regulations on the entitlement to an old-age pension were unconstitutional because the decision to refuse him a pension after he had paid contributions to the pension fund for more than thirty-two years had been arbitrary. 15. On 14 July 1998 the Plenary of the Executive Committee rejected the objection. It observed that the bankruptcy proceedings which had been opened against the applicant were still pending and the applicant could not claim a pecuniary right without the consent of the receiver. Given that the applicant's objections had been filed without the consent of the receiver, the objection had had to be rejected. 16. On 4 September 1998 the applicant lodged a complaint with the Administrative Court against the above-mentioned decision. 17. On 15 February 1999 the Administrative Court quashed the Plenary decision of 14 July 1998. It found that a pension claim was not one of the claims falling entirely under the list of assets which were subject to bankruptcy proceedings. Accordingly, the applicant himself had had the right to file an objection. 18. On 23 March 1999 the Plenary of the Executive Committee decided again on the applicant's objection. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, the person applying for the pension must, when reaching the retirement age, still be a member of the Chamber. Given that, before reaching the retirement age, the applicant had lost his membership of the Chamber because he had also lost his right to exercise his profession, he was not entitled to a pension. 19. On 25 May 1999 the applicant lodged a complaint with the Constitutional Court in which he argued that the decision of the Chamber of Lawyers had violated the principle of equality and his right to peaceful enjoyment of his possessions. At the same time he also lodged a complaint with the Administrative Court. 20. On 6 July 1999 the Administrative Court dismissed the applicant's complaint. It found that the applicant would have had a right to an old-age pension only if 1) he had reached the retirement age and 2) he had still been enrolled in the List of Lawyers of the Austrian Chamber of Lawyers at that time. While the applicant had met the first condition, he had not met the second condition because bankruptcy proceedings had been opened against him which had led ex lege to the applicant loosing his right to practice and, thereby, loosing his membership of the Chamber of Lawyers. 21. On 6 October 1999 the Constitutional Court refused to deal with the applicant's case because it would not have had any prospect of success. 22. The rules governing the exercise of the profession of a lawyer are set out in the Lawyer's Act (Rechtsanwaltsordnung). Section 50 of the Lawyer's Act, as amended in 1973 (Lawyer's Act Amendment Act), provided a lawyer with a right to an old-age pension, or, under certain conditions, for a pension for his or her surviving spouse or descendants. The main principles for pension schemes for lawyers are set out in section 50(2) of the Lawyer's Act. According to these principles, only someone who is inscribed in the List of Lawyers of a regional Chamber of Lawyers at the time that he or she reaches the retirement age is entitled to an old-age pension; he or she must have been inscribed on the List for a period of ten or fifteen years before reaching the retirement age; the retirement age is fixed at sixty-eight years and upon reaching that age, a lawyer must renounce his or her right to exercise the profession. Further conditions are set out for pensions on account of incapacity to exercise the profession, widows' or widowers' pension and pensions for descendants. Under section 50(3), the regional Chambers of Lawyers are free to fix more favourable conditions for their own pension scheme. 23. The detailed regulations, as set out in the statues of the pension schemes (Versorgungseinrichtungen) adopted by the plenary assembly of the Vienna Chamber of Lawyers, repeat the conditions under section 50(2) of the Lawyer's Act. The Vienna Chamber of Lawyers has not made use of the possibility under section 50(3) to fix more favourable rules with the exception of fixing the retirement age at sixty-five years. 24. The pension scheme is financed by compulsory contributions from the members of the pension fund, the amount of which is fixed by the plenary assembly of the Chamber of Lawyers and roughly calculated on the basis of the payments to beneficiaries out of the pension fund. 25. The fund has also another source of income. Under Austrian Law, lawyers do not receive individual payments for services rendered in the context of legal aid. However, as a compensation for the services rendered by all lawyers, the State pays an annual lump sum which is divided among the regional Chambers of Lawyers and put into the pension funds. 26. For 1998 the annual contribution to the pension scheme were fixed at 40,000 Austrian schillings (ATS, approximately EUR 2,900) per member and the old age pension at ATS 23,000 (approximately EUR 1,670) payable fourteen times per year. For 1999 the contributions were fixed at ATS 61,000 (approximately EUR 4,430), reduced contributions for members under 32 years at ATS 40,000 (approximately EUR 2,900) and increased contributions for lawyers who were older than 50 years when inscribed in the List of Lawyers for the first time at ATS 71,000 (approximately EUR 5,160). Pension payments for 1999 were fixed at ATS 24,000 (approximately EUR 1,745) payable fourteen times per year. Pension payments were regularly increased over the years and the amount fixed for 2006 was EUR 2,030. 27. By a federal act of 28 October 2003 (Federal Law Gazette I no. 93/2003), which entered into force on 1 January 2004, the pension regime of lawyers was amended. The new system of old-age pensions, as provided for in sections 49 and 50 of the Lawyer's Act, provides that being inscribed in the List of Lawyers at the time of reaching the retirement age is no longer a condition which must be met in order for an old-age pension to be granted. Old-age pensions are now also granted to persons formerly inscribed on the List of Lawyers and, provided that contributions have been made for a minimum time, they are calculated using a formula which takes into account the amount of contributions paid and the period during which they have been paid. 28. On 3 December 2003, in an extraordinary meeting, the plenary assembly of the Vienna Chamber of Lawyers amended the statutes of its pension scheme following the introduction of the above-mentioned rules. 29. Under the transitory provisions of section 18 of the Vienna statues of the pension scheme, the new provisions apply only to lawyers claiming an old-age pension whose right to exercise the profession had not been withdrawn before the amendment entered into force. | 0 |
train | 001-119957 | ENG | TUR | CHAMBER | 2,013 | CASE OF LEVENTOĞLU ABDULKADİROĞLU v. TURKEY | 4 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life) | András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque | 5. The applicant was born in 1972 and lives in İzmir. 6. Following her marriage to Atila Abdulkadiroğlu on 6 July 1996, the applicant, whose surname was “Leventoğlu” prior to her marriage, had to take her husband’s surname pursuant to Article 153 of the Turkish Civil Code. As she was known by her maiden name in her academic and professional life, she continued to use it; however, she could not use it in any official documents. 7. An amendment to Article 153 of the Civil Code on 14 May 1997 meant that married women acquired the right to put their maiden name in front of their husband’s surname. The applicant preferred not to make use of that option because, in her view, the amendment in question did not satisfy her request, which was to use her maiden name on its own. 8. Following the enactment of the new Civil Code on 22 November 2001, Article 187 was worded identically to the former Article 153 (see “Relevant domestic law and practice” below). 9. On 26 September 2005 the applicant brought proceedings before the İzmir Court of First Instance seeking permission to use only her maiden name, Leventoğlu. 10. On 6 December 2005 the court dismissed the applicant’s request on the grounds that, pursuant to Article 187 of the Civil Code, married women had to bear their husband’s name throughout their marriage and were not permitted to use their maiden name alone. 11. The applicant appealed against that judgment and on 21 March 2006 it was upheld by the Court of Cassation. A request by the applicant for the proceedings in her case to be reopened was further rejected by the same court on 14 July 2006. That decision was served on the applicant on 11 August 2006. 12. The relevant provisions of the Civil Code read as follows: “Married women shall bear their husband’s name. ... ” “Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage certificate, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname ...” 13. The Turkish Constitution, in so far as relevant, reads as follows: “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds. Women and men shall have equal rights. ....” “... International agreements that are duly in force shall be legally binding. Their constitutionality cannot be challenged in the Constitutional Court. In the case of a conflict between international agreements in the area of fundamental rights and freedoms that are duly in force and domestic laws on account of differences in provisions concerning the same matter, the provisions of international agreements shall prevail.” 14. Following the enactment of Article 187 of the Civil Code, three family courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional. In a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed their objection. 15. The relevant international law is set out in the Court’s judgment in the case of Ünal Tekeli v. Turkey (no. 29865/96, §§ 17-31, ECHR 2004X). | 1 |
train | 001-4615 | ENG | ITA | ADMISSIBILITY | 1,999 | COCCHIARELLA v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant is an Italian national, born in 1933 and living in Guidonia (Rome). He is represented before the Court by Mr Giovanni Battista Petrocchi, a lawyer practising in Tivoli (Rome). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a small company (“AVIO LACO snc di Luciano Cocchiarella”) which deals in aeroplanes and relevant spare parts. In 1979 and 1980, the applicant purchased a plot of land in the vicinity of the Guidonia airport with a view to building a hangar on it. There being no fences around the plot of land, its boundaries in respect of the Guidonia airport were not marked. In October 1981, the applicant's company obtained a building permit from the Guidonia town council for building the hangar. On 1 June 1982, the town council informed the applicant that his building permit had been suspended, as the Air Force claimed to be the legitimate owner of the plot of land. The proceedings against the Ministry of the Defence As a consequence, on 15 March 1982 the applicant applied to the Rome Magistrate’s Court, in order to have his right of property on the plot of land at issue acknowledged and the relevant boundary assessed. By a decision of 3 November 1982, the Rome Magistrate’s Court dismissed the case for lack of jurisdiction. By a writ served on 18 March 1983, the applicant summoned the Italian Ministry of the Defence to appear before the Rome District Court, which, by a judgment of 6 July 1984, acknowledged the applicant's right of property on the plot of land and assessed the relevant boundary. The court however refused the applicant’s request to mark the boundaries of the plot of land, on the ground that, given that the Air Force had de facto decided to use the plot of land as a part of the airport, the marking of boundaries would have influenced this decision, which was outside the scope of jurisdiction of a civil court (the administrative courts being exclusively competent to withdraw or amend an administrative decision). The appeal lodged on 15 October 1984 by the Ministry of the Defence against this decision was rejected by the Rome Court of appeal by a judgment issued on 24 September 1986 and filed with the Registry on 20 October 1986. The appeal on points of law lodged by the Ministry against the appellate court’s decision was rejected by the Court of Cassation by a judgment issued on 12 December 1989 and filed with the Registry on 26 March 1991. The proceedings to recover possession of the plot of land In the meantime, the Air Force had let the applicant's plot of land to a farmer, A.I. In 1987, the applicant instituted civil proceedings (azione di reintegrazione) against A.I., in order to recover possession of his property. By an interlocutory decision of 3 September 1987, the Tivoli Magistrate’s Court ordered A.I. to vacate the plot of land. The proceedings were then pursued at the hearing of 14 January 1988. An expertise was carried out. The Ministry of Justice intervened in the proceedings claiming to have authorised A.I. to occupy the plot of land; it claimed further that the proceedings could not be pursued against a State administration. On 17 February 1990 the bailiff appointed by the Tivoli Magistrate’s Court in order to enforce the latter's decision of 3 September 1987 requested the Air Force to vacate the applicant's plot of land; the commanding officer refused on the ground that no relevant orders had been given by his senior officers. By a judgment of 24 April 1990, filed with the Registry on 30 June 1990, the Magistrate’s Court refused the applicant’s claims, withdrew its own interlocutory decision of 3 September 1987 and ordered the applicant to refund the opponents’ legal costs. On 20 April 1990 the applicant’s company summoned the Ministry of the Defence to appear before the Rome District Court with a view to being compensated for the financial losses incurred on account of the occupation of its plot of land. By a judgment of 10 January 1997, the Rome District Court ruled in the applicant’s company’s favour and ordered the Ministry of the Defence to pay the applicant’s company the sum of 200,000,000 lira for pecuniary damage in connection with the occupation of the plot of land. | 0 |
train | 001-95327 | ENG | HRV | CHAMBER | 2,009 | CASE OF PAULIC v. CROATIA | 3 | Remainder inadmissible;Violation of Art. 8 | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1953 and lives in Požega. 5. The applicant was employed as a civilian by the Yugoslav People's Army (YPA). On 18 June 1991 the Požega Garrison Command issued a conclusion noting the applicant's application to be granted a flat and classifying it in “group one” on the basis of his employment with the YPA from 19 October 1988. On 17 July 1991 the Government adopted the Decree on the Prohibition of All Real Estate Transactions in Croatia (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – published in Official Gazette no. 36/1991 of 24 July 1991) which banned all transactions in respect of immovable property situated in Croatia and belonging to the former Yugoslavia's federal institutions or legal entities having their seat in one of its former federal units. This decree entered into force on 24 July 1991. 6. On 20 August 1991 the above-mentioned Garrison Command adopted a decision to grant the applicant, as their civilian employee, together with his wife and son, the right to occupy and purchase a flat in Požega owned by the YPA. The applicant and his family moved into the flat in September 1991. Pursuant to the Government's decree of 2 October 1991, all possessions of the former YPA came into the ownership of the Republic of Croatia. The applicant left the YPA and made himself available for the Croatian Army. 7. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly-owned flats previously let under protected tenancies, giving the right to holders of such tenancies of publicly-owned flats to purchase them from the provider of the flat under favourable conditions. On the basis of that Act, in 1997 the applicant requested the Ministry of Defence as the owner of the flat to enter into a contract for the sale of the flat with him as the buyer. Since the owner declined his request, the applicant brought a civil action in the Požega Municipal Court (Općinski sud u Požegi) seeking a judgment in lieu of the contract of sale. 8. On 17 October 1997 the State brought a civil action against the applicant in the same Municipal Court, seeking his eviction. The State submitted that it was the owner of the flat and that the applicant, as a result of the decree of July 1991, had never obtained a specially protected tenancy in respect of the flat, so the State had the right to repossess it. The two proceedings were joined. 9. In a judgment of 25 October 2000 the Municipal Court accepted the State's action and dismissed the applicant's counterclaim. It also ordered that the applicant be evicted. The relevant part of the judgment reads as follows: “... the decision relied on by the defendant [the applicant] is null and void pursuant to the Decree on the Prohibition of All Real Estate Transactions. No other decision has been adopted concerning the defendant's [rights] in respect of the flat in question. Under the Housing Act a specially protected tenancy could have been acquired on the basis of a final decision on allocation of a flat for occupation or any other valid legal entitlement (section 3 of the Housing Act, Official Gazette no. 51/85). Save for his occupation of the flat in question, the defendant does not possess a final decision that he had acquired a specially protected tenancy or any other valid legal entitlement to that effect ...” 10. On appeal, on 19 September 2001 the Požega County Court (Županijski sud u Požegi) upheld the first-instance judgment. The relevant part of the appellate judgment reads as follows: “By the decree of 3 October 1991 the Republic of Croatia became the owner of all real estate, movables, property rights and monetary resources situated on its territory and formerly under control of the YPA. The decree which came into force on 24 July 1991 banned all transactions in respect of the real estate situated in Croatia (including its sale, exchange, transfer of the right of use, etc.) which was in possession or owned or under control of the federal organs or institutions. Therefore, the conclusions of the first-instance court that after that decree had come into force, the YPA, which was the owner of the flat, had no right to dispose of it and that the decision of 20 August 1991 which served as a basis for the defendant's occupation of the flat, was null and void, are correct. Since the defendant has no legal entitlement to occupy the flat, the decision of the first-instance court ordering his eviction ... is correct.” 11. With a view to securing the applicant's eviction the State instituted enforcement proceedings before the Požega Municipal Court on 17 October 2002. The eviction order was issued on 23 October 2002. On 24 October 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). On 19 November 2002 the applicant sought that the eviction be adjourned, pending the resolution of his appeal on points of law before the Supreme Court. He also submitted medical documentation concerning his son, born in 1989, showing that he suffers from a malign brain tumour and chronic hepatitis B. In view of the applicant's pending appeal on points of law and the condition of the applicant's son, the eviction was adjourned in a decision of 9 January 2003. On 14 January 2004 the Supreme Court dismissed the applicant's appeal on points of law. 12. The applicant lodged a constitutional complaint on 21 April 2004. He complained, inter alia, that his constitutional right to the protection of his personal and family life had been violated in that the lower courts' decision had ordered and upheld his eviction. He argued that these decisions had been contrary to the law and that he had a specially protected tenancy in respect of the flat in question and thus the right to occupy it. 13. The Požega Municipal Court scheduled the eviction of the applicant and his family for 13 April 2005. The applicant asked for an adjournment. On 8 April 2005 the State Attorney's Office, which represented the Ministry of Defence in the proceedings, agreed to the applicant's request owing to his difficult family situation. They stressed, however, that it was only a temporary solution and invited the applicant to file a request for accommodation with the Požega Municipality. On 11 April 2005 the Požega Municipal Court again adjourned the applicant's eviction until the Constitutional Court's decision, on the ground that the applicant's constitutional complaint was pending and that the creditor, that is the State, had agreed with the adjournment owing to the applicant's difficult family situation. 14. A letter of the Požega Municipality of 14 April 2005 sent to the Ministry of Defence indicates that the Municipality had no flats at its disposal where the applicant and his family could be accommodated. In a letter of 26 April 2005 the applicant expressed his intention to purchase another flat. 15. The applicant's constitutional complaint was dismissed as being ill-founded by the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 July 2005. The enforcement proceedings have not been resumed so far. 16. In a letter of 6 December 2006 the applicant informed the Ministry of Defence that he was finally about to resolve his housing situation. 17. Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows: “The home is inviolable. A search of a person's home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law. An occupier, or his or her representative, shall be entitled to be present during the search of a home or other premises. The presence of two witnesses shall be obligatory. Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger for the life or health of people, or for property of greater value, the police may enter a person's home or other premises and carry out a search without a court's warrant or the occupier's consent and without any witnesses being present. Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.” 18. Section 161, paragraph 1, of the Ownership Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows: “The owner has the right to seek repossession of his or her property from the person in whose possession it is.” 19. The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998, Zakon o prodaji stanova na kojima postoji stanarsko pravo) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale. The relevant provision of the Act provides as follows: “Every holder of a specially protected tenancy (hereinafter 'the tenant') may submit a written application to purchase a flat to the ... owner ('the seller') ... and the seller shall be obliged to sell the flat. ...” 20. The relevant part of the Constitutional Court's decision no. U-III/408/2003 of 18 February 2004 reads as follows: “As regards the alleged violation of the constitutional right guaranteed under Article 34 of the Constitution, it is to be said that that a violation of that right cannot occur in the enforcement proceedings, since Article 34 of the Constitution guarantees inviolability of home which concerns conduct of the police during entries and searches of home in execution of arrest warrants or in order to comprehend a perpetrator of a criminal offence or to remove serious risk for lives and health of persons or for valuable assets. Therefore, the provision in question is not applicable in the proceedings at issue.” | 1 |
train | 001-23764 | ENG | FRA | ADMISSIBILITY | 2,003 | G.L. & S.L. v. FRANCE |Extracts] | 1 | Inadmissible | null | The applicants are French nationals, who live in Geffosses, Manche (France). The facts of the case, as submitted by the parties, may be summarised as follows. From 1984 to 1990, land consolidation was carried out in the municipality of Geffosses. In order to implement this project, the prefect set up a municipal committee for land management (commission communale d’aménagement foncier – “the CCAF”). A land consolidation association (association foncière de remembrement – “the AFR”) was also set up to implement and manage the works to be carried out as part of the land consolidation project (the CCAF and AFR are provided for in Article L.121-2 et seq of the new Countryside Code ...) The land consolidation proceeded in a divisive atmosphere, a section of the municipality’s residents having repeatedly demonstrated their disagreement regarding the works being undertaken. Intervention by the riot police was necessary to impose compliance with the decisions adopted. One of the farmers in the municipality, L., a member of the CCAF and deputy-chairperson of the AFR, successfully requested that a large water reserve be created, which necessitated the digging, in stony terrain, of several ditches needed for the installation of water pipes. The cost of this work was met through a loan. Reimbursement of this loan was charged to the members of the AFR, including the applicants, through property taxes. The applicants disputed the payment of these taxes, since they considered that they should not be obliged to pay for pipes which had not been laid on their properties or which had no proven positive impact on them. They commenced proceedings before the administrative courts, requesting exemption from the taxes assigned in respect of 1989 to 1994. They were granted exemption in respect of the taxes for which they had been liable in 1989, 1990 and 1991 (decision delivered on 21 June 1994 by the Caen Administrative Court, upheld by a judgment delivered on 4 March 1997 by the Nantes Administrative Court of Appeal), and also in 1992, 1993 and 1994 (decision delivered on 10 March 1997 by the Caen Administrative Court). In its judgment, the Administrative Court of Appeal found, inter alia: “... Under the last sub-paragraph of Article 28 of the Countryside Code, applicable in this case, ‘The decree by the Conseil d’Etat ... shall establish the criteria ... for determining the formula for apportioning costs among the landowners, on the basis of the area assigned in the land consolidation, except in respect of costs appertaining to water-management works, which shall be divided in proportion to their expected benefit ...’. It follows from this provision, firstly, that the payment of the cost of water-management works carried out by a land consolidation association may be charged to a member of the association only where properties belonging to the latter and included in the land consolidation will benefit from these works, and that, in addition, the amount charged must be proportionate to the benefit of these works. It follows from the inquiry into the facts that the taxes for the works related to the Gefosses land consolidation project which were charged [to the applicants] ... include, to a substantial degree, participation in the cost of the water-management works; the allocation of costs was calculated on the basis of the properties’ area alone and not, as concerns the water-management works, on the basis of the actual benefit for each of the properties concerned. Such a method of assigning costs could only have been legally applied if it had been established that the said works were of benefit, in fact and proportionally to their area, to all the properties forming part of the land consolidation scheme. It has been established that this is not the case; it therefore follows ... that [the applicants are] justified in requesting exemption from the taxes which they dispute ...” Taking account of several similar judicial decisions which had exempted farmers from taxes imposed on them, the bureau of the AFR re-examined on 19 October 1995 the formula for assigning the costs arising from the water-management works. It adopted a new, detailed proposal for assigning costs, in such a way that each member of the AFR would benefit to an equal degree from completion of the water-management works and was consequently obliged to finance them. This proposal was then submitted to the landowners concerned for observations and to a public inquiry. At its meeting on 30 November 1995 the bureau of the AFR, having inspected the complaints submitted, adopted a new decision containing the final version of the formula for assigning costs for the water-management works. This decision was signed by the Chair of the AFR and approved by the Coutances sub-prefect on 5 January 1996. However, it was not signed by the members of the bureau and entered in the register of decisions until 9 October 1996, when it contained a typed addition making it several pages longer than the document initially approved. The applicants appealed to the administrative courts. They contested the validity of the procedures which had established the formula for assigning taxes at the AFR bureau’s meetings on 19 October 1995, 30 November 1995 and 9 October 1996, and requested that they be set aside. The applicants asked, in consequence, to be exempted from property taxes in respect of 1995 and 1996, which, they claimed, had been decided under invalid procedures. In a judgment adopted on 20 January 1998 the Caen Administrative Court confirmed the exemption from the property taxes due in respect of 1989-1994, but rejected the applications concerning the taxes due in respect of 1995 and 1996. The applicants appealed to the Nantes Administrative Court of Appeal. In addition, they lodged a criminal complaint, with an application to join the proceedings as civil parties, alleging forgery in connection with the decision of 30 November 1995 and asked the administrative court to defer its decision until the conclusion of the criminal proceedings. In a judgment of 30 December 1998 the Nantes Administrative Court of Appeal confirmed the Administrative Court’s judgment in which it had refused to grant exemption for the taxes due in respect of 1995 and 1996. In its judgment the Administrative Court of Appeal held, firstly, that the procedure to establish the formula for assigning the costs arising from the water-management works had been lawful, since “the fact that [the] decision ... was not signed by the members of the bureau and entered into the register of decisions contemporaneously is, in itself, without significance for its existence or validity”. It went on to say: “The water-management works conducted in the context of projects related to the Gefosses land consolidation entailed, as part of a general land improvement programme implemented homogeneously throughout the re-parcelled area, the clean-up of watercourses and the introduction of a network of primary ditches or culverts in the public-works strips reserved for the land association and of secondary ditches leading to the individual plots, so as to provide for the evacuation of excess water from all the re-parcelled plots .... the applicants’ allegation that the works in dispute were, in reality, carried out for the benefit of a single landowner is not corroborated by any evidence in the file.” It concluded: “Accordingly, the bureau of the Gefosses land consolidation association was entitled to consider, without infringing the provisions ... of Article R.133-8 of the Countryside Code, that these works would be of actual benefit to all the properties concerned by the land consolidation, in proportion to their area, and to decide, as it did by its decision of 30 November 1995, to divide the costs among the landowners concerned ... it follows from the foregoing that the [applicants’] submissions, requesting exemption from the taxes imposed on them ... in respect of 1995 and 1996, must be rejected”. The applicants lodged an appeal on points of law. On 24 November 1999 the Conseil d’Etat dismissed this appeal in a judgment reasoned as follows: “Under Article 11 of the Law of 31 December 1987 reforming administrative proceedings: ‘An appeal on points of law before the Conseil d’Etat shall be subject to a preliminary admissibility procedure. Admissibility shall be refused by judicial decision if the appeal is inadmissible or is not based on any reasonable arguments ...’. In requesting the setting aside of the contested judgment, Mr and Ms G.L. allege that the Court was in breach of Article R. 133-8 of the Countryside Code in refusing to exempt them from the property taxes imposed on them in respect of 1995 and 1996, even though these taxes, which were intended to cover the cost of the water-management works, had allegedly been calculated in proportion to the area of re-parcelled land belonging to them rather than the actual benefit that they would derive from these works. To ensure that its judgment would not be vitiated by insufficient reasoning, the Court ought, at the very least, to have identified this benefit in specific terms with reference to the facts of the case. The Court had also failed to justify its refusal to defer decision until after the conclusion of the criminal proceedings introduced following a complaint of forgery in connection with the decision of 30 November 1995, which had decided the amount of the aforementioned taxes. The Court could not, without misdirecting itself, refuse to exempt them from the taxes in respect of 1995 and 1996, given that the decision of 30 November 1995 by the bureau of the land consolidation association was flawed by retroactiveness, in that it fixed the dates on which payments were to fall due for the 1995 financial year as a whole. Finally, the Court is alleged to have misdirected itself in declaring inadmissible the submissions requesting the setting aside of the decision of 30 November 1995, on the ground that members of a land consolidation association may not directly contest a decision by the association’s bureau fixing the amount and method of allocation of property taxes; None of the above grounds is such as to render the appeal admissible.” | 0 |
train | 001-67720 | ENG | FRA | CHAMBER | 2,004 | CASE OF GELFMANN v. FRANCE | 2 | No violation of Art. 3 | null | 4. The applicant was born in 1953 and is currently in Poissy Prison after periods in other prisons, including Fresnes. He is suffering from Aids, which he says he contracted in 1985, approximately nine years before he was sent to prison. 5. On 8 October 1994 a warrant was issued for the applicant's arrest in connection with a number of serious offences. On 26 June 1996 the Alpes Maritimes Assize Court convicted him of murder, attempt, armed robbery, and the false imprisonment and kidnapping of minors aged under fifteen and of adults. It sentenced him to twenty-one years' imprisonment, of which a minimum of fourteen years were to be served. On 3 March 1998 he received an eighteen-month sentence from the Albertville Criminal Court for attempted escape from lawful custody and assault. On 7 May 1998 the Savoie Assize Court convicted him of false imprisonment followed by mutilation, murder and attempted armed robbery. It sentenced him to twenty-two years' imprisonment, with a minimum of fourteen years and eight months to be served. 6. On 19 November 2002 the Investigation Division of the Chambéry Court of Appeal ordered that the sentences imposed by the two Assize Courts should run concurrently in part, with the overall sentence not to exceed the statutory maximum of thirty years. The minimum period to be served was increased to twenty years. The applicant will now become eligible for parole on 28 September 2023. 7. He has been held in various prisons. At the time his application was lodged, he had been in Fresnes Prison since April 2003. 8. In September 2003 it was decided to transfer him to Poissy Prison on the grounds that: “This transfer will enable family ties to be maintained with his partner, as the prisoner's condition appears to warrant”. 9. According to information supplied by the Government, the applicant lodged an application for a pardon on medical grounds on 1 February 2001 with the support of an association called Act Up. The Ministry of Justice asked the Principal Public Prosecutor at Reims Court of Appeal to appoint a medical expert to report on the applicant's condition and life expectancy, and to advise whether his condition and current or foreseeable treatment were compatible with his detention in prison or in a special facility. 10. The Government stated that the application was turned down on 21 November 2001, after the applicant had refused to agree to a medical examination or to allow the expert access to his records. 11. While in Clairvaux Prison the applicant made an initial application for his sentence to be suspended under Article 720-1-1 of the Code of Criminal Procedure, a provision that had only recently been introduced. 12. The judge responsible for the execution of sentences ordered a medical report advising, inter alia, on the applicant's condition, whether he was suffering from an illness that compromised his chances of survival and whether his condition was permanently incompatible with his continued detention. 13. The expert, Dr B., lodged his report on 2 December 2002. After stating that the applicant had refused to undergo an examination and that the report was based solely on the medical records, he noted that the infection had spread and that the applicant's condition had deteriorated, in particular because he had refused all treatment for a year. He added: “His condition necessitates his total, unfailing commitment to take his medication regularly and to undergo regular biological tests to assess how he is responding to treatment and whether the illness has been stabilised. All opportunistic infection must be warded off. The promiscuous nature of the prison environment makes it a source of such infection. The current increase in the viral load means that the prognosis is very poor and, and unless the patient responds to treatment, things may deteriorate very rapidly.” 14. Dr B. also noted that mentally the applicant was opposed to and refused all medical treatment and regular monitoring. He said in conclusion: “Mr Jean-François Gelfmann's chances (of survival) can be regarded as compromised. While it is neither possible, nor realistic, to predict the future, the following remarks may be made on the basis of the information in the medical records: Despite having had no treatment for a year and the increase in his viral load, Mr Gelfmann has not had any major life-threatening problems of infection requiring highly specialised care in a special facility. The treatment Mr Jean-François Gelfmann is required to take is oral, simple and can be administered in a prison environment. Monitoring is the responsibility of a medical team that is aware of the problem and composed of prison doctors and specialists in infectious diseases of the highest order. No one can safely predict what Mr Jean-François Gelfmann's attitude will be and whether he will agree to treatment in a particular environment. Although I have not been able to examine Mr Gelfmann, having read the voluminous file and last year's medical records and having questioned prison staff, I consider that his condition is currently compatible with continued detention. It will always be possible, if he so wishes and if his symptoms worsen, for him to be re-examined at a later date, at which point the opinion of a psychiatrist should also be sought.” 15. Following his transfer to Fresnes Prison, the applicant made a fresh application to the Paris Regional Parole Court on 4 March 2003 for an order suspending his sentence. 16. In an order of 14 May 2003, the judge responsible for the execution of sentences requested medical reports from Dr F. and Dr S. 17. In his report of 28 May 2003, Dr F. noted: “Mr Jean-François Gelfmann is carrying a serious disease: Aids. The diagnosis has been confirmed by the biological analyses (serology, viral and lymphocyte T4 count) and by the existence of other diseases, so called communal diseases, in association with HIV. The disease was contracted long ago. Mr Jean-François Gelfmann himself says that it dates from 1985 and openly admits that he refused treatment until 1997. The prognosis, whether in the short, medium or long-term, is grim. The specific treatment is onerous and can only be administered – with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure. This is the crux of the matter. In view of the seriousness of Mr Jean-François Gelfmann's condition and his disorders, which may be described as severe borderline syndrome, what is the solution? On one point, we entirely agree with the prisoner: he must be admitted to hospital for an assessment of the Aids position and its potential evolution and a check on the associated diseases: mycosis of the digestive tract, cutaneous mycosis, neuropathy and particularly tuberculosis. Although the tuberculosis appears to have been cured, in the United States Aids patients with tuberculosis are kept in permanent quarantine, as the American specialists consider that they are unable to cure tuberculosis in Aids patients and that the risk of infection is too high. That concern needs to be addressed. All things considered, Mr Jean-François Gelfmann is able to tolerate detention in prison provided he is kept under strict medical supervision. Detention in a hospital would, however, be more compatible with his condition. Beyond the short term, that is to say the assessment of the potential evolution of the diseases, the question of compatibility will need to be reviewed, it being borne in mind that, since we are dealing with diseases that are severe, infectious and fatal, continued treatment outside the current setting would be risky.” 18. Dr F. said in conclusion: “Jean-François Gelfmann is receiving treatment for a confirmed case of Aids. He has also been treated for tuberculosis. These diseases, related illnesses (mycosis, various infections, neuropathy) and severe psychopathy require assessment and his admission to hospital. The treatment he is receiving in detention in Fresnes is entirely appropriate, compatibility with detention is reasonable under medical supervision, but it would be more coherent for him to be treated in hospital.” 19. In his report of 30 May 2003, Dr S. gave the following answers to questions he had been put by the judge: “... 3/ Seriousness of the illness and prognosis Mr Gelfmann has been infected by the Aids virus, category C3 under the Atlanta classification. He has had opportunistic complications that have been treated. He will shortly have been receiving treatment for five years, starting with a bitherapy which proved ineffective after six months followed by tritherapy, which was effective, but was suspended five months later in May 2000 owing to neurological complications. A few months later he began quadritherapy in Troyes but stopped taking his medication for a period of a year and a half. He resumed treatment in July 2002 following the reappearance of adenopathy and a genital infection, but this has produced no results as he has refused treatment since October 2002. Since his transfer to Fresnes, the situation has got worse and the level of T4 has decreased. There is a risk of death in the short to medium term. 4/ Treatment required The quadritherapy started four years ago is no longer effective. The patient is due to attend Fresnes Hospital for medical treatment which has become more onerous as a result of his poor general health. A more thorough examination is needed and can only be performed in a special facility. There is virtually no other treatment left to offer Mr Gelfmann against the Aids virus, beyond the detection and treatment of other opportunistic infections, in particular, of the digestive tract... 5/ Whether his condition is compatible with detention in prison or requires special treatment that is only available in hospital Mr Gelfmann's condition is no longer compatible with detention in prison and requires treatment that is only available in hospital. 6/ Whether he is suffering from a disease that compromises his chances of survival Yes, Mr Gelfmann is suffering from a disease that compromises his chances of survival in the short to medium term. 7/ Information and observations that may assist the court If the position concerning the viral load and T4 continues to deteriorate, complications may develop (lymphoma, pneumopathy, toxoplasmosis, CMV infection or dementia). The hospital assessment will afford more detailed information on the evolution of the illness. Unforeseeable intercurrent lethal complication is possible.” 20. The judge also ordered a psychiatric report, which stated that the applicant was not suffering from a mental disorder amounting to insanity warranting psychiatric treatment, but had presented since childhood emotional imbalance marked by personality organisation with characteristic psychopathic traits which was not incompatible with continued detention. It was further noted that the applicant remained of dangerous criminal propensity and that, owing to his refusal to receive any psychotherapeutic treatment, there was no point in offering him such treatment in detention or making it a condition of a suspended sentence, since his active participation was the only guarantee of possible success. 21. The Paris Regional Parole Court met on 25 June 2003. In a judgment delivered that same day, it ordered the applicant's sentence to be suspended on the grounds that it had been established by two concurring expert reports that he was suffering from a disease that compromised his chances of survival and was thus eligible for a suspended sentence. 22. The Principal Public Prosecutor's Office appealed against that judgment, which the National Parole Court quashed on 18 July 2003 for the following reasons: “... a medical report dated 28 May 2003 shows that the treatment for the diseases from which Mr Gelfmann is suffering is onerous and can only be administered '– with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure'. The practitioner adds: 'This is the crux of the matter' and that detention remains 'compatible with his condition'. Another medical expert, in a report lodged on 2 December 2002, states that the treatment which Mr Gelfmann must take is 'simple and can be administered in a prison environment'. Lastly, the impugned decision notes that a psychiatric expert has stated that Jean-François Gelfmann 'remains of' dangerous criminal propensity and that his 'active participation' in the treatment is the only guarantee of possible success, 'in view of the way his personality is structured'. In these circumstances, it does not appear appropriate to suspend the sentence and the impugned decision must be reversed.” 23. In a letter of 23 July 2003, the applicant's lawyer was advised by a member of the Conseil d'État and Court of Cassation Bar whom he had contacted that, by virtue of Article 720-1-1 of the Code of Criminal Procedure, no appeal lay against a decision of the National Parole Court, unless it could be shown that it had acted in excess of its authority, which did not appear to be the position in the applicant's case. 24. Legislation introduced on 18 January 1994 transferred responsibility for treating prisoners to the public hospital service. Medical treatment for prisoners is thus provided by medical structures within the prisons (consultation and outpatient care units) directly affiliated to the local public hospitals that are to be found in the vicinity of each prison (Article D. 368 of the Code of Criminal Procedure). 25. A prisoner's state of health may be taken into account in deciding whether he or she should receive a pardon from the French President (Articles 17 and 19 of the Constitution) or be granted parole under Article 729 of the Code of Criminal Procedure. 26. Further, the Rights of Patients and Quality of the Health Service Act of 4 March 2002 inserted a new Article 720-1-1 into the Code of Criminal Procedure which enables an application to be made for suspension of sentence on medical grounds. 27. An Act of 15 June 2000 brought issues relating to parole within the sole jurisdiction of the ordinary courts and, in particular, the judge responsible for the execution of sentences. It also created two new bodies, the Regional Parole Courts and the National Parole Court. 28. The relevant provisions of the Code of Criminal Procedure now provide: “Irrespective of the type of sentence or the length of sentence still to be served, suspension [of sentence] may also be ordered, for a period that not need be specified, for convicted persons who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention, other than persons in respect of whom a hospital order has been made owing to mental disorder. Suspension may be ordered only if two medical experts state in separate, concurring reports that the convicted person comes within one of the categories referred to in the preceding sub-paragraph. The judge responsible for the execution of sentences shall have jurisdiction to suspend the sentence, in accordance with the procedure set out in Article 722, if the custodial sentence passed is for ten years or less or if, irrespective of the initial sentence, the period still to be served is three years or less. In all other cases, the Regional Parole Court shall have jurisdiction to suspend the sentence, in accordance with the procedure set out in Article 722-1. The judge responsible for the execution of sentences may at any time order medical reports on a convicted person whose sentence has been suspended under this Article and reinstate it if the conditions on which the sentence was suspended have not been complied with...” The regional parole court shall have power to grant, adjourn, refuse or revoke measures relating to parole that are not within the jurisdiction of the judge responsible for the execution of sentences in a reasoned decision on an application by the convicted person or the principal public prosecutor, after consulting the Execution of Sentences Consultative Board. A regional parole court shall be attached to each court of appeal and be composed of a divisional president or judge of the court of appeal, who shall preside, and two judges responsible for the execution of sentences within the jurisdiction of the court of appeal, including one from the court with jurisdiction for the prison in which the convicted person is being held if the decision concerns a grant or refusal of parole or an adjournment. The functions of the public prosecutor shall be performed by the principal public prosecutor or one of his or her advocates-general or deputies and those of the registry by a registrar from the court of appeal. The regional parole court shall give its ruling in a reasoned decision following an adversarial hearing in private at which it shall hear the submissions of the prosecution and the observations of the convicted person and, if applicable, his counsel. The convicted person or the prosecution may appeal to the National Parole Court against a decision of the regional parole court within ten days after being notified of it. Such decisions shall be provisionally enforceable. However, an appeal by the principal public prosecutor within twenty-four hours after receiving notification shall operate to stay execution of the decision until the National Parole Court has given its ruling. The National Parole Court shall examine the case no later than two months after the appeal, failing which the appeal will be void. The National Parole Court shall be composed of the President of the Court of Cassation or a judge of that court appointed as his or her representative, who shall preside, two judges from the seat of the court, a representative of the national association for the rehabilitation of convicted offenders and a representative of the national association for victim support. The functions of the prosecution shall be performed by the Principal Public Prosecutor at the Court of Cassation. The National Parole Court shall give its ruling in a reasoned decision against which there shall be no right of appeal whatsoever. The hearing shall be held and the decision given in private, after the court has heard the observations of the convicted person. The arrangements for implementing this Article shall be determined by decree. The decree will specify where the adversarial hearing which the regional parole courts are required to hold will be held when it concerns convicted prisoners.” The system has been changed by an Act of 9 March 2004 which came into force on 1 January 2005. Henceforth, the relevant decisions are to be taken by the judge responsible for the execution of sentences and a new court, the court responsible for the execution of sentences. In a judgment of 12 February 2003 concerning the application of the aforementioned Article 720-1-1 (Papon, Gazette du Palais, 11-12 April 2003), the Court of Cassation stated: “The principal public prosecutor argued that – in view of the seriousness and impact of a conviction for crimes against humanity – the court of appeal was not entitled to decide that Mr [Papon]'s age and condition made it unlikely that suspending his sentence would prejudice public order, without first examining whether there were external factors that needed to be taken into consideration. That argument must fail. Article 720-1-1 sub-paragraph 1..., which enables a custodial sentence to be suspended for a period that not need be specified, irrespective of the type or length of sentence, in respect of convicted prisoners who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention, does not lay down any conditions as to the nature of the offences for which sentence has been passed or risk of prejudice to public order.” 29. According to figures published in an article in the Le Monde newspaper on 25 March 2004, 83 prisoners had had their sentences suspended since the entry into force of the Act of 4 March 2002: “In the year 2003, 63 applications for suspension of sentence were granted, 52 were refused and 49 were being examined. At the same time, there were 82 non-suicide related deaths in custody in 2003”. 30. The appendix to the Recommendation provides, inter alia: “I. Prison Aspects A. The general principles ... 14. Prisoners with terminal HIV disease should be granted early release, as far as possible, and given proper treatment outside the prison.” Reference should also be made to Recommendation no. R (98) 7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison. | 0 |
train | 001-108766 | ENG | POL | CHAMBER | 2,012 | CASE OF MIAŻDŻYK v. POLAND | 3 | Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicant was born in 1950 and lives in Poznań. 7. On 19 November 2004 the applicant was arrested and subsequently placed in detention. 8. On 14 November 2005 the Poznań Appellate Prosecutor released the applicant from detention and imposed other preventive measures, namely bail, police supervision and prohibition on leaving the country, combined with the withholding of his passport. Those measures were imposed for an indefinite period of time. 9. On 23 December 2005 the applicant and the other fifteen accused were indicted. The applicant was charged with running an organised criminal group and several counts of fraud, stealing cars and handling stolen goods. In the bill of indictment of almost 200 pages the prosecutor requested the court to hear over 100 witnesses. 10. On 17 April 2007 the applicant’s lawyer requested the trial court to postpone the hearing scheduled on 18 April 2007, because of the applicant’s state of health. The lawyer submitted that the French Consulate had informed him that the applicant was in a psychiatric hospital in connection with depression and a suicide attempt. It is unclear whether the hearing was postponed. 11. On 28 March 2008 the court decided that the trial should be restarted. 12. The applicant’s lawyer made nine requests for the measure preventing him from leaving Poland to be lifted (he produced copies of the following six requests: those of 18 May, 24 October, and 30 November 2006, 14 February and 12 December 2007, and 6 November 2008). He relied on the fact that the applicant had been deprived of contact with his three children, who lived in France, and on his poor state of health. He also considered that the prohibition on leaving Poland had already lasted too long and that the applicant’s situation was getting worse with time: he had no work and no income in Poland, and thus no means of staying there for several years. 13. The Poznań District Court refused each of the requests to lift the preventive measure in question, relying on similar grounds, which included a reasonable suspicion that the applicant had committed the offences with which he had been charged and the likelihood that a heavy penalty would be imposed on him. The court also considered that allowing the applicant to leave the country would impair the proper conduct of the proceedings. As regards contact with his family, the court considered that there was nothing to prevent the applicant’s children from visiting him in Poland. The court also found that the concerns about the applicant’s health had not been confirmed by any medical evidence. 14. All the appeals lodged by the applicant’s lawyer were unsuccessful; the decisions refusing to lift the preventive measure were all upheld. 15. On 27 March 2009 the Poznań District Court upheld the decision of 5 December 2008, in which the same court had refused the applicant’s lawyer’s request to lift the prohibition on leaving the country. 16. On 27 January 2011 the Poznan District Court lifted the preventive measure applied in relation to the applicant. The court took the view that: “ (...) taking into account that the accused had already been heard, the period of time during which the measure was applied and the fact that the accused is a foreigner, a renewed application of this measure must be considered unnecessary to secure the proper conduct of the proceedings and too onerous for the accused.” 17. On 27 January 2011 the court decided again that the trial should be restarted. 18. After 27 January 2011 the applicant left for France. On 22 February and 10 March 2011 the trial court held two hearings, at which the applicant did not appear. His counsel was present. 19. On 14 June 2011 the trial court held a further hearing. The applicant and his counsel appeared at the trial. However, the applicant and several other co-accused decided not to participate in the hearing and agreed that the court could continue the proceedings without their presence. The court held the hearing and heard four witnesses. 20. The proceedings are pending before the first-instance court. 21. The 1997 Code of Criminal Procedure defines prohibition on leaving the country (zakaz opuszczania kraju) as one of the “preventive measures” (środki zapobiegawcze). Those measures are, in addition to prohibition on leaving the country, pre-trial detention (tymczasowe aresztowanie), bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), and a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności). 22. Paragraph 1 of Article 277 of the Code provides, in so far as relevant, as follows: “A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding; this prohibition may be combined with withholding the accused’s passport or other travel document or with a prohibition on issuing such a document ...” 23. Paragraph 1 of Article 376 of the Code allows the court to proceed in the accused’s absence and provides, in so far as relevant, as follows: “If an accused who has already been heard leaves a courtroom without the court’s consent, the court may continue proceedings in the accused’s absence and a judgment given in these circumstances will not be considered a default judgment ...” 24. Paragraph 2 of Article 376 of the Code provides, in so far as relevant, as follows: “The above provision is applicable when an accused who has already been heard and informed of the date of a postponed hearing fails to appear without giving any justification for his absence”. | 1 |
train | 001-76597 | ENG | TUR | ADMISSIBILITY | 2,006 | DIKICI AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, Mr Tahsin Dikici, Mr Abdurrahim Dikici, Mr Halil Dikici, Mr Aziz Dikici, Mr İlham Dikici, Mr Abdurezzak Dikici and Mr İhsan Dikici, are Turkish nationals and live in Turkey. They are represented before the Court by Mr M. Vefa and Mr B. Deyar, lawyers practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until May 1994, the applicants lived in Dolapdere village in Silvan, Diyarbakır, where they own property. Sometime in late 1993, Dolapdere inhabitants started to refuse to serve as village guards – a security system designed to protect villages against possible terrorist attacks by the PKK militants. Upon their continued refusal, the security forces evacuated the hamlet. The applicants had to move to the city centre of Diyarbakır, where they currently live. On 18 May 1994 the security forces set fire to the houses and the cultivated fields in the village. Following the incidents, the applicants filed applications with the administrative and military authorities, asking for an authorization to return to their hamlet, or in the alternative, to continue to cultivate their fields. They also requested to be remedied for the incidents. The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI) | 0 |
train | 001-58200 | ENG | TUR | CHAMBER | 1,998 | CASE OF ERGİ v. TURKEY | 3 | Preliminary objection rejected (validity of application);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);No violation of Art. 2 (applicant's sister);Violation of Art. 2;Not necessary to examine Art. 8;Violation of Art. 13 (applicant and his niece);No violation of Art. 14;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 6. The applicant, Mr Muharrem Ergi, a Turkish citizen of Kurdish origin, was born in 1954 and lives at Incirliova, Aydın. 7. The application was brought on behalf of the applicant himself, his deceased sister, Havva Ergi, and her young daughter. It concerns complaints relating to an incident on 29 September 1993 in which Havva Ergi was killed. The village in which the events took place has two names: an old Kurdish name of Gisgis and an official Turkish name of Kesentaş. The latter name has been used below. 8. The facts in this case are disputed. 9. A week before the incident on 29 September 1993 in the applicant’s village of Kesentaş, Cuma Bali, one of two “collaborators” in the village had been killed by the PKK (Workers Party of Kurdistan). The day before the incident, Ibrahim Halil, the other “collaborator” had moved, under the protection of Ziyaret village guards and apparently with the assistance of gendarmes, from the applicant’s village to Ziyaret, a village five kilometres away. A “collaborator” is described by the applicant as someone spying for the State as distinct from members of the village guards. 10. On 29 September 1993, the security forces set up an ambush in the vicinity of the village purportedly to capture members of the PKK. They consisted, inter alia, of a commando unit and village guards from Ziyaret. Security forces were located in or near a cemetery 600 metres northwest and south of the village near the asphalt road. The security forces opened fire. The shooting lasted for about one hour and consisted of indiscriminate bombardment of civilian houses. It led to the death of the applicant’s sister, Havva. No members of the PKK were killed or captured. 11. The applicant’s house was in the middle of the village. At the time of the incident, his father and his sister Havva were sleeping on the balcony, on the upper part of the house. As soon as the firing started, Havva and his father took shelter inside the house, but Havva went out on the veranda to collect something. She was hit in the head by a bullet when she was on the threshold and died immediately. 12. On the following morning, the applicant’s uncle Hasan Ergi informed the Ergani gendarmerie commander, possibly by telephone, that the applicant’s sister had been killed. The commander was surprised to learn that only one person had died and stated that he expected at least twenty people to have died. The applicant’s uncle told the commander that he would apply to the public prosecutor. However, the commander told him to go home and said that he would himself inform the public prosecutor. 13. Towards noon, the public prosecutor, a doctor and some soldiers came to the applicant’s house and an autopsy was carried out. While the autopsy was being undertaken inside the applicant’s house, the applicant’s brother, Seyit Battal Ergi, asked the soldiers why his family were being persecuted in this way. A non-commissioned officer replied that, if the villagers accepted to become village guards, the persecution would stop and the reason why they shot at the village was that they saw terrorists at its entrance and that the indiscriminate firing at the entire village was to be explained by the clumsiness of the troops. The doctor, after completing the autopsy, said nothing except to present his condolences. He also issued a burial certificate. The applicant and his family were not asked by the public prosecutor about their version of the circumstances of the shooting. The gendarmerie officer İsa Gündoğdu, drew up the incident report without interviewing or seeking any statements from the villagers or members of the commando unit involved. No cartridges were found by the gendarmes in the area in which the PKK were said to be located during the incident. There is no evidence that the PKK were in fact present in the vicinity during the incident. 14. The bullet which killed the applicant’s sister was described in the ballistics report as a standard NATO 7.62 which was used by the Turkish security forces as well as by many other forces. The shot could not have been fired from the east since it would have been blocked by the walls of the houses. It could only have been fired from the south or south-east from higher ground, which was where the security forces were stationed on a hillside. 15. There had been no communication between the public prosecutor and the family since the day of the autopsy. He and his family remained in the dark as to the official view of the incident and did not know whether there had been any investigation or prosecution in respect of the shooting. He stated that the village of 200 households had now been reduced to twenty families, the rest having abandoned their homes as a result of military incidents such as the one which led to his sister’s death. 16. The security forces carried out an ambush operation in the vicinity of the village to catch the PKK members who were active in the area. Units were concealed in the north-west and engaged in an armed clash with the PKK at a point to the south-east of the village, near the cemetery. Their position was 100 metres above the PKK. There were no units positioned to the south and there would have been no point in having men there since the PKK would not come from the south. The security forces could not therefore have fired the shot from the south which killed the applicant’s sister. 17. During the clash, only a few houses were slightly damaged, which does not support the allegations of prolonged, indiscriminate firing by the security forces. 18. A preliminary investigation into the incident was opened by the public prosecutor of the Ergani district. An autopsy was carried out on the applicant’s sister on 30 September 1993 in his father’s house. According to the medical examiner’s report of that date, an external examination disclosed a bullet wound to the head, probably an entry wound. The skull was opened and a 7.62 mm bullet found in the right parietal lobe and removed. Time of death was estimated at about ten to twelve hours prior to the examination. 19. In a letter dated 7 October 1993 addressed to the Ergani public prosecutor, gendarmerie major Ahmet Kuzu reported that the security forces had carried out an ambush at the entrance of Kesentaş village. The security forces opened fire on terrorists, who fled towards the northerly part of the village and a search party was sent in that direction without making any contact. He stated that it was reported that a telephone call had been made to the district gendarmerie headquarters at Ergani at 8 a.m. on 30 September 1993, informing the latter that Havva Ergi had been killed in the clash. An investigation took place at 10 a.m. that day in the presence of the public prosecutor. Copies of the incident report and a sketch of the location were enclosed with the letter. 20. On 12 December 1993, the Ergani public prosecutor, Mustafa Yüce, considering that the matter lay outside his jurisdiction, transferred the file to the relevant public prosecutor attached to the Diyarbakır National Security Court where the matter is still pending. The decision of lack of jurisdiction named the defendants as “members of the illegal PKK organisation” and the offence as engaging in armed combat with the security forces and homicide. It indicated that Havva Ergi had died as a result of gunfire occurring in the course of an armed clash which broke out between members of the security forces who were carrying out an ambush operation on the outskirts of Kesentaş village and members of the PKK who were approaching the village. 21. On 1 April 1994, the regional criminal police laboratory issued its expert ballistics report. It found that the bullet was 7.62 mm calibre and fired by a weapon with a barrel containing four ridges which rotated clockwise. 22. In a letter dated 8 December 1994 from the Principal Public Prosecutor’s Office at the Diyarbakır National Security Court to the Ministry of Justice, it was reported that during the ambush operation clashes spread to the village and as a result a bullet hit the doorframe of a house, ricocheted and hit Havva Ergi who was standing near the door. The investigations into her death were still under way. A ballistics examination revealed that the bullet was misshapen and no material information could be obtained which could lead to a conclusion as to the weapon used. No empty cartridges were found at the scene. Thus, there was no information in the file on the weapon which had caused the death. Since the fighting started at 9.30 p.m. and continued into the night, there was no eyewitness evidence as to what was seen or heard. Proceedings were continuing with a view to apprehending the members of the PKK involved in the armed clash but since they did not return to the scenes of clashes for a long time it would take time to identify and arrest them. As regards the allegations made in the applicant’s statement of 9 October 1993 taken by the Human Rights Association (“the HRA”), the claim that the security forces opened harassing fire on the village was false and was intended to denigrate the security forces involved in the fight against terrorism. It was the duty of security forces to maintain order and protect the population so there could be no question of them opening harassing fire on the village. The incident in Kesentaş resulted from the type of ambush operation commonly carried out by the security forces on roads leading into and out of villages. 23. By letter dated 26 December 1994, the Ministry of the Interior informed the Ministry of Foreign Affairs that on 29 September 1993 the security forces had come to the village with the purpose of apprehending terrorists whom they had heard were coming to the village. The security forces were attacked by the PKK. Village guards from Ziyaret were not involved in the operation. No raid was carried out on the village which was due to have village guards of its own. Although villagers had applied for posts as village guards they had not in fact been recruited since no suitable posts were available. At the time of the incident there were 150 households, not 200 as alleged by the applicant (see paragraph 15 above), and currently there were 180 households living there, not twenty, as alleged by the applicant (ibid.). 24. Since the facts of the case are disputed, particularly concerning the events in or around June 1993, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements, and oral evidence taken from four witnesses by three delegates at a hearing in Ankara on 7–8 February 1996. 25. As regards written evidence, the Commission had particular regard to a statement by the applicant dated 9 October 1993 taken by the HRA in Diyarbakır, and an incident report of 30 September 1993, drawn up by İsa Gündoğdu, commander of the Ergani central gendarmerie, and signed by other gendarmes. The report concluded that Havva Ergi must have been killed accidentally as a result of shots fired by members of the PKK in the course of clashes with members of the security forces. Furthermore, the Commission had regard to a sketch map of the incident location dated 30 September 1993, drawn up and signed by İsa Gündoğdu. It indicated, inter alia by numbers, the location of the deceased’s body, the terrorists’ firing position (no. 7), the security forces’ firing position (no. 9), the road and the village slopes. 26. In addition, the Commission had regard to two statements dated respectively 30 October and 3 November 1995. The first statement, signed by the applicant and by officers of the anti-terrorism department, was set out in the form of questions and answers. The applicant was referred to his declaration of means and confirmed his signature. He was asked whether he had made an application to the European human rights association or in Turkey and if so, to provide further explanations. He stated that he had applied to the HRA regarding his sister, that he had not applied to the Kurdish Human Rights Project and that he had applied to the European Commission of Human Rights indirectly through the HRA. He gave details of his finacial position. The second, signed by the applicant and by a public prosecutor, indicated that the applicant had been shown his declaration of means and that he confirmed that it looked like his. He had explained that he had made an application in 1993 to the HRA and to the European Commission of Human Rights. His application had not concerned anything else and he had not wished to add anything. 27. The oral evidence included statements by the applicant himself, Ahmet Kuzu (gendarmerie commander in the district of Ergani), İsa Gündoğdu and Mustafa Yüce (Ergani public prosecutor). The following witnesses had also been summoned but they did not appear: Bekir Selçuk (Principal Public Prosecutor at the National Security Court, Diyarbakır), Senai Baran (muhtar), Ibrahim Halil Ergi (father of Havva Ergi), Seyit Battal Ergi (brother of Havva Ergi), Hasan Ergi (uncle of Havva Ergi) and Hacere Ergi (mother of Havva Ergi). 28. The verbatim record of the hearing held on 7–8 February 1996 contained the following passages of relevance to the Government’s preliminary objection as to the validity of the application (see paragraph 60 below): “Mr GÜNDÜZ: We have your petition before us. It bears your signature. Muharrem Ergi, isn’t it: Mr Muharrem ERGI: Yes. Mr GÜNDÜZ: Mr Ergi, do you know about the application that was written later on your behalf? Did you see the application that was submitted to the Human Rights Commission? Mr Muharrem ERGI: Yes. Mr GÜNDÜZ: Certainly you don’t speak English, do you? Mr Muharrem ERGI: No, not much. Mr GÜNDÜZ: Again there is a mistake. You are referred to as a woman. Of course, the name Muharrem is not so usual and that is why. This is your signature. You said, ‘We went together with my father and mother’, didn’t you? Mr Muharrem ERGI: Yes.” Mustafa Yüce had stated to the delegates that he had been convinced that the incident report had been accurate in concluding that the PKK had been responsible and that no other allegation to the contrary had been made. There had been no reason to think that the record drawn up by the security forces had not been accurate. If an allegation had been made that Havva Ergi had been killed by gunfire from the security forces, he would have been obliged to go to the village. He believed that he would have received a complaint if the security forces had been responsible. 29. In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates. In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination or other independent investigation of the events in question. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problems of language adverted to above there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while ten witnesses had been summoned to appear, only four in fact had given evidence before the Commission’s delegates. Significantly, only one of two public prosecutors who were summoned had appeared and, despite repeated requests by the Commission, the Government had not identified any officers who had participated in the operation for the purpose of giving evidence before its delegates. The Government also had not provided complete documentary materials relating to the operation. The Commission had therefore been faced with the difficult task of determining events in the absence of potentially significant testimony and evidence. The Commission’s findings can be summarised as follows. 30. Kesentaş village was located on a slope, the northern part higher than the southern, with steep mountains behind to the north. There were vineyards around the village; a road running east-west through the village which continues north-east between the mountains; a wider main road to the south of the village running roughly east-west and to the south of this road the ground slopes upwards again. The village accordingly lay in a depression. The terrain to the north was rough and steep, with a river bed running down to the village from a north/north-eastern direction. 31. The Commission found from the evidence of the witnesses that PKK activity in the area around the village in or around 1993 had been significant. There had been at least two incidents involving the village shortly before the operation on 29 September 1993. In one incident, a villager ,Cuma Bali, had been shot dead and in the other, another villager, Ibrahim Halil, and his father had left the village under gendarmerie protection after his house had been shot at and moved to Ziyaret where they joined the village guards. Halil had been in the mountains with the PKK and had returned of his own free will. The timing of the latter incident had not been established. The applicant’s written statement to the HRA referred to the move from the village taking place the day before the incident, whereas it had appeared from the applicant’s oral testimony that he had been absent from the village and he had had no real recollection of what he might have been told by others. Major Kuzu, who had remembered helping the family move, did not specify the date. 32. The PKK had tended to arrive from the north of the village under cover of the terrain, requiring the villagers to provide food and medicine. There had been no village guards in the village and no permanent security presence in the vicinity. The main road to the south of the village had been patrolled from time to time. 33. At Ergani, about 17 kilometres to the east, there was a central gendarmerie headquarters under the command of İsa Gündoğdu, a non-commissioned officer (“NCO”). There was also a district gendarmerie headquarters, under the command of Major Kuzu, and a separate commando unit. Major Kuzu was in overall command of the district and central gendarmerie and had frequently been absent in his additional capacity as commander of a commando unit which had often been in the field. 34. The Commission observed that there had been no detailed investigation or judicial finding of facts on the domestic level as regards the events which occurred in the village of Kesentaş on 29 September 1993. The Commission had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings; in this assessment the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and in addition the conduct of the parties when evidence is being obtained may be taken into account (see, mutatis mutandis, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 161). 35. The Commission noted that the two gendarmes had stated in evidence that they had not in fact been at the village when the clash had occurred. Major Kuzu had stated that he was in an operation elsewhere with commandos. NCO İsa Gündoğdu had arrived after the firing had stopped and, although he followed in the direction of the allegedly fleeing PKK, he had seen no sign of them. The Commission had requested the Government on two occasions prior to the hearing in Ankara to identify, for the purpose of taking evidence, gendarmerie officers who had been present during the operation. The Government had not responded. The Commission recalled that the applicant had not been in the village either and his testimony concerning the events of that night had been based on what he had remembered being told by members of his family or villagers. Members of the applicant’s family present during the clash had not appeared as witnesses although summoned by the delegates. There had therefore been no direct eyewitness evidence before the Commission as to what had occurred, which was regrettable. 36. Further, the documentary evidence had also been of second-hand quality. The incident report and sketch had been drawn up by İsa Gündoğdu, not by any gendarmerie officer involved in the operation and, from İsa Gündoğdu’s testimony before the delegates, it is not apparent that he questioned the security forces on the spot in any detail. Indeed his contact with them appeared to have been limited to radio contact, by way of coded transmissions. The Government had failed to comply with the Commission’s request to be informed of the name and of the unit of the commanding officer of the unit involved in the operation and to be provided with the copy of the logbook entry, register or field report which recorded the operation. 37. The Commission accordingly had little direct evidence as to what had occurred on the night of 29 September 1993. As to whether a clash had in fact taken place, the Commission noted that it had been alleged by the applicant that an indiscriminate bombardment of the village had been carried out in retaliation for the incidents in the village in which “collaborators” were, in one case, shot and, in the other, forced to leave. The Commission recalled that Major Kuzu had been directly involved in the move of the threatened villager and that he did not consider that the PKK had shot at the villager, but that it had been the other villagers who would have killed him as they wanted to know why he had left the organisation. İsa Gündoğdu commented that a great many people in the village had joined the organisation. The applicant’s allegation that the bombardment of the village could have been motivated by a desire to teach the village a lesson was not totally without substance. 38. The Commission noted several puzzling features. Major Kuzu had been the district gendarmerie commander but had had no apparent knowledge of, or role in, an operation within his jurisdiction, though he had felt able to give firm opinions as to what must have occurred. The night the incident occurred, İsa Gündoğdu of the central gendarmerie had had to borrow an armoured personnel carrier from the police because those belonging to the gendarmerie were being used in a mission. İsa Gündoğdu had stated that the firing at the village had only lasted about five minutes whereas the letter from the public prosecutor at the Diyarbakır National Security Court dated 8 December 1994 referred to fighting that had started at 9.30 p.m. and continued into the night, which appeared to corroborate the applicant’s version of events, derived from his family, that the firing had continued for over an hour. The applicant had stated that, as might be expected from sustained shooting, there was widespread damage to the village. He had gone round the village, noting damage to about a hundred houses and had taken a few photographs which indeed revealed bullet marks on two houses. İsa Gündoğdu who had also been in the village the next day had stated that there was damage only to two or three houses and to a car, from at most fifteen bullets. This is another area which could have been elucidated by further information provided by the Government. İsa Gündoğdu stated that photographs of the village had been taken by the public prosecutor. These had not been provided by the Government, which had stated that no photographs had been taken. 39. As regards the details of the clash which had been given, the Commission was again hampered by a lack of direct information. It had initially been provided with a blurred copy of the sketch map by İsa Gündoğdu with the bottom section omitted. This copy showed a key indicating the positions of the terrorists (no. 7) and the security forces (no. 9). A no. 7 had clearly appeared to the east of the village. A no. 9 had appeared to the north-west. There had also been a squiggle in the south not dissimilar to that portraying the security forces’ position to the north-west and which contained a blurred figure. This figure had seemed to be a 9. İsa Gündoğdu when questioned stated that the terrorists were to the south and indicated on the sketch that they would have been close to the position marked with the blurred figure. If the blurred figure had been a 9, this had been a mistake. Major Kuzu had also been adamant that there would be no security forces in the south. In brief, there would be no point: the terrain had not been favourable and they had known the PKK would come from the north and would flee in that direction. Since Major Kuzu had not been present during the clash, on his own testimony, the Commission felt unable to give his evidence much weight. İsa Gündoğdu had based his sketch on what he had heard from the units involved – apparently a brief radio contact. It was strange that at the time he appeared to have marked the security forces as having been present in the south yet was now certain that this must have been a mistake. Many months after the hearing of the witnesses, the Commission was provided with a clearer copy of the sketch map in which the blurred figure to the south of the village had, identifiably, been a 9, which represented the security forces. 40. The Commission agreed with the submissions of the applicant that, given the south-facing position of the balcony and the position of the neighbouring houses, in particular a high wall to the east, it was probable that the bullet which killed Havva Ergi was fired from the south or south-east. The Government had not contested this. 41. Having regard to the failure of the Government to provide the documents and information referred to above, the Commission found that strong inferences could be drawn supporting the applicant’s allegations that the security forces had opened fire around the village for some time and that units of the security forces had been present towards the south. There was nonetheless insufficient material before the Commission to support a finding that the operation of 29 September 1993 had not been an ambush which led to a clash as alleged but a mission of retaliatory punishment. The Commission was unable to find it established that the bullet which had killed Havva Ergi had been fired by the security forces. It did find however that there was significant evidence indicating that it may have been. 42. The death of the applicant’s sister had been reported to the authorities at about 8 a.m. on 30 September 1993. The public prosecutor accompanied by İsa Gündoğdu and a number of gendarmes arrived at the village. An autopsy had been carried out in the Ergi house and a bullet removed which had later been sent for forensic examination. The public prosecutor had talked to a number of persons. However, while İsa Gündoğdu had referred to the prosecutor conducting interviews, he had confirmed that he had not incorporated any such information in his own incident report and it had not been apparent that he had in fact witnessed any statements being taken. On the instructions of the prosecutor, İsa Gündoğdu had looked for cartridges in a number of locations, particularly to the south. None had been recorded as having been found. 43. Another public prosecutor, Mustafa Yüce, had taken over the investigation on his return from leave. On 12 December 1993, he had issued a decision of lack of jurisdiction indicating that the PKK were the suspects for the killing. He had based his decision on the incident report and sketch by İsa Gündoğdu. He had not conducted any interviews of family members, villagers or military personnel. No statements had been taken from such persons by any other public prosecutor. It had not been apparent from the incident report in question that it was the PKK who had fired the bullet which killed the applicant’s sister. Furthermore, the sketch map accompanying the report appeared to place security forces to the south and north-west and terrorists to the east but there had been no plan of the Ergi house and neighbouring houses which clarified from which direction the bullet was likely to have been fired. Nor had there been any explanation in the text of the report as to the location of the security forces. 44. Following the decision of lack of jurisdiction, the file had been transferred to the public prosecutor’s office at the Diyarbakır National Security Court. Except for the ballistics report issued on 1 April 1994, no documents had been provided relating to any investigatory measures since that date. 45. Major Kuzu had stated to the delegates that there was a fundamental principle in the planning of military operations that these be not moved into civilian areas. In this incident, the plan had been to restrict the activity in the north of the village but the PKK had not approached them from the expected side. No military inquiry or investigation had been carried out as to the conduct of the operation. Major Kuzu, having seen the incident report and sketch by İsa Gündoğdu, forwarded them to the public prosecutor and took no further action. 46. Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 47. The above provision is not subject to any restrictions even in a state of emergency or war. The second paragraph of the provision does not necessarily 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 people 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. 48. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). In respect of these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153), the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165). 49. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Article 89 of the Military Criminal Code. Proceedings in these circumstances may be initiated by the persons concerned (nonmilitary) before the relevant authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 50. If the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 51. Proceedings may be brought against the administration before the administrative courts in respect of fault committed in the performance of official duties. Other illegal acts or omissions by civil servants, be it a crime or a tort, which result in material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. 52. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. 53. The applicant’s representatives have previously pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme. | 1 |
train | 001-104710 | ENG | ALB | CHAMBER | 2,011 | CASE OF SHKALLA v. ALBANIA | 3 | Violations of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | 6. The applicant was born in Tirana in 1978 and is currently serving a sentence of life imprisonment. 7. On 6 June 2001 two people were killed. K was an eye-witness to the incident. 8. On 9 June 2001 the prosecutor decided to proceed with the identification of the perpetrator and invited K to participate. K was given eight photographs and he pointed to the applicant as the perpetrator, after having given a physical description of him. The applicant’s lawyer was not present. 9. On 9 June 2001 the police unsuccessfully searched the applicant’s home. His whereabouts were unknown. 10. On 9 July 2001 the prosecutor charged the applicant with the offences of murder in aggravating circumstances and unlawful possession of firearms. The notification of the prosecutor’s charges was acknowledged by the signature of a lawyer officially-appointed to represent the applicant. 11. On 21 July 2001 the Tirana District Court (“the District Court”) ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be located. 12. On 3 October 2001 the police unsuccessfully conducted a further search of the applicant’s home. His whereabouts remained unknown. 13. On 11 October 2001 the applicant was declared a fugitive from justice by the District Court in accordance with Article 247 of the Code of Criminal Procedure (“CCP”). 14. On 12 October 2001 the prosecutor decided to commit the applicant for trial. The applicant’s officially-appointed lawyer was duly informed. 15. On 21 December 2001 the prosecutor submitted his final conclusions in which he requested that the applicant be sentenced to life imprisonment. On the same day the applicant’s officially appointed lawyer submitted his final conclusions in which he challenged the lawfulness of the identification procedure which had been conducted in the absence of the applicant’s lawyer. He requested that the sentence of imprisonment be less than twenty-five years having regard to the fact that the applicant was not a recidivist and that he was young and had a low level of education. 16. On the same day the District Court found the applicant guilty as charged and sentenced him to life imprisonment. It would appear that the applicant was living in Greece at the material time. 17. On 28 December 2001, in accordance with Article 48 § 3 of the CCP, the applicant’s father authorised a lawyer to represent the applicant and lodge all necessary appeals. 18. On 31 December 2001 the lawyer lodged an appeal against the applicant’s conviction. The appeal, which also bore the applicant’s signature, was based on points of fact and law. 19. On 26 April 2002, following proceedings in absentia, the Tirana Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It found that the applicant had been declared a fugitive after unsuccessful attempts to trace his whereabouts and that the first-instance court’s notifications had been addressed to his officially-appointed lawyer in accordance with the law. 20. On 17 May 2002 the applicant appealed, through his familyappointed lawyer, to the Supreme Court. He complained inter alia that his absence during the lower courts’ proceedings had adversely affected him and that he had not been notified of the proceedings in accordance with the law. The applicant stated that he did not deny the charges against him were unique and required a different view of the merits of the case. The appeal bore the applicant’s signature and that of the lawyer appointed by his family. 21. On 15 January 2003 the Supreme Court rejected the applicant’s appeal. It held that the District Court had properly notified the applicant at his home address. Moreover, his brothers and mother were summoned as witnesses at one of the first-instance court’s hearings. The Supreme Court considered that the non-participation of the applicant in the trial reflected his own choice, as evidenced in his appeals, rather than of a lack of opportunity afforded by the lower courts to appear at his trial and to contest the charges. The Supreme Court dismissed, as unsubstantiated, the applicant’s argument that the sentence of imprisonment would have been less severe had he attended the proceedings. 22. Still living in Greece, the applicant was informed on 14 June 2003 of the outcome of the above proceedings, namely that he had been sentenced to life imprisonment in Albania. On the same day he surrendered to the Albanian police in order to seek justice in respect of his conviction and allegedly unfair trial in absentia. 23. On 12 January 2005 the applicant authorised a lawyer to introduce a constitutional appeal. 24. On 15 January 2005 the applicant lodged a constitutional appeal. He stated that he had been tried in absentia and his interests had not been properly defended before the first-instance court. The officially appointed lawyer had been appointed by the prosecutor instead by the court. The applicant had never been notified of any documents concerning his case. Moreover, the applicant alleged that he had been declared a fugitive on the basis of inconclusive evidence. The fact that he surrendered after the completion of his trial was a further sign that he had not been properly notified of the proceedings. He also contended that his signature on the appeals to the Court of Appeal and the Supreme Court had been forged. 25. On 1 February 2005 the Constitutional Court, having noted that the applicant’s appeal had been submitted in an envelope postmarked 17 January 2005, declared the complaint inadmissible as having been filed out of time. 26. In a letter of 15 February 2005 the applicant’s lawyer informed the Constitutional Court inter alia that, as the time-limit had expired during a weekend (on a Saturday), whereas all domestic procedural rules provided for an automatic extension of the legal time-limit to the following working day, he had posted his constitutional appeal on the following working day, namely on Monday 17 January 2005. 27. On 24 February 2005 the Constitutional Court replied that the applicant had been informed of the grounds for its decision of 1 February 2005. His complaint had been filed out of time on the basis of the postmark on the envelope in which the complaint had been sent to the Constitutional Court. 28. The relevant provisions of the Constitution read as follows:. Article 31 “During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts”. Article 32 “1. No one shall be obliged to testify against himself or his family or to confess his guilt. 2. No one shall be declared guilty on the basis of evidence collected unlawfully”. Article 33 “1. Everyone has the right to be heard before being judged. 2. A person who is seeking to evade justice may not avail himself of this right”. 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 131 “The Constitutional Court shall decide: ... (f) in a ruling that shall be 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”. 29. The relevant provisions of the Constitutional Court Act read as follows: Section 1 – The scope “... 2. The Constitutional Court shall take into account the legal provisions that regulate other procedures in so far as issues relating to procedures not governed by this Act are concerned, having regard to the legal nature of the case at issue”. Section 30 “1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law. 2. An individual’s appeal for a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation. If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the last instance body’s decision”. Section 31 “1. A preliminary review of appeals shall be conducted by a panel of three Constitutional Court judges, including the judge rapporteur. 2. If an appeal, despite being within the jurisdiction of the Constitutional Court and submitted by a person who has locus standi to lodge it, is not complete, the panel shall send it back to the appellant for completion, indicating the reasons for doing so and a deadline for its completion. When the appeal is completed, it shall be resubmitted for preliminary review by the panel. An incomplete appeal may not be subject to review. 3. If an appeal is lodged by an appellant claimant who has locus standi and the case falls within the jurisdiction of the Constitutional Court, the panel shall review the case in plenary session, whereas if it is lodged by a person without locus standi or if the case is not within the jurisdiction of the Constitutional Court, the panel shall not review the case in plenary session. In all cases, if one of the judges of the panel has a different opinion, the appeal shall be sent for preliminary review by the full court, which shall decide by a majority of votes whether the case shall be heard in plenary session. 4. In all the aforementioned cases the panel or the full court shall not review the merits of the case”. 30. In its decision no. 8 of 12 March 2009 (no. 8/09) the Constitutional Court, having regard to the provisions of the Code of Civil Procedure and the fact that the Constitutional Court Act did not provide for the procedure to be followed in the event that an appellant renounced his right to pursue the appeal, decided to dismiss the case in accordance with section 1 § 2 of the Constitutional Court Act. 31. In its decision no. 30 of 26 November 2009 (no. 30/09) the Constitutional Court examined an appellant’s request regarding the unfairness of the proceedings and his conviction in absentia, after his application for leave to appeal out of time had been rejected as time-barred by the Tirana District Court, the appellant not having appealed against that court’s decision. In its decision, the Constitutional Court did not examine the question of the calculation of the two-year time-limit for filing a constitutional appeal in respect of the unfairness of the proceedings. It would appear that the starting date was the day on which the appellant had been notified of his conviction in absentia, namely 4 June 2008. The applicant had been convicted in absentia by a final court decision of 24 March 2000. 32. The relevant provisions of the CCP read as follows. Article 48 – Counsel appointed by the defendant “1. The defendant has the right to appoint no more than two counsel. 2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel. 3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”. Article 144 – General rules “1. Procedural time-limits are determined in hours, days, months and years. 2. Time-limits are calculated on the basis of the ordinary calendar. 3. When a time-limit, which has been determined in days, ends at a weekend (“weekly holiday”) or on a public holiday, its term is prolonged until the following working day. ...” Article 147 – Leave to appeal out of time “1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure. 2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge. 3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...) ... 5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case. 6. An appeal may be lodged with the Court of Appeal against the decision refusing an application for leave to appeal out of time”. Article 410 – The defendant’s appeal “... 2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law. ...” 33. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453). 34. On 24 March 2008, 11 November 2008, 19 January and 8 October 2009, the District Court, the Court of Appeal, the Supreme Court and the Constitutional Court, respectively, rejected the defendant’s application for leave to appeal out of time on the ground that his conviction in absentia had acquired the force of res judicata and that the defendant had been effectively defended by a counsel appointed by family members (see Sulejmani v. Albania, no. 16114/10, communicated to the respondent Government on 31 May 2010 and pending before the Court). 35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010 (no. 30/10), the Constitutional Court decided that the appointment of a counsel by a family member should be accepted by the domestic courts in so far as it can be established that this constituted an explicit manifestation of the defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family members. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family members. 36. Article 148 of the Code of Civil Procedure provides that, when a statutory time-limit expires at a weekend or on a public holiday, such time-limit will be deferred until the first working day thereafter. 37. Article 62 (b) of the Code of Administrative Law Procedure provides that the calculation of time-limits shall be suspended on a Saturday, a Sunday and a public holiday. 38. Article 2 § 1 of the Decision of the Council of Minister on the duration of working hours and holidays in State institutions (Decision no. 511 of 24 October 2002) stipulates that Saturdays and Sundays are “weekly holidays”. | 1 |
train | 001-93151 | ENG | DEU | ADMISSIBILITY | 2,009 | DITZ v. GERMANY | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicants, Ms Nicole Ditz and Mr Sebastian Ditz, are German nationals who were born in 1978 and 1977 respectively and live in Hamelin. They were represented before the Court by Ms Eva Beate Bäumler, a lawyer practising in Hanover. On 19 August 2000 the applicants’ first child was born with severe physical disabilities, having, inter alia, no arms and hands, a shortened thigh and serious hip dysplasia. The applicants brought a civil action in the Hanover Regional Court, seeking alimony and compensation for non-pecuniary damage from the attending gynaecologist. They argued that, had the mother been informed about the disability, she would have opted for an abortion. During a hearing, the Regional Court conveyed to the parties its intention to first take evidence on the question of whether the gynaecologist had committed a grave diagnostic error. On 6 November 2003 the Regional Court informed the applicants that, contrary to its earlier intention, the taking of evidence would commence with the issue of whether an abortion would have been legally possible. On 17 March 2005 the Regional Court dismissed the action in its entirety. It considered that it could leave open the question of whether the gynaecologist had committed a grave diagnostic error as the alimony claim required proof of whether, had the parents been informed of the disability, an abortion would have been legally possible. The court found that, for the abortion to be legal, the applicants had to demonstrate that it would have been the only reasonable means to avert a risk for the mother’s life or severe interference with her physical or mental integrity. Referring to an expert report, the court found that the mother had not demonstrated that an abortion could have been legally possible. The expert had noted in his report that the applicants had failed to submit sufficient documents and provide sufficient facts from the time of the pregnancy to allow him to come to the conclusion that the requirements for a legal abortion were met. The applicants appealed against the judgment. On 28 July 2005 the Celle Court of Appeal notified the applicants of its intention to decide the appeal without conducting a hearing, giving the applicants two weeks to make further submissions. It informed the applicants that it was of the opinion that the Regional Court had correctly desisted from taking evidence on the alleged grave diagnostic error. As to their claim in respect of non-pecuniary damage, the Court of Appeal considered that the applicants had failed to sufficiently substantiate it; in particular, they had not explained how the shock had manifested itself and had not described the psychological condition of the mother after the birth of the child. With respect to the alimony claim, the Court of Appeal also confirmed that the Regional Court had been under no obligation to hear evidence on the alleged grave diagnostic error, as the lack of proof of the abortion’s legality already meant that the claim was unfounded and that an expert opinion on the existence of the grave diagnostic error was redundant. It also rejected the applicants’ complaint that they had not been granted a hearing as to the Regional Court’s decision to first take evidence on the question of whether the child could have been legally aborted. It observed that the applicants had had plenty of time to object to the Regional Court’s decision of 6 November 2003, but had chosen not to. In so far as the applicants challenged the expert report, the Court of Appeal held that the expert’s conclusions, though not clearly distinguishing between issues of law and fact, had been sufficiently clear. The expert had found that no documents or indications existed that demonstrated an elevated risk of grave interference with the mother’s mental integrity, either during the pregnancy or after the delivery. The Court of Appeal noted in that context that the parents had failed to submit further documentation, despite having been asked by the Regional Court to do so. Furthermore, the expert had sufficiently explained that an examination of the mother, four years after the delivery of the baby, would have been inconclusive without further documentary proof. On 22 August 2005 the applicants made further submissions to the Court of Appeal. On 6 September 2005 the Court of Appeal, referring to the reasoning set out in its decision of 28 July 2005, dismissed the appeal without holding a hearing, also dismissing the applicants’ further submissions contesting the expert report. On 31 October 2005 the Court of Appeal dismissed an objection alleging a violation of the right to be heard (Anhörungsrüge) as being manifestly illfounded. The applicants had been informed of the reasons why it intended to dismiss the appeal. It had addressed all the arguments put forward by the applicants, in particular the submissions concerning the claim for damages, the requirements of the legality of the abortion, the challenges against the expert report, and the alleged denial of the right to be heard. On 10 January 2006 the Federal Constitutional Court held that the constitutional complaint by the applicants had no prospect of success as there was no appearance of a violation of the right to be heard or the principle of equality of arms. | 0 |
train | 001-93448 | ENG | TUR | CHAMBER | 2,009 | CASE OF CAHİT DEMİREL v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1972 and lives in Batman. 5. On 1 April 1996 the applicant was arrested by gendarmerie officers while he was leaving Batman. He was then transferred to the Anti-Terrorist Branch of the Batman Police Headquarters on suspicion of involvement in the activities of the PKK (the Workers’ Party of Kurdistan), an illegal organisation. 6. On 18 April 1996 the applicant was brought before the Batman public prosecutor and the judge at the Batman Magistrates’ Court. The judge remanded the applicant in custody. 7. On an unspecified day the Batman public prosecutor issued a decision of non-jurisdiction and sent the case file to the public prosecutor’s office at the Diyarbakır State Security Court. 8. On 22 May 1996 the public prosecutor filed a bill of indictment against the applicant, along with other persons, charging him with membership of the PKK under Article 168 § 2 of the former Criminal Code. 9. On 30 July 1996 the Diyarbakır State Security Court held the first hearing on the merits of the case. 10. On 25 December 2001 the Fourth Chamber of the Diyarbakır State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment. 11. Throughout the proceedings, the applicant and his representative requested several times that the applicant be released pending trial. At the end of each hearing the State Security Court rejected the applicant’s requests, having regard to the nature of the offence, the state of the evidence and the content of the case file. 12. On 9 October 2002 the Court of Cassation quashed the judgment of the first-instance court. The case was subsequently remitted to the Diyarbakır State Security Court. 13. On 13 May 2003 the Diyarbakır State Security Court ordered the applicant’s release pending trial. 14. On 23 March 2004 the State Security Court once again convicted the applicant under Article 168 § 2 of the former Criminal Code and sentenced him to twelve years and six months’ imprisonment. 15. On 19 October 2004 the Court of Cassation quashed the judgment of 23 March 2004. 16. Pursuant to Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolishing State Security Courts, the case against the applicant was transferred to the Diyarbakır Assize Court. 17. On 2 May 2005 the Diyarbakır Assize Court decided that the proceedings against the applicant should be terminated on the ground that the statutory timelimit under Article 102 of the Criminal Code had expired. This decision to terminate the case became final as neither the applicant nor the public prosecutor appealed. 18. The relevant domestic law and practice in force at the material time are outlined in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-30, 30 January 2007). | 1 |
train | 001-61837 | ENG | ROU | CHAMBER | 2,004 | CASES OF PINI AND OTHERS v. ROMANIA | 1 | No violation of Art. 8;Violation of Art. 6-1;No violation of P4-2-2;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Jean-Paul Costa | 11. The applicants were born in 1957, 1952, 1951 and 1953 respectively. The first applicant couple live in Reggio Emilia and the second in Mantua. At the time when they lodged their applications they were deemed to be the adoptive parents of Florentina and Mariana, Romanian nationals who were born on 31 March and 17 April 1991 respectively and were living at the Poiana Soarelui Educational Centre in Braşov (“the CEPSB”). 12. In a final decision of 17 June 1994 the Iaşi County Court declared that Florentina, who at the time was 3 years old, had been abandoned. Parental rights over her were assigned to a public welfare institution, L. 13. On 6 September 1994, by a decision of the Iaşi Child Welfare Board, the child was placed in the care of the CEPSB. 14. On 15 May 2000, after the entry into force of Government Emergency Ordinance no. 25/1997 on the rules governing adoption (“Ordinance no. 25/1997”), the Romanian government entrusted a private association, C., with the task of finding a family or a person to adopt Florentina. It also instructed the Romanian Committee for Adoption to support the C. association in this process and to draw up a psychosocial report on the child. 15. The first applicant couple informed the C. association of their wish to adopt a Romanian child, and were sent a photograph of Florentina. They met her for the first time on 3 August 2000 at the CEPSB. They were subsequently informed by the C. association of the child’s desire to join them and of her love of music. 16. On 30 August 2000 the Braşov Child Welfare Board, on a proposal by the C. association, gave its approval to the adoption of Florentina by the first applicant couple, and on 21 September 2000 it referred the file on their application for adoption to the Braşov County Court, in accordance with section 14(2) of Ordinance no. 25/1997. 17. On 28 September 2000 the court granted the first applicant couple’s application. It noted that the Braşov Child Welfare Board had given its approval to the adoption and had confirmed that position before the court. Observing that the child was in the care of the CEPSB, it ordered the Population Registry Office to amend Florentina’s birth certificate and to issue her with a new one. 18. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final. 19. On 5 February 2001 the Romanian Committee for Adoption attested that Florentina’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the first applicant couple with a certificate to that effect. 20. On 14 February 2001 the Commission for Intercountry Adoption granted the child leave to enter Italy and to reside there permanently and ordered the notification of that decision, inter alia, to the Italian embassy in Bucharest. 21. On an unspecified date the Procurator-General lodged an application to set aside the Braşov County Court’s decision and the Braşov Court of Appeal’s judgment. On 5 June 2001 the Supreme Court of Justice declared the application inadmissible. 22. On 28 September 2000, following a procedure similar to that outlined in paragraphs 16 to 18 above, the Braşov County Court granted the second applicant couple’s application to adopt Mariana. It observed that the child, who had been declared to have been abandoned in a final decision of 22 October 1998, was in the care of the CEPSB, and ordered the Population Registry Office to amend her birth certificate and to issue her with a new one. 23. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final. 24. On 28 December 2000 the Romanian Committee for Adoption attested that Mariana’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the second applicant couple with a certificate to that effect. 25. On an unspecified date the first applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over the child’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application. 26. The CEPSB appealed against that judgment and applied for a stay of its execution, arguing that the requirements for submitting an urgent application had not been satisfied and that the adoption order was not final and had been made in breach of the relevant statutory provisions. 27. On 7 March 2001 the court dismissed the appeal on the ground that the child’s interests and the fact that the adoptive parents lived abroad warranted an urgent examination of the case and that the applicants had therefore complied with the procedural requirements for making an urgent application. The court also found that, according to the documents in the file, the adoption order was final and constituted res judicata. It therefore considered that it was no longer possible for the substantive issues relating to the adoption to be re-examined in the context of the urgent proceedings. The court refused the application for a stay of execution on the ground that it was no longer justified in view of its decision to dismiss the appeal. 28. A subsequent appeal by the CEPSB was likewise dismissed by the Braşov Court of Appeal in a final judgment of 7 June 2001. 29. The first applicant couple sought to have the decisions of 28 September 2000 and 7 June 2001 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to the applicants and to give them custody of her by 2 March 2001. The president of the court subsequently ordered a stay of execution pending a ruling on the CEPSB’s objection to enforcement (see paragraphs 30-32 below). 30. On 23 February 2001 the CEPSB lodged an objection to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution. 31. On 30 March 2001 the court dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement. The court also dismissed the CEPSB’s application for a stay of execution. 32. The CEPSB appealed to the Braşov County Court, which dismissed the appeal on 2 July 2001 as being ill-founded. 33. On 12 June 2001 the first applicant couple asked the bailiffs at the Braşov Court of First Instance to resume the enforcement procedure, having regard in addition to the fact that the Supreme Court of Justice had in the meantime dismissed the Procurator-General’s application to set aside. 34. On 13 June 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to her adoptive parents and to give them custody of her by 15 June 2001. 35. On 19 July 2001 they again served notice on the CEPSB, requesting it to comply by 8 August 2001. 36. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the first applicant couple’s favour, arguing that the urgent application procedure was intended to deal with temporary situations and that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The first applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay. 37. On 8 August 2001 the court allowed the application for a provisional stay of execution until the hearing on 22 August 2001. On that date it extended the stay of execution until the date of the following hearing, scheduled for 11 September 2001. When that day arrived, the court again extended the stay of execution until the hearing on 25 September 2001, on which occasion it dismissed the applications by the CEPSB and the applicants as being ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in a judgment that constituted res judicata. It also dismissed the first applicant couple’s claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained. 38. On 5 November 2001 the bailiffs notified the CEPSB that it was required to hand over Florentina’s birth certificate to the first applicant couple and to give them custody of her as her adoptive parents, warning it that if it did not do so they would resort to coercion. 39. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the first applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB further requested a stay of execution. 40. On 14 December 2001 the court found against the CEPSB, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a similar action under the urgent procedure. As to the merits, it noted that the adoption order and the decision on the applicants’ urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending. 41. On an unspecified date the CEPSB applied to the President of the Braşov Court of First Instance for a stay of execution. On 25 January 2002 that application was refused. 42. On 30 January 2002 at 2 p.m. the bailiffs at the Braşov Court of First Instance arrived at the CEPSB building, accompanied by police officers. The doorman refused to let them in and locked the door. Half an hour later the director of the CEPSB and his deputy came to the entrance and informed the bailiffs and police officers that the child was not on the centre’s premises but had gone on an excursion outside the city. Following a check, Florentina was not found inside the building. 43. The bailiffs pointed out to the director of the CEPSB that he was required to let Florentina join the applicants. 44. On 27 March 2002 the bailiffs ordered the CEPSB to return the child’s birth certificate and to allow her to join the applicants within ten days, and informed it that in the event of it refusing they would resort to coercion. 45. On 3 September 2002 at 10.45 a.m. a bailiff, accompanied by the first applicant couple and their lawyer, went to the CEPSB building. In the report drawn up on that occasion the bailiff stated that the centre’s doormen had detained them all inside the building. He also indicated that he had telephoned the police station and that, after he had explained the incident to Superintendent D., the latter had replied that he should have called the police before attempting enforcement. The bailiff lastly noted that it was impossible to provide the necessary legal assistance for the procedure and that an objection to the enforcement had been lodged. He stated that the enforcement attempt had ended at 1 p.m. 46. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. On 8 April 2002 the court dismissed the application as being ill-founded. 47. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in favour of the first applicant couple, on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings. 48. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution. 49. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003. 50. On an unspecified date the second applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over Mariana’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application. 51. That judgment was upheld on appeal by the Braşov County Court in a final judgment delivered on 22 August 2001. 52. On 1 February 2001 the CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution. 53. The court allowed that application and granted a stay of execution until 30 March 2001, on which date it dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement. 54. That judgment was upheld by the Braşov County Court in a final decision delivered on 2 July 2001 on an appeal by the CEPSB. 55. The second applicant couple sought to have the decisions of 28 September 2000 and 24 October 2000 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February, 13 June and 19 July 2001 the bailiffs notified the CEPSB that it was required to hand over Mariana’s birth certificate to the applicants and to give them custody of her. 56. On 15 June 2001 the CEPSB lodged an objection to the enforcement of the decisions in the second applicant couple’s favour. They applied several times to the Braşov Court of First Instance for a stay of execution, arguing that decisions on urgent applications were generally intended to deal with temporary situations but that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The second applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay. 57. The court ordered a stay of execution from 15 June to 11 July 2001, from 8 August to 11 September 2001 and from 14 to 25 September 2001, and on the last-mentioned date it dismissed the CEPSB’s objection and the second applicant couple’s application as being manifestly ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in the decision of 28 September 2000 that constituted res judicata. It also dismissed the adoptive parents’ claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained. 58. On 5 November 2001 the bailiffs enjoined the CEPSB to hand over Mariana’s birth certificate to the second applicant couple and to give them custody of her, warning it that if it did not do so they would resort to coercion. 59. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the second applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB applied in addition for a stay of execution. 60. On 14 December 2001 the court refused its application, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a further, similar action. As to the merits, it noted that the adoption order and the decision on the second applicant couple’s urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending. 61. On 25 March 2002 the bailiffs again notified the CEPSB that it was required to hand over the child’s birth certificate to the second applicant couple and to give them custody of her. 62. On 30 January and 9 April 2002 a bailiff went to the CEPSB building, accompanied by the second applicant couple and police officers. He noted that Mariana was not on the centre’s premises. 63. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the second applicant couple’s favour on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings. 64. The CEPSB made an urgent application to the Braşov Court of First Instance for a stay of execution of the adoption order on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution. 65. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003. 66. On an unspecified date the CEPSB brought two actions in the Braşov County Court against the applicants, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the adoption orders for both of the children set aside on the ground that they were not lawful as it had not given its prior consent. 67. On 14 February 2002 the court found against it on the ground that the sole requirement for the children’s adoption had been the approval of the Braşov Child Welfare Board, which exercised parental rights over them in accordance with section 8 of Government Emergency Ordinance no. 26/1997 (“Ordinance no. 26/1997”). The court observed that the Board had given its consent to the adoptions and had notified its position to the court dealing with the applicants’ applications for adoption. 68. The CEPSB appealed against that decision. At a hearing on 2 April 2002 in the Court of Appeal, the Romanian Committee for Adoption submitted that the opposing party’s numerous applications to the domestic courts were an abuse of process in that they were not in the children’s best interests, namely integration into a family, but were intended to delay and hinder the adoption process, thereby prolonging the children’s current placement in institutional care. 69. The CEPSB requested that the cases be referred to the Constitutional Court for a ruling on the constitutionality of section 7(1)(a) and (2) of Ordinance no. 25/1997, concerning consent to adopt. On 10 December 2002 the Constitutional Court declared the plea of unconstitutionality inadmissible on the ground that it had already given a ruling, on 12 November 2002, on the constitutionality of the statutory provisions cited by the CEPSB. 70. In a final judgment of 11 February 2004, the Ploieşti Court of Appeal declared the CEPSB’s appeal against the judgment of 14 February 2002 void for failure to satisfy procedural requirements. It observed that the centre had omitted to state reasons for its appeal within the statutory period and held in that connection that the plea of unconstitutionality which it had raised at the hearing on 2 April 2002 in respect of certain provisions of Ordinance no. 25/1997 did not dispense it from having to satisfy the statutory formal requirements. The judgment of 14 February 2002 accordingly became final and no ordinary appeal lay against it. 71. On an unspecified date the applicants lodged a criminal complaint with the public prosecutor’s office at the Braşov Court of First Instance against the director of the CEPSB, alleging false imprisonment of the children. 72. On 6 August 2001 the public prosecutor’s office informed the applicants that it had decided on 9 July 2001 not to institute criminal proceedings in the case. 73. On 18 February 2002 the applicants filed another complaint against the CEPSB management with the public prosecutor’s office at the Braşov County Court, levelling accusations of, among other things, false imprisonment of their adopted daughters, in breach of Article 189 of the Criminal Code. They also expressed their disagreement with the decision of 9 July 2001 not to institute criminal proceedings. 74. A report drawn up by the Braşov police on 15 July 2002 stated that in connection with the investigation opened following the applicants’ criminal complaint, police officers had visited the CEPSB, where they had interviewed Florentina and the director. It was noted in the report that the child, who was more than 10 years old on the date of the interview, had expressed the wish to remain in the centre and had refused to join the family of her adoptive parents, whom she had never met. 75. On 28 November 2002 the public prosecutor’s office at the Braşov County Court discontinued the proceedings against the director of the CEPSB. 76. On 4 November 2002 Florentina, represented by counsel and by S.G., director of the CEPSB, as her guardian, brought an action in the Braşov County Court against the first applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked and relying on section 22 of Ordinance no. 25/1997. In the alternative, she sought 3 billion Romanian lei for non-pecuniary damage if the adoption order was not revoked. Submitting that she had never met the first applicant couple – her adoptive parents – either before or after the date on which the adoption order had been made, she stated that she had seen them only once, on 3 September 2002, when they had come to try to take her away from the CEPSB against her will, accompanied by their lawyer and the bailiff. 77. In a judgment of 9 June 2003, the Prahova County Court, to which the case had been referred by the Supreme Court of Justice, dismissed Florentina’s action as being ill-founded. On the basis of the written evidence submitted by the parties, the court considered that it was in the claimant’s interests for the adoption order not to be revoked. It noted that she had not in any way established, through her guardian, that her adoptive parents had shown a lack of interest in her; on the contrary, it appeared from the evidence that they had taken numerous steps for her to be able to join them in Italy. The court accordingly rejected the statements by C.V. and D.M., who had given evidence in support of the child in their respective capacities as her “substitute” “mother” and “aunt” at the CEPSB. 78. The court further noted that the adoption order had satisfied the relevant statutory requirements and pointed out that the Braşov Child Welfare Board, which, under section 8 of Ordinance no. 25/1997, had exercised parental rights on the date on which the application for adoption had been lodged with the court, had found the adoption to be in the child’s interests and had given its approval. 79. That judgment was upheld on an appeal by the claimant in a final judgment delivered by the Ploieşti Court of Appeal on 22 September 2003 after a public hearing which Florentina had attended, represented by counsel and by her guardian. 80. In an unappealable decision of 16 December 2003, the Ploieşti Court of Appeal dismissed an application by Florentina to set aside its final judgment of 22 September 2003. 81. On 4 September 2002 Mariana, relying on section 22 of Ordinance no. 25/1997, brought an action in the Braşov County Court against the second applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked. 82. At the hearing on 31 October 2003, Mariana stated in the presence of her guardian that she did not know her adoptive parents and did not wish to move to a different country as she was satisfied with her life at the CEPSB, where the conditions were good. 83. In a judgment of 31 October 2003, the court allowed her application, relying in particular on the statements by her “mothers” and “aunts” at the CEPSB, who confirmed that she had been residing there since 1994 or 1995 and was being provided with a sound education and good living conditions. Noting that there was no evidence of the emotional ties that should have formed between the adoptive parents and the child after the final decision of 28 September 2000, the court revoked the order for Mariana’s adoption by the second applicant couple and decided that the child should revert to the name she had used before 28 September 2000. 84. Although an appeal lay against that judgment, the defendants did not avail themselves of that possibility, and the judgment thus became final. 85. On 27 February 2001 the C. association requested the Braşov Child Welfare Board to revoke its decision to place the children in the care of the CEPSB. On 2 March 2001 the Board informed it that as a result of the final orders of 28 September 2000 for the adoption of the children by the applicants, the decision on their placement had been implicitly revoked and that any such request would be superfluous. 86. On 16 July 2001 the Department for Child Welfare and Adoption, in reply to a request from the applicants, informed them that it was not empowered to take the necessary steps for the children to be returned to them. It indicated that it had ceased to have any powers in the matter on the date on which the certificate attesting that the adoption order conformed to the relevant national and international rules had been issued. 87. On 27 August 2001 the applicants lodged a complaint with the Senate committee responsible for examining administrative abuses, on account of the Romanian authorities’ failure to execute final decisions. 88. The applicants sought assistance on 6 September 2001 from the Italian embassy in Bucharest and on 12 September 2001 from the Commission for Intercountry Adoption. 89. On 13 September 2001 they lodged a petition with the President of Romania, the Prime Minister and the Minister of Justice. 90. On 23 February, 5 March, 19 April, 6 August, 12 September and 15 November 2001 they complained to the Ministry of Justice about the situation resulting from the failure to execute the adoption orders. 91. On 27 October 2000 and on 19 February, 15 April and 5 June 2001 they travelled to Romania in the hope of seeing their adopted daughters, but to no avail. 92. They regularly sent the girls letters in Romanian and presents, encouraging them to write back in Romanian as they had learnt the language while waiting to see them again, and telling them that their greatest wish was to have them by their side to give them love and affection. 93. It appears from the observations submitted by the parties that the CEPSB, where the children are resident, is a private institution licensed by the Braşov Child Welfare Board and entrusted with the tasks of providing a home for orphans or abandoned children, taking care of them and giving them an education. 94. Reports by the national authority responsible for monitoring the activities of welfare institutions attest to the following: the material and sanitary conditions at the CEPSB are good; medical assistance is provided there in the form of regular check-ups by doctors and permanent supervision by the medical staff; the centre runs special programmes including educational, sports and recreational activities for the children in its care; the children attend schools in the area around the centre and are integrated into the State education system; children at the centre demonstrating particular sporting and artistic abilities are encouraged to develop them; numerous practical activities are arranged; the centre is structured into groups of seven or eight children who are closely supervised by employees assigned to act as “substitute parents”; and the centre employs a full-time psychologist. 95. On 7 September 2000 and 4 February 2002 a CEPSB employee who worked at the centre’s bakery was convicted by the Braşov Court of First Instance and given prison sentences for sexually abusing children in the CEPSB’s care aged 9, 11 and 12. Florentina and Mariana were not involved. 96. A number of articles in the Braşov local newspaper M. reported that after her visit to the CEPSB on 9 January 2001, Baroness Nicholson of Winterbourne, rapporteur for the European Parliament, had expressed the view that children in the centre’s care should not travel abroad to join their adoptive families because the CEPSB had formed a genuine family in which the children received a good upbringing and education. The articles also reported that Mr Ioan Ţiriac, the CEPSB’s founder, had stated that none of the children would be leaving the centre as they had all become members of his family and that it was time to stop “exporting” Romanian children. 97. It appears from the evidence produced by the parties that Florentina and Mariana regularly go to school, visit their close acquaintances and travel abroad on trips organised by the CEPSB. In particular, Florentina is currently attending the College of the Arts, where she is taking violin and piano lessons, while Mariana is being encouraged by the CEPSB staff to develop her skills in dance and sport. 98. Photocopies of Florentina’s passport reveal that she went on a trip to Hungary and Austria in July 2003. 99. A video recording submitted by the Government and produced with the assistance of a psychologist at the centre where the children are living indicates that they have not received any detailed practical information about the ongoing proceedings for their adoption or about the identity of their adoptive parents. It does not appear from the recording that they have been prepared for the possibility of leaving the CEPSB and joining the applicants’ families. During the recording Florentina, in particular, expressed her desire to be part of a traditional family, but was also hesitant as to her adoption by the applicants, which she said that she had initially wanted. It is uncertain whether, before the applicants’ visit to the centre in September 2002, the children received the letters which they had been writing to them in Romanian for several years. It appears from the recording that the girls do not currently wish to travel to Italy to join the applicants, whom they know only vaguely, but would prefer to remain at the CEPSB, where they seem to have established social and emotional ties with the other children and with the “substitute” “mothers” and “aunts”. 100. The following provisions and aspects of international law and practice are relevant to the present case. “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin – (a) have established that the child is adoptable; (b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; (c) have ensured that 1. the persons, institutions and authorities whose consent is necessary for adoption have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin, 2. such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing, 3. the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and 4. the consent of the mother, where required, has been given only after the birth of the child; and (d) have ensured, having regard to the age and degree of maturity of the child, that 1. he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required, 2. consideration has been given to the child’s wishes and opinions, 3. the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and 4. such consent has not been induced by payment or compensation of any kind.” “Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to – ... (b) facilitate, follow and expedite proceedings with a view to obtaining the adoption; (c) promote the development of adoption counselling and post-adoption services in their States; ...” “Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.” “Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if – (a) the Central Authority of that State has ensured that the prospective adoptive parents agree; (b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin; (c) the Central Authorities of both States have agreed that the adoption may proceed; and (d) it has been determined ... that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.” “The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.” “1. The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied. 2. The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the ... adoptive parents. ...” “States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognise that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; ...” “An adoption shall be valid only if it is granted by a judicial or administrative authority (hereinafter referred to as the ‘competent authority’).” “1. ... an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; (b) the consent of the spouse of the adopter. 2. The competent authority shall not: (a) dispense with the consent of any person mentioned in paragraph 1 of this Article, or (b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law. ...” “1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother. 2. When the rights and obligations referred to in paragraph 1 of this Article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. ...” 101. In her report to the European Parliament, Baroness Nicholson of Winterbourne, noting with satisfaction the progress made by Romania in consolidating the rule of law and respect for human rights, emphasised in her capacity as rapporteur that the situation of children in Romania required further improvements. She noted that the fate of children in institutions remained a major cause for concern and a problem in terms of fundamental rights, with an impact on the accession procedure. 102. The following provisions and aspects of domestic law and practice are relevant to the present case. “(1) Adoption is a special measure for the protection of the child’s interests, establishing a parental relationship between the adopter and the adopted person and family ties between the child and the members of the adopter’s family. ... (3) An adoption order shall take effect on the date when a judicial decision [granting the application for adoption] becomes irrevocable.” “(1) The following shall be required for an application for adoption to be granted: (a) the consent of the adopted person’s parents or, as appropriate, parent ...; (b) the approval of the Child Welfare Board for the child’s place of residence; (c) the consent of the child if he or she is ten or more years of age; (d) the consent of the person or family adopting the child. (2) If ... the child has been declared to have been abandoned in a final court decision, the consent referred to in section 7(1)(a) shall not be necessary.” “(1) The court shall decide on the application for adoption in private, as a panel of two judges ... (2) The following shall be summoned to attend the hearing: the Child Welfare Board which approved the adoption, representing the child; the person or family wishing to adopt; and the Romanian Committee for Adoption. State Counsel’s attendance shall be compulsory. ... (3) The court may examine any evidence admitted by law. (4) The consent of the child, if he or she is aged ten years or more, shall be obtained in court.” “The child shall acquire the surname of the person who adopts him or her. ... Pursuant to an irrevocable decision by the court that makes the adoption order, the relevant registry office shall draw up a new birth certificate for the child, on which the adoptive parents shall be entered as the biological parents. The previous birth certificate shall be retained, with a marginal note referring to the issuing of the new document.” “(1) An adoption order may be set aside or revoked in accordance with the law. (2) An adoption order may be revoked at the request of the child, if he or she is aged ten years or more, or of the Child Welfare Board for the child’s place of residence, if revocation is in the child’s best interests. (3) The court [revoking an adoption order] shall also rule on the surname which the child is to take after the adoption order has been revoked.” “In order to ensure the best interests of a child in difficulty, the Child Welfare Board may order: ... (e) the placement of the child in the care of a specialist public welfare institution or a licensed private institution.” “If the child has been declared to have been abandoned in a final judicial decision ... parental rights shall be exercised by the county council, through the Child Welfare Board.” “(1) The Romanian Committee for Adoption shall be structured and shall act as a specialist body under the authority of the Government with the purpose of supervising and supporting activities for the protection of children’s rights through adoption and ensuring international cooperation in this field. (2) The Romanian Committee for Adoption shall be the central Romanian authority responsible for assuming the obligations laid down in the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption ...” “The National Authority for Child Protection shall act as a specialist body of the central Government, with legal personality and under the authority of the Ministry of Labour, Social Solidarity and Family Affairs.” “The Authority shall have the following duties: ... (f) proposing that the relevant authorities suspend or terminate any activities that pose a serious and immediate danger to the health or physical or psychological development of children, and withdrawing the operating licences of the legal entities responsible; (g) taking action to prevent or put an end to the consequences of any acts or deeds contrary to the principles and rules laid down in international treaties on children’s rights and adoption to which Romania has acceded ...” “[From the date on which the adoption order becomes final], the rights and obligations of the adopted person in relation to the adopter shall be the same as those of a child born to a married couple in relation to his or her parents ...” “Children below the age of majority shall live with their parents ...” “Parents shall be entitled to request that their child be returned to them by any person having unauthorised custody of the child. The courts shall refuse to grant such a request if this would not be in the child’s interests. The child shall be consulted if he or she is aged ten years or more.” 103. These provisions were repealed and replaced by Government Emergency Ordinance no. 25/1997 on adoption (see paragraph 102, point 1, above). “1. False imprisonment shall be punishable by a prison sentence of between one and five years. 2. If ... the victim is a minor, the penalty shall be a prison sentence of between five and twelve years.” “1. Anyone whose legitimate interests have been adversely affected by measures and decisions taken during criminal proceedings may lodge a complaint. ...” “Complaints about measures or decisions taken by the public prosecutor or under his orders shall be submitted to the Principal Public Prosecutor.” 104. The Constitutional Court allowed an objection that section 7(1)(a) and (2) of Government Emergency Ordinance no. 25/1997 on the rules governing adoption was unconstitutional on the ground that, in the case of a child who had been judicially declared to have been abandoned, it did not require the prior consent of the person or body entitled to exercise parental rights over the child in question. “2. Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.” “1. The constitutional provisions on citizens’ rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. 2. In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” “All proceedings relating to the adoption of Romanian children by persons and families of foreign nationality shall be suspended ... for a period of twelve months from the date on which this Ordinance comes into force.” “During the period referred to in section 1, the National Authority for Child Protection and Adoption and the Ministry of Justice shall review the rules governing international adoption, in order to bring the national legislation into line with the relevant international law and practice.” | 1 |
train | 001-71859 | ENG | MDA | ADMISSIBILITY | 2,005 | GRITCO v. MOLDOVA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Margareta Gritco, is a Moldovan national who was born in 1940 and lives in Chişinău. The applicant and her husband were married in 1959. On 10 June 1998 the applicant’s husband placed 14,600 Moldovan lei (MDL) on a three-month deposit account in a private bank, with 16% annual interest. On 27 July 1998 he asked the bank for early termination of the contract and the repayment of his money. The bank did not comply with his request. The applicant’s husband brought an action against the bank, seeking the termination of the deposit contract and the repayment of his money and interest. By a judgment of 6 October 1998 the Râşcani District Court ruled in favour of the applicant’s husband and ordered the bank to pay him MDL 16,000. On 22 October 1998 the judgment became final and enforceable. On 14 June 1999 the National Bank of Moldova issued a decision suspending the bank’s licence. It also ordered liquidation procedures to be commenced and appointed an administrator for that purpose. In 1999 the applicant’s husband brought a new action against the bank, seeking compensation for inflation. On 28 July 1999 the Râşcani District Court ruled in his favour and ordered the bank to pay him MDL 20,262. On 13 August 1999 the judgment became final and enforceable. On 22 October 1999 the applicant’s husband asked the administrator to enforce the judgments of 6 October 1998 and 28 July 1999. The latter did not reply to his request. On an unspecified date, the applicant’s husband brought an action against the National Bank, seeking the payment of the money owed to him by the private bank. He argued that the National Bank was the regulatory authority in respect of all financial institutions and should be held responsible for the bankruptcy of the private bank. On 9 June 2000 the Râşcani District Court dismissed the applicant’s husband’s action. It found that the National Bank was not responsible for the private bank’s obligations towards its clients. On 7 November 2000 the Chişinău Regional Court dismissed his appeal against the judgment of 9 June 2000. By a final judgment of 6 February 2001 the Court of Appeal dismissed the applicant’s husband’s appeal on points of law. On 10 February 2001 the applicant’s husband died. On 16 August 2001 the applicant received an inheritance certificate and became the sole owner of his part of their joint property. On an unspecified date, the applicant’s husband sent a letter to the Ministry of Justice and complained about the non-enforcement of the judgments in his favour. On 6 July 1999 the Ministry readdressed the letter to the President of the Râşcani District Court and requested the court to respond to the applicant’s request. On 24 September 1999 the President of the Râşcani District Court and the Bailiff replied to the applicant’s husband that the bank did not have money in its accounts or other assets. They also informed him that the enforcement warrants had been given to the administrator of the bank, who should ensure their enforcement. On 22 October 1999 the applicant’s husband’s requested the administrator to enforce the judgments. On 25 October 1999 the latter informed him that the bank was subject to a liquidation procedure and that the judgments could not be enforced. Following the applicant’s complaint to the Parliament about the non-enforcement of the judgments, on 2 May 2001 the National Bank informed her that the payment would be made as soon as the loans, which had been previously granted by the bank, were reimbursed and that the administrator had initiated numerous proceedings for their reimbursement. It also informed her that the National Bank could not be held responsible for a private bank’s obligations towards its clients. On 9 July 2001 and 5 November 2001 the Administration of the President replied to the applicant’s complaints about the non-enforcement of the judgments and informed her that the Parliament of the Republic of Moldova had created a working commission, with the aim of examining the situation of bankrupt banks and the mechanism of reimbursement of deposited money. The relevant domestic law was set out in Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, § 12, 15 June 2004. | 0 |
train | 001-80073 | ENG | BGR | CHAMBER | 2,007 | CASE OF GANCHEV v. BULGARIA | 3 | Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 4. The applicant was born in 1940 and lives in Velingrad. 5. On 11 November 1999 the applicant was arrested and brought before an investigator who decided to remand him in custody on charges of sexual assault allegedly committed against a minor on 20 October 1999, an offence punishable with up to five years' imprisonment under Article 149 § 1 of the Criminal Code. The investigator's decision was confirmed by a prosecutor. 6. On 18 November 1999 the investigator conducted searches in the applicant's home. 7. On 29 March 2000 the applicant was released. 8. In the course of the investigation a number of witnesses, the alleged victim and the applicant were heard and several forensic and medical reports were drawn up. 9. On 5 February 2001 the investigator submitted his conclusions to the prosecutor, proposing that the applicant should be indicted for sexual assault. 10. On 10 April 2001 the District Prosecutor's Office referred the case back to the investigator instructing him to undertake further investigation as to whether the applicant had raped the same girl on 9 November 1999, as alleged by her. 11. Since the alleged victim had changed her address and could not be located, the investigation could not proceed and was suspended on 1 October 2003. 12. In October 2003 the case file was transmitted to the district police in Velingrad with instruction to continue seeking the alleged victim's address. It appears that as of September 2006, the date of the latest communication received from the parties, the investigation remained suspended. 13. The relevant provisions of the Code of Criminal Procedure (“CCP”) concerning decisions on pre-trial detention and the Bulgarian authorities' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003XII (extracts)). 14. A legislative amendment that entered into force on 2 June 2003 introduced a possibility for an accused person to request that his case be brought for trial if the investigation has not been completed within two years in cases concerning serious offences and one year in all other cases (Article 239a CCP as in force until April 2006). In accordance with section 140 of the transitory provisions to the 2003 amendment, that possibility applies with immediate effect in respect of investigations opened before June 2003. In April 2006, Article 239a was superseded by Articles 368 and 369 of the new CCP, which have the same wording. 15. The procedure under those provisions is as follows. The accused person must submit a request to the relevant court which has seven days to examine the file. It may refer the case back to the prosecuting authorities or terminate the criminal proceedings. If the case is referred to the prosecutors, they have two months to file an indictment with the trial court or to terminate the proceedings failing which the court is under a duty to terminate the proceedings against the accused person who had filed the request. 16. The 2003 amendment was introduced in Parliament with the reasoning that it was necessary to secure observance of the right to trial within a reasonable time as guaranteed by the Convention. | 1 |
train | 001-112446 | ENG | HUN | CHAMBER | 2,012 | CASE OF FÁBER v. HUNGARY | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant was born in 1969 and lives in Budapest. 6. On 9 May 2007 the Hungarian Socialist Party (MSZP) held a demonstration in Budapest to protest against racism and hatred (hereinafter: MSZP demonstration). Simultaneously, members of Jobbik, a legally registered right-wing political party assembled in an adjacent area to express their disagreement. The applicant, silently holding a so-called Árpád-striped flag in the company of some other people, was observed by police as he stood nearby, at the steps leading to the Danube embankment (the location where in 1944/45, during the Arrow Cross regime, Jews were exterminated in large numbers). His position was close to the MSZP event and a few metres away from the lawn of the square where the Jobbik demonstration was being held. According to the testimonies which the police officers subsequently gave in court, they had been instructed not to tolerate the Árpád-striped flag if it was displayed closer than 100 metres to the MSZP demonstration. The applicant and other witnesses later stated in court that the holders of the Árpád-striped flag were called “fascists” and “arrow-crossers” by the bystanders. The police supervising the scene called on the applicant either to remove the banner or leave. The applicant refused to do so, pointing out that this flag was a historical symbol and that no law forbade its display. Subsequently he was committed to the Budapest Gyorskocsi Police Holding Facility, where he was held in custody and under interrogation for six hours. After he had been released, the Budapest 5th District Police Department fined him 50,000 Hungarian forints (approximately 200 euros) for the regulatory offence of disobeying police instructions. The applicant’s complaint to the Pest Central District Court was to no avail. 7. On appeal, the court held hearings on 7 December 2007 and 21 February 2008 and upheld the applicant’s conviction. The court was satisfied that his conduct had been of a provocative nature, likely to result in unruliness in the context of the ongoing Socialist demonstration, and that his right to free expression could not be considered as reaching so far as to cause prejudice to public order. Despite the opinion of a heraldic expert, submitted by the applicant and stating that the flag in question was a historical one, the court considered its display offensive in the circumstances, because it had been placed higher than the national flag representing the Republic of Hungary. Therefore, the applicant’s behaviour was considered to have been provocative. 8. Act no. XX of 1949 on the Constitution (as in force at the material time) provides: “(1) In the Republic of Hungary everyone has the right to freedom of expression and speech, and to access and distribute information of public interest.” “(1) The Republic of Hungary recognises the right to peaceful assembly and ensures the free exercise thereof.” 9. Act no. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides: “The right of assembly is a fundamental freedom guaranteed for everyone. The Republic of Hungary recognises this right and ensures its undisturbed exercise.” “(1) In the framework of the exercise of the right of assembly, peaceful gatherings, marches and demonstrations (henceforth jointly: assemblies) may be held where the participants may freely express their opinion. ...” “(1) The order of the assembly shall be secured by the organiser. (2) The police and other competent bodies shall, upon the organiser’s request, contribute to the maintenance of the order of the assembly and arrange for the removal of persons disturbing the assembly.” “(1) Where the exercise of the right of assembly violates section 2(3) or the participants appear bearing arms or carrying weapons or in an armed manner, or hold an assembly subject to prior notification despite a prohibiting decision, the assembly shall be dispersed by the police. (2) The dispersal of the assembly shall be preceded by a warning.” 10. Act no. LXIX of 1999 on Administrative Offences provides: “(1) Anyone who a) fights or invites another person to fight, b) in case of disturbance or disorderly conduct manifests disobedience to a measure imposed by the acting official person, shall be punishable with imprisonment or a fine up to HUF 150,000. (2) Anyone who appears at a public assembly a) possessing firearms or ammunition or any tool suitable for killing or causing bodily injury, b) disobeying the organiser’s or the police’s security-related instructions shall be punishable with a fine up to HUF 50,000. (3) The perpetrator of the administrative offence specified in subsections (1)-(2) may also be subjected to a ban. (4) Proceedings for the administrative offence specified in subsection (1) fall within the competence of the court, whereas proceedings for the administrative offence specified in subsection (2) fall within the competence of the police. (5) For the purposes of this Act, public assembly means: an assembly falling within the ambit of the Act on the Right to Freedom of Assembly and accessible for anyone under identical conditions.” 11. Section 143 of Act no. CV of 2004 on Defence and the Hungarian Defence Force (as in force at the material time) lists the Árpád-striped flag as one of the historical Hungarian banners. 12. Government Decree no. 218/1999. (ХП.28.) on Certain Administrative Offences provides as follows: “(1) A fine of up to HUF 50,000 may be imposed on a person who disobeys the lawful measures of a professional member of a law enforcement body.” 13. Decision no. 75/2008. (V.29.) AB of the Constitutional Court contains the following passages: “1. The Constitutional Court establishes that the right of assembly recognised in Article 62(1) of the Constitution also covers the holding of events organised in advance including peaceful events where the assembly can only be held shortly after the causing event. In addition, the right of assembly covers assemblies held without prior organisation. 2. The Constitutional Court holds that it is a constitutional requirement following from Article 62(1) of the Constitution that in the application of section 6 of Act no. III of !989, the obligation of notification pertains to organised events to be held on public ground. It is unconstitutional to prohibit merely on the basis of late notification the holding of such peaceful assemblies that cannot be notified three days prior to the date of the planned assembly, because of the nature of the causing event.” 14. Decision no. 55/2001. (XI. 29.) AB of the Constitutional Court contains the following passages: “... In so far as the necessity of restricting the right of assembly is concerned, an independent examination should be made on the restriction realised in the form of the obligation to give notification in advance of assemblies planned to be held on public places of any kind, and on the restriction realised in the form of the right of the authorities to prohibit in certain cases the holding of the assembly. In the opinion of the Constitutional Court, the necessity of applying the obligation of notification to assemblies to be held on public grounds is justified by the fact that, in line with the detailed definition in section 15(a) of Act no. III of 1989, public ground is an area, road, street or square with unlimited access for everyone. Here, unlimited access for everyone means that both the participants in the assembly and everyone else who does not participate therein should have equal access to the public ground. The possibility to use the public ground is a precondition not only for the enforcement of the freedom of assembly but for that of another fundamental right as well: the right of free movement guaranteed in Article 58 of the Constitution.” 15. The Report of the European Commission against Racism and Intolerance on Hungary (fourth monitoring cycle), adopted on 20 June 2008, contains the following passages: “61. Since [the Report of the third monitoring cycle], and apparently building on, at least in part, a series of highly charged anti-government demonstrations at the end of 2006, there has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard (Magyar Gárda) – a group bearing close ties to a well known radical right-wing political party – is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group’s chief messages is the defence of ethnic Hungarians against so-called “Gypsy crime”. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported. 62. In January 2008, the Prosecutor General initiated court proceedings to ban the Hungarian Guard.” 16. In Kivenmaa v. Finland (Communication No. 412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994)), the United Nations Human Rights Committee held as follows: “9.2 The Committee finds that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant. In the circumstances of this specific case, it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. Insofar as the State party contends that displaying a banner turns their presence into a demonstration, the Committee notes that any restrictions upon the right to assemble must fall within the limitation provisions of article 21. A requirement to pre-notify a demonstration would normally be for reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Consequently, the application of Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant. 9.3 The right for an individual to express his political opinions, including obviously his opinions on the question of human rights, forms part of the freedom of expression guaranteed by article 19 of the Covenant. In this particular case, the author of the communication exercised this right by raising a banner. It is true that article 19 authorizes the restriction by the law of freedom of expression in certain circumstances. However, in this specific case, the State party has not referred to a law allowing this freedom to be restricted or established how the restriction applied to Ms. Kivenmaa was necessary to safeguard the rights and national imperatives set forth in article 19, paragraph 2(a) and (b) of the Covenant.” 17. In its decision no. BVerfG, 1 BvR 961/05 of 6 May 2005, the Federal Constitutional Court of Germany held that, in the light of the specific circumstances arising from the location and time of the demonstration, it was constitutionally acceptable to restrict the route of a planned extreme right-wing rally, despite its prior announcement, in order to defend the dignity of the Jewish victims of Nazi violence and tyranny. The Constitutional Court, appreciating the historical origins of the Federal Republic of Germany, upheld, in derogation from the principle of priority, the restriction of the earlier announced demonstration in favour of a commemorating assembly on the concerned location with special regard to the anniversary of the surrender in World War II. 18. The current position of the Supreme Court of the United States is summarised in Virginia v. Black, 538 U.S. 343 (2003), in the context of cross burning (a traditional threatening activity of the Klu Klux Klan). According to this judgment, the burning of a cross is a “symbol of hate”, regardless of whether the message is a political one or also meant to intimidate. And while cross-burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. The protections afforded by the First Amendment are not absolute, and the government may regulate certain categories of expression, including the ban of a “true threat”. Intimidation, in the constitutionally proscribable sense of the word, is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The fact that cross-burning is a symbolic expression does not resolve the constitutional question. Sometimes the cross-burning is a statement of ideology, a symbol of group solidarity. The Supreme Court required effort to distinguish among these different types of cross-burnings and considered the contextual factors that were necessary to decide whether a particular cross-burning was intended to intimidate. The Supreme Court went on to state: “It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, «The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law» (Virginia v. Black, 538 U.S. 343, 366-7 (2003)). The impact of (undeniably outrageous) speech on a funeral procession was considered in Snyder v. Phelps (131 S.Ct. 1207 (2011). Members of a church picketed within 200 to 300 feet from a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The Supreme Court held: “In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment ... funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But [it] addressed matters of public import on public property, in a peaceful manner... The speech ... did not itself disrupt that funeral ... Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate” (Snyder v. Phelps, 131 S.Ct. 1207, 1219 (2011)). In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court upheld a municipal ban on residential picketing that had been adopted in response to the picketing by anti-abortion protestors of the home of a physician who performed abortions. Here the offensive and disturbing picketing focused on a “captive” home audience. | 1 |
train | 001-85950 | ENG | CZE | ADMISSIBILITY | 2,008 | BARTECKOVA AND DZIERZENGA v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicants, Ms Irena Bartečková and Mr Josef Dzierženga, are Czech nationals who were born in 1930 and 1943 respectively and live in Bohumín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 October 1993 the applicants brought an action in the Ostrava District Court (okresní soud) for reinstatement and recovery of real estates which were used by the State Fishing Enterprise without any legal title. It appears that the proceedings are still pending. On 2 October 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. They claimed CZK 820,000 (EUR 31,810) respect of pecuniary and non-pecuniary damage. In a letter of 31 January 2007 the Ministry of Justice informed them that their application had been accepted, that it had been found that their right to a determination of their civil claim within a reasonable time had been violated and that they had been awarded a sum of CZK 144,000 (EUR 5,602) in respect of non-pecuniary damage they might have sustained. The Ministry refused, however, the applicants’ claim regarding compensation for pecuniary damage. On 9 June 2007 the applicants informed the Registry that they would introduce a civil action under section 15(2) of Act no. 82/1998 as amended. Moreover, in a letter of 6 November 2007, they notified the Registry that they had brought proceedings for compensation for pecuniary damage before the Ministry of Justice. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-68404 | ENG | RUS | CHAMBER | 2,005 | CASE OF POZNAKHIRINA v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed | Christos Rozakis | 4. The applicant was born in 1951 and lives in Novovoronezh, Voronezh Region. 5. In 1999 the applicant brought proceedings against the Chief Department of Finance of the Voronezh Region to claim welfare payments to which she was entitled in respect of her child. 6. On 5 January 2000 the Novovoronezh Town Court of the Voronezh Region awarded the applicant 3,387.87 roubles (RUR). This judgment entered into force on 15 January 2000. 7. On 10 February 2000 the enforcement order was issued and sent to the bailiff service of the Tsentralnyy District of Voronezh. 8. On 10 April 2000 the applicant complained to the Department of Justice of the Voronezh Region about the bailiffs’ failure to execute the judgment in her favour. 9. On 20 April 2000 the Department of Justice of the Voronezh Region informed the applicant that her award would be enforced in accordance with the order of priority set out by the Federal Law on Enforcement Procedure. 10. On 26 June 2001 the bailiff terminated execution proceedings in respect of the judgment of 5 January 2000, as the debtor had no sufficient funds. The applicant was suggested to bring an action against the Administration of the Voronezh Region. 11. On 13 February 2002 the Tsentralnyy District Court of Voronezh granted the applicant’s request to resume enforcement proceedings. In this decision the court dismissed the bailiff’s argument that an action against the Administration of the Voronezh Region was necessary to secure execution of the judgment against the Chief Department of Finance. The court found that the judgment of 5 January 2000 could be enforced as it stood. 12. The sum awarded has not been paid to the applicant. | 1 |
train | 001-81944 | ENG | UKR | CHAMBER | 2,007 | CASE OF SHANKO v. UKRAINE | 4 | Violation of Art. 6-1 | Peer Lorenzen | 4. The applicant was born in 1934 and lives in Poltava. He is a former manager of the State Company “Znamya” (the “Company”; Державне підприємство «Виробниче об'єднання «Знамя»). 5. In 1996 the applicant was convicted and sentenced for embezzlement of the Company funds and his conviction became final. Since then the applicant has unsuccessfully attempted to have the proceedings re-opened and the conviction repealed. 6. In August 1996 the Poltava Regional Prosecutors' Office, acting on behalf of the Company, brought a civil claim against the applicant for compensation of damage caused by his offence. 7. The hearings began in March 1998. Until February 2000 the court scheduled some thirteen hearings with intervals ranging from one week to six months. Seven hearings were adjourned on account of the applicant's absences or requests and four hearings on account of the absence of both parties. According to the applicant, most of his absences were attributable to defective notifications about the date of a hearing. The Government did not comment on this issue. 8. On 17 February 2000 the District Court allowed the claim and awarded the Company 96,682 hryvnyas against the applicant. The applicant appealed. 9. On 20 May 2000 the District Court returned the applicant's appeal as “not lodged” on account of his failure to pay the court fee. The applicant appealed, seeking to be exempted from the payment. 10. On 12 October 2000 the local municipal council exempted the applicant from paying the court fee and on 16 November 2000 the Regional Court declared his appeal admissible. 11. On 7 December 2000 the Regional Court quashed the judgment of 17 February 2000. 12. Between January 2001 and May 2002 the District Court scheduled three hearings (in April and November 2001 and March 2002). One hearing was adjourned on account of the judge's sickness and two other hearings on account of the parties' failure to appear. 13. On 22 May 2002 the District Court left the claim without consideration due to the parties' second failure to appear for the hearings. This decision was not appealed against within the statutory time-limit and became final. 14. On 11 December 2002 the Prosecutor's Office applied to the District Court for leave to appeal out of time against the decision of 22 May 2002 maintaining, that it had not been informed of this decision within the time-limit for lodging an appeal. The application was granted on 17 January 2003. 15. On 15 May 2003 the Regional Court allowed the appeal and re-opened the proceedings, having found that the parties had not appeared as the District Court had not duly notified them about the dates of the hearings. The applicant lodged a cassation appeal against the decision to re-open the proceedings. 16. On 20 September 2004 the Supreme Court rejected the applicant's cassation appeal. 17. Between October 2004 and July 2005 the District Court scheduled three hearings (one in May and two in July 2005). 18. In July 2005 the plaintiff dropped the claims and on 14 July 2005 the proceedings were terminated. | 1 |
train | 001-86227 | ENG | RUS | CHAMBER | 2,008 | CASE OF GALICH v. RUSSIA | 3 | Violation of Art. 6-1;Non-pecuniary damage - award | Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 6. The applicant was born in 1952 and lives in Omsk. 7. In May 2000 the applicant lent a sum of money to a private person, Mr M. The amount of the debt was linked to the exchange rate of the United States dollar. Mr M. failed to repay the full amount in due time, and on 19 April 2001 the applicant brought a civil action against him. The applicant sought to recover 141,800 Russian roubles (RUB) on account of the outstanding debt, plus statutory interest for the period of delay (проценты за неисполнение денежного обязательства). The amount of statutory interest was calculated on the basis of the refinancing rate of the Central Bank of Russia. 8. In the domestic proceedings the applicant was represented by a lawyer. Mr M., the defendant, claimed that he had returned RUB 45,000 to the applicant. However, he acknowledged the remainder of the principal debt, and accepted the calculations of statutory interest. 9. On 15 January 2002 the Kirovskiy District Court of Omsk partially granted the applicant’s claim. The court found that a part of the debt (RUB 45,000) had already been paid to the applicant. Given the exchange rate of the United States dollar at that moment, the court awarded the applicant RUB 106,500 (equivalent to 3,970 euros (EUR)) on account of the outstanding debt, plus RUB 34,611 (equivalent to EUR 1,290) as statutory interest under Article 395 of the Civil Code for 491 days of delay in paying the outstanding debt. To calculate the interest the court applied the annual refinancing rate of the Central Bank of Russia, which amounted to 25% at the time. 10. The applicant appealed. In the points of appeal he contested the finding of the first-instance court that a part of the principal debt had been returned to him. 11. On 27 February 2002 the Omsk Regional Court examined the appeal and dismissed it. The issue of statutory interest was not raised by the parties during the appeal proceedings. However, the court proprio motu reduced the amount of statutory interest awarded to RUB 10,000 (EUR 373), stating as follows: “In addition to the principal debt the court ordered recovery of statutory interest, in accordance with Article 395 of the Civil Code of the Russian Federation. At the same time, in the opinion of the court of appeal, the amount of interest – 34,611 roubles 44 kopeks – is disproportionate to the consequences of the breach of the obligation and is excessive. Consequently, the appeal court (кассационная инстанция) deems it necessary, pursuant to Article 333 of the Civil Code of the Russian Federation, to reduce the amount of the penalty to 10,000 roubles.” The overall amount awarded to the applicant was therefore reduced to RUB 116,500. That decision became final. 12. Article 395 of the Civil Code (“Responsibility for non-compliance with a monetary obligation”) provided, insofar as relevant, as follows: “For the use of monetary assets belonging to another person, as a result of their unlawful withholding, or the failure to pay them back ... a [statutory] interest should be paid .... The amount of that interest is defined as the refinancing rate [of the Central Bank of Russia] ... applicable in the place of residence of the creditor ... on the day of the execution of the monetary obligation. If the monetary debt is recovered through the court, the court may award [statutory] interest on the basis of the refinancing rate applicable on the day of lodging of the claim, or on the day of the delivery of the judgment. These rules are applicable unless another rate has been fixed by the law or by an agreement [between the parties] ...” 13. Article 333 of the Civil Code (“The Reduction of the Penalty”), insofar as relevant, stipulates as follows: “If a penalty due [for a violation of a contractual obligation] is obviously out of proportion to the consequences of the violation of the civil obligation, the court has the right to reduce the amount of the penalty ...” 14. Pursuant to Joint Ruling no. 13/14 by the Russian Supreme Court and the Supreme Commercial Court of 8 October 1998, Article 333 is applicable to the statutory interest provided under Article 395. In deciding whether or not to reduce the statutory interest payable, the courts “should take into account the fluctuation of the refinancing rate of the Central Bank during the period of delay, as well as other circumstances which may affect the rates of interest”. 15. Article 294 (“Scope of review of the case by the court of appeal”) of the Code of Civil Procedure of 1964, then in force, stipulated: “The [court of appeal] shall verify the legality and reasonableness of the first-instance court judgment within the scope of the appeal. It may examine new evidence and establish new facts. The court shall examine newly submitted evidence if it considers that the evidence could not have been submitted to the first-instance court. In the interests of legality, the court of appeal may examine the decision of the first-instance court in its entirety.” | 1 |
train | 001-95771 | ENG | UKR | CHAMBER | 2,009 | CASE OF KABOULOV v. UKRAINE | 3 | Preliminary objections dismissed;No violation of Art. 2 (in case of extradition to Kazakhstan);Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-1-f;Violation of Art. 5-2;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 34;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. The applicant was born on 14 August 1979. The applicant claims to be Mr Amir Damirovich Kubulov, a citizen of the Russian Federation. He also claims that he has citizenship of the Republic of Kazakhstan. The applicant is currently detained in the Poltava pre-trial detention (“the Poltava SIZO”) of the State Department for Enforcement of Sentences. 12. On 16 June 2003 an unidentified person murdered Zh.U.Zh. On the same date the Ministry of the Interior of Kazakhstan launched a criminal investigation into the murder. 13. On 28 June 2003 the applicant was accused in Kazakhstan, in his absence, of having committed a crime under Article 96(1) of the Criminal Code of Kazakhstan (murder). On the same date an investigator the Ministry of the Interior decided that the applicant should be detained. 14. On 4 July 2003 the Ministry of the Interior of Kazakhstan (“the MIK”) issued an international search warrant for the applicant on suspicion of his having committed aggravated murder, involving capital punishment as a sanction (Article 96(2) of the Criminal Code of Kazakhstan). 15. The facts surrounding the applicant's initial detention may be summarised as follows. 16. It was agreed by the parties that the applicant had been picked up at 9.20 p.m. on 23 August 2004 and detained thereafter, although there was no agreement as to where and why the applicant was detained. They provided various documents certifying what happened in the period from 9.20 p.m. on 23 August 2004 to 7.30 p.m. 25 August 2004, which can be summarised as follows. 17. According to a document entitled “Record of arrest based on suspicion of involvement in a crime” (“Протокол о задержании по подозрению в совершении преступления”; hereafter - the “detention record”), issued by Major Tsarruk of the Dniprovsky District Police Department of Kyiv, a police patrol stopped the applicant, described as Amir Damirovich Kubulov, born on 14 August 1979, residing at 86, Zenkova Street, Almaty, Kazakhstan, on 23 August 2004 at 9.20 p.m. The detention record was dated with the same date and time. 18. In smaller print, in what appear to be standard blocks of text, the following grounds for arrest (основания задержания) are set out: “(...) 1. Person had been arrested at the moment of committing a crime or in flagranto; 2. The witnesses of a crime and its victims have identified this person as an offender; 3. Traces of crime were found on the suspect or his clothes, with him or in his place of residence; 4. [There is] other data, giving grounds to suspect the person in committing a crime, if he/she tried to escape or has no permanent place of residence or when the identity of the suspect has not been established.” 19. The detention record also set out, again in small print, reasons for the applicant's arrest (мотивы задержания): “To prevent crime. 1. To prevent a possibility of disappearing from the investigation and the court, ensuring enforcement of a criminal sentence. 2. To prevent events which would hinder the establishment of objective truth in the criminal case.” 20. The detention record then noted, in large print, that the applicant was suspected of involvement in the crime envisaged in Article 96 § 1 of the Criminal Code of Kazakhstan. The detention record was signed by Major Tsarruk and stated that the applicant had been “familiarised” with the reasons for his detention (the applicant signed it and marked it stating that he familiarised with it in Russian language - “ознакомлен”), and with his rights and duties, as it was provided by Article 10 of the Regulation “On temporary detention of persons suspected in committing of crime”. It contained no exact date and time when the applicant had been familiarised with the reasons for his detention. After the applicant's signature, the record stated that the prosecutor had been informed about the applicant's arrest at 10.00 p.m. on 23 August 2004. 21. In their further observations of 13 March 2007 the Government contended that after his apprehension at 9.20 p.m. on 23 August 2004 under Article 115 of the Code of Criminal Procedure and Article 10 of the Regulation of 13 July 1976 “On the temporary detention of persons suspected of having committed a criminal offence” (see paragraphs 65 - 67 below), the applicant stayed at the Dniprovsky District Police Station. In particular, they referred to the aforementioned detention record. The Government also stated that the applicant had been familiarised with the reasons for his detention after 10.00 p.m. on the same day. They did not specify when. 22. In their further observations of 23 May 2007 the Government stated that the applicant was taken to the sobering up facility at 9.25 p.m. on 23 August 2004. They referred to a written reply of 4 April 2007 to a request of the Dniprovsky Prosecutor dated 28 March 2007. In reply the centre's director informed the District Prosecutor that the applicant arrived at the facility at 9.25 p.m. on 23 August 2004 and left it at 7.30 a.m. on 24 August 2004. The director also stated that the applicant had been diagnosed with acute alcohol intoxication with perception, psychic and behavioural disorders. 23. According to the medical card concluded by the sobering up facility (Kyiv City Narcological Clinical Hospital “Sociotherapy” of the Ministry of Health), the applicant arrived there at 9.25 p.m. on 23 August 2004. The medical card also provided that the applicant's diagnosis of alcohol intoxication and respective disorders had been established on 24 August and that he had stayed in the facility for two nights. The centre's contemporaneous records note the applicant as having been brought to the centre from Malyshka street in the Dniprovsky District of Kyiv by a Mr Kolomiyets. The card states that the applicant stayed at the sobering up facility from 9.25 p.m. on 23 August 2004 to 7.30 a.m. on 25 August 2004, that is, for two nights. 24. On 24 August 2004 the MIK, in reply to request of the Ministry of the Interior of Ukraine, confirmed to the Kyiv Department of the Interior that the applicant was wanted as a murder suspect. 25. The applicant, through his mother's submissions to the Kyiv City Court of Appeal (Апеляційний суд міста Києва) on 13 September 2004, contended that he had been taken directly to the sobering up facility on 23 August 2004 as he had no identity papers with him, and, in his observations of 21 October 2005 he stated that the detention record dated 9.20 p.m. on 23 August 2004 had been prepared only after his identity had been established and the authorities were aware that the applicant was wanted by the law enforcement authorities of Kazakhstan. 26. On 3 September 2004 the MIK established that Mr Kaboulov was a citizen of Kazakhstan. 27. On the same date the General Prosecutor's Office (“GPO”) of Ukraine informed the Kazakhstan GPO that the applicant had been apprehended in Ukraine and asked whether Kazakhstan intended to seek the applicant's extradition. 28. After his return to the police station, the applicant made an “explanatory statement” to a prosecutor, dated 8 September 2004, which was written for him in Ukrainian by the senior assistant of Kyiv prosecutor. The applicant confirmed its contents in Russian (“записано верно”). After stating that he had not committed any criminal offences, he added without mentioning any exact times, that he had been stopped by police officers on 23 August 2004, who took him to the sobering-up facility and after that to the police station, where he remained. 29. On 10 September 2004 the Deputy Prosecutor of Kyiv informed the Extradition Department of the GPO of Ukraine of the details as to the applicant's identity. In particular, it was established that the applicant's name was Mr Amir Damirovich Kaboulov and that he was a citizen of Kazakhstan only. The information also stated that he committed no crimes on the territory of Ukraine and did not have refugee status. 30. On 13 September 2004 the Dniprovsky prosecutor and the head of the Dniprovsky District Department of the Interior lodged a petition with the Dniprovsky District Court of Kyiv (“the Dniprovsky Court”; Дніпровський районний суд міста Києва) seeking a warrant for the applicant's detention in SIZO no. 13 of the State Department for Enforcement of Sentences. 31. On the same day the Dniprovsky Court, in the presence of the prosecutor and after having heard the applicant, issued a warrant for the applicant's detention on the grounds that there was a search warrant in respect of him in Kazakhstan and that the Ukrainian authorities were awaiting documents from the Kazakh authorities for his extradition to Kazakhstan. The court found that the applicant had been picked up drunk at Malyshka street by the police at 9.20 p.m. on 23 August 2004. The court noted that the applicant had explained to the police officers at the time of his arrest that he resided in Kyiv without registration. The court decided to detain the applicant in SIZO no. 13, and also ruled that the applicant's detention was not to exceed 30 days (that is, until 12 October 2004). The сourt further decided that the applicant should be detained on the basis of Articles 60 – 62 of the Minsk Convention, as he was to be extradited to Kazakhstan. The Court also referred to Articles 165 §§ 1 and 2 of the Code of Criminal Procedure. The applicant was informed of the possibility of lodging an appeal. 32. On 16 September 2004 the GPO of Kazakhstan requested the GPO of Ukraine to detain the applicant pending extradition. 33. On 18 September 2004 the GPO of Kazakhstan, by letter, confirmed the search warrant in respect of the applicant and requested his extradition to Kazakhstan on the grounds that on 30 June 2003 the applicant had been charged with non-aggravated murder (Article 96 § 1 of the Criminal Code) of Zh.U.Zh. They also stated that criminal proceedings had been pending against the applicant since 16 June 2003 and he had been on the wanted list since 28 June 2003. The GPO of Kazakhstan assured the Ukrainian authorities that the applicant would not be prosecuted for criminal offences different from those mentioned in the extradition proceedings without the consent of the Ukrainian authorities. 34. On 2 December 2004 the GPO of Kazakhstan, again by letter, gave additional assurances confirming that the applicant would not be liable to the death penalty in Kazakhstan and that his rights and lawful interests in the course of criminal proceedings would be adequately protected. They mentioned inter alia a moratorium on executions imposed by the Presidential Decree of 17 December 2003 until full abolition of the death penalty. 35. On 23 and 24 September 2004 the applicant's mother and his advocate in the domestic proceedings (Mr Priduvalov), respectively, appealed against the order of the Dniprovsky Court of 13 September 2004. They requested that the applicant be released subject to an undertaking not to abscond, until the applicant's identity had been verified. In particular, they claimed that the applicant was not a citizen of Kazakhstan, but a citizen of the Russian Federation and that the order referred to a different person. They also requested an extension of the time-limit for lodging an appeal as the applicant had not been informed about the possibility of doing so in good time. 36. On 27 September 2004 the Deputy Prosecutor General of Ukraine informed the GPO of Kazakhstan that the GPO of Ukraine agreed to extradite the applicant. The letter mentioned the need to organise the applicant's transfer to Kazakhstan. By a separate letter written on the same date, the Deputy Prosecutor General informed the Ministry of the Interior, the SDES and the Deputy Prosecutor of Kyiv that he approved the applicant's extradition and his transfer to Kazakhstan under guard. 37. On 5 and 10 October 2004 the applicant's lawyers (Mr Priduvalov and Ms Shevchenko) appealed against the failure of the judge of the Dniprovsky Court to pursue the appeal proceedings asked for by the applicant's mother and lawyer on 23 and 24 September 2004. On 7 October 2004 the Kyiv City Court of Appeal refused to consider the appeal on the grounds that it had been lodged out of time, and remitted it for a decision on its admissibility to the first-instance court (Articles 165 (2), sub-paragraphs 7 and 353 of the Code of Criminal Procedure), which on 16 November 2004 rejected the appeals lodged by the applicant's mother and Mr Priduvalov as his mother had no standing in the proceedings and the appeal had been lodged out of time, respectively. This ruling was not appealed. 38. On 14 October 2004 the applicant's mother requested the Governor of SIZO no. 13 to release the applicant from detention on the grounds that he was detained unlawfully. 39. On 15 October 2004 the applicant's advocate lodged a complaint with the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”; Шевченківський районний суд міста Києва) requesting that the applicant be released from SIZO no. 13. 40. On 23 October 2004 the applicant was transferred to Kharkiv SIZO no. 27 with a view to his further transfer to the competent authorities of the Russian Federation which were to hand the applicant over to the law-enforcement authorities of Kazakhstan. 41. On 24 November 2004 the applicant's extradition was suspended by the GPO of Ukraine, following the interim measure indicated to the Government of Ukraine under Rule 39 of the Rules of Court on 23 November 2004. 42. On 6 January 2005 the applicant lodged complaints with the Dniprovsky Court seeking a finding that his detention in Kharkiv SIZO no. 27 was unlawful. On 18 January 2005 the court refused to accept the applicant's complaint as it had been lodged with the wrong court, contrary to the requirements as to territorial jurisdiction. 43. On 11 April 2005 the applicant's lawyer, Mr Bushchenko, informed the Court that the applicant had requested refugee status in Ukraine and that this request was being examined. 44. On 30 November and 1 December 2004 the applicant's mother lodged administrative complaints with the Zhovtnevy District Court of Kharkiv (“the Zhovtnevy Court”; Жовтневий районний суд міста Харкова) requesting the applicant's release and a finding that the inactivity of the Governor of Kharkiv SIZO no. 27 in examining the applicant's complaints about his continued detention had been unlawful. 45. On 10 December 2004 the court refused to consider the complaint as it had been lodged under the Code of Civil Procedure. The court suggested that the applicant should re-lodge the complaint under Article 106 of the Code of Criminal Procedure (detention of a criminal suspect by the investigating body) as it concerned his detention and the criminal proceedings instituted against him in Kazakhstan. 46. On 24 March 2005 the Kharkiv Regional Court of Appeal (Апеляційний суд Харківської області) quashed the ruling of 10 December 2004 and decided not to examine the applicant's mother's complaints as she had no standing in the criminal proceedings against her son. 47. No appeal on points of law was lodged with the Supreme Court against this ruling. 48. On 7 and 10 December 2004 the applicant's lawyer in the domestic proceedings (Ms Shevchenko) and the applicant's mother each lodged a complaint with the Pechersky District Court of Kyiv (“the Pechersky Court”; Печерський районний суд м. Києва) against the GPO of Ukraine requesting that the applicant's extradition to Kazakhstan be prohibited. They also asked the court to declare the GPO of Ukraine's decision to extradite the applicant unlawful. They referred, inter alia, to Articles 5, 6, 7 and 13 of the European Convention on Human Rights, Article 55 of the Constitution of Ukraine and various provisions of the Code of Civil Procedure. A hearing in the Pechersky Court was scheduled to take place on 26 January 2005, but was adjourned to 28 January 2005. 49. On 28 January 2005 the Pechersky Court, in the absence of the representatives of the GPO of Ukraine, allowed the applicant's complaints, declared the decision to extradite the applicant to Kazakhstan unlawful and prohibited the GPO of Ukraine from extraditing the applicant. 50. On 28 February 2005 the GPO of Ukraine lodged an appeal with the Kyiv City Court of Appeal against the aforementioned judgment, requesting that the case be remitted for fresh consideration to the firstinstance court. They mentioned in the appeal that the applicant had been detained in Kyiv on 23 August 2004. On 14 and 17 March 2005 the applicant lodged counter-arguments against the GPO of Ukraine's appeal, referring inter alia to various provisions of the domestic and international law, including Article 5 § 1(f) of the Convention and Article 106 of the Code of Criminal Procedure. 51. On 27 May 2005 the Kyiv City Court of Appeal examined the GPO of Ukraine's appeal, quashed the decision of the Pechersky Court of 28 January 2005 and remitted the case for fresh consideration. In particular, it found that the Pechersky Court's judgment of 28 January 2005 had been adopted in the absence of the GPO of Ukraine's representatives, who had not been duly informed of the date and time of the hearing in the case, as required by Article 307 of the Code of Civil Procedure. 52. On 1 July 2005 the Pechersky Court terminated the proceedings on the grounds that the applicant had failed to comply with the procedure prescribed by law for introducing complaints in criminal proceedings. In particular, the court found that the complaints against the GPO of Ukraine should be examined in the course of criminal proceedings, in accordance with the procedural rules of the Code of Criminal Procedure (paragraphs 7 and 8 of Article 106 of the Code) and not as administrative complaints under the Code of Civil Procedure. 53. On 22 September 2005 the Kyiv City Court of Appeal upheld the ruling of 1 July 2005, finding it to be lawful. In particular, it referred to resolution no. 16 of the Plenary Supreme Court of 8 October 2004 and the relevant provisions of the Code of Administrative Justice (Articles 199, 200, 205 and 206), stating that as the applicant complained about lawfulness of his detention and his possible extradition, he had to appeal against it to the court in accordance with the rules enshrined in the Code of Criminal Procedure and the relevant provisions of the international treaty, which were applicable to extradition. 54. On 12 October 2005 the applicant appealed on points of law to the Higher Administrative Court against the ruling of 22 September 2005. The outcome of these proceedings is unknown. 55. On 20 December 2004 the applicant lodged complaints with the Zhovtnevy Court seeking a declaration that his detention in Kharkiv SIZO no. 27 was unlawful. He referred to Articles 29 and 55 of the Constitution, and Article 5 §§ 1, 3, 4 and 5 of the Convention. In particular, he alleged that the time-limit for his detention had expired on 12 October 2004 (thirty days after 13 September 2004, the date of the decision of the Dniprovsky Court to detain him). 56. On 25 January 2005 the court resumed the examination of the applicant's appeal. The hearing was adjourned until 7 February 2005 owing to the failure of the applicant's representative to appear before the court. 57. On 7 February 2005 the court decided to adjourn the examination of the applicant's appeal in order to obtain further evidence from the Pechersky Court and the GPO of Ukraine. The next hearing was scheduled for 4 March 2005, when the proceedings were again adjourned for the same reason. 58. On 14 April 2005 the court adjourned the proceedings pending the examination of the GPO of Ukraine's appeal against the decision of the Pechersky Court of 28 January 2005 (see paragraph 50 above). 59. On 7 September 2005 the Zhovtnevy Court rejected the applicant's complaints. In particular, it found that the applicant was detained in Kharkiv SIZO no. 27 not on the basis of the decision of the Dniprovsky Court of 13 September 2004, but on the basis of the extradition warrant (санкція) by the Deputy Prosecutor General and his decision to transfer the applicant under guard (етапувати та конвоювати) to Kazakhstan (see paragraph 36 above). Furthermore, the court referred to the fact that the extradition had been suspended in view of the proceedings pending before the European Court of Human Rights. It therefore found the applicant's detention to be lawful. It referred inter alia to Article 29 of the Constitution of Ukraine, Articles 56 – 62 of the Minsk Convention, Articles 165(1) and 165(2) of the Code of Criminal Procedure, as well as Article 5 §§ 1, 3 and 4 of the Convention. It also held that the applicant's name was “Amir Damirovich Kaboulov” and that he was a citizen of the Republic of Kazakhstan. 60. On 14 October 2005 the Zhovtnevy Court forwarded the case file to the Kharkiv Regional Court of Appeal with a view to the hearing of the applicant's appeal which was scheduled for 15 November 2005. The outcome of these proceedings is unknown. 61. The relevant domestic law and practice, including the relevant provisions of the Constitution of Ukraine, Codes of Civil and Criminal Procedure and the Code on Administrative Justice and the relevant extracts from the Supreme Court's practice, are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008). 62. Article 29 of the Constitution of Ukraine reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody. Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender. Everyone detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 63. The relevant provisions of the Convention are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008), and Ryabikin v. Russia (no. 8320/04, § 104, 19 June 2008). Other relevant extracts from the Convention read as follows: “The requesting Contracting Party shall immediately adopt the necessary measures for detention of a person whose extradition is requested, except in circumstances in which the person cannot be extradited.” Procedural relations with regard to extradition and criminal prosecution “Procedural relations with regard to extradition, criminal prosecution, and enforcement of investigative sanctions involving citizens' rights and necessitating the approval of the prosecutor shall be handled by the prosecutors general (prosecutors) of the Contracting Parties.” 64. According to section 11 § 5 of the Militia Act, persons arrested for alcohol intoxication in a public place, unable to walk, posing danger to themselves or others, shall be transferred by police that arrested them to specialised sobering-up facilities or to their home. They shall be held in police stations only if their address is unknown or there is no sobering-up facility in the locality. 65. According to the section 3 of the Regulation, each instance of detention of a suspect shall be documented. The relevant record shall contain reasons, grounds, motives, exact day and time, year and month, place where a suspect was arrested, explanations from detained and the time when the record was concluded. The record shall be signed by the suspect and a person who prepared it. The period of detention shall be calculated from the moment the suspect was brought to the relevant investigation body or from the actual moment of apprehension. 66. According to section 4 of the Regulation, the lawenforcement authorities must inform the prosecutor of any facts related to the detention of a person within twenty-four hours of the time he or she was apprehended. The prosecutor must issue a warrant for detention within forty eight hours from receipt of such information, or release the detained. 67. Section 10 of the Regulation envisaged that a record should be drawn upon person's apprehension and that this person should be informed of the rights of an apprehended suspect. 68. The relevant extracts provide as follows: “5. Cruel, inhuman or degrading treatment or punishment (Article 16) 5.1. The death penalty In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 “exceptionally grave” crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for “exceptionally grave” crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment. Amnesty International is concerned that the death penalty could be applied to acts committed outside Kazakhstan and ... concern is heightened in view of the documented failure of judges to exclude evidence extracted under torture and the numerous reports of the authorities using national and regional security and the fight against terrorism to target vulnerable groups such as asylum-seekers and groups perceived to be a threat to national and regional stability. .... 5.2. Prison conditions Whereas by all accounts Kazakhstan had implemented a successful reform of its penitentiary system ... the last two years have reportedly seen a decline in prison conditions, with many of the abusive practices reoccurring more and more often. 2007 saw a number of disturbances in prisons camps throughout the country with large groups of prisoners committing acts of self-mutilation, such as slicing their abdomens, hands and necks, reportedly in protest at deteriorating conditions of detention. The South Kazakhstan Regional office of the prosecutor opened a criminal case into the abuse of office, and the unlawful use of police equipment, by prison officials in relation to 77 prisoners committing acts of self-mutilation. The prosecutor's office was quoted by the press as admitting that prison officers had beaten and otherwise ill-treated prisoners. Nevertheless the prison officials were not charged under Article 347-1 (Torture). The prisoners themselves were charged with organizing disturbances in order to disrupt the functioning of the prison, a criminal offence under Article 361 of the Criminal Code punishable from one to up to 10 years' imprisonment. NGOs told Amnesty International that the conditions of detention in prisons had severely deteriorated since 2006 and that they were receiving increasing numbers of complaints of torture or ill-treatment from prisoners or from relatives. It was becoming increasingly difficult for prisoners to lodge complaints about torture or other ill-treatment by prison officers, according to these reports, because all correspondence was vetted by the prison administration and complaints could only be forwarded to the local prosecutor's office with the permission of the prison administrator, in contravention of the rights of prisoners and detainees. NGOs were told that prisoners had to pay the prison administration to see a medical doctor or to get medical treatment, or to send letters or make phone calls to their families, that they were often locked up in punishment cells for extended periods of time for either complaining about cruel, inhuman or degrading treatment or punishment or for disobeying orders by prison officers. Some methods of punishment meted out to prisoners reportedly included being forced to clean toilets with their bare hands and wash the floor naked.” 69. The relevant extracts from the Special Rapporteur's report provide as follows: “... 20. Moratorium on the death penalty In December 2003, the Senate proposed a moratorium on the death penalty. By presidential decree the moratorium was extended in January 2004 and the Criminal Code amended to introduce life imprisonment instead of capital punishment. With all human rights organizations, the Special Rapporteur welcomes this development, especially having in mind that 40 persons were executed in 1999; 22 in 2000 and 15 in 2001. Since the moratorium, only one death sentence was registered and the Supreme Court commuted it to life imprisonment.” 70. The relevant extracts from the Report read as follows: “.... Though there has been a moratorium on executions since December 2003 and life imprisonment has been a viable legal alternative to the death sentence since January 2004 -- both developments welcomed by the IHF -- this latest ruling signals that obstacles remain in Kazakhstan's journey towards abating the use of the death penalty and, eventually, abolishing it. With the moratorium in place, Ibragimov now goes to death row, joining 27 other inmates and awaiting his death should the political will of the Kazakh government break and lift the moratorium. ...” 71. The relevant extracts from the Report of the Committee against Torture read as follows: “... The Committee was concerned about the allegations of torture and other degrading treatment committed by law enforcement officials. The lack of independence of the [prosecutors], the defence counsel and the judiciary was also raised with concern. The Committee highlighted that allegations of torture are not being considered seriously, as reflected by the fact that investigations are being postponed and judges sometimes refuse to recognise evidence of torture. Another point of concern related to overcrowding and reduced access to medical care in prisons and detention centres. ... The Committee recommended that the crime of torture, as outlined in the Penal Code, be amended in line with the Convention. It urged the State Party to ensure a fully independent mechanism of complaints and enable the defence counsel to follow a case from the beginning and to gather evidence ...” 72. The relevant extracts from the analysis by the OSCE Office for Democratic Institutions and Human Rights on the death penalty (by means of shooting) in Kazakhstan, dated 20 November 2004, read as follows: “.... There are currently 27 persons on death row in Kazakhstan. Persons subjected to the moratorium are currently detained in pre-trial detention facilities. ... Official statistics provided by the Office of the Prosecutor-General indicate that nine death sentences were passed in the period from 30 June 2003 to 30 March 2004. No death sentences entered into force (i.e., all appeals stages exhausted) in this period. According to unofficial statistics, only one death sentence has been passed since the moratorium was put in place, but this was subsequently reduced to life imprisonment by the Supreme Court. ... Official statistics provided by the Office of the Prosecutor-General indicate that no executions were carried out in the period from 30 June 2003 to 30 March 2004. ... All persons sentenced to death have the right to appeal for commutation of the sentence to life imprisonment or 25 years' imprisonment (Art. 49(3) of the Criminal Code, Art. 31(2) of the Criminal Procedure Code, and Art. 166(1) of the Criminal Executive Code). The cases of all persons sentenced to death are considered regardless of whether the sentenced person has submitted an appeal for clemency (Presidential Decree No. 2975 “On provisions for pardoning procedure by the president of the Republic of Kazakhstan”, 7 May 1996) ... Relatives are not informed in advance of the date of execution, the body is not returned, and the location of the place of burial is not disclosed to the relatives until at least two years after the burial has taken place (Art. 167, Criminal Executive Code).” 73. The relevant extracts from the US Department of State report read as follows: “The Government reported that 51 criminal cases against law enforcement officers for physical abuse were filed during the year. ... Prison conditions remained harsh and sometimes life threatening. Mistreatment occurred in pre-trial detention facilities and in prisons, and nongovernmental organizations (NGOs) and international organizations reported that abuses of prisoners increased after the head of the penitentiary system and approximately onethird of the prison administrators were replaced in 2003. The December 2003 transfer of supervision of pre-trial detention facilities from the Ministry of the Interior to the Ministry of Justice was completed in May; as a result of this transfer, conditions improved, although they remained harsh. The head of the prison system and two deputies resigned in February following reports of brutal beatings of inmates in certain prisons. Violent crime among prisoners was common. During the year, the number of prisoners continued to decline significantly. Much of the decrease was associated with the 2002 Humanization of Criminal Justice Law, which prescribes punishments other than imprisonment, such as probation, for minor first offences. The Government reported 2,600 total violations, including physical force violations, by employees of the penitentiary system during the year. Some officials were punished for these abuses; 911 employees received disciplinary punishment, including fines, demotions, and dismissal and another 8 employees were convicted on criminal charges. In the past several years, prison diets and availability of medical supplies have improved. There were 6 tuberculosis colonies and 2 tuberculosis hospitals for prisoners; 5,591 prisoners were housed in these colonies. While the incidence of tuberculosis stabilized, HIV/AIDS continued to be a problem. The Government, together with the U.N. Development Program (UNDP), continued to implement a project to prevent HIV/AIDS and other sexually transmitted diseases in penitentiaries. Prisoners were permitted to have visitors, although the number and duration of visits depended on the security level of the prison and the type of sentence being served. Prisoners were held in close proximity, barracks-style facilities; however, a government program to build new correctional facilities and rehabilitate existing facilities continued throughout the year. Incidents of self-mutilation by inmates to protest prison conditions continued. In general, the Government did not take action in response to self-inflicted injuries by prisoners... ” 74. The relevant extracts from the report read as follows: “(...) The following human rights problems were reported: an incident of unlawful deprivation of life; ... detainee and prisoner abuse; unhealthy prison conditions; ... lack of an independent judiciary; ... a. Arbitrary or Unlawful Deprivation of Life ... The court sentenced Rustam Ibragimov, a former ministry of internal affairs official, to death, though he will remain in prison as long as the death penalty moratorium remains in effect. .... c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The constitution and law prohibit such practices, but police and prison officials at times tortured, beat, and abused detainees, often to obtain confessions. In its Human Rights Commission's annual report, the government acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and procurator's practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. ... The ombudsman's office reported 2,613 citizen complaints during the year, over 20 percent of which were allegations of abuse by law enforcement. ... Prison and Detention Centre Conditions Though the government implemented prison reforms and granted greater access, prison conditions remained harsh and facilities did not meet international health standards. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took some steps to address systemic patterns that encouraged prisoner abuse. These included continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MVD police; however, no prison officials were prosecuted for abuses during the year. The government conducted 13 criminal investigations of penitentiary officials for corruption in the first eight months of the year. These investigations resulted in 12 convictions and one acquittal. ... Although the government made some efforts to upgrade existing facilities and build new ones, buildings at many prisons remained outdated and hygiene conditions were substandard. In February the procurator general's office issued an order closing one of the buildings in the Semipalatinsk pre-trial investigation facility because it did not meet sanitary standards and posed a threat to the health and lives of detainees. On May 25, the procurator general's office issued a statement criticizing the MOJ for failing to address overcrowding, sewage, and poor sanitation in prisons. During the year, 31 detainee deaths, including five suicides, were reported at pre-trial detention facilities. The government reported 268 deaths in prisons during the year, including 26 suicides. Incidents of self-mutilation by inmates to protest prison conditions continued. On March 31, inmates in the Zarechny prison outside of Almaty rioted to protest harsh conditions, mistreatment, and confiscation of personal belongings. According to human rights activists, the prison was originally designated to house convicted law enforcement officers. However, prior to the riot, regular criminals were added to the population, leading to increased tension and the tightening of controls. Twenty-four inmates mutilated themselves by cutting their abdomens, and three inmates were injured when prison guards restored order. Local NGOs were permitted to visit the facility and interview inmates after the incident. An activist from the Public Committee for Monitoring Human Rights reported that the prison officials' response to the riot was generally appropriate. Several officers of the prison administration were disciplined for their failure to deal with the protest action. After the incident, prison officials transferred the regular criminals out of the population to reduce tension and problems.” 75. The relevant extracts from the US Department of State report read as follows: “(...) There were the following human rights problems: (...) detainee and prisoner abuse; unhealthy prison conditions; arbitrary arrest and detention; lack of an independent judiciary; (...) pervasive corruption, especially in law enforcement and the judicial system; (...) a. Arbitrary or Unlawful Deprivation of Life In contrast with the previous year, there were no reports that the government or its agents committed arbitrary or unlawful killings. (...) c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The procurator general's office (PGO) and the human rights ombudsman acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress. The ombudsman's office reported 1,684 citizen complaints during the first 11 months of the year, approximately 300 of which were allegations of abuse or misconduct by law enforcement. Prison and Detention Centre Conditions NGOs and international observers reported that prison and detention centre conditions declined during the year. Observers cited worsening treatment of inmates and detainees, lack of professional training for administrators, and legislative changes on April 26 that criminalized prisoner protests and self-mutilation. The legislative changes also transferred operation of the parole system from penitentiary officials to the MIA and implemented forced tuberculosis treatment. Prison conditions remained harsh and facilities did not meet international health standards, although the government began renovating three prisons and two detention facilities during the year as part of a penitentiary development program. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took steps to address systemic patterns that encouraged prisoner abuse, including continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MIA police. Authorities did not prosecute any prison officials for abuses during the year, although they opened 21 investigations for corruption, resulting in eight convictions by year's end. During the first ten months of the year, 32 detainee deaths, including six suicides, were reported at pre-trial detention facilities. The government reported 40 suicides in prisons during the first 11 months of the year. Incidents of self-mutilation by inmates to protest prison conditions continued. e. Denial of Fair Public Trial The law does not provide adequately for an independent judiciary. The executive branch limited judicial independence. Procurators enjoyed a quasi-judicial role and were permitted to suspend court decisions.” 76. The Constitution of the Republic of Kazakhstan envisages the death penalty, as an exception to the right to life. A Presidential Decree placing a moratorium on executions was introduced on 17 December 2003. 77. The relevant extracts from the Constitution of Kazakhstan provide as follows: “1. Everyone shall have the right to life. 2. No-one shall deprive a person of his/her life. The death penalty shall be established by law as an exceptional punishment for terrorist crimes which have resulted in the loss of human life, and also for especially grave crimes, committed in time of war, with a sentenced person having a right to appeal for pardon.” “1. The Prosecutor's Office, acting on behalf of the State, effectuates highest supervision over strict and unified application of the laws, Presidential decrees, and other normative acts of the Republic of Kazakhstan ...” 78. Article 39 of the Criminal Code (Types of punishment), provides that persons found guilty of committing criminal offences may be subject to the capital punishment as one of the types of punishment. Under Article 49 (Capital punishment) envisages that: “1. Capital punishment, that is a sentence to be shot, is an exceptional form of punishment reserved for especially grave crimes infringing a person's right to life and for crimes committed in war time or in a combat situation, high treason, crimes against the peace and safety of mankind and especially grave military crimes. 2. Capital punishment shall not be applied to women, to persons who committed a crime while under the age of eighteen or to men who have reached the age of sixtyfive when the sentence is passed by a court. 3. Should the President of the Republic of Kazakhstan introduce a moratorium on enforcement of the death penalty, the enforcement of a death sentence shall be suspended for the effective period of the moratorium. 4. A sentence of death shall be implemented not earlier than one year from the time of its entry into force and no less than one year after the abolition of a death penalty moratorium. 5. Under the pardon procedure, the death penalty may be replaced with life imprisonment or with deprivation of liberty for a period of twenty-five years in a special-regime correctional facility. Persons sentenced to the death penalty shall, in the event of the abolition of a moratorium, have the right to petition for pardon, irrespective of whether or not they had made such a petition prior to the introduction of the moratorium.” 79. The third party stated that the legislation of Kazakhstan contained insufficient guarantees to ensure respect for human rights. In particular, it contained no sufficient guarantees for a person not to be ill-treated. In particular, they stated that the Criminal Code of Kazakhstan provided no punishment for ill-treatment, as it only referred to torture. Furthermore, they stated that in cases of ill-treatment by the law enforcement or prison authorities, these complaints were investigated by the same authorities, who were directly dependent on the executive, thus it created a vicious circle of impunity. Furthermore, under Article 82 of the Constitution of Kazakhstan judges were to be appointed by the President of Kazakhstan, having no authority to supervise complaints of ill-treatment. Thus, there was no independent body able to investigate complaints in respect of ill-treatment. Furthermore, they referred to the Amnesty International report of January 2006 – March 2007, the US State Department report of 2006 and the Almaty Helsinki Committee report for 2004, which, from their point of view, also proved that legal practices in Kazakhstan did not comply with human rights standards. | 1 |
train | 001-82913 | ENG | POL | CHAMBER | 2,007 | CASE OF WEDEKIND v. POLAND | 4 | Violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1971 and lives in Tychy. 5. On 17 January 2001 the applicant was arrested on suspicion of drug trafficking committed as part of an organised crime group. 6. On 19 January 2001 the Katowice District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offence in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence. 7. The applicant's appeal against the detention order, likewise his further appeals against some of the decisions extending his detention and his subsequent applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals he relied, inter alia, on his personal circumstances, in particular a difficult family situation in that a family break-up was imminent. He also argued that his confessions to offences of which he was suspected had not been taken into consideration. 8. In the course of the investigation, the applicant's detention was extended on several occasions, namely on an unknown date, on 16 July 2001 (to 17 October 2001), 12 October 2001 (to 31 December 2001), 28 December 2001 (to 30 April 2002), 17 April 2002 (to 31 July 2002), an unknown subsequent date, and 25 September 2002 (to 30 November 2002). In all their detention decisions the authorities repeatedly relied on a strong suspicion, supported by evidence from witnesses, that the applicant had committed the offences in question. They attached importance to the seriousness of those offences and to the likelihood of a severe prison sentence being imposed on the applicant. These facts gave rise to the courts' assumption that the applicant, if released, might obstruct the proper course of the proceedings, especially given the fact that some of the suspects were still at large. 9. On 22 November 2002 the Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with drug trafficking and membership of an organised crime group. There were 15 defendants in the case, all charged with numerous counts of drug trafficking committed as an organised crime group. 10. On 6 August 2003 the case was transferred to the Bielsko-Biała Regional Court since all judges from the Katowice Regional Court had been excluded from examination of the case. 11. On 13 November 2003 the trial court held the first hearing. It subsequently held 28 hearings in the case, at regular intervals. 12. During the court proceedings the courts further extended the applicant's pre-trial detention, namely on 27 November 2002 (to 17 January 2003), two unknown subsequent dates, 17 December 2003 (to 31 August 2004) and 23 June 2004 (to 31 December 2004). The courts repeated the grounds previously given for the applicant's continued detention. They relied especially on the complexity of the case and the large number of coaccused. 13. Between 22 January 2004 and 24 March 2004 the applicant was serving a term of imprisonment imposed by the Warsaw Regional Court in a different criminal case. 14. On 16 December 2004 the Bielsko-Biała Regional Court gave judgment. The applicant was convicted as charged and sentenced to five years and six months' imprisonment and to a fine. 15. The applicant appealed. He was kept in detention pending appeal for a period of one year and one month. 16. On 26 January 2006 the Katowice Court of Appeal heard the applicant's appeal. It reduced the sentence passed by the first-instance court to five years and left the remainder of the judgment unchanged. The applicant did not lodge a cassation appeal. The judgment is final. 17. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 1 |
train | 001-86366 | ENG | POL | CHAMBER | 2,008 | CASE OF FLOREK v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza | 4. The applicant was born in 1950 and lives in Szczecin. 5. On 27 June 1995 the applicant lodged a statement of claim with the Goleniów District Court (Sąd Rejonowy). 6. On 26 October 1995 the Goleniów District Court found that it lacked jurisdiction to deal with the case and referred it to the Szczecin Regional Court (Sąd Okręgowy). 7. On 12 December 1995 the applicant was ordered to rectify certain procedural shortcomings in her claim in order to fulfil the formal requirements set out in Polish law. She complied with the court’s order in December 1995. 8. At a hearing on 22 March 1996 the defendant lodged a counterclaim. On an unknown date in April 1996 the applicant submitted her reply to the counterclaim. 9. Between 12 February and 14 November 1997 the court held five hearings. 10. On 1 December 1997 the Szczecin Regional Court delivered its judgment. 11. On 5 December 1997 the applicant lodged a notice of appeal. On 27 March 1998 she was served with the court’s statement of reasons. 12. The case was referred to the Poznań Court of Appeal (Sąd Apelacyjny) in August 1998. On 7 March 2000 the court partly amended the judgment and remitted the case in part. 13. On 12 June 2000 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy) against the judgment of the Court of Appeal. 14. On 14 February 2002 the Supreme Court, sitting in camera, refused to entertain the cassation appeal as it did not raise any issue of general importance. 15. On 20 June 2002 the Poznań Court of Appeal remitted the case to the Szczecin Regional Court. 16. On 23 May 2003 the Szczecin Regional Court held a hearing. A hearing scheduled for 6 April 2004 was postponed because the judge was ill. 17. On 15 June 2004 a hearing was held. 18. On 29 June 2004 the Szczecin Regional Court delivered its judgment. The applicant lodged an appeal against it. 19. On 23 November 2005, by a final judgment of the Poznań Court of Appeal, the applicant’s appeal was dismissed. 20. On 16 March 2005 the applicant lodged a complaint with the Supreme Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The Supreme Court referred the case to the Szczecin Court of Appeal. 21. The applicant sought a ruling declaring that the length of the proceedings before the Szczecin Regional Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN). 22. On 24 June 2005 the Szczecin Court of Appeal gave a decision in which it acknowledged the excessive length of the proceedings before the Szczecin Regional Court, finding that there had been periods of unjustified inactivity in 1995 and 1996, then between January and March 1998 and between June and November 2002. It awarded the applicant PLN 3,000 in just satisfaction. The court observed that the claim for just satisfaction in the amount of PLN 10,000 was excessive. 23. The court did not take into consideration the delays that had occurred before the Szczecin Court of Appeal (between August 1998 and 7 March 2000), nor did it consider the period between 12 June 2000 and 14 February 2002, when the case was pending before the Supreme Court. 24. On 5 January 1995 a certain “S-P” Company Ltd instituted civil proceedings for repossession against the applicant. Between 20 January 1995 and 22 October 1996 the court held twelve hearings. By a decision of 12 December 1996 the Goleniów District Court discontinued the proceedings. 25. On an unknown date in 1994 the police instituted criminal proceedings against the applicant on charges of threatening behaviour. On 9 January 1995, by a decision of the district prosecutor, the applicant was made subject to a police supervision order. The applicant appealed. 26. On 10 February 1995 the Szczecin Regional Prosecutor amended the decision and the police supervision order was quashed. 27. On 29 March 1996 the Goleniów District Court issued a penal order imposing a fine on the applicant. It appears that the applicant lodged an appeal. The proceedings were terminated by a final decision of 5 June 1996 (the applicant has not produced a copy of it). 28. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
train | 001-96157 | ENG | GBR | CHAMBER | 2,009 | CASE OF FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10 | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. 6. On 30 October 2001 the board of Interbrew, a Belgian brewing company, asked its investment bank advisers, Goldman Sachs (“GS”) and Lazard, to carry out work on a potential association between Interbrew and South African Breweries plc (“SAB”), a competitor in the brewing industry, with a view to a possible takeover bid for SAB by Interbrew. 7. On 18 November 2001 GS produced a document in relation to the possible takeover. The document was confidential and contained data which were likely to affect both Interbrew and SAB's share prices. It formed the basis of a presentation which, on 20 November 2001, was submitted to Interbrew's internal mergers and acquisitions department. 8. On an unknown date a person (“X”) whose identity is unknown, even by the applicants, came into possession of a copy of the presentation submitted to Interbrew. On 27 November 2001 X sent copies of a document (“the leaked document”) to various news media organisations, including the FT, The Guardian, The Times and Reuters, from an address in Belgium. On Interbrew's evidence the leaked document was very similar if not identical to the Interbrew presentation, except for the following: (a) the substitution of an offer price for SAB shares of between 500 and 650 pence in place of the price of between 400 and 550 pence, which had apparently been in the original presentation; and (b) the insertion of a timetable for making the offer. 9. On 27 November 2001 Mr Jones, a journalist at the FT, received a copy of the leaked document from X. At 5p.m. that day, he telephoned Mr Van Praag of GS and told him that he had received the leaked document and that he intended to publish it. Mr Van Praag reported the conversation to Mr Powell, the Chief Executive Officer of Interbrew. Mr Powell telephoned Mr Jones and told him, on the record, that Interbrew had carried out research into SAB but that it was not in the advanced stage of preparing an offer. At about 10p.m., the FT published an article on its website stating that Interbrew had been plotting a bid for SAB, that documents seen by the FT indicated that an approach could be made on 3 December 2001 and referring to the conversation between Mr Jones and Mr Powell. The article did not state the proposed offer price but gave accurate codenames used for the advisers in the presentation and quoted from the document on the likely positive market reaction and with reference to potential rival bids. The FT published an article in the same terms in its newspaper the next morning. 10. At about 5.30p.m. on 27 November 2001 The Times received a copy of the leaked document from X. In its second edition, which reached the news stands at about 5a.m. on 28 November 2001, it published an article referring to the “confidential” document which it had seen, a supposed approach to SAB “this weekend”, a plot to bid GBP 4.6 billion for SAB and an offer expected to be pitched at up to 590 pence per share. 11. At 12.51a.m. on 28 November 2001 Reuters reported the FT's story and the rise in the share price of SAB on the Johannesburg Stock Exchange on its wire service. Reuters received a copy of the leaked document from X on the afternoon of 28 November 2001 and, at 2.44p.m., published a further article referring to its receipt of the leaked document. 12. At about 8.30a.m. on 28 November 2001 GS and Lazards contacted the Takeover Panel, which asked Interbrew to make a statement. In response, at about 12.15p.m., Interbrew issued a press release confirming that it had undertaken a preliminary analysis of SAB as part of its routine annual review of the leading brewers of the world; that the analysis was at a very preliminary stage which might or might not lead to an offer at some time in the future; but that no approach had been made. 13. On 28 November 2001 The Guardian received a copy of the leaked document from X. On 29 November 2001 it published an article referring to the “secret document” prepared by GS and Lazards, which it stated had been “couriered” to a “large chunk” of the business press, and mentioning the leaking of previous bids by Interbrew. 14. The Independent did not receive a copy of the leaked document directly from X. However, it did take steps to obtain a copy from another source that it knew but undertook not to reveal it. On 29 November it published two articles about the leaked document, one of which stated that the offer price and timetable appeared bogus. 15. On 29 November 2001 Interbrew, in agreement with the Takeover Panel, published a second statement to the press, alleging that the leaked document contained fabrications. This statement was reported by each of the applicants, who continued to publish articles on the topics of doctored copies and a possible bid. 16. The impact of this press coverage on the market in shares of Interbrew and SAB appears to have been significant. Interbrew's share price at market on 27 November 2001 was EUR 29.40. By midday the next day it was EUR 27.20. It was EUR 28.25 after the press release and at market close. The SAB share price at market close on 27 November 2001 was 442.74 pence and at market close on 28 November 2001 was 478 pence. The volume of SAB's shares traded on 27 November 2001 was less than 2 million. On 28 November 2001 it was more than 44 million. 17. On 30 November 2001 Interbrew instructed Kroll, the security and risk consultants, to assist in identifying X. Kroll did not identify X. On 6 December 2001 Interbrew made a criminal complaint to the Examining Magistrate of the Brussels Court of First Instance, together with a claim for civil damages, against a person or persons unknown. 18. On 10 December 2001 Interbrew launched proceedings against the applicants in the High Court following advice from Kroll that access to the original documents might vitally assist the investigation. Given that the applicants were not aware of the identity of X, Interbrew lodged a claim for: “1. delivery up of documents: 1.1 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards]; and 1.2 evidencing or containing discussions with any journalistic source in respect of the subject matter of 1.1; 2. disclosure of such documents; 3. an order that the Defendants do disclose the name and address of: 3.1 any journalistic source who had provided them with the documents referred to in 1.1; 3.2 any journalistic source with whom they have had the discussions referred to at 1.2 ...” 19. At the same time Interbrew, without notice to the applicants, applied for, and was granted, a temporary injunction from the High Court in the following terms: “1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 1 thereof 2. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 2 thereof 3. The Defendants must within 24 hours of service of this Order deliver up the two categories of documents referred to at Schedule 3 ... to the custody of solicitors appointed on their behalf to be held until further Order herein ... 4. The Defendants must within 48 hours of service of this Order serve on the Claimant's Solicitors a list of 4.1 the Documents within their control 4.2 those of the Documents which were formerly in their control but are no longer in their control, explaining what has happened to them and confirm the facts set out in this paragraph by means of a signed witness statement containing a Statement of Truth also within 48 hours of service of this Order PROVIDED THAT this Order shall not require the Defendants to provide any information which would disclose the source of information contained in a publication for which the Defendants are responsible. ... SCHEDULE 3 The Documents 1. Documents including draft documents and copy documents (whether received by the Defendants as copy documents or copies by the Defendants) provided to the Defendants by any third party subsequent to 23 November 2001 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards]. 2. Documents evidencing or containing discussions with any journalistic source subsequent to 23 November 2001 relating to an analysis of SAB prepared by [GS] and/or [Lazards], together with the envelopes or packaging in which they were delivered to the Defendants and any additional documents contained therein.” 20. On 11 December 2001, Interbrew sought an order in different terms from the one granted on 10 December 2001. Instead of the original paragraph 4 of the order, Interbrew sought an order requiring the applicants to serve, within 48 hours, a witness statement setting out the names and addresses of every person who had provided them with the Schedule 3(1) documents and every person with whom they had had discussions evidenced or contained in the Schedule 3(2) documents and, if these identities were not known, the circumstances in which they received the documents, to the best of their knowledge. On 12 December 2001, the judge ordered that paragraphs 3 and 4 of the order of 10 December 2001 be discharged in their entirety. 21. An expedited hearing on Interbrew's application for an injunction took place on 14 and 17 December 2001 before the High Court. Interbrew invoked the Norwich Pharmacal principle (see paragraph 29 below) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer. 22. On 19 December 2001 the High Court (Interbrew v. Financial Times et al. [2001] EWHC Ch 480) ordered delivery up of the documents under the Norwich Pharmacal principle in the following terms: “1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3. 2. The Defendants must within 24 hours of service of this Order deliver up the documents and other materials referred to at Schedule 3 ... to the Claimant's solicitor ...” 23. The judge found (at paragraph 34) that: “What [X] has done is deliberately to admix with that confidential information false information (a lethal concoction) to create a false market in the shares of the Claimant and SAB, a serious criminal offence. There must be a real risk of repetition, if [X] is not identified. Beyond the substantial private interest of the Claimant, there is a substantial public interest in identifying [X] and taking all necessary steps to prevent any repetition. As it seems to me, the circumstances of this case are exceptional: vital public as well as individual interests are at stake in securing the integrity of the share market. There is an overriding need for the disclosure sought in the interests of justice and for the prevention of crime”. 24. The judge continued (at paragraph 37): “As it seems to me the Claimant has sufficiently explored other avenues before having recourse to this application for relief against the press ... There have been internal investigations conducted at the Advisers' and the Claimant's businesses; the Claimant is conducting inquiries further afield. The Claimant is using investigators of the highest international calibre. The Defendants complain that full details of all the Claimant's inquiries are not given in the Claimant's evidence and that this is necessary in order to establish how thorough they have been, but there is no substance in this complaint. The evidence establishes to my satisfaction that full and proper investigations have been made and are continuing. To require disclosure of more details of these investigations is unnecessary even as such a course may prejudice the ongoing inquiries ... The evidence before me (and most particularly a report by Kroll) establishes that the Claimant needs the information which production of the Documents ought to provide to further and give impetus to these investigations ... I am satisfied that the order is required if progress is to be made whilst the trail is still warm and if an identification is to be made within the time frame necessary to safeguard the interests of the Claimant and the public.” 25. The applicants were granted leave to appeal by the Court of Appeal on 20 December 2001 and were required to file their written arguments with the court by 28 December 2001. By judgment of 8 March 2002 the Court of Appeal dismissed the applicants' appeal (Interbrew v. Financial Times et al. [2002] EWCA Civ 274). In the leading judgment of Sedley LJ, the Court of Appeal held that in order to justify the exercise of Norwich Pharmacal powers to compel production of documents or disclosure of information, Interbrew had to establish that each defendant had facilitated a civil wrong committed by an unknown person against whom they aimed to seek redress. The only civil wrong on which Interbrew could rely was that of a breach of confidence on the part of the source. While such a breach of confidence had been made out, what had not been made out was a “bigger and better cause of action in respect of the 'lethal cocktail' of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort” (at paragraph 28). 26. Sedley LJ went on to consider the approach adopted by the High Court as follows (at paragraphs 40-41): “Everything proceeded below on the assumption that crimes of forgery and market manipulation were proved. But both, or at least the former, depend upon the falsity of the pages in the document showing bid price and timetable. False they were if one goes on such evidence as was before the court. But by definition their falsity is alleged against an absent and silent accused. We have no way of knowing, any more than – as [counsel for the applicants] stressed – the five defendants do, whether the source, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards. I have to say that I find this aspect of the Norwich Pharmacal procedure troubling. A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only, save in rare cases, take a neutral stand on the question. The court of first instance needs to be extremely circumspect before accepting evidence, especially when, as here, it is second- or third-hand, that goes to the heart of the case and cannot be controverted ...” 27. However, Sedley LJ concluded: “49. ... I have come to the conclusion, though not without misgiving, that the order for disclosure was rightly made against all the defendants. Nothing which has been put before us suggests that the court will be significantly better placed at an eventual trial than it is now to decide the key issues; and there is at least some force in Interbrew's complaint that its hands are tied vis-à-vis South African Breweries, and possibly other targets too, unless and until it can prevent a recurrence of this spoiling operation. 50. ... Interbrew's prima facie entitlement to delivery up of the documents is established because – and solely because – it may enable them to ascertain the identity of the proper defendant to a breach of confidence action relating to the relatively anodyne, though not the explosive, parts of the document. From the sweep of Interbrew's original case and the “lethal cocktail” on which Lightman J founded his conclusions, the basis of the application now shrinks to this little measure. But though little, it is far from insignificant for Interbrew ... 51. With it, one turns to s.10 of the 1981 Act. The section begins by barring any order for disclosure in circumstances such as these, since its very object is to discover the source of information which the defendants have published. Interbrew, however, can invoke one of the listed purposes for lifting the bar: that disclosure is necessary in the interests of justice. That it may also go to the prevention of crime cannot be ruled out as irrelevant, but it is peripheral because it is not a purpose for which Interbrew themselves are entitled to disclosure. Then is the public interest in the doing of justice sufficient in the particular circumstances of this case to make disclosure necessary? Reading that question through the lens of the Convention and its jurisprudence, as we are now required to do, the following elements separate themselves out. 52. First, what is the nature and weight of the public interest in the confidentiality of sources? The right of free expression enshrined in art. 10 is undifferentiated, but as the European Court of Human Rights said in Goodwin, 'freedom of expression constitutes one of the essential foundations of a democratic society', and '[p]rotection of journalistic sources is one of the basic conditions for press freedom' (paras. 39, 40). Much judicial authority in this country says the same. The news media, in consequence, enjoy in s.10 of the 1981 Act a high initial level of protection, not in their own but in the public interest. 53. The entitlement to reverse the balance is prescribed by law, as art. 10(2) requires. A required ground for doing so, founded on the no less important public interest in an effective system of justice, is present. Is it then necessary to reverse the balance? The following elements seem to me to matter here: ... • Any invasion of the protection must meet a pressing social need – not merely an individual one. This meets the need to counterpose one public interest to another. Here the need, in terms of s.10, is to enable Interbrew to restrain by court action any further breach of confidence by the source and possibly to recover damages for losses already sustained. In terms of art. 10(2) it is to protect the rights of Interbrew. • There must be no less invasive alternative. While I would not adopt the judge's approach of simply refusing to second-guess the view of the aggrieved parties' solicitors, I would infer from the evidence that as much has been done as can at present be done by the use of reputable private detectives to trace the source. I can see that to demand particulars of the admittedly general assertions about this could jeopardise the exercise. ... 54. It seems to me that once the legitimacy of Interbrew's intended resort to law is accepted, the relatively modest leak of which they are entitled to complain does not diminish the prospective seriousness for them of its repetition. For the media, on the other hand, the public interest in their freedom to publish is constant, and with it the public interest in the confidentiality of their sources. While I do not think that the character of the material is irrelevant as a matter of law, I agree with Laws LJ in Ashworth at least to this extent, that it cannot be for the court to decide how interesting or important it thinks the material is. That is for journalists and their editors. But it may follow that the more the press decide to make of a story, the greater will be the affected party's legitimate interest in finding and suppressing its source. 55. What in my judgment matters critically, at least in the present situation, is the source's evident purpose. It was on any view a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both. It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages; for whether they are forged or authentic, integral or added, they were calculated to maximise the mischief. To this factual extent the 'lethal cocktail' is material, despite its legal irrelevance to the earlier stages of the inquiry. The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source.” 28. On 9 July 2002 the House of Lords refused the applicants leave to appeal, following which Interbrew required the applicants to comply with the court order for delivery up of the documents. The applicants have refused to comply. While Interbrew has instituted enforcement proceedings against The Guardian, it has not pursued these proceedings. 29. The exercise of the power to require the delivery up of otherwise confidential information derives from the jurisdiction established by the decision of the House of Lords in Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133 at page 175: “[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.” 30. That power is subject to section 10 of the Contempt of Court Act 1981 (“the 1981 Act”) which provides that: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” 31. Prior to the proceedings in the present case, the Court of Appeal had held in Ashworth Hospital Authority v. MGN Ltd [2001] 1 All ER 991 that the phrase “the interests of justice” in section 10 of the 1981 Act was wide enough to include the exercise of legal rights and the ability to seek protection from legal wrongs, whether or not by court action. This interpretation was later confirmed by the House of Lords in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2003. 32. In Ashworth, the High Court granted an order compelling the Mirror newspaper to reveal a source to Ashworth Hospital. The Mirror subsequently disclosed its source as Robin Ackroyd, an investigative journalist. Ashworth brought new proceedings to seek an order for disclosure against Mr Ackroyd and applied for summary judgment on the grounds that the case was indistinguishable from that of the Mirror in the previous Ashworth case. Mr Ackroyd submitted that the facts were materially different. The High Court granted the order requested but it was overturned on appeal to the Court of Appeal which held in Mersey Care NHS Trust v. Robin Ackroyd [2003] EWCA Civ 663 at paragraph 70 that: “Protection of journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for source disclosure cannot be compatible with Article 10 of the European Convention unless it is justified by an overriding requirement in the public interest. Although there is a clear public interest in preserving the confidentiality of medical records, that alone cannot, in my view, be automatically regarded as an overriding requirement without examining the facts of a particular case. It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined. I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial. But the nature of the subject matter argues in favour of a trial in most cases ...” 33. The Civil Procedure Rules (“CPR”) govern procedure in civil proceedings in England and Wales. Relevant excerpts of the CPR provide as follows: “Rule 18.1 (1) The court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. ... Rule 32.2 (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved – (a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing. (2) This is subject – (a) to any provision to the contrary contained in these Rules or elsewhere; or (b) to any order of the court. ... Rule 32.6 (1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise. (2) At hearings other than the trial, a party may, rely on the matters set out in – (a) his statement of case; or (b) his application notice, if the statement of case or application notice is verified by a statement of truth. Rule 32.7 (1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence ...” 34. The Press Complaints Commission has adopted a code of conduct which is regularly reviewed and amended as required. The 2003 Code of Conduct reads, insofar as relevant, as follows: “1. Accuracy Newspapers and periodicals must take care not to publish inaccurate, misleading or distorted material including pictures. Whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, it must be corrected promptly and with due prominence. An apology must be published whenever appropriate. Newspapers, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact. A newspaper or periodical must report fairly and accurately the outcome of an action for defamation to which it has been a party. ... 15. Confidential sources Journalists have a moral obligation to protect confidential sources of information.” 35. There have been no significant changes to the above provisions since 2003. 36. On 8 March 2000, the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (2000) 7) on the right of journalists not to disclose their sources of information. The Recommendation provides, at Principle 3, as follows: “a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.” | 1 |
train | 001-87267 | ENG | DNK | ADMISSIBILITY | 2,008 | PINDSTRUP MOSEBRUG A/S v. DENMARK | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Pindstrup Mosebrug A/S, is a private limited company registered in Denmark with its main office in Pindstrup. It was represented before the Court by Mr Per Magid, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen of he Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a company, which since the beginning of the 1900s has extracted peat. On 16 November 1954, the applicant company entered into a contract with Lindet State Forest District (Lindet Statsskovdistrikt) for the exclusive and irrevocable rights to extract peat for fifty years from a State-owned bog called Draved Bog (Draved Mose). The leased area amounted to 212 hectares and according to a study carried out at the relevant time, the amount of peat available at the bog exceeded 1,000,000 cubic metres. The contract of 1954 contained, in so far as relevant, the following provisions: “The term of the lease shall commence on 1 April 1955 and shall expire, without notice, on 1 April 2005. During the lease period, the contract shall not be revocable by either party, unless in the event of a breach (see clauses 14 and 16).” “Prior to the conclusion of the lease contract, the leased area, which is a bog area of varying depth of peat, was analysed by the Danish Heath Society (Det Danske Hedeselskab), whose study including appendices is enclosed with this contract, although the State Forest District accepts no responsibility for the accuracy of the analyses and descriptions. The [applicant company] is entitled to remove or cut the layer of peat, but in such a way as to ensure that the area can subsequently be used as meadow or farm land. However, permission is granted to remove the entire layer of peat in an area of approximately six hectares, in spite of the fact that henceforth this area may not be drained off, as the State Forest District agrees to convert this area into a lake after the peat has been removed. ...” “The [applicant company] shall be entitled to sublease or sublet cultivated areas, although not after 1 April 2005. The ... State Forest District shall be informed in writing of the person to whom the areas are subleased or sublet, and the sublessees shall be obliged under their contracts to comply with the regulations in force ...” “Upon expiry of the lease, all areas except the lake area shall be returned drained off and laid down in grass of a mixture suitable for the condition of the area at the time unless the Parties have agreed otherwise ...” At the relevant time, the applicant company already extracted peat at other locations in Denmark. Draved Bog was thus added to its peat reserves for later extraction. Shortly thereafter, the applicant company commenced the extraction of about 12 hectares of Draved Bog. At the relevant time the extraction was used mainly in the production of peat briquettes, whereas later on it was used for the purposes of peat-based growing media to be sold to professional growers and for hobby gardening. On 13 May 1966, the parties drew up an addendum to the leasing contract in which a sub-area was excluded and a new area included. The applicant company ceased its extraction activities at Draved Bog in the summer of 1971. In 1972, the Raw Materials Act (Råstofloven) was passed, subjecting the commercial extraction of raw materials to a permit. A transitional arrangement applied to individuals who had acquired such rights prior to 9 February 1972 and notified them prior to 1 April 1973. Consequently, on 26 March 1973, the applicant company notified the Southern Jutland County Council (Sønderjyllands Amtsråd) of its rights at Draved Bog pursuant to the contract of 1954. It added that at the relevant time about 3,000 cubic metres were produced annually and that one to two persons were employed in production activities. On 13 November 1975 the Southern Jutland County Council acknowledged that the applicant company was entitled to continue extraction without permission under the Raw Materials Act. In the meantime, on 25 May 1973 the applicant company sublet part of Draved Bog amounting to 110 hectares, which had been cultivated up to and including 1 March 1973, to a company called Pindstrup Foderindustri A/S. The cost of the annual lease was 50,000 Danish kroner (DKK). It appears that the sublease was in force until 1 March 1983. In 1978, the applicant company made preparations to commence, in 1981, extracting peat in Draved Bog for a period of approximately fifteen years. It was estimated that the initial investment in production facilities would amount to DKK 6,000,000. At that time in Denmark, six raised bogs and an unspecified number of lowland bogs existed. The former were variously owned by the State, a natural protection foundation and private persons. The applicant company was the dominant producer of peat in Denmark and the only producer of peat from raised bogs. Over the years it had succeeded in acquiring rights to extract peat in most of the bogs suitable for extraction. The only other company which produced peat in Denmark did so from an area which had lost its character as a bog and none of the owners of the remaining five raised bogs had demonstrated any intention to extract peat. On 21 December 1978, the Preservation Planning Committee for the County of Southern Jutland (Fredningsplanudvalget for Sønderjyllands Amt) instituted a preservation procedure regarding Draved Bog, covering 381.41 hectares, under section 13 of the Nature Preservation Act (Naturfredningsloven). The decision was made public on 28 December 1978. The Preservation Planning Committee for the County of Southern Jutland later stated that the procedure had been initiated at this point in time because its tasks would be transferred to the county councils (Amtsrådene) as of 1 January 1979. On 1 January 1979 an amendment of the Nature Preservation Act entered into force, introducing a new provision (section 43, subsection 2) by which, inter alia, alterations of bogs (which included extraction of peat in bogs) could only take place with the permission of a county council (see relevant domestic law and practice, chapter 3). Owing to the intended preservation of Draved Bog, on 23 May 1980 the applicant company produced a report in which it estimated its loss of expected profit at DKK 15,200,000. Originally, the preservation procedure progressed independently on the assumption that section 43, subsection 2, did not apply to the applicant company since the procedure had been initiated on 21 December 1978, before that provision had came into force. In a decision of 22 June 1982, however, the Superior Preservation Board (Overfredningsnævnet) held that section 43, subsection 2, had to be taken into account in relation to the applicant company. It noted that it could not have been possible for the applicant company to commence extraction in the short period between 21 December 1978 and 1 January 1979; thus, it should not be placed in a better situation than if the preservation procedure had been instituted after the latter date. Subsequently, various administrative proceedings were pending. Ongoing friendly-settlement negotiations as to a possible exchange of rights over another bog of equal value to Draved Bog failed. A request of 28 July 1982 by the applicant company for a permit, under section 43, subsection 2, of the Nature Conservation Act, to extract peat in Draved Bog in an area amounting to 66 hectares was refused on 9 June 1983 (in a decision notified on 13 June 1983) by the County Council with regard to the southern part of the bog. In its decision, the County Council attached decisive weight to the fact that the southern part of the area in question consisted of unspoiled raised bog, described as nationally unique, geologically as well as biologically. The County Council was willing to grant permission, however, as regards the northern area of the bog, which contained approximately 56% of the peat. Unlike the southern area, peat had been extracted in the past in the northern area. Moreover, since the presence of a watercourse meant that there was no direct connection between the northern and southern parts of the bog, it was found that extraction of peat in the northern part would not cause irreparable damage to the bog area as a whole. The applicant company appealed against the decision to the Preservation Agency (Fredningsstyrelsen) and maintained that the granting of permission to extract peat solely from the northern part of the bog was of insignificant value to it, because only so-called darker peat could be and had been extracted from there. In order to exploit the peat commercially, however, the darker peat had to be mixed with socalled lighter peat, which was in short supply in general, but could be found in the southern part of the bog. On 1 June 1984 the Preservation Agency upheld the decision by the County Council. On 29 December 1986 the Preservation Board of Southern Jutland (Fredningsnævnet for Sønderjyllands amts sydlige fredningskreds) issued a preservation order covering an area of 381.41 hectares of Draved Bog. Having regard to the complexity of the matter, it refrained from deciding on the applicant company’s claim for compensation. The applicant company complained to the Superior Preservation Board, before which the proceedings were suspended for some time pending the outcome of further friendly-settlement negotiations. When the latter proved to be in vain, on 31 July 1991 the Superior Preservation Board upheld the Preservation Board of Southern Jutland’s decision to preserve the bog and to refrain from deciding on the applicant company’s claim for compensation. As part of the friendly-settlement negotiations the applicant company was offered the right to extract sphagnum from an area of 48.2 hectares, which was part of a different State-owned bog called Store Vildmose. A lease to that effect was entered into in July 1991. At the relevant time the applicant company therefore leased the majority of both State-owned and private areas where extraction of peat was possible. On 27 August 1991 the applicant company appealed against the Superior Preservation Board’s decision regarding compensation to the Valuation Commission for Nature Preservation (Taksationskommissionen vedrørende Naturfredning), which upheld it on 27 January 1992. On 14 April 1992 the applicant company claimed compensation under section 73 of the Constitution (Grundloven) in the amount of at least DKK 15,000,000. On 21 June 1993 the claim was dismissed by the Forest and Nature Agency, which found that the amendment to section 43, subsection 2, of the Nature Preservation Act did not constitute expropriation of possessions belonging to the applicant company. It added: “... [the applicant company] may possibly have a claim for recovery of some of the rent payments which the company has been paying since 1 January 1979 after deduction of the rent attributable to the area which, after reclamation, is being used for agricultural purposes and the area which is covered by the exemption. The Forest and Nature Agency is therefore ... willing to enter into negotiations with a view to reaching a settlement on this matter.” On 30 October 1997 the applicant company instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against the Forest and Nature Agency under the Ministry of the Environment, claiming compensation in the amount of DKK 15,200,000 or, in the alternative, a lesser amount to be fixed at the High Court’s discretion or, in the further alternative, a refund of the rent in respect of the 66 hectares in the southern part of Draved Bog (on average approximately DKK 13,600 annually) and property taxes, plus the interest accruing on these payments, paid in the period between 1979 and 30 October 1997 (amounting in total to approximately DKK 884,000, equivalent to approximately 117,000 euros (EUR)). The applicant company’s compensation claim relied on two legal bases, namely the Nature Preservation Act as then applicable and section 73 of the Constitution. Before the High Court of Western Denmark, various witnesses were heard. In addition, three experts were appointed, who confirmed that extraction solely of the darker peat from the northern area of Draved Bog was of insignificant value. In a judgment of 21 December 2001 the High Court of Western Denmark found for the applicant company, stating as follows: “The provision of section 43, subsection 2, of the Nature Preservation Act to the effect that alterations of the state of bogs may only be effected with the permission of the County Council was inserted into the Act by Act No. 219 of 24 May 1978, which entered into force on 1 January 1979. This provision meant that [the applicant company] was unable to exercise its extraction rights at Draved Bog without permission from the County Council from 1 January 1979. This also applies even though the extraction rights of [the applicant company] had previously been notified in accordance with the rules of the legislation on raw materials and even though the preservation procedure had been instituted before the amending Act entered into force. The fact that [the applicant company] was already prevented from exercising its extraction rights when the preservation procedure was instituted on 21 December 1978 cannot lead to [the applicant company’s] achieving a better position in the determination of possible compensation for preservation than if the preservation procedure had been instituted after 1 January 1979 as the applicant company had not had the possibility in practice of initiating peat extraction in the 10 days prior to 1 January 1979. The provision in section 43, subsection 2, of the Nature Preservation Act must be considered an objectively motivated part of the regulation which has been implemented in view of the general interest in preserving ... the Danish wetlands. The provision applies to everybody and entails only a limited interference as regards [the use of] bogs in general. The [applicant company], however, whose request for a permit to extract peat [in Draved Bog] had been refused in part, was affected in a substantial and atypically severe manner by the regulation, since the sole purpose of the company’s lease of the bog had been to extract peat, which inevitably would result in a change of the state of the bog. On this basis, in relation to the [applicant company], the legislation has the character of expropriation, for which reason compensation must be awarded in accordance with section 73 of the Constitution. The calculation of the amount of compensation takes as its starting point the report of 1980, produced by the managing director ... According to the information provided, since 1979 the applicant company has extracted, processed and sold peat from other bogs in Denmark as well as abroad, thereby being able to meet its market demands. The profit thus acquired is to be subtracted when determining the loss for which the [applicant company] may claim compensation. Having regard to the expert opinion, however, the compensation should not be reduced on account of the fact that the [applicant company] has obtained permission by the Preservation Agency’s decision of 1 June 1984 to extract the dark peat north of the stream in accordance. Taking all circumstances into account, the [applicant company] ... should be awarded compensation in the amount of DKK 5,000,000.” On 12 February 2002, the Forest and Nature Agency lodged an appeal against the judgment with the Supreme Court (Højesteret). The applicant company reiterated its claims and their legal bases, namely the Nature Preservation Act as then applicable and section 73 of the Constitution. Various witnesses and experts were heard, including the applicant company’s managing director, who stated, among other things, that extraction of peat in Draved Bog had ceased “in about 1971”. A report of 19 May 2005 was also submitted, prepared by the Ministry of the Environment on bogs in Denmark, stating that in 1940 raised bogs had covered 65,180 hectares, whereas in 1978/1979 they had covered approximately 6,150 hectares. Only six examples of raised bogs over 10 hectares remained, including Draved Bog. In a judgment of 28 February 2006 the Supreme Court, by a majority of three to two, overturned the judgment of the High Court of Western Denmark. First the Supreme Court stated as follows: “For the reasons stated by the High Court, the Supreme Court endorses the finding that it was not the preservation, but the general prohibition in section 43, subsection 2, of the Nature Preservation Act that was the reason why [the applicant company] was prevented from exercising its right to extract peat (sphagnum) from Draved Bog, and that the [applicant company] is therefore not entitled to compensation for preservation under the rules of the Nature Preservation Act.” Thereafter the majority of the Supreme Court (three judges) found as follows: “Section 43, subsection 2, of the Nature Preservation Act, which took effect on 1 January 1979, entailed a general prohibition against changing the state of bogs. It follows from the preparatory works that the object of the provision was to introduce a regulation to protect the bogs as ‘a highly significant part of our freshwater wetlands’ without having to pay compensation – see Folketingstidende 1977-78, Supplement A, p. 2629, and Supplement B, p. 730. The prohibition resulted in [the applicant company] being unable as of 1 January 1979 to exercise its rights of extraction in Draved Bog without the permission of the County Council. The County Council’s refusal of 13 June 1983 to grant permission to continue peat extraction states, inter alia, that ‘the southern part of the area in question consists of unspoiled raised bog, which must be described as nationally unique, geologically as well as biologically’. When on 1 June 1984 the Preservation Agency confirmed the decision, it stated, inter alia, that ‘Draved Bog is nationally of the greatest value in terms of nature preservation’. Whether or not the refusal can justify a claim for compensation for expropriation is to be determined on the basis of an overall assessment of the interference with [the applicant company’s] right of extraction. The interference was motivated by significant nature and environmental interests. It was part of a general programme to preserve bogs and included a general restriction on the right to extract peat in Denmark. This affected all manufacturers of sphagnum, and it has not been shown that [the applicant company], which at the relevant time had not invested in production facilities for the purpose of exercising its extraction rights at Draved Bog, and which, moreover, had access to the extraction of considerable amounts of peat [elsewhere] in this country, was affected in a particularly severe manner. Against this background, we find no basis for awarding [the applicant company] compensation under section 73 of the Constitution. Accordingly, we vote in favour of the claims of the Ministry for the Environment.” The minority of the Supreme Court (two judges) found as follows: “It can be established as a fact that Denmark has a shortage of sphagnum and that, owing to transportation costs, the import of sphagnum is significantly more expensive than extraction in Denmark. On this basis, it can also be established as a fact that the sphagnum which could have been extracted in Draved Bog represented substantial value to [the applicant company]. This applies even though extraction had not commenced on 1 January 1979, when the prohibition in section 43, subsection 2, of the Nature Preservation Act took effect. In addition, [the applicant company] was in an extraordinary situation as the Raw Materials Act allowed the company to extract peat from Draved Bog and the company had leased the area from the State for a period of fifty years for this sole purpose. Thus, despite the fact that the prohibition in section 43, subsection 2 of the Nature Preservation Act was justified by substantive preservation interests, we find, in concurrence with the High Court, that in relation to [the applicant company] the legislative interference was to be regarded as expropriation and that, consequently, the [applicant] company is entitled to compensation under section 73 of the Constitution. Having regard to the expert opinions submitted before the Supreme Court, [we find it established] that since 1 January 1979 [the applicant company] has only had limited opportunities for increasing its sale, as compared to its actual sale, at least until the mid-1990s. On the other hand, it must be taken into consideration that extraction in Draved Bog would have reduced the extraction – and thus increased the reserves – of peat at the company’s other production sites in Denmark. On this basis, and considering the reasons by the High Court, compensation must be awarded on a discretionary basis, which we, like the High Court, find should be set at DKK 5,000,000. Accordingly, ... we vote in favour of upholding the judgment of the High Court.” Finally, the Supreme Court ordered the applicant company to pay costs to the Ministry of the Environment in the amount of DKK 1,400,000. With regard to the background of the case, it is important to be aware of the difference between lowland bogs, which are sustained by groundwater, and raised bogs, which are sustained exclusively by atmospheric precipitation. In both types of bog, peat is formed primarily from sphagnum, but the remaining flora, and thus also fauna, differs significantly, as raised bogs are nutrient-poor with high acidity. As a general rule, the peat in lowland bogs is dark brown with a high degree of decomposition of organic substances. This quality of peat is suitable for use as fuel, although less suitable for soil improvement and horticultural purposes (referred to below as “soil improvement” as a single category). In raised bogs, apart from dark peat there is also light raised-bog peat which is suitable for soil improvement, but less suitable as fuel. The formation of a peat layer happens over a long period of time. A one- metre-thick layer of light raised-bog peat will form over a period of 1,000 to 1,500 years. A similar layer of dark peat will typically form over a period of 2,000 to 3,500 years. Subsequent to peat extraction, it will not be possible to regenerate the quantity of peat that has been removed through nature restoration, and extraction of peat can therefore not be considered to involve sustainable exploitation of natural resources. Originally, bogs took up such a big part of the area of Denmark that it was considered beneficial to drain and cultivate bog areas. In around 1800, land in Denmark was so humid that peat had formed on 20 to 25% of the total area. During the 1800s and the first half of the 1900s a large area of the bogs was drained and cultivated. Furthermore, peat was extracted for use as fuel and, to a lesser extent, for bedding in livestock stables. The production of peat for fuel purposes increased rapidly during and just after the two world wars, when imports of foreign fuel were limited. By 1966, the production of peat for fuel had almost ceased. The total Danish production of fuel peat was thus down to 9,000 tonnes in 1966, whereas the annual production on average over the period from 1940 to 1948 had reached 3-4 million tonnes. The production of peat for soil improvement (including horticultural purposes) was insignificant until the end of the 1950s, when it increased and reached about 40,000 tonnes annually by the mid-1960s. In the following decades, production increased slightly and currently amounts to about 65,000 tonnes annually. There is no ongoing registration of the size of Danish bog areas, particularly in the case of raised bogs. A survey carried out in around 1940 showed that raised bogs, and bogs including areas of raised bog, constituted 49,300 hectares, or about 1.1% of the total surface area of Denmark. In recent statements under the European Union (EU) Habitats Directive, a total of 6,150 hectares, corresponding to about 0.14% of the total area of Denmark, has been classified under the habitat types “active raised bogs” (No. 7110) and “degraded raised bogs still capable of natural regeneration” (No. 7120). Since bogs became a protected habitat type from 1 January 1979 as a result of the entry into force of Act no. 219, no permits for extracting from, or any permits to otherwise alter raised-bog areas with natural vegetation have been issued. Until then, peat production took place in the significant areas of peat deposits, which, by the end of 1978, had already lost the characteristics of bogs in their natural state. The area of raised bogs in their natural state has thus remained the same from 1979 to the present day. The majority of the remaining raised bogs are small in area. Larger coherent areas of active raised bog (areas of more than 10 hectares) exist in six places in Denmark. Draved Bog is among these. Several bog areas are covered by preservation that interferes to a greater or lesser extent with the owners’ options for use of the land. The possibility of protecting areas through specific rulings on nature preservation has been available in Denmark since 1971. In 1972 general protection of habitat types without compensation was introduced as regards the habitat types of lakes and public streams and in 1978 the habitat types of private streams and bogs were added (for further details as to the latter, see relevant domestic law and practice, chapter 3). In most European countries, bogs are endangered to about the same extent as in Denmark. Less than 10% of the original bog area is left. This has enhanced the focus on the significance of bogs for society, not only as natural areas with a high degree of biodiversity, but also as factors in the hydrological cycle (abating flooding from large European rivers) and as regulators of climate. The UN Convention on Biological Diversity, the Bonn Convention (Convention on Migrating Species) and the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats) are of special significance for bogs. Within the EU, the Birds Directive and the Habitats Directive are important. In the Habitats Directive, “active raised bogs” are considered a prioritised natural habitat, meaning that Member States have a duty to launch preservation and improvement measures especially promptly. Draved Bog has been designated as a preservation area under both directives. The Administration of Justice Act (retsplejeloven) provides, in so far as relevant: “(1) The losing party shall compensate the opponent for the expenses incurred by the opponent as a result of the proceedings, unless otherwise agreed by the parties. (2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses incurred if particular reasons make this appropriate. (3) ...” In a Supreme Court decision of 24 April 2003, published in the Weekly Law Reports (Ugeskrift for Retsvæsen) 2003, p. 1550 (see Hansen and Others v. Denmark (dec.), no. 26194/03, 29 May 2006), section 312, subsection 2 was applied in a case between individuals and a public authority. The case was filed by a child and its parents against a county council and the Supreme Court upheld the High Court’s judgment. Even though the plaintiffs lost the case, in consideration of the extraordinary length of the legal proceedings, the Supreme Court applied section 312, subsection 2, and exempted the plaintiffs from compensating the county council for its legal costs. The relevant chapter of the Administration of Justice Act was amended by Act no. 554 of 24 June 2005. The preparatory works on section 312, subsection 2, as in force from 1 July 2005, contained no reference to Article 6 of the Convention, nor is the length of the proceedings mentioned as a potential “particular reason” for reducing costs in accordance with the provision in question. The Constitution (Grundloven) provides, in so far as relevant: “(1) The right of property shall be inviolable. No person shall be ordered to surrender his property except where required in the public interest. This shall be done only as provided by statute and in return for full compensation.” Public interference with private property rights covered by section 73, subsection 1, does not always give rise to compensation. In the public interest, the legislature may lay down general provisions limiting property rights without providing compensation. An overall balancing exercise must be carried out to determine whether interference with protected rights not intended to transfer the exercise of the rights to the State or to others is to give rise to compensation for expropriation or is to be considered general regulatory legislation without compensation. The factors to be emphasised in this assessment are particularly whether the interference is general or particular, how burdensome the interference is and what interests to society the interference is to serve. The Nature Preservation Act (Naturfredningsloven), no. 520 of 1 October 1975, was amended by Act no. 219 of 24 May 1978, henceforth referred to as Act no. 219, which took effect on 1 January 1979, introducing inter alia a new provision, section 43, subsection 2, which read as follows: “Alterations of private watercourses with a bed width of at least 1.5 metres, and of the state of bogs, may only take place with the permission of the County Council ...”. According to the preparatory works, wetlands were diminishing so rapidly that private watercourses and bogs had to be included in the protection hitherto confined to lakes and publicly owned watercourses. Moreover, the protection of bogs was found to be necessary with reference to their special fauna and flora and to interests relating to landscape conservation, education and recreation (Folketingstidende 1978-79, Supplement A, pp. 2624-25). Accordingly, bogs were no longer considered reserves of raw materials (peat) but part of a general campaign for the protection of the remaining Danish wetlands. The aim of the Act was to include all private watercourses and bogs in this protection. Act no. 219 also reformed the preservation procedure and the administrative framework. On 1 January 1979 the local preservation planning committees were abolished and their powers transferred to the county councils. Pursuant to the Raw Materials Act (Råstof-loven, no. 287 of 7 June 1972), extraction of raw materials was subject to a permit being granted by the County Council, unless rights had been acquired prior to 9 February 1972 and notified to the County Council prior to 1 April 1973. State Forest Districts were the responsibility of the Forest and Nature Agency (Skov- og Naturstyrelsen), which was ultimately attached to the Ministry of the Environment (Miljøministeriet). General regulations to limit the exercise of property rights without providing compensation may be found as early as 1849, when the first Danish Constitution was adopted and laws on agricultural land, forests, sand dunes and hedges were in place to limit landowners’ rights. Similarly, legislation to regulate activities harmful to human health was implemented in the 1850s. In 1937 legislation on landscape protection through the prohibition of construction along forests and beaches (later expanded to areas along watercourses and lakes and around churches and ancient monuments) was enacted through amendments to the 1917 Nature Preservation Act. The first Urban Planning Act authorising local authorities to lay down spatial plans with legal effect on landowners’ rights was passed in 1938. Subsequently, a significant amount of legislation on planning, environmental protection and nature preservation was passed within a relatively short period in the 1960s and 1970s. Among the instruments enacted were the Zoning Act (1969), the Summerhouse and Camping Act (1972), the Raw Materials Act (1972), the National and Regional Planning Act (1973), the Environmental Protection Act and the Municipal Planning Act (1975). A number of existing acts were comprehensively amended during this period, including the Water Supply Act (1969), the Nature Conservation Act (1969) and the Watercourses Act (1973). Since then the legislation mentioned above has been updated or amended on numerous occasions. The legislation was enacted as a response to the growing pressure on nature and natural resources from, for example, industrialisation, agricultural intensification, urbanisation and the consequent degradation of the environment and nature. A similar development occurred in other western European countries from around 1970. This development was also a response to a growing number of international obligations either through EU legislation or through international treaties, including a number of generally accepted principles, such as the precautionary principle, the polluter-pays principle and the principle of sustainable development. In addition to general regulations governing private property rights, general regulations have been passed with a view to protecting specific habitat types in Denmark. First and foremost, a number of habitat types which had been in serious decline during the century were covered by the general preservation scheme under the Nature Preservation Act in 1972. Thereafter, any alteration of an area covered by the scheme was prohibited without an exemption having been granted by the relevant authority. The scheme was successively extended. In 1972 it covered lakes and public watercourses, and in 1978 it was extended to cover private watercourses and bogs. In 1981 salt marshes, swamps, coastal meadows and heaths were included. The last extension occurred in 1991, when humid permanent grassland, uncultivated dry grassland and stone and earth dykes were included in the scheme as well. Also, in 1991 a general prohibition on cultivation closer than two metres from watercourses was introduced. In Denmark, civil proceedings are as a rule subject to the so-called adversarial system, whereby the court has to make its decision on the basis of the claims and particulars produced and provided by the parties. Hence, in accordance with section 338 of the Danish Administration of Justice Act (retsplejeloven), the court cannot award a party more than his or her claim, and it may only take into consideration submissions relied on by the party or submissions that cannot be excluded. The adversarial system is based on the assumption that the parties are the best placed, in view of their advance knowledge of the facts of the case, to assess what claims the case can support, and what submissions may be relevant for inclusion in the proceedings before the court. The court may only take into consideration submissions relied upon by the parties. The parties are thus subject to a burden of production, as the court is supposed only to refer to the specific circumstances relied upon in support of the parties’ litigation claims when it passes judgment. If a party has not produced a certain submission, the court is unable to take it into consideration on its own motion. A submission can only be considered to have been relied upon if a specific circumstance has been emphasised as an element in the reasoning for the party’s litigation claim. A submission must contain a certain clarification of a legal fact, relating both to the pure facts and to their possible legal significance. The wording of a submission may require a certain legal description or qualification of the particulars presented to the court. A certain legal qualification of the bare facts may be necessary to allow the court and the opponent to understand the connection which is believed by the party to exist between his statement of facts and his litigation claims (see Gomard, Civilprocessen (Civil Procedure), 6th ed., 2007, p. 517). In addition to claims and submissions, the adversarial system also includes the provision of evidence (except in certain proceedings, such as matrimonial proceedings, in which the parties do not have full control of the outcome despite their pleadings, even if the parties agree). By contrast, the adversarial system does not apply as concerns the rules of law. | 0 |
train | 001-113338 | ENG | ROU | COMMITTEE | 2,012 | CASE OF MIHALACHE v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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 - Deprivation of property) | Alvina Gyulumyan;Ineta Ziemele;Kristina Pardalos | 5. The applicant was born in 1969 and lives in Brasov. 6. At an unspecified date the former owners of the flat that the applicant had bought lodged restitution proceedings concerning nationalised immovable property. By the final decision of 13 February 2003 the Brasov Court of Appeal rejected the restitution proceedings lodged by the former owners on the ground of lack of active standing and established thus that the applicant was the lawful owner of the flat. 7. At an unknown date the Prosecutor General of Romania lodged a request for supervisory review against the final decision of 13 February 2003 of the Brasov Court of Appeal. By the final decision of 16 November 2005 the High Court of Cassation and Justice admitted the application for supervisory review lodged by the Prosecutor General, quashed the final decision of 13 February 2003 of the Brasov Court of Appeal and sent the case for re-trial. Upon re-trial, by a final decision of 21 September 2006 the Brasov Court of Appeal admitted the restitution proceedings of the former owners accepting that they had active standing and establishing that they were the owners of the flat. | 1 |
train | 001-79213 | ENG | AUT | CHAMBER | 2,007 | CASE OF VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA | 2 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 7. Vereinigung Bildender Künstler Wiener Secession is an association of artists with its seat in the Secession building in Vienna. The Secession, an independent gallery, is devoted entirely to exhibitions of contemporary art. One of the basic objectives of the association is to present current developments in Austrian and international art, and to cultivate an openness to experimentation. 8. Between 3 April and 21 June 1998 the applicant association held an exhibition on its premises. The exhibition, entitled “The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”), was intended as part of the celebrations of the association's 100th anniversary. Among the works to be shown was a painting entitled “Apocalypse”, which had been produced for the occasion by the Austrian painter Otto Mühl. The painting, measuring 450 cm by 360 cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Hermann Groer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr Meischberger, a former general secretary of the FPÖ until 1995, who at the time of the events was a member of the National Assembly (Nationalratsabgeordneter), a mandate he held until April 1999. Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched by two other FPÖ politicians and ejaculating on Mother Teresa. 9. The exhibition, for which admission was charged, was open to the public. 10. On 11 June 1998, while the exhibition was in progress, the Austrian newspaper Täglich Alles bristled at the above painting's portayal of “group sexual situations with Bishop Groer and Mother Teresa”. 11. On 12 June 1998 the painting was damaged by a visitor, who covered with red paint the part which showed, among others, Mr Meischberger. As a consequence of this incident the entire painted body of Mr Meischberger and part of his face were covered with red paint. 12. Several Austrian newspapers reported on this event and also published pictures of the painting. 13. On 22 June 1998 Mr Meischberger brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant association, seeking an injunction prohibiting it from exhibiting and publishing the painting. He further requested compensation in the amount of 20,000 Austrian schillings (ATS – 1,453.46 euros (EUR)). He argued that the painting, showing him in sexual positions with several persons, debased him and his political activities and made statements as to his allegedly loose sexual life (lotterhaftes Intimleben). The black eye-bars did not prevent him from being recognised, because he was shown together with two other FPÖ politicians. He remained recognisable even after the incident of 12 June 1998, which had further increased the publicity given to the painting. Furthermore, there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in Prague. 14. On 6 August 1999 the Vienna Commercial Court (Handelsgericht) dismissed Mr Meischberger's action. It noted that it had initially been intended to show the exhibition in Prague, Bucharest and Luxembourg as well; now the intention was to close down the exhibition. The court further found that it could be ruled out that the painting had adversely affected the claimant or divulged information about his private life, as the painting, which resembled a comic strip (“comixartig”), obviously did not represent reality. However, a painting showing the claimant in such an intimate position could, regardless of its relation to reality, still have a degrading and personally debasing effect. In the present case, however, the right of the applicant association to freedom of artistic expression outweighed Mr Meischberger's personal interests. When balancing the latter's interests against the interests of the applicant association, the court had regard in particular to the fact that the exhibition was dedicated to the association's artistic spectrum over the last hundred years, which included the work of the Austrian painter Otto Mühl. It further noted that the painting showed numerous other persons, among them friends and benefactors of the painter, and also representatives of the FPÖ party, which had always strongly criticised Mr Mühl's work. 15. The painting in question could therefore be seen as a kind of counter-attack (Gegenschlag). In any event, Mr Meischberger's picture constituted only a rather small part of the painting and was therefore not striking. The court further added that there appeared to be no danger of recurrence (Wiederholungsgefahr) as the painting had been partly covered by red paint and Mr Meischberger was therefore no longer recognisable on it. 16. On 24 February 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held an oral hearing, granted an appeal on points of law and fact by Mr Meischberger, issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions, and ordered it to pay the costs incurred by Mr Meischberger in the proceedings and ATS 20,000 (EUR 1,453.46), plus 4% interest with effect from 8 July 1998, in compensation. It further allowed Mr Meischberger to publish extracts of its judgment in two Austrian newspapers. It noted that Mr Meischberger's picture was only partly covered by red paint, so that part of his face, the shape of his head and his hairstyle were still recognisable. The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration. The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message, such as, for example, the statement that Mr Meischberger had disregarded sexual decency and morals. It therefore did not fall within the scope of Article 10 of the Convention, but in fact constituted a debasement of Mr Meischberger's public standing (Entwürdigung öffentlichen Ansehens). The applicant association could not justify the exhibition of the painting under the artistic freedom protected by Article 17a of the Basic Law (Staatsgrundsgesetz). There was, furthermore, nothing to indicate that the applicant association would abstain from exhibiting the painting in the future, so that there was a danger of recurrence. 17. On 18 July 2000 the Supreme Court (Oberster Gerichtshof) rejected an appeal by the applicant association as it did not concern a legal question of considerable interest. It noted that the Court of Appeal had not questioned the fact that the painting fell within the scope of protection provided by Article 17a of the Basic Law but, weighing the guarantee of artistic freedom enshrined in that provision against Mr Meischberger's personal rights as protected by section 78 of the Copyright Act, had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner. As to the question whether Mr Meischberger could still be recognised despite the painting being covered with red paint, the Court of Appeal had not contradicted the documents contained in the court file and there was therefore no need for a rectification. It ordered the applicant association to pay the costs of the proceedings. 18. That decision was served on the applicant association's counsel on 13 September 2000. 19. 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 portrayed persons or, in the event that they have died without having authorised or ordered publication, those of a close relative.” 20. Artistic freedom is guaranteed by Article 17a of the Basic Law (Staatsgrundgesetz), which provides: “There shall be freedom of artistic creation and of the publication and teaching of art.” | 1 |
train | 001-113299 | ENG | AZE | CHAMBER | 2,012 | CASE OF NAJAFLI v. AZERBAIJAN | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1967 and lives in Baku. 6. The applicant was a journalist and the editor-in-chief of a newspaper named Boz Qurd. 7. On 9 October 2005 a number of opposition parties held an unauthorised demonstration in Baku. The applicant, together with five other journalists, was present at the demonstration to report on the events. The applicant was not wearing a special blue vest identifying him as a journalist, but he was wearing a journalist badge on his chest. 8. During the dispersal of the demonstration by the police, the applicant and his colleagues were beaten up and received various injuries. According to the applicant, he told the police officers that he was a journalist and asked them to stop. The applicant was hit on the head and lost consciousness following his beating. 9. The applicant was taken to hospital the same day. On 26 October 2005 he received a medical certificate with a diagnosis of closed cranio-cerebral trauma, concussion and soft-tissue damage to the crown of the head. 10. On 10 July 2006 the applicant obtained a medical certificate from Baku City Polyclinic no. 19. That certificate indicated that the applicant had been registered as a patient diagnosed with closed cranio-cerebral trauma and concussion, and that his condition required long-term treatment. 11. The six journalists who had been beaten up on 9 October 2005 lodged a joint criminal complaint. On 9 November 2005 the Sabail District Police Department instituted criminal proceedings under Article 132 (beating) of the Criminal Code. On 22 December 2005 the case was re-qualified under Article 163 (obstruction of the lawful professional activity of journalists) of the Criminal Code and transferred to the Sabail District Prosecutor’s Office. 12. On 12 January 2006 the applicant was questioned by the investigator in charge of the case. The applicant stated that he had been beaten with truncheons by a group of police officers while he was observing the demonstration as a journalist. The applicant also stated that he did not know the police officers who had hit him, although he did know the police officers who were in charge of the police unit. The applicant submitted a photo of an officer (A.V.) who was the head of the Riot Police Regiment of the Baku Police Office. The applicant’s version of the events was also confirmed by statements from two other journalists, E.M. and N.A., who were present at the relevant time at the place of the incident. 13. According to the Government, on 28 January 2006 the investigator ordered a forensic examination of the applicant, but the applicant did not appear for this examination. No copy of any decision in this respect was submitted by the Government to the Court. The applicant alleged that he had not been informed of this decision by the investigator. 14. By a letter of 2 February 2006, the investigator in charge of the case requested the Sabail District Police Department to identify the police officers who had hit the applicant. In reply to the investigator’s letter, on 25 February 2006 the Head of the Sabail District Police Department wrote that they had not been able to identify the relevant police officers, however they would continue to take measures in this respect and inform the investigator of any result. 15. On 1 March 2006 the investigator heard A.V., who denied involvement in the applicant’s beating. A.V. stated that neither he nor the police officers under his supervision had done anything unlawful to the applicant in his presence. 16. On 9 March 2006 the Sabail District Prosecutor’s Office investigator issued a decision suspending the criminal proceedings until the perpetrators of the beating had been identified. The investigator relied on the fact that the police officers allegedly involved in the applicant’s beating had not been identified. As to A.V.’s alleged involvement, the investigator relied on A.V.’s statements, noting that the latter had not carried out any unlawful actions against the applicant. 17. The applicant was not provided with any information concerning the criminal investigation until May 2006. On 9 May 2006 the applicant contacted the Sabail District Prosecutor’s Office investigator and inquired about the state of the proceedings. The investigator informed him that the criminal investigation had been suspended on 9 March 2006, but did not provide the applicant with a copy of the decision suspending the investigation. 18. On 12 May 2006 the applicant lodged a complaint with the Sabail District Court. He complained that the investigator had failed to provide him with a copy of the decision suspending the investigation, thus making it impossible for him to lodge a proper complaint against it. He also asked the court to quash this decision and remit the case for investigation. He insisted, in particular, that the group of police officers who had hit him had been under A.V.’s command, and that the photo of A.V. taken at the time of the incident had been submitted to the police. 19. On 26 May 2006 the Sabail District Court dismissed the applicant’s complaint, finding that the decision suspending the investigation had been lawful and had been sent to the applicant on 9 March 2006. The decision was silent as to A.V. and his alleged role in the applicant’s beating. It appears that the court did not hear any witness at the hearing. 20. On 1 June 2006 the applicant lodged an appeal reiterating his previous complaints. In particular, he argued that the suspension of the investigation, for which the reason given was that it was impossible to identify the policemen who had beaten him, was wrong, and that the investigation authorities knew who the perpetrators were. In this connection, he noted that he and other journalists had specifically identified A.V., who was present at the scene of the incident at the relevant time. 21. On 13 June 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s decision of 26 May 2006. 22. On 9 November 2006 the applicant lodged a separate civil action against the Ministry of Internal Affairs, asking for compensation for pecuniary and non-pecuniary damage caused by his beating on 9 October 2005. He relied on Articles 3, 10 and 11 of the Convention. 23. On 20 November 2006 the Sabail District Court refused to admit the action for non-compliance with the formal requirements. The court held that the applicant had failed, in particular, to provide a forensic report showing the cause of the injuries and had not supplied a copy of any document showing that a police officer had been found responsible for the applicant’s beating. The court also noted that the applicant had failed to identify actual individuals, rather than the Ministry of Internal Affairs in general, as defendants. 24. On 6 December 2006 the applicant appealed against the first-instance court’s inadmissibility decision, reiterating his previous complaints. 25. On 26 January 2007 the Court of Appeal upheld the Sabail District Court’s decision of 20 November 2006. 26. On 14 June 2007 the Supreme Court upheld the decisions of the lower courts. 27. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” 28. Police officers may use special equipment when, inter alia, it is considered that a person who is behaving dangerously may cause damage to himself or people around him (Article 26.II). “Special equipment” is defined as truncheons, arm-restraining instruments, tear gas, rubber bullets, water cannons and other means (Articles 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. The police authorities must carry out an inquiry into every incident involving the use of physical force, special equipment or firearms, and must issue a pertinent opinion on its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX). 29. Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the character of the offender (Article 27.I.1). Anyone injured as a result of the use of physical force, special equipment or firearms must be provided with the necessary medical aid (Article 27.I.5). The police officer must report to the relevant police authority, in writing, on the occasions he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed of any such use of force within twenty-four hours (Article 27.I.8). | 1 |
train | 001-69911 | ENG | POL | CHAMBER | 2,005 | CASE OF PODBIELSKI AND PPU POLPURE v. POLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicant was born in 1949 and lives in Witoszόw Dolny, Poland. 10. The proceedings described below have already been examined by the Court from the point of view of the “reasonable time” requirement. In its judgment of 30 October 1998 the Court unanimously held that the Polish authorities had been in breach of Article 6 § 1 (Reports 1998-VIII, pp. 3387-3400). 11. On 25 May 1992 the applicant, who was at that time the owner and the president of the management board of the company “Polpure” sued the Świdnica Municipality (Miasto Gmina) in the Wałbrzych Regional Court (Sąd Wojewódzki), seeking payment for construction works which it had carried out for the defendant. He also sought damages for the defendant’s delay in payment and penalties resulting from the breach of contract. 12. On 27 May 1992 the company was exempted from court fees due for lodging the claim. 13. On 7 September 1992 the Wałbrzych Regional Court gave judgment. It declared certain clauses of the contract null and void, as being in breach of a number of substantive civil law provisions. 14. Following the applicant’s appeal, the judgment was later quashed and the case remitted. 15. On 1 February 1993 the Wałbrzych Regional Court allowed the applicant’s claim for payment but declared null and void a clause of the contract that imposed penalties for the breach of contract. The parties’ further appeals were dismissed by the Wrocław Court of Appeal (Sąd Apelacyjny) on 27 April 1993. 16. On 25 June 1993 the Ombudsman filed with the Supreme Court (Sąd Najwyższy) an extraordinary appeal on behalf of the company, submitting that the Court of Appeal’s judgment had been in flagrant violation of substantive civil law and had unduly restricted the parties’ freedom of contract. That appeal was rejected on 7 October 1993. 17. On 28 January 1994 the Supreme Court, on an application made by the applicant, reopened the extraordinary appeal proceedings. It amended its judgment of 7 October 1993, set aside the judgments of 1 February and 27 April 1993 and remitted the case to the court of first instance. It ordered that the claims, save for the already-awarded claim for payment, be reconsidered. The Supreme Court held that the previous judgments were in breach of substantive civil law. It gave guidelines as to how to proceed with the claims. 18. On 5 May 1994 the applicant modified the claims and asked for a total award of 18,321,586,800 old Polish zlotys (PLZ). He also made an application to the Regional Court, asking for an exemption of the company from all court fees involved in the litigation. 19. On 6 June 1994 the court partly granted the application and exempted the company only from a court fee due for lodging the modified claim (which would normally have amounted to PLZ 932,080,000), except for the first PLZ 66,000,000. 20. The court observed that while it was true that the applicant’s company had encountered significant difficulties in recovering payments from third parties, had lost its credit solvency and was charged with debts, it had not yet been declared insolvent and was, accordingly, able to continue its commercial activity. In view of that, the court considered that exempting it from all future court fees would not be justified. 21. On 20 July 1994, on an appeal filed by the applicant, the Wrocław Court of Appeal quashed that decision and held that the exemption from the court fee due for lodging the claim, granted on 27 May 1992, was still in force and applied to the modified claim. 22. In a judgment of 20 February 1995 the Wałbrzych Regional Court ordered the defendant to pay pecuniary penalties to the applicant, but reduced their amount to PLZ 1,844,300,000 because it considered that the penalties originally fixed in the contract were excessive. It dismissed the claim for damages arising from the defendant’s delay in payment. 23. On 30 March 1995 the applicant appealed against the judgment of 20 February 1995, arguing that the court had not made certain findings of fact which were relevant to the outcome of the case and that it had committed a number of procedural errors. He also asked for an exemption from court fees due for lodging an appeal on behalf of the company. That fee amounted to 84,593.54 new Polish zlotys (PLN). The Regional Court partly exempted the company, ordering that it should pay PLN 40,000. 24. On 25 May 1995 the Wrocław Court of Appeal, on the applicant’s appeal lodged on behalf of the company, quashed that decision and exempted the company from the entire fee due for lodging the appeal. The court, finding that all the company’s assets had been attached in enforcement proceedings against it, that its bank accounts had been frozen and that its debts exceeded PLN 1,605,184, held that it was impossible for it to pay the fee in question. 25. On 31 August 1995 the Wrocław Court of Appeal set aside the judgment of 20 February 1995 in so far as it had rejected the applicant’s claim for damages for the defendant’s delay in payment. It ordered that that claim be reconsidered since the trial court had failed to comply with the Supreme Court’s legal opinion and guidelines on that matter. It also criticised the manner in which the trial court had taken expert evidence. 26. On 23 October 1996 the Wałbrzych Regional Court dismissed the claim for damages. 27. On 29 November 1996 the applicant filed, through the Wałbrzych Regional Court, an appeal to the Wrocław Court of Appeal. He submitted, among other things, that the Regional Court had for the second time failed to comply with the guidelines given by the Supreme Court and the Court of Appeal in respect of the claim for damages for the defendant municipality’s delay in payment and that it had disregarded the instructions given by the Court of Appeal in the judgment of 31 August 1995. The value of the claim asserted in the appeal proceedings was PLN 3,511,334.03. The applicant asked for an exemption from court fees due for lodging an appeal. The relevant part of his application read: “The plaintiff’s application for an exemption from court fees is based on the fact – a fact already ascertained by the court – that its financial situation has not improved but has become more difficult. The entire sum awarded by the previous judgment was, without any basis whatsoever, attached by the Bailiff of the Świdnica District Court. The defendant municipality, for its part, unjustifiably deducted its debts... from the sums awarded. The adjudicated claim was not therefore satisfied and the Bailiff in addition deducted from that sum PLN 73,014.28 by way of [costs of enforcement proceedings]. In consequence, the plaintiff sustained further loss. Moreover, the plaintiff’s debts have been climbing rapidly due to interest on arrears.” 28. On 3 January 1997 the Wałbrzych Regional Court exempted the applicant’s company from all court fees save for the first PLN 20,000 and dismissed the remainder of the application. The relevant part of that decision read: “... the applicant has declared that it is still conducting its business activity, although it has limited it considerably. It emerges from entries made in the company’s cash book from January to October 1996 that since June 1996 cash holdings and disbursements exceeded PLN 20,000 and, in October, they reached PLN 44,000. In the circumstances, exempting the applicant from the entire fee would be unjustified and that court exempts it only from fees exceeding PLN 20,000.” 29. The applicant appealed against that decision on 15 January 1997. The appeal read, in so far as relevant: “... the Regional Court made erroneous findings in respect of the plaintiff’s financial situation: 1. As the plaintiff already stated, its situation, [assessed as bad by the Court of Appeal already on 25 May 1995] had not improved but had become worse. [the applicant further repeated the arguments adduced in the above-cited application]; 2. The plaintiff has already produced abundant documentary evidence [including the 1995 balance sheet, cash books, the relevant bank report and documents setting out financial analyses of the company’s standing] confirming the previously-described financial situation, a situation with which the Regional Court has become well acquainted throughout that lengthy trial. That situation is as follows: in the year 1995 the company sustained losses; in the year 1996 it sustained losses in each month; the income did not cover debts (the outstanding debt is PLN 4,945,74); all assets were attached (see the enclosed list of court files); the bank account is practically empty (see the bank’s report); ... the outstanding debt of PLN 4,945.74 was eventually covered by the partner in order to avoid the institution of winding-up proceedings. ...; 3. There is no dispute that the defendant ruined the plaintiff company ... which now is able to carry out only casual construction works; 4. The opinion of the Court of Appeal expressed in its decision of 25 May 1995 [as to the bad financial situation of the applicant’s company] is therefore still valid ...” 30. On 13 February 1997 the Wrocław Court of Appeal dismissed the appeal, considering that the applicant’s company had sufficient means to pay the court fees. The court stressed that, pursuant to Article 113 § 2 of the Code of Civil Procedure, grounds for exempting a legal person from court fees were stricter; the court “could” but did not “have to” exempt it from such fees even if it proved that it did not have means to pay them. Furthermore, the Court of Appeal observed that since the applicant’s company still continued its business activity and derived a systematic income from it (which, recently, had been in excess of the PLN 20,000 needed for the required court fees), the Regional Court had correctly concluded that the applicant could pay that sum. A prospective litigant, the court added, should take into account the need to secure the court fees for the litigation and put aside part of his or its income for that purpose. 31. On 9 March 1997 the applicant made another application for an exemption from court fees, arguing that in the course of the prolonged litigation his company’s financial situation had deteriorated very significantly. He stressed that three days earlier the Bailiff had frozen the last two of the company’s bank accounts and attached PLN 2,214.15 and PLN 1,294.83 respectively (those sums had been the applicant’s salaries). Furthermore, the Świdnica Tax Office (Urząd Skarbowy) had ordered the company to pay immediately PLN 28,656.90 in tax arrears, together with default interest. In the circumstances, the company did not have any means whatsoever to pay the court fees. The applicant produced the relevant documentary evidence in support of his application. Those documents showed that the company had incurred a loss of PLN 23,711.04 in the year 1996, a loss of PLN 425,49 in January 1997 and a loss of PLN 4,954.79 in February 1997. 32. On 3 April 1997 the applicant’s lawyer filed a pleading with the Regional Court and asked it to hear evidence from the applicant in order to establish the current financial standing of the company. 33. On 14 April 1997 the court exempted the company from court fees exceeding PLN 10,000. It observed that in December 1996 the applicant’s company had an income of PLN 20,000 and that it could therefore pay the court fees previously imposed on it. In the court’s opinion, the documents produced by the applicant showed that since December 1996 to March 1997 the company’s management could have put aside money for securing court fees. However, having regard to the new facts supplied by the applicant on 9 March 1997, the court considered that the original fee should be reduced. 34. The applicant appealed on 8 May 1997. He stated, among other things, that he had been a “well-known bankrupt” and that he had no means whatsoever to pay court fees and, by reason of the fact that the company had lost its credit solvency, he could not even obtain a loan for the purpose of securing court fees. Yet as he had obtained a modest financial support, i.e. PLN 500 from a third person, he was prepared to pay that sum to the court. He further criticised the court for having considered only cash reports, which had not reflected the real state of the company’s business, and for having ignored the fact that under the applicable laws his company had a legal duty to disburse all cash in hand for tax arrears. He also stressed that the court had completely overlooked the losses the company had incurred. 35. On 9 June 1997 the Wrocław Court of Appeal dismissed the appeal. It considered that despite the losses sustained, the company could have put aside money for the court fees in question. In the court’s view, the company’s cash holdings should, in the first place, have been used for the court fees. The court also observed that the company should have regarded payment of those fees as its priority. Lastly, the court noted that the proceedings relating to the exemption from court fees had lasted for such a long time that the plaintiff could have secured money for the fees. 36. On 16 July 1997 the applicant made yet another application for an exemption from the court fees for lodging the appeal, save for the first PLN 500. He asked the Regional Court to obtain expert evidence and to hear evidence from himself as the president of the management board in order to establish the financial standing of his company. He submitted documents showing that he had in the meantime applied to two banks for loans to secure the court fees but that his applications had been rejected because of the very bad financial situation of the company. On 12 August 1997 the applicant filed a pleading and produced further documentary evidence. It emerged from the relevant documents that from 1 January to 30 June 1997 the applicant’s company had incurred a loss of PLN 3.090,71. 37. On 17 July 1997 the applicant paid PLN 500 to the court. 38. On 1 September 1997 the Wałbrzych Regional Court refused to grant the plaintiff any further exemption from court fees. The court reiterated the grounds already cited in its previous decisions. It rejected the application for evidence to be obtained from the applicant and the expert proposed by him. 39. The applicant appealed against that decision, but on 16 October 1997 the Wrocław Court of Appeal rejected his appeal. 40. On 15 December 1997 the applicant asked the Regional Court to allow him to pay the fee in instalments but his application was refused. 41. On 17 December 1997, the Wałbrzych Regional Court refused to proceed with the appeal against the judgment of 23 October 1996 and rejected it for non-compliance with the court’s decision ordering the company to pay the court fees for lodging the appeal. 42. From 29 January to 30 March 1998 both the Regional Court and the Court of Appeal considered the applicant’s subsequent, repeated and eventually unsuccessful applications for an exemption from court fees. 43. On 29 May 1998 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision rejecting his appeal of 29 November 1996 on formal grounds. 44. The applicant lodged with the Supreme Court a cassation appeal against that decision on 30 June 1998. The company was ordered to pay a court fee of PLN 10,000 for proceeding with the cassation appeal. That sum was paid on 16 November 1998. The applicant first submitted that the company had never paid a court fee to proceed with the cassation appeal since it could not afford it. Subsequently, he stated that that amount was paid by his friends on his behalf. 45. The cassation appeal was rejected on 10 June 1999. 46. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz (no. 1) v. Poland (appl. no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-39). 47. The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read: “A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.” | 1 |
train | 001-89579 | ENG | MDA | CHAMBER | 2,008 | CASE OF RUSSU v. MOLDOVA | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1957 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant worked as a journalist for the national public audio-visual institution, Teleradio-Moldova company (T.). According to the applicant, on 27 July 2004 a spontaneous strike began amongst T.’s staff in response to alleged censorship and disrespect for democratic principles enforced within T. by the Communist Party. The applicant was among a group of staff who occupied a room and refused to vacate it until their demands were met. According to the Government, this was an unauthorised demonstration. 8. On 23 September 2004 the applicant, who was present in court, was found guilty of breaching Article 174/1 § 4 of the Code of Administrative Offences by actively participating in an unauthorised demonstration. She was fined 180 Moldovan lei (MDL) (12 euros (EUR) at the time). 9. The applicant appealed, claiming that there was no evidence of her active participation in the meeting and that the meeting had been an unplanned strike which should be examined under the relevant labour legislation. 10. On 7 October 2004 the applicant was dismissed from her position. She remains unemployed, having formally registered as such on 8 January 2005. 11. On 18 November 2004 the Chişinău Court of Appeal examined her case in her absence and rejected her appeal in cassation. The court noted that the applicant had been summoned. According to the applicant, she had not been summoned and found out about the decision of the Court of Appeal only on 6 January 2005 when she inquired about her case at the court’s registry. 12. The applicant paid her fine on 11 January 2005. 13. The relevant domestic law has been set out in Ziliberberg v Moldova no. 61821/00, §§ 22-25, 1 February 2005. 14. In the judgment of 25 April 2007 in the civil case 2ra-460/07 the Supreme Court of Justice dismissed the claim that the appellant had lodged his appeal outside the time-limit established by law (fifteen days from the date when he had been informed of the appealed judgment). The court found that although there was evidence that the court had sent a copy of the judgment to the appellant, there was no evidence in the case file to confirm the date of its delivery. Accordingly, the appeal was considered as having been lodged within the time-limit, despite the fact that it was lodged twenty-six days after the court had sent the copy of the judgment to the appellant. | 1 |
train | 001-109579 | ENG | GRC | GRANDCHAMBER | 2,012 | CASE OF SITAROPOULOS AND GIAKOUMOPOULOS v. GREECE | 1 | No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Vote) | Anatoly Kovler;Angelika Nußberger;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Flogaitis;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Spyridon Flogaitis;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 10. The applicants were born in 1967 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe. 11. 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. 12. In a faxed letter of 10 September 2007 to the Greek ambassador in France, the applicants, who are permanently resident in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007. 13. On 12 September 2007 the ambassador, relying on the instructions and information provided by the Ministry of the Interior, replied as follows. “[The Greek State] confirms its wish – frequently expressed at the institutional level – to enable Greek citizens resident abroad to vote from their place of residence. However, it is clear that this necessitates statutory rules which do not currently exist. In fact, such rules cannot be introduced by a simple administrative decision, as special measures are 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.” 14. The general election took place on 16 September 2007. The applicants, who did not travel to Greece, did not exercise their right to vote. 15. The relevant provisions of the Constitution read as follows. “ ... 2. Popular sovereignty shall be the foundation of government. 3. All powers shall derive from the people and exist for the people and the nation; they shall be exercised as specified by the Constitution.” “1. The number of members of parliament shall be defined by law. It shall not be below two hundred or above three hundred. 2. The members of parliament shall represent the nation. 3. The members of parliament shall be elected through direct universal suffrage and by secret ballot, by those citizens who have the right to vote, as specified by law. The law shall not curtail citizens’ right to vote except in cases where the statutory minimum age has not been attained, in cases of legal incapacity or in connection with 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 outside the country may be specified by statute. 5. The exercise of the right to vote shall be mandatory. Exceptions and criminal sanctions shall be specified in each case by law.” “1. The electoral system and constituencies shall be specified by a law which will apply to the elections immediately following the forthcoming elections unless an explicit provision, adopted by a majority of two-thirds of the total number of members of parliament, stipulates that it is to apply as of the forthcoming elections. 2. The number of members of parliament elected in each constituency shall be specified by presidential decree on the basis of the population of the constituency for legal purposes, derived, according to the latest census, from the number of persons registered on the relevant municipal rolls, as provided for by law. The results of the census for this purpose shall be those published on the basis of the data held by the relevant department one year after the last day of the census. 3. Part of the Parliament, comprising not more than one-twentieth of the total number of its members, may be elected on a uniform nationwide basis in proportion to the total votes won by each party throughout the country, as specified by law.” “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.” The second paragraph of Article 108 was added during the 2001 revision of the Constitution. 16. In 2001, Article 51 § 4 was amended as follows: “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 holding elections simultaneously does not rule out the exercise of their right to vote by postal vote or other appropriate means, provided that the counting of votes and the announcement of the results are carried out at the same time as within the country.” 17. 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. “1. Any Greek national aged 18 or over shall be entitled to vote. ...” “The following persons shall lose the right to vote: (a) persons who have been placed under guardianship, in accordance with the provisions of the Civil Code; (b) persons whose final conviction for one of the offences provided for in the Criminal Code or the Military Criminal Code is accompanied by a measure disqualifying them from voting for the duration of their sentence.” “1. The right to vote in a constituency shall be reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency. 2. The exercise of the right to vote shall be mandatory.” 18. The report on this 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 voting rights for Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. It pointed out in particular that Article 108 “affords Greek expatriates a ‘social right’. This provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure that 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 characterised the statute to which that Article referred as a law implementing the Constitution. Lastly, the report considered that “in these times of globalisation, it is self-evident that Greek expatriates should have a decisive say in the development of their own country”. 19. The Scientific Council (Επιστημονικό Συμβούλιο) of Parliament is a consultative body reporting to the Speaker of Parliament. It comprises ten members, including professors of law, political science, economics, statistics and information technology, and an expert in international relations. It produced a report dated 31 March 2009 on the above-mentioned bill. The report noted that, in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon the legislature an obligation to permit expatriate Greeks to exercise the right to vote from outside Greece. However, referring to other legal authorities and to the preparatory work for Article 51 § 4 of the Constitution, it asserted that it was an option rather than a duty for the legislature to permit the exercise of voting rights from abroad. It also took the view that the optional nature of the above-mentioned provision of the Constitution had not been affected by the 2001 constitutional revision. 20. On 7 April 2009 the bill was rejected by Parliament since it failed to secure the majority of two-thirds of the total number of members of parliament required under Article 51 § 4 of the Constitution. The members of parliament, especially those on the opposition benches, referred in particular to the number of Greek citizens living abroad compared with the numbers resident in Greece, and to the implications this would have for the composition of the legislature. 21. The relevant texts adopted by the Parliamentary Assembly of the Council of Europe read as follows. “... 2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, [the Parliamentary Assembly] ... 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 cooperate 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 cooperate 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 cooperation with a view to facilitating the exercise of electoral rights of expatriates.” 22. The Code states that “the right to vote and to be elected may be accorded to citizens residing abroad” (point I.1.1.c.v.). The explanatory report makes the following indication in this regard: “... the right to vote and/or the right to stand for election may be subject to residence requirements, residence in this case meaning habitual residence. ... Conversely, quite a few States grant their nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some special cases, e.g. where nationality is granted on an ethnic basis.” 23. The other relevant parts of the Code provide: “... 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; ...” 24. The report notes, among other things, the following: “Voting rights for citizens abroad 57. 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 (out-of-country voting, overseas 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 ... ... 152. Postal voting is permitted in several established democracies in western Europe, e.g. Germany, Ireland, Spain, Switzerland ... 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. ...” 25. The conclusions of this report read as follows. “91. National practices regarding the right to vote of citizens living abroad and its exercise are far from uniform in Europe. 92. However, developments in legislation, such as the judgment delivered recently by the European Court of Human Rights in a case concerning Greece, which is not yet final, point to a favourable trend in out-of-country voting, in national elections at least, as regards citizens who have maintained ties with their country of origin. 93. That is true at least of persons who are temporarily out of the country. But definitions of the temporary nature of a stay abroad vary greatly and if this criterion is adopted, it should be clarified. 94. Distinctions should also be drawn according to the type of elections. National, single-constituency elections are easier to open up to citizens resident abroad, while local elections are generally closed to them, particularly on account of their tenuous link with local politics. 95. The proportions of citizens living out of the country may also vary greatly from one country to another. When there are a large number of them, they may have a decisive impact on the outcome of the election, which may justify the implementation of specific measures. 96. It is perfectly legitimate to require voters living abroad to register to be able to vote, even if registration is automatic for residents. 97. The obligation to vote in an embassy or consulate may in practice severely restrict the right to vote of citizens living abroad. This restriction may be justified on the grounds that the other means of voting (postal vote, proxy voting, e-voting) are not always reliable. 98. To sum up, while the denial of the right to vote to citizens living abroad or the placing of limits on that right constitutes a restriction of the principle of universal suffrage, the Commission does not consider at this stage that the principles of the European electoral heritage require the introduction of such a right. 99. Although the introduction of the right to vote for citizens who live abroad is not required by the principles of the European electoral heritage, the European Commission for Democracy through Law suggests that States, in view of citizens’ European mobility, and in accordance with the particular situation of certain States, adopt a positive approach to the right to vote of citizens living abroad, since this right fosters the development of national and European citizenship.” 26. The right to vote is enshrined in Article 25 of the Covenant, the relevant parts of which read as follows: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: ... (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; ...” During the drafting of the General Comment on Article 25 of the Covenant, which was published on 12 July 1996 by the Human Rights Committee, a proposal was made calling on States to enable their nationals residing overseas to make use of absentee postal-voting systems where such systems were available. However, as the Human Rights Committee could not agree on the proposal, it was not included in the General Comment. 27. Article 23 of the said Convention provides as follows: “1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.” 28. The right to vote under Article 23 is not absolute and may be subject to restrictions on the grounds expressly laid down in the second paragraph, which include “residence”. However, not every restriction of the right to vote based on residence is justified. 29. In the case of Statehood Solidarity Committee v. United States (Case 11.204, Report no. 98/03 of 29 December 2003), the Inter-American Commission on Human Rights held that the approach to the interpretation and application of the right guaranteed under Article 23 of the American Convention was consistent with the case-law of the other international systems of human rights protection whose treaties provided similar guarantees. It referred in that regard to the case-law of the European Court of Human Rights and the United Nations Human Rights Committee: “93. ... Like the European Court and this Commission, the UN Human Rights Committee has recognized that the rights protected under Article 25 of the ICCPR [International Covenant on Civil and Political Rights] are not absolute, but that any conditions that apply to the right to political participation protected by Article 25 should be based on ‘objective and reasonable criteria’. The Committee has also found that in light of the fundamental principle of proportionality, greater restrictions on political rights require a specific justification. ...” 30. Article 13 § 1 of this Charter is worded as follows: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.” 31. Taking the view that this provision was similar in substance to Article 25 of the International Covenant, the African Commission on Human and Peoples’ Rights interpreted Article 13 of the Charter in the light of the Human Rights Committee’s General Comment on Article 25. It therefore held that any conditions applicable to the exercise of Article 25 rights should be based on objective and reasonable criteria established by law (see Purohit and Moore v. The Gambia, Communication no. 241/2001, § 76). 32. According to the comparative-law materials available to the Court on the legislation of member States of the Council of Europe concerning the right to vote from abroad, the majority of the countries concerned authorise and have implemented procedures to allow their nationals resident abroad to vote in parliamentary elections. However, the situation varies greatly and the different scenarios do not lend themselves to classification into neat categories. A distinction can nevertheless be made between two broad categories: those member States which permit their citizens to vote from abroad, on the basis of a variety of arrangements; and those which, as a general rule, do not. Lastly, most of the member States which allow voting from abroad lay down administrative procedures for the registration of expatriates on the electoral roll. 33. Thirty-seven member States fall into this category: Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. 34. The above-mentioned countries provide either for voting in polling stations abroad or postal voting, or both. The following seventeen countries allow voting in embassies or consulates or in polling stations set up elsewhere: Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Georgia, Hungary, Iceland, the Republic of Moldova, Norway, Poland, Romania, Russia, Serbia, “the former Yugoslav Republic of Macedonia” and Ukraine. Eight countries (Austria, Germany, Italy, Liechtenstein, Luxembourg, the Netherlands, Portugal and Slovakia) allow their citizens living abroad to vote by post only, either through an embassy or consulate or by writing directly to the competent national authority. The possibility of voting either at an embassy (or consulate) or by post is provided for in Belgium, Bosnia and Herzegovina, Estonia, Latvia, Lithuania, Slovenia, Spain and Sweden. A handful of countries – Belgium, France, the Netherlands, Switzerland and the United Kingdom – also allow voting by proxy. In Monaco, proxy voting is the sole means by which nationals of that country can vote from abroad. A few States (the Netherlands and Switzerland) allow Internet voting. This type of voting is already enshrined in law and in operation in Estonia, while it is under consideration in Spain. 35. In five member States (Bosnia and Herzegovina, Denmark, Hungary, Liechtenstein and “the former Yugoslav Republic of Macedonia”), only persons temporarily resident outside the country have the right to vote from abroad. In the last-mentioned country, the law refers explicitly to persons living and working abroad temporarily. In some countries, expatriates lose the right to vote after a certain period of time (fifteen years in the United Kingdom and twenty-five years in Germany). 36. Certain countries such as Austria, Hungary, Slovenia and Ukraine allow external voting only with the permission of the host country. 37. In four countries – Croatia, France, Italy and Portugal – expatriates may elect their own representatives to the national parliament in constituencies set up outside the country. In Portugal, each of the two constituencies elects a member of parliament. French citizens living abroad participate in the election of twelve members of the Senate via the 150strong Assembly of French Expatriates. From 2012, they will also be able to elect eleven members to the National Assembly. In Croatia and Italy, the number of parliamentary seats allocated to expatriate constituencies depends on the number of votes cast. 38. Eight member States – Albania, Andorra, Armenia, Azerbaijan, Cyprus, Malta, Montenegro and San Marino – do not allow voting from abroad in parliamentary elections. In particular, in Albania, the electoral code in force contains no provisions concerning voting from abroad. In Ireland, strict rules are laid down, with postal voting for expatriates being confined to members of the police and armed forces and to Irish diplomats and their spouses. The right is therefore limited to a specific, very small group of individuals. Under the legislation in Montenegro and San Marino, persons resident abroad may vote only in their own country. 39. In at least twenty-two of the member States which allow voting from abroad, persons wishing to avail themselves of this facility must apply by a certain deadline to be registered on the electoral roll, either to the authorities in their country of origin or to the diplomatic or consular mission abroad. 40. In Bosnia and Herzegovina an application for registration must be made before each election to the country’s central electoral commission. In Denmark, persons eligible to vote have to submit an application to the last municipality in which they lived. In Hungary, voters may request registration at the diplomatic or consular mission, by filling out an application to the local electoral bureau within the specified time-limit. In Germany and Luxembourg, the request must be made to the local authorities. In Slovakia, voters living abroad must request registration on a special electoral roll held by the municipal authorities of BratislavaPetržalka. In Slovenia, persons voting abroad must notify the national electoral commission, while in Serbia they must request registration on the electoral roll as foreign residents. Spanish voters must apply to the provincial branch of the electoral bureau for registration on the special list of absentee voters. In the United Kingdom, overseas voters must re-register each year with their local electoral registration office. 41. In some countries, the request must be sent to the diplomatic mission or consulate, which either draws up the list of voters itself or forwards requests to the competent authority in the country of origin. Belgian citizens included on the population register held by the diplomatic mission or consulate must complete a form indicating the municipality in which they wish to be registered and the voting method they will use. The form is then sent to the municipality concerned and the person’s name is added to the list of expatriate voters. 42. In Bulgaria, the Czech Republic, Poland and Russia, the list of expatriate voters is drawn up by the diplomatic or consular mission on the basis of requests from voters. Croatian citizens wishing to vote abroad must register with the Croatian embassy or consulate. Latvian voters who wish to vote by post have to apply to the diplomatic mission or consulate concerned, where they are registered on a special list. In the Netherlands, expatriates eligible and wishing to vote must request registration on the electoral roll of Dutch nationals living abroad by applying to the head of the consular mission, who forwards the request to The Hague. In Portugal, voting abroad entails prior registration on a consular list of voters. Swiss citizens living abroad must apply to the diplomatic or consular mission with which they are registered. The application is forwarded to the municipality in which the person concerned habitually voted, and he or she is registered on the electoral roll there. In “the former Yugoslav Republic of Macedonia”, expatriate voters are registered on the country’s electoral roll after applying to the diplomatic mission or consulate. In Turkey, expatriate voters must register on a special electoral roll by submitting a declaration of residence to the nearest consulate. 43. In other countries, expatriate voters do not have to complete any formalities in order to register, as the authorities register them automatically on the basis of the existing lists of voters. This is the case in Estonia, Finland, France, Georgia, Iceland, Italy, Lithuania, the Republic of Moldova, Norway, Romania, Sweden and Ukraine. Voters who are not on the electoral roll may register on request (for instance in France, Georgia, Italy and Ukraine). 44. In Iceland, voters must re-register on the national electoral roll after eight years’ residence abroad; in Norway and Sweden, the time-limit is ten years. 45. In some countries which have automatic registration, expatriates must complete certain formalities in order to vote in their country of origin. For instance, Italian voters resident abroad who wish to vote in Italy must inform the relevant consular authority in writing. French expatriates must request registration on the electoral roll in France if they wish to vote there. | 0 |
train | 001-23316 | ENG | BGR | ADMISSIBILITY | 2,003 | MARINTCHEV v. BULGARIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Miroslav Georgiev Marintchev, is a Bulgarian national who was born in 1954 and lives in Plovdiv. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, co-agent, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 31 January 1990 the applicant’s former wife took proceedings against him in the Plovdiv Distinct Court, seeking the annulment of a donation of an amount of money made during their marriage. She claimed the return of 1,000 convertible levs („валутни лева“), a special currency unit used in Bulgaria at the time. The first hearing was held on 1 March 1990. The applicant disputed the claim and counter-claimed for five items of jewellery, allegedly costing 17,000 Bulgarian levs (“BGL”), which he had donated to his former wife. The court ordered an expert report on the value of the jewellery and requested from the applicant’s and his former wife’s bank all documents relating to the banking transactions effected during their marriage. The second hearing took place on 3 April 1990. The court heard two witnesses whose testimony related to the jewellery claimed by the applicant. Noting that the banking documents requested at the previous hearing had not been produced, the court reiterated its request to the bank. The third hearing was held on 25 April 1990. The court admitted in evidence the expert report on the value of the jewellery. It noted that the banking information had not yet been produced and adjourned the case until 5 June 1990. On 1 June 1990 the applicant’s lawyer asked the court to reschedule the hearing listed for 5 June 1990 because he intended to be on leave between 3 and 9 June 1990. The court granted the request and listed a hearing for 13 November 1990. At the hearing held on 13 November 1990 the applicant’s former wife increased her claim to 4,657 convertible levs and returned part of the jewellery claimed by the applicant. The court ordered an additional expert report on the value of the jewellery. The next hearing took place on 5 December 1990. The court heard two witnesses and admitted in evidence the expert report on the value of the jewellery. The applicant’s former wife’s lawyer disputed the expert’s conclusion and the court ordered a new expert report to be drawn up by three experts. The last hearing before the Plovdiv District Court was held on 25 March 1991. The court admitted in evidence the report of the three experts ordered at the previous hearing. The applicant’s former wife presented certain documents as evidence. The court also heard the parties’ arguments. By judgment of 25 February 1992 the Plovdiv District Court annulled the donation made by the applicant’s former wife and ordered the applicant to pay the amount back. The court also disposed of the applicant’s counter-claim, ordering his former wife to return certain items of jewellery. On 2 April 1992 the applicant appealed against the judgment to the Plovdiv Regional Court. Having noted that he had not paid the requisite fee for filing an appeal, on 10 April 1992 the court instructed him to rectify this omission. The applicant paid the fee and on 7 May 1992 the court listed a hearing for 30 June 1992. The hearing before the Plovdiv Regional Court was held on 30 June 1992. The court refused the applicant’s former wife’s request to adjourn the hearing, admitted in evidence certain documents filed by the applicant and heard argument. By judgment of 6 July 1992 the Plovdiv Regional Court partially vacated the first-instance judgment, holding that in view of the amount claimed by the applicant’s former wife (4,657 convertible levs, equal to BGL 65,896.55 at the relevant time), the district court had lacked jurisdiction over the matter, the competent court for claims above BGL 10,000 being the regional court. It upheld the judgment as regards the applicant’s counter-claim in respect of the jewellery. The proceedings then resumed at first instance before the Plovdiv Regional Court, but only in respect of the initial claim of the applicant’s former wife. The first hearing before the Plovdiv Regional Court was held on 20 October 1992. The applicant’s former wife was represented by a new lawyer. The court ordered an accounting expert report to be prepared on the banking transactions of the applicant and his former wife. The second hearing took place on 3 December 1992. The court admitted in evidence the accounting expert report. Finding that the report was not complete as the bank had not allowed the expert access to all relevant documents, the court ordered the expert to supplement the conclusions and ordered the bank to allow access to all documents. The court also heard two witnesses. The last hearing took place on 12 February 1993. The applicant’s lawyer asked the court to adjourn the case, as the Bar Association of which he was a member had ordered a strike and he could therefore not appear before the court on that date. The court rejected the request, admitted the supplementary expert report in evidence and heard argument. On 19 February 1993 the Plovdiv Regional Court decided in favour of the applicant’s former wife. On 23 March 1993 the applicant appealed. Noting that the requisite court fee had not been paid, the court instructed the applicant to pay it. The applicant did so on 13 April 1993, and the case was forwarded to the Supreme Court. A hearing due to take place before the Supreme Court on 8 December 1993 was adjourned because the summons for the applicant’s former wife had been served on her previous lawyer and not on her current lawyer. The hearing was held on 6 April 1994. The applicant presented one document as evidence and his written observations. By judgment of 25 April 1994 the Supreme Court quashed the Plovdiv Regional Court’s judgment and remitted the case. It held that the lower court had erred by proceeding at its last hearing in the absence of the applicant’s lawyer. It also held that the lower court’s conclusion on the origin of part of the money claimed by the applicant’s former wife had not been supported by the evidence and instructed that court to gather evidence in that respect. It also instructed the lower court to gather evidence about the applicant’s former wife’s animus donandi. The first hearing in the proceedings on remittal before the Plovdiv Regional Court was held on 19 September 1994. On the motion of the applicant’s lawyer the court ordered an accounting expert report. It also invited the parties to present additional evidence. The next hearing, which was due to take place on 25 October 1994, was adjourned because the expert report was not ready. Since a witness for the applicant’s former wife was going to be out of the country for more than two months, the court decided to schedule the next hearing for a date not earlier than March 1995. The hearing listed for 6 March 1995 did not take place because the applicant’s former wife, who was out of the country at that time, had not been correctly summoned. A hearing was held on 12 April 1995. The court admitted in evidence the expert report ordered on 19 September 1994, and heard two witnesses called by the applicant and one witness for the applicant’s former wife. By judgment of 4 July 1995 the Plovdiv Regional Court found in favour of the applicant’s former wife. It held that the amount in issue was the personal property of the applicant’s former wife, that she had donated it to him during the marriage and that the applicant was obliged to return it. On 29 September 1995 the applicant filed an appeal. Finding that the applicant had specified the amount in convertible levs and not in Bulgarian levs, as required under the relevant rules of civil procedure, on 4 October 1995 the court instructed him to rectify this shortcoming. The applicant did so on 3 November 1995. Based on the amount specified by the applicant, the court calculated the requisite fee for filing an appeal, and on 6 November 1995 invited the applicant to pay it. The applicant paid and on 16 January 1996 the case file was forwarded to the Supreme Court of Cassation. The first hearing before the Supreme Court of Cassation was due to take place on 5 September 1996, but was adjourned because the applicant’s lawyer refused to accept the summons as he was no longer in contact with the applicant. The hearing took place on 10 December 1996. The applicant was represented by a new lawyer. The court heard argument. On 2 July 1997 the Supreme Court of Cassation, acting as a court of appeal, reversed the lower court’s judgment as regards the additional amount claimed by the applicant’s former wife and decided that her action was well-founded only in respect of the amount initially claimed. On 1 September 1997 the applicant’s former wife’s lawyer lodged a petition for review with a five-member panel of the Supreme Court of Cassation. At a hearing held on 11 March 1998 the court found that the petition for review, which had been lodged by a lawyer, was not accompanied by a power of attorney. It instructed the applicant’s former wife’s lawyer to rectify this omission. On 5 May 1998 the court, noting that the omission had not been rectified after notification, discontinued the proceedings. As of that date its judgment of 2 July 1997 became final. | 0 |
train | 001-58074 | ENG | ITA | CHAMBER | 1,996 | CASE OF CETERONI v. ITALY | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 8;Not necessary to examine P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | C. Russo | 8. On 2 April 1982 the District Court of Fermo (Ascoli Piceno) made an insolvency order in respect of the company set up by Mr Umberto Ceteroni and his parents and also declared them personally bankrupt. 9. On 8 and 15 June 1983 respectively Mr A. and the L.M. company, claiming to be creditors of the bankrupts, instituted separate proceedings before the Fermo bankruptcy judge (giudice delegato) contesting the statement of liabilities drawn up with a view to settling the company's debts. The judge set down hearings to enter appearances on 26 October and 9 November 1983 respectively. On the latter date the liquidator applied to the judge for leave to join the second proceedings. His application was allowed on 3 February 1987. 10. The preparatory phases of the two cases continued until 15 and 29 October 1990. During the intervening period fifteen hearings were held in one case and sixteen in the other; they were almost all adjourned at the request of the parties or by the judge of his own motion. 11. On a date that has not been specified the two sets of proceedings were stayed sine die because the judge had been transferred to another post. Proceedings were reopened on 25 March and 7 February 1994. 12. On 30 May 1994 the Fermo District Court struck the first case out of its list because the parties had failed to appear. According to information supplied by the applicants' lawyer, the plaintiff had decided not to pursue his case. As regards the second case, on 21 February 1994 the parties communicated their final submissions and the judge set down the trial hearing for 11 March 1994, on which date the Fermo District Court allowed the L.M. company's application. The text of the judgment was deposited at the registry on 7 April 1994. II. Relevant domestic law 13. The relevant provisions of Royal Decree no. 267 of 16 March 1942 read as follows: Section 26 "An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within three days of their adoption, and may be lodged by the liquidator, by the bankrupt, by the creditors' committee or by any other person with an interest. The district court shall deliberate in private session and give a reasoned decision. The appeal shall not have suspensive effect in relation to the impugned decision." Section 36 "An appeal shall lie against measures taken by the liquidator. Such appeals may be lodged by the bankrupt, or any other person with an interest, with the bankruptcy judge, who shall give a reasoned decision. An appeal against that decision must be lodged within three days with the district court. That court shall give a reasoned decision after hearing the liquidator and the appellant." Section 48 "Correspondence addressed to the bankrupt must be passed to the liquidator, who shall be empowered to retain correspondence concerning property interests. The liquidator has a duty of confidentiality as regards the content of the correspondence that does not relate to such interests." Section 49 "The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, to the liquidator and to the creditors' committee each time that he is duly summoned, except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative. If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police." | 1 |
train | 001-4627 | ENG | FIN | ADMISSIBILITY | 1,999 | KIISKINEN AND KOVALAINEN v. FINLAND | 1 | Inadmissible | Georg Ress | The application was originally submitted by Esa Kiiskinen (hereinafter “the applicant”) and Mikko Kovalainen. The latter’s complaints were declared inadmissible by the European Commission of Human Rights (“the Commission”) on 28 May 1997. The present applicant is a Finnish national who was born in 1948. He is a businessman resident in Villala. Before the Court he is represented by Mr Mikko Kovalainen, a lawyer practising in Joensuu. The facts of the case, as submitted by the parties, may be summarised as follows. A. In March 1989 the applicant sued two companies, a limited partnership company P (hereinafter “P Company”) and a finance company I (hereinafter “I Company”), for damages resulting from a breach of contract relating to his hire-purchase of a forestry vehicle and related equipment. He argued, inter alia, that the relevant vehicle model had not been officially approved by the authorities for the purpose and could therefore not be used. In a further suit of July 1989 he requested that the hire-purchase contract be dissolved. The parties appeared twelve times before the then City Court (raastuvanoikeus, rådstuvurätten) of Helsinki. The presiding judge apparently changed on a number of occasions. The court heard thirteen witnesses called by the applicant and ten witnesses called by the companies. The parties did not call any further witnesses. The applicant objected to the hearing of two witnesses called by the companies. Firstly, he objected to the examination of witness K on the grounds that K was a limited partner in P Company. The court dismissed the applicant’s objection and heard evidence from K. Secondly, the applicant objected to the examination of PP, a lawyer employed by I Company, stating that PP had sat among the audience at least during the first three court sessions. The City Court asked PP whether he had participated in the previous pleadings. PP having answered in the negative, the City Court dismissed the objection. According to the minutes of the case, the applicant asked PP whether he had been present in the courtroom during the three first court sessions. PP replied that he had been among the audience. Furthermore, the City Court heard evidence, among others, from KK, who was the Head of Service Department of P Company. In November 1989 I Company countersued the applicant for breach of the hire-purchase contract. On 7 December 1989 the applicant objected to the countersuit, claiming that the summons had not been duly served on him since he had only been given copies of the annexes to the writ of summons. The City Court rejected the objection, noting that the applicant had acknowledged that, although he had received only copies of certain annexes, the relevant original documents had nevertheless been shown to him. The City Court's last session on 28 October 1991 was presided over by Judge T. On that day the City Court rejected the applicant's action. The judgment comprises three pages. The minutes of the last court session state, inter alia, as follows: "... After judgment had been pronounced [the applicant’s counsel] stated that the lack of an official approval of the ... vehicle model had been one of the grounds for the action and today ... the principal issue. Counsel ... therefore requested that the City Court pronounce itself on the question of the model approval. The parties having stepped out, the City Court inserted a finding on this point in its judgment and pronounced it to the parties. ..." On this point the City Court found that it had not been shown that the vehicle required a model approval and that, in any case, the applicant had inspected and accepted the vehicle before concluding the hire-purchase contract. In November 1991 the applicant appealed against the City Court's judgment. He stated, inter alia, that witness KK should not have been heard and that his testimony should therefore be ignored. In addition, he criticised the proficiency of the judges of the City Court. On 20 October 1993, the Court of Appeal (hovioikeus, hovrätten) approved the City Court’s decision as regards the two procedural objections concerning witnesses K and PP. Furthermore, it found no indication that KK had been prevented from testifying on account of his position in P Company. The Court of Appeal went on to reject the appeal as a whole. In December 1993 the applicant requested leave to appeal. He stated, inter alia, that during the hearings one of the judges of the City Court had made improper eye contact with the companies’ counsels. In a document signed by the applicant's wife on 11 January 1994 she confirmed that prior to being heard as a witness before the City Court a lawyer named PP, employed by I Company, had sat among the audience during at least two or three court sessions. At the beginning of the oral hearings, the applicant’s counsel had already objected to PP's presence. The document was submitted to the Commission as an annex to the application. On 13 May 1994, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. It does not appear whether the above-mentioned document of 11 January 1994 was submitted to the Supreme Court. In a document signed by the applicant and his wife on 13 June 1994 they stated, among other things, that while the case was pending before the City Court, I Company's counsel and the lawyer PP employed by it repeatedly stated that because of their contacts with the judiciary the applicant's action was bound to fail. In a later civil case, completely unrelated to the applicant’s case, one of the parties requested that the above-mentioned Judge T step down on account of his being a member of the Freemasons (vapaamuurarit, frimurarna) as were some of the directors of the other party. The Helsinki District Court (the former City Court), were the case was pending, rejected this request on 21 August 1995. Thereafter, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) was filed with a petition. On 4 September 1995 Judge T excluded himself from the case on his own initiative. The applicant became aware of Judge T’s membership of the Freemasons through a newspaper report of 9 September 1995. It does not, however, appear when he started to believe that some of the members belonging to the management of I Company were, or might be, Freemasons. It does not appear which members belonging to I Company’s management, if any, were Freemasons at the relevant time. The applicant did not request the case be reopened. B. Relevant domestic law and practice According to chapter 31, section 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångs balk), a judgment which has acquired legal force may be nullified (poistaa, undanröja) by a court of appeal or the Supreme Court on account of a procedural error if, for instance, the case was examined even though the court lacked quorum or should of its own motion have declined to examine the case for a particular reason (1); or if another procedural error has occurred which is found to have or can be presumed to have essentially influenced the outcome of the case (4). If nullification is sought on these grounds, the application shall be lodged within six months from the date when the judgment sought to be annulled acquired legal force (section 2). According to chapter 31, section 7, of the Code of Judicial Procedure, a judgment in a civil case which has acquired legal force may be annulled (purkaa, återbryta) by the Supreme Court if, for instance, a member or an official of the court has committed a criminal act which can be presumed to have influenced the outcome of the case (1); if a circumstance or piece of evidence, which was not introduced previously, is referred to and its introducing would probably have led to a different outcome of the case (3); or if the judgment is based on manifestly incorrect application of the law (4). Such an application shall be lodged within one year from the date when the applicant became aware of the circumstance on which the application is based (3), or judgment concerning the criminal act (1), or the judgment sought to be annulled (4) acquired legal force. In the two first-mentioned cases the application shall at any rate be made within five years from the date when the judgment sought to be annulled acquired legal force, unless weighty reasons are put forward for a later application (section 10 and the Supreme Court's precedent No. 1994:111). In a judgment of 28 March 1997, the Supreme Court nullified, by virtue of chapter 31, section 1, of the Code of Judicial Procedure, a decision of its own for a reason relating to the disqualification of a judge who had participated in the taking of that decision. | 0 |
train | 001-5981 | ENG | DEU | ADMISSIBILITY | 2,000 | NOACK AND OTHERS v. GERMANY | 1 | Inadmissible | null | There are fifteen applicants. The first thirteen, who live in the village of Horno in the Land of Brandenburg, are Mr Noack, Mr and Mrs Siegert, Mr and Mrs Hornig, Mr Hugler, Mr Kneschk, Mr Lindner, Mr and Mrs Naparty, Mrs Nitschke, Mr Richter and Mr Willnow. The fourteenth applicant is the Domowina, an association for the protection of Sorbian interests, and the fifteenth, the Horno Protestant community. The applicants are represented before the Court by Ms U. Philipp-Gerlach, of the Frankfurt Bar, and Mr R. Giebenrath, of the Freiburg (im Breisgau) Bar. The facts of the case, as submitted by the parties, may be summarised as follows. The case concerns the transfer – scheduled to take place at the end of 2002 – of the inhabitants of Horno, a village in the Land of Brandenburg fifteen kilometres north of the town of Cottbus, near the Polish border. Horno has a population of 350, approximately a third of whom are from the Sorbian minority, of Slav origin. The first twelve applicants say that they are members of the Sorbian minority. Approximately 20,000 Sorbs (Sorben) live in the Land of Brandenburg. They have their own language and culture. They have their own customs (sorbisches Brauchtum), which are kept alive by groups performing Sorbian songs or wearing traditional costumes and by drama societies, literary circles and drawing classes. The majority of Sorbs are Protestants. The inhabitants of Horno are to be transferred to a town some twenty kilometres away because of an expansion of lignite-mining operations (Braunkohleabbau) in the area, as the Jänschwalde open-cast lignite mine (Braunkohletagebau) is just a few kilometres from Horno. The mining rights (Nutzungsberechtigung) belong to the LAUBAG company (Lausitzer Braunkohle Aktiengessellschaft). In 1977 the Government of the German Democratic Republic (GDR) decided that the population of Horno would have to be transferred to make a larger area available for lignite mining, a decision opposed by the inhabitants even then. In the early 1990s the inhabitants of Horno took part in demonstrations and signed petitions calling for an end to lignite mining in the municipality. On 14 March 1994 the Mining Board (Oberbergamt) of the Land of Brandenburg approved an Outline Project for Continued Open-Cast Mining at Jänschwalde 1994 until Exhaustion of the Deposits (Rahmenbetriebsplan zur Weiterführung des Tagebaus Jänschwalde 1994 bis Auslauf ). Under the project, lignite mining in the area was to continue and as a result the inhabitants of Horno were to be transferred in 2003. By a decision of 6 June 1994, the Mining Board dismissed an application (Widerspruch) by 161 landowners to have the project shelved. A large majority of these landowners, including the third, seventh, tenth, eleventh and thirteenth applicants, were from Horno. At the beginning of July 1994 various municipal councils and the third, seventh, tenth, eleventh and thirteenth applicants lodged an application for judicial review of that decision with the Cottbus Administrative Court (Verwaltungsgericht). Those proceedings were still pending when the application to the Court was made. On 17 December 1998 the Cottbus Administrative Court held a public hearing and delivered a judgment dismissing the application. In finding against the applicants, it relied in particular on settled authority that had established that a mere decision to approve a project for mining operations did not as a matter of principle (grundsätzlich) infringe the rights of the owners of the land affected by the works, since the decision in question did not at that stage concern the absorption of the individual plots of land. The Administrative Court added that there was nothing to prevent the landowners challenging the legality of the mining operations in the separate procedure, known as the mining-law land-transfer procedure (bergrechtliches Grundabtretungsverfahren), that would follow. On 23 April 1997, at a public hearing, the Parliamentary Commission for the Environment, Nature Conservation and Regional Development of the Land of Brandenburg heard submissions from the representatives of associations, interest groups, research institutes and legal experts on the Lignite Bill. The Land of Brandenburg’s Basic Law on Lignite (Braunkohlegrundlagengesetz) came into force on 12 July 1997. Section 1 of the statute concerns lignite extraction (Förderung der Braunkohle) and section 2, the dissolution of the Horno Municipal Council and the incorporation of its territory into the Municipality of Jänschwalde (Auflösung der Gemeinde Horno und Eingliederung ihres Gemeindegebietes in die Gemeinde Jänschwalde – see Relevant Domestic Law below). On 5 September 1997 several members of the Brandenburg Parliament lodged an appeal with the Constitutional Court of the Land of Brandenburg (Verfassungsgericht des Landes Brandenburg) seeking a review of the constitutionality of the Basic Law (Normenkontrollantrag). The first and fourteenth applicants also lodged a constitutional appeal (Verfassungsbeschwerde) with that court. After hearings on 19 March and 18 June 1998, the Constitutional Court of the Land of Brandenburg held that the provisions of the Basic Law on Lignite allowing lignite mining in the municipality of Horno were consistent with the Land’s Constitution. It held that the rights granted to the Sorbs by the first sentence of Article 25 § 1 of the Land’s Constitution regarding the protection of the area where they had originally settled did not afford them absolute protection against the absorption (InanspruchnahmeLand’s Constitution and struck a reasonable balance between the right it enshrined and other fundamental rights and that the result was not disproportionate. For the purposes of assessing the future evolution of the economic position, the legislature had been entitled to rely on reports by experts, provided their forecasts were plausible and reasonable. The Constitutional Court found that the legislature’s decision to dissolve Horno Municipal Council and to use the land for open-cast lignite mining remained compatible with the first sentence of Article 25 § 1, regard being had to the measures that had accompanied that decision (Begleitregelungen) and to the fact that the legislature had weighed the State’s objectives of protecting, conserving and maintaining the area where the Sorbs had originally settled against its objectives of structural development (Strukturförderung), job preservation (Arbeitssicherung) and securing energy supplies (Energieversorgung). In decisions of 16 July 1998 the Constitutional Court of the Land of Brandenburg also dismissed the applicants’ appeals. It noted that section 3 of the Basic Law on Lignite supplemented the Land of Brandenburg’s Law on Expropriation (Enteignungsgesetz des Landes Brandenburg) by adding special provisions for the lignite-mining areas and authorised expropriations for the purposes of resettlement (Wiederansiedlung) of the population. It further noted that, in the case of Horno, arrangements had been made for resettlement in the neighbouring villages. It added that Mr Noack, in his capacity as a citizen of Horno, did not appear to be entitled at that juncture to complain of an infringement of his right to peaceful enjoyment of his property. It referred also to its judgment of 18 June 1998 regarding the conformity of the Basic Law on Lignite with the Constitution of the Land. The second, fourth, fifth, sixth, eighth, ninth, twelfth, and fifteenth applicants did not exercise any remedies before the German courts. The Land of Brandenburg’s Basic Law on Lignite laid down that the inhabitants of Horno had to be consulted regarding their preferred destination. They were given a choice between four villages, all of which were situated in the area where the Sorbs had originally settled. On 6 September 1998 86,6 % of the population of Horno voted on that issue. The majority (71,5 % – 198 inhabitants) chose the town of Forst (Lausitz), which is approximately twenty kilometres from Horno. By a decree (Verordnung) of the Government of the Land of Brandenburg dated 8 September 1998, the Jänschwalde Open-Cast Lignite Mining Project (Braunkohleplan Tagebau Jänschwalde) acquired binding force and was published in the Land’s Official Gazette (Gesetz- und Verordnungsblatt). In the course of 1998 LAUBAG began to submit offers to landowners living in Horno for the purchase (Erwerb) or the transfer for mining purposes (Überlassung für bergbauliche Zwecke) of their land. At a meeting of the Lignite Board (Braunkohleausschuss) on 25 February 1999, LAUBAG offered to allocate the landowners equivalent land in the resettlement village and to bear all the transfer and resettlement costs. On 14 June 1999 LAUBAG requested the Brandenburg Mining Board to declare that the Horno District Authority was required to license certain land to it for a twenty-five-year term. The proceedings against some of the applicants are still pending. By a decree of 27 August 1999, published on 23 September 1999 in the Land’s Official Gazette, the Government of the Land of Brandenburg approved the part of the project dealing with the transfer of the inhabitants of Horno. The practical arrangements for the transfer were set out in that part of the project and included the following provisions: the cost of transferring the population would be borne by LAUBAG; village community life was to continue during the transfer; every effort was to be made to assist the Horno villagers’ integration into the town of Forst; measures to protect and develop the Sorbian culture and language were to be encouraged; and the transfer was to be completed by 2002. On 30 December 1999 the Senftenberg Mining Board approved the Principal Mining Project (Hauptbetriebsplan) for Jänschwalde 2000/2001. On 4 February 2000 the applicants challenged that decision. By decisions of 21 January and 21 February 2000, the Mining Board of the Land of Brandenburg transferred property rights in certain plots of land belonging to inhabitants of Horno to LAUBAG. The landowners concerned lodged applications for judicial review of those decisions with the Cottbus Administrative Court. Article 25 of the Constitution of the Land of Brandenburg, which protects the rights of the Sorbian minority, provides: “1. The Sorbian people are entitled to the protection, preservation and perpetuation of their national identity and of the area in which they originally settled. The Land, municipalities and associations of municipalities shall help to give effect to those rights and in particular to secure the cultural autonomy of the Sorbian people and their effective participation in politics. 2. The Land shall ensure that the Sorbs are able to achieve cultural autonomy transcending the borders of the Land. 3. The Sorbs have a right to the preservation and development of the Sorbian language and culture in public life and to their use in schools and day nurseries. 4. In areas where the Sorbs have settled, administrative documents shall also be drafted in the Sorbian language. The colours of the Sorbian flag shall be blue, red and white. 5. The means by which the Sorbs will be able to exercise their rights shall be laid down by a statute that will guarantee the participation of Sorbian representatives in matters, and in particular legislative debate, concerning the Sorbs.” The Land of Brandenburg’s Basic Law on Lignite (Braunkohlegrundlagengesetz) entered into force on 12 July 1997. The relevant sections of the Law provide: (1) Lignite extraction Lignite in the Lausitz-Spreewald area may be extracted, in accordance with the law, to secure supplies of raw materials and energy and to strengthen the economy of the Land, provided that usable deposits are conserved, that the natural foundations of life are protected and that considerate use is made of the land. (2) Displacement of local populations as a result of mining works Where the requisition of inhabited areas is unavoidable, it must be preceded by an offer of equivalent compensation. Every effort must be made to preserve village communities and social ties by moving the populations concerned together. The transfer shall be effected at the cost of the mining company. (3) Settlement areas for Sorbs In populated areas for which it is attested that there has been to date an unbroken tradition of Sorbian language and culture, populations displaced as a result of mining works shall be offered appropriate resettlement sites within the original Sorbian settlement area, as defined by section 3(2) of the Law on the Sorbs.” (1) Territorial division Horno Municipal Council (district of Spree-Neiße) shall be dissolved on the date of the next municipal-council elections in the Land. Thereafter, its territory shall be incorporated within the territory of the municipality of Jänschwalde (district of Spree-Neiße). (2) Legal succession 1. Jänschwalde Municipal Council shall succeed to the rights and obligations of Horno Municipal Council from the date the territory of the municipality of Horno is incorporated into its territory. … (4) Institution of a Municipal District (Ortsteilbildung) and a Municipal Law (Ortsrecht) in the Absorbed Territory 1. From the date of its absorption into the municipality of Jänschwalde, the territory of the municipality of Horno (the absorbed territory) shall enjoy special status as a district of the municipality of Jänschwalde... (5) Resettlement 1. In order to preserve the village community and social ties, the inhabitants of Horno should be offered suitable sites for rehousing in Jänschwalde... Before the project for working the deposits is drawn up, the Lignite Commission shall hear representations from the citizens of Horno regarding their resettlement in the municipality of Jänschwalde, the municipality of Turnow or the towns of Peitz or Forst (Lausitz). … (6) Institution of a municipal district in the resettlement area 1. The area allocated in accordance with section 5 subsections 1 or 2 for the resettlement of the inhabitants of Horno shall be vested with special status as an administrative district within the host municipality if at least one-third of the inhabitants of Horno are registered as having their main residence there. …” Section 3 of the Basic Law supplements the Law on Expropriation of the Land of Brandenburg (Brandenburgisches Enteignungsgesetz) with special provisions for areas of lignite extraction. “The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship...” | 0 |
train | 001-96612 | ENG | BGR | CHAMBER | 2,010 | CASE OF BACHVAROVI v. BULGARIA | 4 | Violation of P1-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger | 6. The applicants were born in 1927 and 1951 respectively and live in Varna. They are a father and his son. 7. In 1959 the first applicant and his wife bought from the State, through the Ministry of Defence, an apartment of 115 square metres in the centre of Varna. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years. It had been a part of a bigger apartment, which had on an unspecified date before 1959 been divided into two smaller ones. 8. In the beginning of 1993 the heirs of the former pre-nationalisation owner of the property brought proceedings against the first applicant and his wife under section 7 of the Restitution Law. 9. In 2003 the first applicant’s wife died and was inherited by the two applicants. 10. The proceedings under section 7 of the Restitution Law ended by final judgment of the Supreme Court of Cassation of 20 February 2004. The courts found that the applicants’ title was null and void because the division of the initial bigger apartment into two smaller ones (see paragraph 7 above) had not been carried out in accordance with the law. 11. Immediately after the final judgment in their case, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The applicants did not avail themselves of this opportunity. 12. In December 2006 the heirs of the former owner of the apartment brought a rei vindicatio action and an action for damages against the first applicant who was still living in the apartment. The proceedings are still pending. The first applicant’s request to be accommodated in a municipallyowned dwelling, lodged in 2004, has not yet been granted due to the unavailability of free apartments. 13. These have been summarised in the Court’ s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007. | 0 |
train | 001-4874 | ENG | POL | ADMISSIBILITY | 1,999 | LIPOWSKI v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant is a Polish national, born in 1968. He is a carpenter and is currently detained in the Płock prison. On 16 May 1996 the applicant was detained on remand. On 17 May 1996 he was transferred to the Bartoszyce Detention Center. Between 12 and 27 June 1996 the applicant was on hunger strike. On 24 June 1996 the applicant complained to the Governor of the Bartoszyce Detention Center about the ill-treatment by prison officers. In a letter of 31 July 1996 the Deputy Governor of the Bartoszyce Prison informed the applicant that he considered his complaint as unsubstantiated. He pointed out that during the applicant’s hunger strike, which had been prompted by the decision to detain him and by his family problems, he enjoyed constant medical and psychological care. The applicant alleges that on 25 July 1996 he was assaulted by three prison officers and subsequently spent two days in solitary confinement. On 16 August 1996 the applicant complained to the District Director of the Prison Service about the assault, the absence of medical examination before his transfer to the solitary confinement, and about his poor health. On 25 October 1996 the District Director rejected the complaint as ill-founded. He admitted that at 8:20 a.m. on 25 July 1996 the applicant had been overpowered, handcuffed and put in solitary confinement. At 11:30 a.m. on the same day the applicant had been examined by a physician who had concluded that he had not have any injuries except for a slight skin excoriation on his hands. The second medical check-up, conducted at 8:10 a.m. on 26 July 1996, had resulted in the doctor’s opinion that the applicant could remain in the solitary confinement. Moreover, an ambulance had been called in the afternoon of 26 July 1996 as the applicant had been complaining about stomach pain, but the medical examination on that occasion had resulted in the conclusion that the applicant’s condition had been normal and analgesics could be prescribed. The Director further noted that together with the Chief Medical Officer of the District Prison Board he had analysed the applicant’s medical file and found that the applicant had always been receiving prescribed medicines. Whenever they had not been available in the prison’s surgery, they had been purchased in the pharmacy outside the prison. On 10 October 1996 the applicant informed the Bartoszyce District Prosecutor that on 25 July 1996 he had been assaulted by the prison officers. On 14 November 1996 the District Prosecutor decided to discontinue the investigation of the complaint as he concluded that the prison officers had acted lawfully. In particular, the District Prosecutor found that on 25 July 1996 the applicant had been kicking the door of his cell, shouting and threatening with self-mutilation. He had been warned several times that force would be used against him if he had not stopped this behaviour. Since the applicant had continued to behave in this manner, the Prison Governor had authorised the use of force against the applicant, handcuffing him and putting in solitary confinement. That decision had been carried out by three prison officers under the supervision of two senior prison officers. Since the applicant had behaved violently, the officers had used force to overpower him. During his solitary confinement the applicant had been examined on several occasions by physicians who had found no injuries except for a slight skin excoriation on his hands. Further medical examination undertaken after the applicant had complained about stomach pain had resulted in the finding of superficial gastritis. The pain had disappeared after administration of analgesics and a special diet. On 19 December 1996 the Kętrzyn District Court convicted the applicant of assault and sentenced him to three and a half years’ imprisonment. On 3 February 1997 the applicant was transferred to the Olsztyn Detention Center. In a letter of 13 February 1997 the District Director of the Prison Service informed the applicant that his complaints submitted on 20 October 1996 to the Ombudsman were ill-founded. The District Director was of the opinion that the testimony given by the witnesses and medical evidence clearly showed that the alleged assault had not in fact taken place as the prison officers had lawfully responded to the applicant’s violent behaviour. Moreover, he pointed out that in his conversation with the Prison Governor, which had taken place on 27 July 1996, the applicant had not raised any complaints about the alleged assault. The Director also dismissed as unsubstantiated the applicant’s complaints concerning irregularities in the delivery of mail, the failure to give him prescribed medicines and difficulties in contacting his family members. On 2 April 1997 the applicant was transferred to the Kamińsk Prison. On 10 April 1997 the Olsztyn District Court convicted the applicant of larceny and sentenced him to four and a half years’ imprisonment. On 19 April 1997 the Ombudsman informed the applicant that his complaints relating to the alleged irregularities in the mail delivery were unfounded. He pointed out that during the interview with the Penitentiary Judge held on 18 March 1997 the applicant had failed to provide any facts which would make it possible to investigate his allegations. The Ombudsman also observed that the applicant’s allegations concerning the assault by the prison officers had been investigated by the District Prosecutor who had concluded that they were unfounded and discontinued the investigation. On 28 April 1997 the applicant complained to the District Director of the Prison Service about the inadequate medical treatment and inaccurate diagnosis of his condition at the time of his detention in the Olsztyn Detention Center. In a letter of 27 June 1997 the District Director dismissed the complaint. He pointed out that after the applicant had complained about problems with his kidneys and urinary system he had undergone several medical examinations. In particular, blood and urine tests had been administered. Furthermore, an x-ray of his abdominal cavity had been taken together with an ultrasound of his urinary bladder. The applicant had also had two consultations in the urology clinic. The Director concluded that since the applicant had had access to proper medical care in the Olsztyn Detention Center his complaint was ill-founded. On 27 August 1997 the applicant complained to the District Director of the Prison Service about the assault by prison officers on 25 July 1996 and about an inaccurate diagnosis given by a psychologist who had examined him. On 13 October 1997 the District Director rejected his complaint. He observed that the incident, which had taken place on 25 July 1996, was investigated by a prosecutor who concluded that the prison officers acted lawfully. Furthermore, the Director informed the applicant that he had been given psychological counselling since he had suffered from personality disorders. The psychologist’s note in the applicant’s medical records merely described his difficulties in adapting to the prison environment and was not used by the prison administration to make any decision concerning his detention. On 13 November 1997 the Olsztyn District Court pronounced a cumulative judgment in respect of the judgments of 19 December 1996 and 10 April 1997 and reduced the applicant’s sentence to six and a half years’ imprisonment. On 9 May 1998 the applicant’s mother died. On 18 May 1998 the Penitentiary Judge refused the applicant’s request for a leave to attend her funeral but apparently granted permission for his attendance under police escort. On 31 July 1998 the applicant got married. He still serves his prison sentence. | 0 |
train | 001-91117 | ENG | POL | CHAMBER | 2,009 | CASE OF KAPRYKOWSKI v. POLAND | 3 | Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1966 and lives in Poznań. 6. He is a recidivist offender. He served a number prison sentences in various detention establishments in Poland. 7. Since 1996 the applicant has been suffering from epilepsy marked by frequent (daily) seizures and encephalopathy accompanied by dementia. He also suffers from ulcers and syphilis. He has been classified by the social security authorities as a person with a “first-degree disability making him completely unfit to work” (pierwszy stopień inwalidztwa całkowicie niezdolny do pracy). 8. On 7 November 2000 the Białystok District Court (Sąd Rejonowy) appointed neurology and forensic medicine experts to produce a report on the applicant’s health in connection with a criminal case pending at that time against him. The experts examined the applicant’s medical records and the preceding psychological and forensic medicine reports. The extracts from these documents revealed that since 1996 the applicant had been suffering from epilepsy accompanied by very frequent seizures and from a personality disorder. He had made several suicide attempts. During one medical interview, the applicant had stated that he could not obtain the necessary medical treatment in prison and that his cellmates ignored his epileptic fits. The doctors, who had examined the applicant in the past, agreed that he could remain in prison provided that he received specialised psychiatric treatment on a permanent basis. 9. On 11 July 2001 the Białystok District Court appointed new medical experts to draft a report on the applicant’s health. The experts found that the penitentiary medical care system could no longer offer the applicant the necessary treatment. They emphasised that his continuous incarceration might put his health and life at risk. It was further indicated that the applicant should obtain a more detailed diagnosis from a specialised clinic and, perhaps, undergo brain surgery. 10. It appears that the applicant was first remanded in custody on 30 May 1998. 11. From 13 April 1999 until 23 June 1999 and from 20 July 1999 until 4 January 2000 he was detained in Poznań Remand Centre. 12. It appears that in 2000 he was admitted for several days to an unspecified prison hospital. 13. On 10 January 2001 the applicant was committed to Gdańsk Remand Centre where he received medical treatment in the neurology ward. Doctors emphasised the need to provide the applicant with permanent specialised medical care and to ensure his constant supervision by another person. 14. On 5 April 2001 he was transferred to Białystok Remand Centre. 15. On 3 August 2001 the applicant was released home. 16. On 17 September 2001 he was again remanded in custody in connection with a new criminal case against him. From that day until 30 October 2001 he was detained in Poznań Remand Centre. 17. On 28 February 2002 he was granted conditional release from prison. 18. On 5 September 2002 the applicant was once more remanded in custody. He was committed to an unspecified detention facility. 19. From 28 April until 5 August 2003 the applicant was at liberty. 20. On 5 August 2003 the applicant was again remanded in custody. From that day until 30 November 2007 he was in continuous detention either in ordinary detention facilities or in prison hospitals. 21. During that time he was detained in Poznań Remand Centre during four separate periods: (1) from 5 until 27 August 2003; (2) from 18 May until 12 July 2005; (3) from 5 January 2006 until an unspecified date, presumably 20 March 2006; and (4) from 9 May until 30 November 2007. 22. It appears that apart from Poznań Remand Centre the applicant was detained in the following facilities: from 28 August 2003 until 21 April 2004 in Wrocław Prison; from 22 April 2004 until an unspecified date in Białystok Remand Centre; subsequently in Śrem, Białołęka, Radom and Jelenia Góra Remand Centres; from 19 September until 19 October 2004 in the Szczecin Remand Centre hospital and immediately afterwards in Stargard Szczeciński Prison; from an unspecified date in January 2005 in Bydgoszcz Remand Centre; from 10 January until 4 April 2005 in the Gdańsk Remand Centre hospital; from 12 July until 4 October 2005 in Wronki Prison; from 4 October 2005 until 5 January 2006 in the Gdańsk Remand Centre hospital; from 20 March until 19 April 2006 in the Bydgoszcz Remand Centre hospital; from 29 June 2006 until 9 May 2007 in the Czarne Prison hospital. 23. The applicant submitted that in Poznań Remand Centre he was committed to a general and not medical wing. He had shared his cells with healthy prisoners, who, as he submitted, had ignored his epileptic fits and had not offered him any help in his daily routines. The applicant also submitted that he had been humiliated in front of his fellow inmates because, as a result of his seizures, he had often lost consciousness and had wet himself. 24. On 1 December 2007 the applicant was released and he is currently at liberty. 25. From 19 September until 19 October 2004 the applicant was detained at the internal disease ward of the Szczecin Prison hospital. He was administered Gabitril as a main drug in his treatment. 26. From 10 January until 4 April 2005 he was detained in the neurology ward of the Gdańsk Remand Centre hospital. He was prescribed Gabitril and Neurotrop as the main drugs in his treatment and it was suggested that he should regularly undergo neurological examinations. 27. From 18 May until 12 July 2005, during his detention in Poznań Remand Centre, the applicant was examined twice by a neurologist and sixteen times by the remand centre’s in-house doctor. In addition, from 24 June until 12 July 2005 he was placed under medical observation in the Poznań Remand Centre hospital. At the hospital new generic drugs were administered to the applicant in place of Gabitril, which was an expensive medicine. 28. From 4 October 2005 until 5 January 2006 the applicant was once more admitted to the neurology ward of the Gdańsk Remand Centre hospital, where he resumed taking Gabitril. 29. From 20 March until 19 April 2006 he was detained in the surgery ward of the Bydgoszcz Remand Centre hospital because he had developed gallstones. 30. From 29 June 2006 until 9 May 2007 the applicant was detained in Czarne Prison hospital, where he was admitted to the ward for the chronically ill. Gabitril was administered to him during this time. On his release from the hospital, the doctors considered the applicant to be in a good overall shape and self-sufficient. It was recommended that he be assigned a bottom bunk bed, be put on a diet and continue the pharmacological treatment prescribed, comprising Gabitril. It was also stressed that the applicant be placed under 24-hour medical supervision. 31. Between 9 May and 30 November 2007, when the applicant was detained in Poznań Remand Centre, he continued taking Gabitril. It appears that he was examined eighteen times by the remand centre’s in-house doctors. 32. Copies of medical records furnished by the applicant reveal that towards the end of 2007 his epilepsy was still severe, although, his epileptic seizures were less frequent. Moreover, his personality disorder continued to manifest itself in that the applicant sometimes experienced hallucinations. Most of the time, however, he was suffering from serious dementia. The Government did not submit any medical documents or information regarding the applicant’s health condition or his treatment. 33. On 27 February 2004 a new report was drafted by experts in psychology, psychiatry and neurology, who had been appointed by the Poznań Regional Court (Sąd Okręgowy) in the course of social security proceedings for a disability benefit. The experts found that the applicant was suffering from epileptic seizures a number of times per week, sometimes even several times per day. He had also been diagnosed with encephalopathy accompanied by dementia, and also with ulcers and syphilis. The experts concluded that, even though the applicant could at that time perform basic daily activities such as washing, dressing, eating and the toilet without help, he was nevertheless too handicapped to act autonomously in making decisions or in undertaking more demanding daily routines. The experts were of the opinion that the applicant was incapable of being self-reliant and that he required, at least for the time being, direct and permanent care from another person. 34. On 31 May, 28 June and 6 July 2005 the applicant lodged with the penitentiary administration complaints about his medical treatment in prison. He claimed that he had only received information stating that his complaints had been referred to the “competent authorities” (do właściwych organów). In the Government’s submission, all three complaints had been examined by competent authorities, including the Chief Doctor of the Regional Inspectorate of the Prison Service (Naczelny Lekarz Okręgowego Inspektoratu Służby Więziennej) and considered ill-founded. 35. On 11 August 2005 the applicant complained to the Regional Inspectorate of the Prison Service that he had been prescribed Polish generic medicine in place of Gabitril, a more effective drug. That complaint was considered ill-founded because at the time when his medicines had been changed the applicant had been under close medical supervision at the prison hospital and his health had not deteriorated. 36. Article 68 of the Constitution, in its relevant part, reads: “1. Everyone shall have a right to have his health protected. 2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation...” 37. Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides: “1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge. ... 4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence. 5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular 1) to provide immediate medical care because of a danger to the life or health of a sentenced person; 2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person; 3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...” 38. On the basis of Article 115, paragraph 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003. Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services to persons deprived of liberty. Paragraph 1 of this Ordinance further provides: “2. In a justified case, if the medical services as enumerated in subparagraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments. 3. In a case as described in subparagraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public healthcare establishments] are necessary...” Paragraph 7 of the October 2003 Ordinance states: “1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse... 2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital’s director or by a delegated prison doctor. ... 6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor...” 39. The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003. 40. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice. Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to execution of prison sentences are examined by a competent penitentiary court. The remainder of Article 7 of the Code reads as follows: “3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the publication or the service of the decision; decision [in question] shall be published or served with a reasoned opinion and instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority who had issued the contested decision. If [that] authority does not consider the appeal favourably, it shall transfer it together with the case file and without undue delay to the competent court. 4. The Court competent for examining the appeal can cease the enforcement of the contested decision... 5. Having examined the appeal the court shall rule on upholding the contested decision, [its] quashing or changing; the court’s decision shall not be a subject of an interlocutory appeal.” In addition, under Article 33 of the Code of the Execution of Criminal Sentences (“the Code”) a penitentiary judge is entitled to make unrestricted visits to detention facilities, to be acquainted with documents and provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints. Article 34 of the Code in its relevant part reads as follows: “1. A penitentiary Judge shall quash an unlawful decision [issued by, inter alia, the Governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of liberty. 2. An appeal to the penitentiary court lies against the decision of a penitentiary judge... 4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of a person concerned] of that fact, and, if necessary, shall order the release of the person concerned.” Finally, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. The detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on the manner of proceeding with applications, complaints and requests of persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych) (“the August 2003 Ordinance”). 41. Article 23 of the Civil Code contains a non-exhaustive list of the so-called “personal rights” (prawa osobiste). This provision states: “The personal rights of an individual, such as in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24 paragraph 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 42. Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows: “... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.” 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 non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 43. In addition, Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code provided: “The State Treasury shall be liable for damage (szkoda) caused by an agent of the State in carrying out acts entrusted to him.” After 2004 amendments Article 417 § 1 of the Civil Code provides: “The State Treasury or [as the case may be] a self-government entity or other legal person responsible for exercising public authority shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 44. In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Koszalin Regional Court (Sąd Okręgowy) of 30 May 2006 and the Supreme Court (Sąd Najwyższy) of 28 February 2007 in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights. 45. On 30 May 2006 the Koszalin Regional Court awarded compensation for non-pecuniary damage in a case which had been brought by a certain N.S., a non-smoker detained with smoking inmates (IC 650/04). The plaintiff alleged that by forcing him to be a passive smoker the authorities had breached his right to an environment free from cigarette smoke and had caused him mental suffering. He also alleged that as a result of passive smoking his allergies had increased and his overall immune system had been weakened. 46. The domestic court examined the case under Articles 444 and 445 of the Civil Code. It was observed that the notion of damage under those provisions was linked with the liability ex delicto based on the fault (wina) of the person who had caused the damage. The provisions relied on concerned both material and non-material damage. The former was defined as a physical injury or health disorder resulting from an unlawful act or omission. The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder. In both cases the burden of proof rested on the plaintiff. The Koszalin Regional Court observed that according to the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice (Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości) (“1996 Ordinance”) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers. It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the 1996 Ordinance and Article 68 of the Constitution. The court found that the plaintiff had not proved any material damage, namely the physical injury or health disorder. He had however suffered non-material damage resulting from an unlawful interference with his right to protect himself from passive smoking. The court awarded the plaintiff PLN 5,000. 47. On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment. That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions. The Supreme Court dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care. In this connection the Supreme Court upheld the judgments of the first and second-instance courts which had found no causal link between the deterioration of the plaintiff’s health and the quality of medical care provided to him in detention. In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff’s detention the Supreme Court quashed the second-instance judgment in which the applicant’s claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff’s personal rights had not been infringed. The case was remitted to the appeal court. 48. On 6 December 2007 the Wrocław Court of Appeal held that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee’s personal rights. On the other hand, the court observed that in the light of the Supreme Court’s established case-law, a trial court did not have a duty to award compensation for each personal right’s infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The Court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Ultimately, the case was dismissed. | 1 |
train | 001-5453 | ENG | GBR | ADMISSIBILITY | 2,000 | FINDLATER v. THE UNITED KINGDOM | 3 | Inadmissible | Nicolas Bratza | A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is engaged in the retail sale of handguns in Glasgow. He paid £2,600 for the goodwill of the business in 1993. The consequences of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below) - are that the applicant is unable to derive handgun-related income from his business, and that the value of the goodwill and assets of the business has depreciated. The applicant received compensation pursuant to the legislative schemes in respect of his stock of handguns. No compensation is payable for the reduction in value of the applicant’s business. By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million. B. Domestic law and practice The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act. Section 5 of the Act of 1968, as amended by the First Amendment Act, provided: “(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers - ... (aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.” The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect. The First Amendment Act provides as follows, so far as material: “15 Surrender of prohibited small firearms and munitions (1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above. ... 16 Payments in respect of prohibited small firearms and ammunition (1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above. (2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition - (a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or (b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers, and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above. 17 Payments in respect of ancillary equipment (1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme. (2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which- (a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and (b) has no practicable use in connection with any firearm which is not a prohibited weapon. (3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment- (a) which they had in their possession on 16th October 1996; or (b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date. ... 18 Parliamentary control of compensation schemes (1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament. (2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House. (3) This section applies to any alteration to the scheme as it applies to a compensation scheme. (4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.” The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report). Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%. By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns. | 0 |
train | 001-60958 | ENG | LUX | CHAMBER | 2,003 | CASE OF ROEMEN AND SCHMIT v. LUXEMBOURG | 1 | Violation of Art. 10;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 8. The applicants were born in 1945 in 1963 respectively and live in Luxembourg. 9. On 21 July 1998 the first applicant, acting in his capacity as a journalist, published an article in Lëtzebuerger Journal, a daily newspaper, under the headline “Minister W. convicted of tax fraud” (Minister W. der Steuerhinterziehung überführt). He alleged in the article that the minister had broken the Seventh, Eighth and Ninth Commandments by committing value-added tax (VAT) frauds. He went on to say that a politician from the right might have been expected to take the rules so carefully drawn up by Moses more seriously. He added that a fiscal fine of 100,000 Luxembourg francs had been imposed on the minister. He said in conclusion that the minister’s conduct was particularly shameful in that it involved a public figure, who should have set an example. 10. The applicants produced documents showing that the fine had been imposed on the minister concerned on 16 July 1998 by the Director of the Registration and State-Property Department (Administration de l’enregistrement et des domaines), pursuant to section 77(2) of the VAT Act of 12 February 1979. The decision had been served on the minister on 20 July 1998. It also appears that on 27 July 1998 the minister appealed to the District Court against the fine. In a judgment of 3 March 1999, the District Court ruled that the fine was not justified as the offence under section 77(2) of the VAT Act of 12 February 1979 had not been made out. An appeal was lodged against that judgment to the Supreme Court of Justice. The parties have not furnished any further information regarding developments in those proceedings. 11. The decision of 16 July 1998 was the subject of comment in other newspapers, such as the daily Le Républicain Lorrain and the weekly d’Lëtzebuerger Land. A Liberal member of Parliament also tabled a parliamentary question on the matter. 12. Two sets of court proceedings were issued following the publication of the first applicant’s article. 13. On 24 July 1998 the minister brought an action in damages in the District Court against the first applicant and Lëtzebuerger Journal, arguing that they had been at fault in publishing the information concerning the fiscal fine and making comments which he said constituted an attack on his honour. In a judgment of 31 March 1999, the District Court dismissed the minister’s action on the ground that the article came within the sphere of freedom of the press. In a judgment of 27 February 2002, the Court of Appeal overturned the District Court’s judgment. 14. On 4 August 1998 the minister lodged a criminal complaint. 15. On 21 August 1998 the public prosecutor requested the investigating judge to open an investigation into a suspected offence by the first applicant of handling information disclosed in breach of professional confidence, and by a person or persons unknown of breach of professional confidence. The public prosecutor stated in his submissions: “The investigation and inquiries should determine which civil servant or civil servants from the Registration and State-Property Department had any involvement in the case and access to the documents.” The public prosecutor also requested the investigating judge to carry out or arrange for searches of the first applicant’s home and any appurtenances, the offices of Lëtzebuerger Journal and the Registration and State-Property Department offices. 16. Various searches were then carried out. 17. On 19 October 1998 the investigating judge issued two warrants for searches to be made of the first applicant’s home and workplace, the investigators being instructed to “search for and seize all objects, documents, effects and/or other items that [might] assist in establishing the truth with respect to the above offences or whose use [might] impede progress in the investigation”. The first order specified that the places to be searched were “Robert Roemen’s home and appurtenances, ..., any place in which he may be found and cars belonging to or used by him”. 18. Both warrants were executed on 19 October 1998, but no evidence was found. 19. On 21 October 1998 the first applicant applied for orders setting aside the warrants issued on 9 October 1998 and all the investigative steps taken pursuant thereto, in particular the searches carried out on 19 October 1998. In addition to arguments based on domestic law, he alleged a violation of Article 10 of the Convention, emphasising that he was entitled to protect his journalistic sources. 20. The District Court, sitting in closed session, dismissed both applications in two orders of 9 December 1998. It noted that the minister had complained of a number of matters, including the unlawful disclosure of information to the first applicant by Registration and State-Property Department officials, which the first applicant had allegedly gone on to use in a calumnious and defamatory newspaper article. Those matters were capable of falling within the definition of various criminal offences, including breach of professional confidence, breach of fiscal confidentiality, theft, handling, calumny and criminal defamation. The District Court said that civil servants were prohibited by Article 11 of the Central and Local Government Service Code (statut général des fonctionnaires) from disclosing any information that was confidential by nature which they had acquired in the course of their duties. It was a criminal offence under the General Tax Act to disclose confidential fiscal information and an offence under Article 458 of the Criminal Code for anyone receiving confidential information as part of their professional duties to divulge it. As to the handling offence, the District Court said that Article 505 of the Criminal Code applied to anyone who, by whatever means, knowingly benefited from the proceeds of a serious crime (crime) or other major offence (délit). According to legal commentators and the leading cases, handling could extend to intangible property, such as claims, but also manufacturing secrets or material covered by professional privilege. In that connection, the fact that the circumstances in which the property had been obtained had not been fully established was of little relevance if the alleged handler was aware of its unlawful origin; the classification of the primary offence was immaterial. The District Court found that the investigating judge in charge of the investigation had been entitled to order an investigative measure to obtain corroboration of the incriminating evidence already in his possession. It added that there had been no violation of Article 10 of the European Convention on Human Rights, since the searches – which had been ordered to assemble evidence of and establish the truth concerning possible criminal offences that may have led to or facilitated the publication of a newspaper article – had not infringed freedom of expression or freedom of the press. 21. By two judgments of 3 March 1999, the Court of Appeal, sitting in closed session, dismissed appeals that had been lodged against the orders of 9 December 1998. 22. On 19 October 1998 the investigating judge issued a search warrant for immediate execution at the offices of the second applicant, who was the first applicant’s lawyer in the domestic proceedings. 23. In the course of the search, the investigators seized a letter of 23 July 1998 from the Director of the Registration and State-Property Department to the Prime Minister bearing a handwritten note: “To the Heads of Division. Letter transmitted in confidence for your guidance.” The applicants explained that the letter had been sent anonymously to the editorial staff of Lëtzebuerger Journal and the first applicant had immediately passed it on to his lawyer, the second applicant. 24. On 21 October 1998 an application was made to have the search warrant and all subsequent investigative steps set aside. 25. The District Court, sitting in closed session, granted that application on the ground that, in breach of section 35 of the Lawyers Act, the report of the police department that had executed the warrants on 19 October 1998 did not contain the observations of the Vice President of the Bar Council, who was present during the search and seizure operations. The District Court ruled that the seizure carried out on 19 October 1998 was invalid and ordered the letter of 23 July 1998 to be returned to the second applicant. 26. The letter was returned on 11 January 1999. 27. However, on the same day the investigating judge issued a fresh search warrant with instructions to “search for and seize all objects, documents, effects and/or other items that might assist in establishing the truth with respect to the above offences or whose use might impede progress in the investigation and, in particular, the document dated 23 July 1998 bearing the manuscript note to the heads of division”. The letter was seized once again later that day. 28. On 13 January 1999 the second applicant applied for an order setting the warrant aside, arguing, inter alia, that there had been a breach of the principle guaranteeing the inviolability of a lawyer’s offices and of the privilege attaching to communications between lawyers and their clients. That application was dismissed by the District Court, sitting in closed session, on 9 March 1999. It noted, firstly, that investigating judges were empowered to carry out searches even at the homes or offices of persons whose professional duties required them to receive information in confidence and who were legally bound not to disclose it and, secondly, that the provisions of section 35 of the Lawyers Act of 10 August 1991 had been complied with. The search and seizure operations had been executed in the presence of an investigating judge, a representative of the public prosecutor’s office and the President of the Bar Council. In addition, the presence of the President of the Bar Council and the observations he had considered it necessary to make regarding the protection of the professional confidence attaching to the documents to be seized had been recorded in the police department’s report. 29. In a judgment of 20 May 1999, the Court of Appeal, sitting in closed session, dismissed an appeal against the order of 9 March 1999. 30. In a letter of 23 July 1999, the first applicant enquired of the investigating judge as to progress in the case. He complained that no other steps had been taken and reminded the judge that he was not supposed to disregard the provisions of Article 6 of the Convention. He sent a similarly worded reminder on 27 September 2000. 31. On 3 October 2000 the applicants provided the Court with an article from the 29 September 2000 edition of the weekly newspaper d’Lëtzebuerger Land, containing the following extract: “... the inquiry in the W. case has thus just ended with a search of the home of a Registration and State-Property Department official, a member of the Socialist Party, and the logging of the incoming and outgoing telephone calls of at least two other members of the [Socialist Party] ...” 32. On 18 April 2001 the first applicant sent a further reminder to the investigating judge, who stated in a reply of 23 April 2001: “The judicial investigation is continuing.” 33. Following a letter from the first applicant dated 13 July 2001, the investigating judge informed him the same day that the police inquiries had finished and that the investigation file had just been sent to the public prosecutor for his submissions. 34. On 16 October 2001 the first applicant referred the public prosecutor to the terms of Article 6 of the Convention and reminded him that although the investigation in the case had taken three years, he had yet to be charged. 35. On 13 November 2001 the first applicant received a summons requiring him to attend for questioning on 30 November 2001 in connection with the offences referred to in the complaint. He was informed that he was entitled to have a lawyer present. 36. The first applicant was charged by the investigating judge on 30 November 2001 with “handling information received in breach of professional confidence”. 37. The applicants produced an article from the 9 January 2002 edition of the newspaper Le Quotidien, which revealed that the Prime Minister “considered that the methods employed by the investigating judge in the investigation into a breach of professional confidence were ‘disproportionate’ ”. 38. An order made on 1 July 2002 by the District Court, sitting in closed session, reveals that the charges against the first applicant were ruled to be null and void and that the case file was sent to the investigating judge with jurisdiction with instructions either to end or to continue the investigation. 39. On 14 January 2003 the applicant sent the Court a letter from the investigating judge dated 9 January 2003 informing him that “the judicial investigation [had] just ended”. 40. Article 65 of the Criminal Investigation Code provides: “Searches shall be carried out in any place in which objects that would assist in establishing the truth may be found.” 41. Article 66 of that Code provides: “The investigating judge shall carry out the seizure of all objects, documents, effects and other items referred to in Article 31 § 3”. Article 31 § 3 provides that the following may be seized: “... and generally, anything which may assist in establishing the truth, whose use may impede progress in the investigation or which is liable to confiscation or restitution.” 42. Section 35(3) of the Lawyers Act of 10 August 1991 provides: “Lawyers’ workplaces and all forms of communication between lawyers and their clients shall be inviolable. If in civil proceedings or a criminal investigation a measure is taken against or in respect of a lawyer in the circumstances defined by law, such measure shall not be implemented other than in the presence of the President of the Bar Council or his or her representative or after they have been duly convened. The President of the Bar Council or his or her representative may submit observations to the authorities which ordered the measures regarding the protection of professional confidence. A record of a seizure or search shall be null and void unless it contains a statement that the President of the Bar Council and his or her representative were present or had been duly convened and any observations they considered it necessary to make.” | 1 |
train | 001-57651 | ENG | SWE | CHAMBER | 1,991 | CASE OF FREDIN v. SWEDEN (No. 1) | 3 | Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings | C. Russo;Gaukur Jörundsson;R. Pekkanen | 8. Mr Anders Fredin, an agricultural engineer, and his wife Mrs Maria Fredin own several parcels of land in the municipality of Botkyrka. On the land there is a farm and a gravel pit. The parcel where the gravel pit is located consists of 27 hectares and is called Ström 1:3. It was specifically created in 1969 from parts of the other properties with a view to the exploitation of the pit. 9. When Mr Fredin’s mother bought the land in 1960 the commercial exploitation of the gravel pit had been at a standstill since the middle of the 1950s. In the meantime, gravel had been taken only for use on the farm. The Fredins were eager for exploitation to resume and, on 20 March 1960, they signed a licence agreement with two companies ("the Jehanders"), granting them, for an annual fee, the exclusive right to extract gravel from the pit for fifty years. The Jehanders subsequently acquired several other gravel pits in the vicinity and thus obtained, so the applicants allege, a quasi-monopoly on gravel production in the region. 10. In 1963 a prohibition on the extraction of gravel without a permit was introduced through an amendment to the Nature Protection Act 1952 (naturskyddslagen 1952:688). On 11 December 1963 the County Administrative Board (länsstyrelsen) of Stockholm County granted Mr Fredin’s parents the necessary permit. This provided, inter alia, that exploitation had to be in conformity with a plan drawn up in May 1962; in particular, it had to be carried out in three stages, each of which should not exceed ten years. In addition, restoration works had to be carried out continuously during each stage and financial security lodged to cover the costs thereof. 11. On 4 September 1969 Mr Fredin acquired a fifth of the property by way of a gift from his mother. 12. On 1 July 1973 an amendment to the Nature Conservation Act 1964 (naturvårdslagen 1964:822 - "the 1964 Act") - which had left unaffected the need for a permit - empowered the County Administrative Board to revoke permits that were more than ten years old (see paragraph 35 below). 13. On 31 July 1977 the applicants bought the remainder of the property, which thenceforth belonged as to two-thirds to Mr Fredin and as to one-third to his wife. The County Administrative Board was informed of the change in ownership. 14. Despite a number of requests over the years, the Jehanders had, at the time of the applicants’ purchase, still not put the gravel pit to commercial use. The Fredins accordingly instituted court proceedings for breach of contract, but the dispute was resolved by a friendly settlement according to which the licence agreement was deemed to have terminated with effect from 1 October 1979. 15. On 3 October 1979 the applicants requested that the permit to take gravel should be formally transferred to them. With the consent of Mr Fredin’s parents they began to exploit the pit in 1980, partly through a new licensee. At about this time the County Administrative Board offered to redeem the exploitation permit from the applicants for a sum, according to them, of around 50,000 Swedish kronor. However, the applicants did not accept the offer. As from 1983 they conducted part of the business themselves through Kagghamra Grus AB, a limited liability company they owned. 16. On 30 May 1980 the County Administrative Board granted the applicants an exemption from the general prohibition in the 1964 Act against building near the seashore and allowed them to build a quay with shiploading equipment. The exemption was valid until further notice, but not for longer than the permit to exploit gravel. The Board stated that the "decision [did] not imply that any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property". The applicants built the quay at a cost of 1,000,000 kronor and also invested some 1,250,000 kronor in the gravel exploitation business over the period from 1980 to 1983. 17. On 24 April 1981 the County Administrative Board asked the applicants to lodge a financial security of 40,000 kronor to cover restoration costs, this amount being subsequently increased to 75,000 kronor. 18. After the applicants had provided the security required, the County Administrative Board, by "partial decision" of 14 April 1983, amended its decision of 11 December 1963 (see paragraph 10 above) by transferring the permit to them. The Board added that it planned to issue new directives concerning restoration work and that, in view of the 1973 amendment of the 1964 Act (see paragraph 12 above), it intended to re-examine the permit question in 1983 with a view to a possible termination of the activities. 19. On 25 August 1983 the County Administrative Board notified the applicants that, in the interest of nature conservation, it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by 1 June 1984. 20. In a memorandum dated 14 May 1984, the County Administrative Board indicated two possible ways of discontinuing the exploitation. One was to stop extraction as soon as possible because the environment was being damaged and there was already a satisfactory supply of gravel in the region. The other was to allow the exploitation to continue for a couple of years, thereby making it possible to give the area a natural shape. The memorandum was submitted to the National Environment Protection Board (naturvårdsverket) and to the municipality of Botkyrka. On 18 September 1984 the Board replied that it favoured the first alternative and that it considered that a reasonable exploitation-time had been afforded as the permit had been valid for twenty years. On 1 October the municipality expressed the opinion that a certain closing-down period was preferable as it would facilitate the restoration of the landscape. 21. In a new "partial decision" of 19 December 1984, the County Administrative Board ordered, inter alia, that: (a) the exploitation of gravel should cease within three years, i.e. by the end of 1987, by which time the area should also be restored; (b) as from the day of the decision further extraction from certain parts of the pit be prohibited; (c) before 1 March 1985 the applicants should increase the security to 200,000 kronor, to cover possible restoration costs resulting from the growing activity in the pit; they should also draw up a new work plan, so that the Board could fix the final conditions for the extraction and restoration works. 22. The applicants appealed to the Government, claiming that: (a) the County Administrative Board’s decision was in part based on insufficient scientific material; (b) it should not have followed the opinion expressed by the municipality of Botkyrka (see paragraph 20 above), in view of that opinion’s limited scope; (c) its decision, and also the opinion of the National Environment Protection Board, should have been based on the views of a geological expert; (d) it had not given the applicants’ interests sufficient consideration and had not granted a reasonable closing-down period; (e) the order to submit a new extraction plan and to lodge security of 200,000 kronor constituted a financial penalty; (f) the prohibition on extraction from parts of the pit was unlawful as it amounted to a closing-down of the activities; (g) pursuant to the 1964 Act, as interpreted in the light of the Environment Protection Act 1969 (miljöskyddslagen 1969:387) and the Water Act 1918 (vattenlagen 1918:533), they had a protected right to exploit gravel for at least ten years from the transfer of the permit on 14 April 1983. 23. On 26 March 1985 the County Administrative Board submitted an opinion on the appeal, stating amongst other things that it had known, from its contacts with the Jehanders (see paragraph 9 above), that no exploitation of gravel was imminent. 24. In a decision of 12 December 1985 the Government (Ministry of Agriculture) dismissed the appeal, stating that they concurred with the County Administrative Board’s assessment. They ordered, however, that the validity of the permit should be extended to 1 June 1988 and that the security should be lodged on 1 March 1986 at the latest. 25. On 9 March 1987 the County Administrative Board adopted a restoration plan for the pit. 26. Before the expiry of the permit the applicants twice requested new permits, but to no avail. The last request was rejected by the Board on 18 May 1987. The applicants’ appeal to the Government was dismissed on 9 June 1988, although the validity of the permit was extended until 1 December 1988. 27. On 1 December 1988 extraction of gravel from the pit ceased. The applicants had by then almost terminated the first of the three exploitation stages provided for in the plan attached to the permit of 11 December 1963 (see paragraph 10 above). 28. On 9 February 1989 the County Administrative Board requested the public prosecutor to institute criminal proceedings against Mr Fredin for non-compliance with the 1964 Act, in that he had not restored the gravel pit as provided for in the permit. These proceedings are still pending and the restoration work has not yet been carried out. 29. On 14 March 1989 the County Administrative Board rejected a request by the applicants for a special extraction permit in order to enable them to comply with the 1987 restoration plan (see paragraph 25 above). Their appeal to the Government was dismissed on 21 June 1989, and their application for judicial review under the new Act on Judicial Review of Certain Administrative Decisions (lag om rättsprövning av vissa förvaltningsbeslut 1988:205), which entered into force on 1 June 1988, was rejected by the Supreme Administrative Court on 13 December 1990. These proceedings are not the object of the present complaint. 30. As regards the impact of the revocation of the permit on the value of their property and of their wholly-owned licensee, Kagghamra Grus AB, the applicants have referred to three certificates. According to the first, issued by Mr Lars Carlsson, a consultant, on 17 March 1987, it appears from the accounts of the applicants’ company that it would become insolvent without the income from the pit. The second certificate, drawn up on 1 September 1988 by Mr Nils Olof Rydstern, an economist, states that the applicants’ company would have had an estimated market value of 14-18,000,000 kronor in 1988, had the applicants been able to extract gravel from 1980 onwards without any interference by the authorities. Mr Rydstern points out that this is not the company’s liquidation value. In the third certificate, dated 14 September 1988, Mr Hans Lagerqvist, a land-surveyor at the Senior Land-Surveying Authority (överlantmäterimyndigheten), notes that, as a result of the revocation of the permit, the gravel pit was considered in 1988 to be worth less than 1,000 kronor for general property-taxation purposes. Mr Lagerqvist’s own assessment, made on the assumption, inter alia, that the extraction of gravel would have continued according to the 1963 permit, concludes that the estate’s market value decreased by 15,500,000 kronor as a consequence of the revocation. Taking into account Mr Rydstern’s valuation, the total loss suffered by the applicants is estimated at approximately 28-31,000,000 kronor. 31. The applicants have also submitted a report by Mr Dick Karlsson, a consultant, according to which, in a large number of revocation cases concerning businesses that had been carried on for several years, the County Administrative Board had not ordered the restoration of the gravel pits at issue. The Board was also said to have given the holders of the permits in question the opportunity of obtaining new ones, should the supply of gravel on the market decrease. Mr Karlsson noted that in these cases the permits had been held by two companies, including one of the Jehanders (see paragraph 9 above). He concluded that the Board’s decision concerning the applicants’ permit was exceptional, in that it terminated an ongoing profitable business. 32. The basic regulations on the protection of nature are laid down in the 1964 Act. 33. According to section 1 of the Act, everyone must show respect and circumspection in his or her dealings with nature. In addition, all necessary measures have to be taken to limit or counteract any damage to nature which is bound to result from any works undertaken or otherwise. 34. Section 3 provides that, in decisions on questions relating to nature conservation, other public and private interests must be duly considered. 35. Section 18 of the Act prohibits, inter alia, extraction of gravel for purposes other than the domestic needs of the landowner without a permit from the County Administrative Board. The section also specifies that: "The County Administrative Board may require a party applying for an exploitation permit to submit, on pain of the application being rejected, material showing the need for the extraction and a sufficiently detailed plan for the activities. The permit shall be made subject to such conditions as are necessary to limit or counteract the harmful effects of the enterprise on the natural environment. In the absence of special reasons to the contrary, a permit shall be valid only if sufficient financial security is lodged to ensure that the conditions prescribed are actually fulfilled. If the security given proves to be inadequate, the County Administrative Board may order that the permit shall not become effective until additional security has been lodged. If a prescribed measure is to be taken by someone other than the landowner, the latter must allow it to be carried out. If ten years have elapsed since an exploitation permit acquired legal force, the County Administrative Board may revoke the permit completely or in part or may make its renewal subject to revised conditions. If it becomes apparent that the conditions laid down do not sufficiently limit or counteract the damaging effects that the activities may have on the natural environment, the County Administrative Board may, before the expiry of the stated period, make the permit subject to such additional conditions as may be necessary." The last sub-paragraph was added on 1 July 1973. Previously an exploitation permit could not be revoked without compensation being paid to the landowner if the prescribed conditions had been complied with. According to the transitional provisions, the ten-year period was, as regards permits valid on 1 July 1973, to be calculated as from that date. The amendment also repealed certain provisions whereby a landowner could be granted compensation if he was refused a permit. 36. Section 40 (2) of the Act provides that an appeal lies to the Government against a decision taken by the County Administrative Board. At the time of the final decision regarding the revocation question (12 December 1985, see paragraph 24 above), the Government’s decisions were not subject to any judicial review. However, since the entry into force, on 1 June 1988, of the Act on Judicial Review of Certain Administrative Decisions, the lawfulness of some decisions by the Government may be challenged before the Supreme Administrative Court. | 1 |
train | 001-4889 | ENG | SVK | ADMISSIBILITY | 1,998 | TILES v. SLOVAKIA | 4 | Inadmissible | Christos Rozakis | A. On 21 September 1991 the applicant claimed, pursuant to the Extrajudicial Rehabilitation Act (see "Relevant domestic law" below), restitution of real property. He alleged that he had been forced, in 1979, to sell the property to the State under conditions that had been imposed on him. On 16 October 1992 the Topoľčany District Court (Okresný súd - "the District Court") granted the applicant's claim. It noted that the applicant had been threatened with expropriation should he refuse to sell the property in question. The District Court found that the purchase price had been determined by an expert of the company which had been in charge of carrying out the purchase on behalf of the State. It was not clear from the expert's opinion whether he had considered all the relevant facts when determining the price. The District Court therefore considered that the applicant was entitled to restitution of the property pursuant to Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act. On 1 July 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava - pobočka v Nitre - "the Regional Court") granted the appeal lodged by the defendant authority and dismissed the applicant's claim. The Regional Court noted that the 1979 sale contract had been drafted and signed in accordance with the law, and that the applicant had been paid the purchase price as determined by an expert. The Regional Court further established that the State had purchased the applicant's real property in order to use it as a building site in the context of construction, on adjacent plots, of a heat pipe-line. After the construction had been completed, the land originally owned by the applicant was used as a parking place. Finally, the Regional Court noted that beside the price for his property the applicant had also been granted, in 1980, a flat in Topoľčany which had been put at the disposal of his son, and that in the relevant documents the applicant had not mentioned that he had disagreed with the sale of his property. In the Regional Court's view, the applicant had not shown that the requirements laid down in Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act were met in his case. On 20 September 1993 the applicant complained to the president of the Regional Court that at the hearing held on 1 July 1993 he had not been allowed to submit orally all facts concerning his case, that the chamber president had put irrelevant questions to him and his wife, and that there had been delays in the service of the Regional Court's judgment. On 13 October 1993 the president of the Regional Court informed the applicant that there was nothing to show that the chamber president dealing with his case had lacked impartiality or had otherwise infringed the applicant's right to a fair hearing. The president of the Regional Court further stated that the written version of the judgment of 1 July 1993 had been submitted for distribution on 14 September 1993, and admitted that there had been a delay of several days in its drafting. On 25 October 1993 the applicant lodged an appeal on points of law (dovolanie) against the Regional Court's judgment of 1 July 1993. He alleged that he had been obliged to sell the property under threat of expropriation, possibly without any compensation. The applicant had also been warned that criminal proceedings could be brought against him should he incite other owners not to sell their property. The applicant further challenged the sale contract and the expert opinion, mainly because the expert determining the purchase price had not taken into consideration a part of the property which originally had been used as a bakery. He alleged that he had only obtained the contract and the expert opinion in 1991 and in 1993 respectively. On 30 November 1993 the Supreme Court (Najvyšší súd) quashed the Regional Court's judgment of 1 July 1993. It found that the Regional Court had failed to specify correctly the defendant authority and to establish the relevant facts with sufficient certainty. On 28 February 1994 the Regional Court quashed the District Court's judgment of 16 October 1992. On 23 April 1994 the applicant complained to the Regional Court that the Supreme Court's judgment on his appeal on points of law had not yet been served on him. On 11 November 1994 the District Court granted the applicant's claim again. It established that the applicant could not check whether the purchase price was correct as he had been provided, prior to the sale of his house, neither with the relevant expert opinion nor with the sale contract. The District Court further found that the applicant had been informed by representatives of the competent authority that, should he not be willing to sell the property, it could be expropriated, with or without compensation. The District Court found that prior to the sale the applicant had invested into the property. In its view, it was therefore unlikely that the applicant had been genuinely willing to sell the property. The District Court held that the conditions of the sale were obviously disadvantageous for the applicant since the expert had failed to take into account, when establishing the value of the property, the premises of a former bakery which had formed a part of the property, and also the fact that a part of the property had been re-built in 1957 and in 1972 respectively. On 18 December 1995 the Regional Court granted the defendant's appeal and dismissed the applicant's claim. It found, after having taken further evidence, that the applicant had not concluded the contract under duress on strikingly unfavourable conditions within the meaning of Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act. The Regional Court held, in particular, that immediately after the sale the applicant had moved to a new house which he had built. Furthermore, the applicant had arranged for an apartment, which had been granted to him in connection with the sale of the property in question, to be put at the disposal of his son in exchange for a smaller apartment used by the latter. The Regional Court further recalled that the possibility of expropriation of the property had been provided for by the law and considered that its mentioning, by the representatives of the competent authority, could not be regarded as a threat. The Regional Court admitted that, as a result of the failure to provide him with the sale contract in advance, the applicant had been placed at a disadvantage. The Regional Court recalled, however, that the applicant had signed the contract and found no evidence showing that he had done so under duress. As to the applicant's allegations concerning the conditions of the sale, the Regional Court noted that the applicant had received 214,149 Czechoslovak crowns for the property notwithstanding that the expert had evaluated it at 220,124 crowns. It held, however, that only a price considerably below the value determined by an expert could be considered as imposing strikingly unfavourable conditions. The Regional Court further examined in detail the way in which the expert had determined the value of the applicant's property. It found, with reference to the relevant price regulations, that even if the bakery invoked by the applicant had actually formed a part of the property, the latter would have fallen under a different category for which a lower compensation had been foreseen. The Regional Court therefore found that the expert's omission to mention the bakery in his opinion was to the applicant's advantage. The Regional Court also recalled that the sale of the property had permitted the applicant to improve the living conditions of his son and concluded that the sale in question had not been carried out under conditions that were strikingly unfavourable for the applicant. Finally, the Regional Court referred to Section 8 para. 3 of the Extrajudicial Rehabilitation Act and held that, in any event, the property claimed by the applicant could not be restored since a heat pipe-line had been built on it. The judge who, in the applicant's view, had lacked impartiality in the proceedings leading to the Regional Court's judgment of 1 July 1993 was not involved in the delivery of the aforesaid court's judgment of 18 December 1995. On 1 April 1996 the applicant lodged an appeal on points of law. He claimed that there was no need for him to prove that he had acted under duress as it was generally known that under the communist regime the representatives of public authorities had commonly used threats and had acted arbitrarily, and that the prices for real property foreseen by the relevant regulations had been disproportionately low. On 19 September 1996 the Supreme Court dismissed the applicant's appeal on points of law. It held that the obligation to restore the property could not be deduced generally from the then existing law or economic conditions, and that it was for the applicant to show that the requirements laid down in Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act were met in his particular case. The Supreme Court found that the Regional had established all relevant facts of the case and had correctly assessed the evidence before it. In particular, the Supreme Court held that the Regional Court had given detailed and correct reasons for its judgment and noted that in his appeal on points of law the applicant had not challenged, as such, the Regional Court's reasoning as regards the particular circumstances under which the contract had been concluded. The Supreme Court's judgment was served on the applicant in October 1996. B. Relevant domestic law The Extrajudicial Rehabilitation Act (Zákon o mimosúdnych rehabilitáciách) of 23 March 1991, as amended, has for its aim to redress certain infringements of property and social rights which occurred between 1948 and 1989. Section 6 para. 1 (g) of the Act provides for restitution of objects which were transferred to the State on the basis of a sale contract concluded under duress on strikingly unfavourable conditions. Section 8 para. 3 of the Extrajudicial Rehabilitation Act provides that plots which were built up after their transfer to the State are not liable to restitution. | 0 |
train | 001-79200 | ENG | SVK | ADMISSIBILITY | 2,007 | CERVANOVA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Margaréta Cervanová, is a Slovakian national who was born in 1933 and lives in Nové Zámky. She was represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. In 1976 the applicant’s daughter, a university student, was raped and murdered. On 22 September 1982 the Bratislava Regional Court convicted several persons of criminal offences committed in the above context. Prison terms of between four and twenty-four years were imposed. On 25 April 1983 the Supreme Court of the Slovak Republic upheld the firstinstance judgment. The applicant had joined the criminal proceedings with a claim for damages. On 19 October 1990 the Supreme Court of the Czech and Slovak Federal Republic, upon a complaint lodged by the General Prosecutor, quashed the decisions convicting the persons charged. The case was sent back to the Bratislava Regional Court for a fresh examination. Subsequently the case was dealt with by courts at two levels of jurisdiction. In 1992 the first-instance court decided that the charges against one of the accused would be dealt with in a separate set of proceedings. That set of proceedings was stayed as experts concluded that the accused suffered from a mental disorder (for further details relating to the period up to February 2002 see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX). On 20 January 2004 the Regional Court in Bratislava delivered a judgment convicting the accused persons (with the exception of the one in respect of whom the proceedings had been stayed). The accused and the public prosecutor appealed. On 23 April 2004 the file was submitted to the Supreme Court. Between 28 April 2004 and 8 November 2004 the accused made seven submissions with a view to completing the reasons for their appeal. On 3 May 2006 the Supreme Court had to adjourn the case as the newly appointed counsel of one of the accused had not appeared. The next hearing was scheduled for 27 September 2006. It was adjourned as the presiding judge was ill. On 29 November 2006 the Supreme Court heard the final speeches. On 4 December 2006 the Supreme Court modified the first-instance judgment in that it imposed more severe sentences on three of the convicted persons. On 14 December 2004 and on 2 December 2005 the applicant filed a complaint with the Constitutional Court. She alleged a violation of her rights under Article 6 § 1 of the Convention to a hearing within a reasonable time and under Article 8 of the Convention to respect for her private life in the context of the criminal proceedings concerning the offences committed against her daughter which she had joined with a claim for damages. On 15 March 2006 the Constitutional Court declared admissible the complaint about the length of the proceedings. It further rejected the complaint under Article 8 of the Convention. It admitted that there could be an interference with the applicant’s right to respect for her private and family life as a result of the excessive length of the proceedings. However, Article 6 § 1 was a lex specialis In a judgment of 14 September 2006 the Constitutional Court found that both the Regional Court in Bratislava and the Supreme Court had violated the applicant’s right to a hearing within a reasonable time in the above criminal proceedings. It ordered the Regional Court to pay 650,000 Slovakian korunas (SKK) to the applicant as just satisfaction. That sum was payable within two months from the final effect of the judgment. It also ordered the Regional Court to reimburse the applicant’s costs of legal representation in the constitutional proceedings within one month. Finally, the Constitutional Court ordered the Supreme Court to proceed with the case without any further delay. The Constitutional Court had jurisdiction to examine the length of the proceedings in issue as from 15 February 1993. It admitted that the case had been complex to a certain extent, in particular because the offences in issue had been committed more than 30 years ago. The applicant by her conduct had not contributed to the length of the proceedings. Their overall length was in itself incompatible with the applicant’s right to a hearing within a reasonable time. As regards the conduct of the Regional Court in particular, it had remained inactive for at least 78 months without any justification. The Constitutional Court also recalled that in its finding of 12 November 2003 given in proceedings initiated by the accused persons it had ordered the Regional Court to deal with the case without delay. There had been unjustified delays also as regards the conduct of the Regional Court in the separate set of proceedings concerning one of the accused persons. As regards the proceedings before the Supreme Court, the Constitutional Court noted, in particular, that the first hearing had been scheduled after two years. Such a period was excessive in view of the overall length of the proceedings. The Constitutional Court held that the finding of a violation in respect of the proceedings before the Supreme Court, together with its order that the Supreme Court should avoid further delays in the proceedings, constituted in itself appropriate satisfaction as regards the appeal proceedings. | 0 |
train | 001-58217 | ENG | ITA | CHAMBER | 1,998 | CASE OF CONTRADA v. ITALY | 4 | No violation of Art. 5 | C. Russo;N. Valticos | 6. The applicant, a senior police officer, was at the time of his arrest Deputy Director of the Civil Secret Service (SISDE) for Sicily, in Palermo. In the same city, he had previously been Head of the Mobile Unit, Head of the Criminal Investigation Police (Criminalpol) and Principal Private Secretary to the Anti-Mafia High Commission (Alto Commissario Antimafia). 7. Mr Contrada was detained on 24 December 1992 at Palermo Military Prison under a warrant issued the previous day by the investigating judge (Giudice per le indagini preliminari) attached to the Palermo District Court, at the request of the public prosecutor’s office. He was accused of involvement in a mafia-type organisation (concorso in associazione de stampo mafioso – contrary to Articles 110, 416 and 416 bis of the Criminal Code) on the basis of statements of several pentiti – former members of the Mafia who have decided to cooperate with the authorities – during questioning in the course of various investigations into Mafia offences. All the pentiti had themselves been charged with or convicted of involvement in a mafia-type organisation and, in some cases, other offences, such as drug trafficking or murder. On 2 January 1993 Mr Contrada was suspended from duty. 8. The first four statements which led to the applicant’s arrest may be summarised as follows: (a) G. Mutolo asserted that R. Riccobono, head of the Mafia clan of which he had been a “member” since 1973, had told him in 1981 that the applicant was at the service of key Mafia leaders for whom he had done a number of unspecified “favours”. R. Riccobono had also told him that one A.G., a property developer with Mafia connections, had provided the applicant with a flat and that in 1981 the Mafia had spent 15 million lire on a Christmas present of a car for one of the applicant’s mistresses. As the Mafia had decided in 1975 to eliminate the applicant and two other high-ranking officials, and had instructed S. Micalizzi and himself to shadow the applicant, Mutolo had asked R. Riccobono why the applicant was still alive. Riccobono had replied that Mr Contrada was “at the disposal” (of the Mafia). That same pentito had previously accused the public prosecutor in charge of his case, four of the judges who had convicted him in the Assize Court and the Assize Court of Appeal and the former President of the Palermo Court of Appeal of collusion with the Mafia. (b) T. Buscetta, who gave evidence in 1984, said that R. Riccobono had advised him to return to Palermo and had assured him that the police would not look for him. T. Buscetta had subsequently informed S. Bontade (a member of the Mafia belonging to a different clan) of the tenor of his conversation with R. Riccobono. S. Bontade had then drawn Buscetta’s attention to the fact that R. Riccobono was passing information to the police and, in particular, the applicant. As a result of those statements, an investigation was started into Mr Contrada’s activities, but was discontinued. On 25 November 1992, Buscetta repeated the statement he had made in 1984, but added that he did not have first-hand knowledge of the facts. (c) R. Spatola accused the applicant of having helped T. Riina, one of the most powerful Mafia leaders, to escape during a police operation in the early 1980s. He asserted that the applicant was a Freemason and had contacts with the Mafia leaders, also Freemasons. He also described how a police operation to arrest another mafioso, G. Gambino, had been foiled by a telephone call alerting him. (d) G. Marchese stated on 4 November 1992 that in 1981, after returning from a meeting with senior Mafia leaders, his uncle had instructed him to alert T. Riina to the fact that he had been informed by the applicant that the police had found out where Riina lived and were preparing to search his home. T. Riina had as a result left that address and hidden elsewhere. During questioning on 2 October 1992, however, Marchese had said that T. Riina had left home to ensure his safety owing to clashes between rival Mafia clans. 9. In making his order of 23 December 1992 the investigating judge held that the statements referred to above had to be considered reliable and to have been made voluntarily. They could therefore constitute serious evidence of guilt (gravi indizi di colpevolezza), which is a prerequisite under Italian law for a suspect to be detained. The judge also considered that the statements were corroborated by objective evidence confirming their credibility. 10. The applicant was subsequently implicated in 1993 and 1994 by four other pentiti. Their statements may be summarised as follows: (a) F.M. Mannoia referred to the applicant during questioning on 24 January 1994, stating that the applicant was a friend of R. Riccobono, also had contacts with S. Bontade and had been given the use of a flat by A.G. (b) S. Cancemi said that Mr Contrada had accelerated S. Bontade’s application for a licence to carry firearms and had also intervened to secure the return of S. Bontade’s driving licence, which had been withdrawn as a preventive measure. (c) P. Scavuzzo claimed to have seen the applicant in January 1991 in a flat in Palermo in the company of a member of the Mafia. He alleged that Mr Contrada had been involved in a valuation by a Swiss art expert of an amphora which P. Scavuzzo had brought to the premises and had, he asserted, been intended for the deputy police commissioner. P. Scavuzzo had convictions for armed robbery, drug trafficking and calumny. (d) M. Pirrone, a member of the Ndrangheta, a Calabrian mafia-type organisation, said that a member of the Mafia, C. Conti, had told him that Mr Contrada was “useful” to the Mafia as he provided it with information about police raids. 11. Lastly, on 23 March 1993 R. Spatola stated that while in a restaurant with two other members of the Mafia, the Di Caro brothers, they had drawn his attention to the fact that R. Riccobono was there with the applicant in a small room that had been reserved in the restaurant. 12. Mr Contrada was questioned by the investigating judge shortly after his arrest, on 27 December 1992. On 27 April 1993 he was questioned, at his request, by the public prosecutor and, on an unspecified date, transferred to Rome Military Prison. Subsequently, the investigating judge committed him for trial and ordered that the trial should start on 12 April 1994 (see paragraph 25 below). 13. On 3 January 1993 the applicant filed an application with the Court of Cassation for release on the grounds that, firstly, the order of 23 December 1992 did not state what the “serious evidence of guilt” against him was and, secondly, in any event, the statements of the first four pentiti, which referred to events in the distant past most of which had been related to them by third parties, could under no circumstances constitute serious evidence of guilt. In that connection, he referred in particular to the Court of Cassation’s case-law under which a statement implicating another person did not constitute serious evidence of guilt within the meaning of Article 273 of the Code of Criminal Procedure (“CCP” – see paragraph 36 below) unless it was supported by objective evidence. He said that G. Mutolo and R. Spatola had never said what the favours he had allegedly done for the Mafia leaders were and that, furthermore, it was impossible to check the truth of the information provided by G. Mutolo, G. Marchese and T. Buscetta, as the persons from whom it had been obtained had all died in the meantime. He also observed that the investigation into like allegations made by T. Buscetta in 1984 had been discontinued in 1985 for want of material corroborating evidence. Lastly, the applicant submitted that none of the conditions laid down in Article 274 CCP (see paragraph 37 below) could justify detention in his case. 14. On 5 February 1993 the Court of Cassation dismissed his appeal on the ground that the investigating judge had given logical and sufficient reasons for his decision. The court noted that the judge had found that the pentiti statements were to be considered reliable, as they had been made by persons who had occupied senior positions within the Mafia and who had in the past enabled the investigators to establish the structure of that organisation. The Court of Cassation said in that regard that hearsay evidence could be admissible if it emanated from a reliable witness. The evidence had also to be considered “serious”, as the judge had referred to objective corroborative evidence. Emphasising that the statements in question had been made by different people and concerned different events so that their credibility was strengthened, the Court of Cassation concluded that the evidence assembled by the investigating judge pointed to the likelihood that the applicant was guilty of the offences with which he had been charged. Furthermore, under Article 275 CCP, the seriousness of those offences raised a rebuttable presumption that a risk existed that the applicant would tamper with evidence, abscond or reoffend. 15. On 23 July 1993 the applicant made a further application for release from detention to the investigating judge and at the same time applied for the charges to be dropped on the grounds that the offence had not been made out. He said in particular that the investigation up to that point had already provided the investigators with substantial evidence of his innocence. He referred to the active role he had played in a number of investigations into the Mafia, as a result of which he had even received death threats, and argued that he had opposed granting T. Buscetta day-release from prison, fearing, as proved to be the case, that Buscetta would take advantage of it to escape and resume his activities. He maintained that he had never met R. Riccobono or been a Freemason. The applicant submitted that there was no real and current risk justifying his detention, given, in particular, that he would never be able to tamper with the evidence, since in the course of the lengthy investigation into the allegations against him all the evidence had already been obtained. Nor was there any risk of his absconding, since he had been aware of the pentiti statements before being arrested. In view of his career and the role he had played in investigating the Mafia, any risk that he might continue assisting the Mafia’s activities should also be ruled out. 16. The investigating judge who had ordered the applicant’s arrest dismissed that application on 24 August 1993. He held that the pentiti statements, far from being refuted, had subsequently been successively confirmed by: (i) further detailed statements by R. Spatola confirming that the applicant knew R. Riccobono; (ii) the fact that the applicant had, after a search at the home of a member of the Mafia, allegedly asked another police officer to “ease up”; and (iii) the fact that the applicant had tipped off O. Tognoli, who was suspected of having Mafia links, that an arrest warrant had been issued against him, thereby enabling him to get away. The judge also considered that the pentiti’s decision to cooperate with the judicial authorities could not have been motivated by a grudge against the applicant, given the genuineness of their cooperation with the authorities. Lastly, in view of the fact that the applicant occupied a senior official position, there was a real risk – assuming the charges against him were founded – of evidence being tampered with and of his absconding. 17. Mr Contrada appealed against that order to the Palermo District Court, which had appellate jurisdiction on applications for release. As regards the further statements by R. Spatola (see paragraph 11 above) in which he had said that the applicant knew R. Riccobono well, the applicant submitted that it was only a few days before the applicant’s arrest that Spatola had started making allegations about him to the judicial authorities. Although R. Spatola had been cooperating with the judicial authorities since 1989 he was, apparently, unaware that the applicant had left the Anti-Mafia High Commission in 1985. No more reliable, in the applicant’s submission, was R. Spatola’s claim that he had seen the applicant with R. Riccobono in a well-known Palermo restaurant (see paragraph 11 above) for, at the time, Palermo had been the scene of a ruthless power struggle between the various Mafia clans and Riccobono had no interest in showing himself in public. As to his instruction to a colleague to “ease up”, his intention had not been to protect members of the Mafia, but to bring a junior police officer in line following a search in which he had ill-treated the sons and wife of a mafioso wanted by the police. 18. On 1 October 1993 the Palermo District Court dismissed the appeal on the ground that it concerned points which had already been rejected and that new facts emerging from the investigation appeared to confirm the strength of the case against him. The court observed, inter alia, that the junior police officer had confirmed his statement regarding the pressure exerted on him by Mr Contrada. Even if no account could be taken of the statements by O. Tognoli in Switzerland, as they had been related verbally by the judges and had not been recorded in any document, all the other evidence against the applicant justified keeping him in detention pending trial. The court therefore upheld the order of 24 August 1993, while declaring that the statements concerning O. Tognoli’s evidence were inadmissible. Lastly, the court stressed once again the risk of evidence being tampered with given the network of contacts on which the applicant could rely, as had been demonstrated in particular by the fact that the applicant had voluntarily reported to the public prosecutor’s office on 17 November 1992, when the investigation should still have been secret. That circumstance confirmed that he had been aware, not only of the existence of an investigation against him, but also of the tenor of the accusations made by G. Mutolo. 19. The applicant appealed to the Court of Cassation, but his appeal was dismissed on 13 December 1993. While acknowledging that the reasoning of the courts below regarding the threat posed by the applicant had been somewhat concise, the Court of Cassation considered, among other things, that it was nevertheless neither manifestly illogical nor unlawful. 20. On 7 December 1993, noting that checks were still being carried out at banks and requests for documents from the Ministry of the Interior and the police authorities were still in hand, the Palermo public prosecutor’s office applied for the applicant’s detention pending trial to be continued after the expiration of the statutory limit of one year on 24 December 1993. On 20 December 1993 the applicant opposed that application. 21. On 23 December 1993 the investigating judge, relying in particular on the complexity of the investigation (involving, among other things, an outstanding request for judicial assistance, transcripts of tapped telephone conversations and an analysis of data relating to mobile telephones used by Mr Contrada) and the risk of the applicant tampering with evidence (whether to hand, or to be obtained), absconding and committing further offences, ordered that the period of detention pending trial be extended by sixty days. 22. On 7 January 1994 the applicant appealed. He submitted, inter alia, that the investigative measures that had allegedly necessitated his continued detention could easily have been completed earlier and certainly before 24 December 1993 and that any delay should be attributed solely to the judicial authorities. 23. On 2 February 1994 the Palermo District Court dismissed the applicant’s appeal. It held that even if the data relating to the mobile telephones could have been requested and analysed earlier – it had not been requested until 8 November 1993 although the applicant had been in detention since 24 December 1992 – the prosecution could not be criticised in relation to the other investigative measures justifying the applicant’s continued detention. They had either been put in hand very early on or had been particularly complex, and the prosecution enjoyed a certain margin of appreciation in that regard. Furthermore, even if the risk of absconding could be discounted, the court considered that there was still a real risk that the applicant would reoffend or that evidence would be tampered with, given the extremely sensitive official position he had occupied. The court noted on that point that, after a year’s wait, the prosecution had still not obtained the files on, among other things, work done by the applicant for the Ministry of the Interior. Account also had to be taken of the fact that it would be very difficult for the applicant to extricate himself from the Mafia’s criminal network. 24. Mr Contrada appealed to the Court of Cassation on 1 March 1994, but his appeal was dismissed on 27 May 1994. The Court of Cassation held, in particular, that there was a danger that the applicant might use his contacts to tamper with the evidence. 25. On 10 January 1995, following his committal and the start of his trial (see paragraph 12 above), the applicant made a further application for release. The Palermo District Court dismissed his application on 19 January 1995, holding once again that, as the investigation was complex, the applicant’s release might interfere with its progress. The applicant could have used his many contacts and connections – made while working at his former highly sensitive posts – to tamper with evidence or to exert pressure on witnesses. As to the risk of reoffending, the court emphasised that criminal links with the Mafia were generally long-lived, particularly bearing in mind the Mafia’s hallmark of subjugating its members. 26. On 14 April 1995 the Palermo District Court granted the prosecution’s application of 31 March 1995 for an order pursuant to Article 304 § 2 CCP (see paragraph 39 below) extending the maximum periods of detention pending trial for the duration of the trial and deliberations at first instance, owing to the complexity of the proceedings. The court held that, given the number of hearings, witnesses’ depositions and statements from the applicant, the prosecution’s request appeared justified. As regards the applicant’s submission that the proceedings would have been completed earlier if the hearings had been held at more frequent intervals, the court considered that it had to take into account the court’s excessive workload and the fact that it had also had to deal with other cases involving accused detained pending trial. 27. On 24 April 1995 Mr Contrada appealed against that order, submitting in particular that the provision for extension of the maximum periods of detention pending trial had been adopted in order to meet the requirements of trials of a very large number of defendants (maxi-processi). In his case, however, it had not been possible to complete the trial within the maximum period permitted for detention pending trial for reasons other than the complexity of the proceedings. 28. The Palermo District Court dismissed the applicant’s appeal in an order of 22 May 1995, ruling that all the conditions laid down in Article 304 § 2 CCP (see paragraph 39 below) were satisfied in his case: that is to say, in particular, the complexity of the proceedings (exacerbated by the court’s excessive workload) and the continuing applicability of the conditions laid down in Article 274 CCP (see paragraph 37 below). The applicant did not appeal to the Court of Cassation against that order. 29. On 28 July 1995 Mr Contrada made a further application to the Palermo District Court for release, arguing that his detention was no longer necessary for the investigation and that his health was suffering, as attested by a psychiatrists’ report. 30. The court granted the application (which was, moreover, supported by the prosecution) and the applicant’s release was finally ordered on 31 July 1995. The court held in particular that: (i) at that stage of the trial, as the oral hearings had been completed, all the prosecution and defence witnesses heard, the documentary evidence obtained and various confrontations necessary for the investigation held, there was no longer any risk that the evidence would be tampered with or witnesses procured to give false evidence; (ii) the risk of absconding could also be ruled out owing to the applicant’s state of health – he was suffering from a sufficiently acute form of asthenia –, the long period he had spent in detention and the fact that it was far from certain that a final conviction, which would necessitate precautions being taken to ensure that he served his sentence, would be secured; and (iii) any risk of the applicant committing further offences could also be ruled out, owing to his state of health, the long period he had spent in detention pending trial and, lastly, the fact that since his arrest he had no longer been in his post. 31. In a note of 8 November 1995, appended to the Government’s observations, the public prosecutor attached to the Palermo Court of Appeal admitted, with regard to the question of whether there had been a need to keep the applicant in detention pending trial, that there was an apparent contradiction between the decision of 14 April 1995 to extend the maximum period and the fact that the conditions justifying keeping the applicant in detention under Article 304 § 2 CCP had ceased to exist shortly afterwards, which showed that an overall view of the trial had been lacking. 32. The trial progressed at an average rate of two hearings a week. Additionally, a report by the President of the court dated 29 September 1995 shows that, after the maximum period of detention pending trial in the proceedings had been extended for the duration of the trial, the court proposed holding three hearings a week instead of two, but the applicant’s lawyers refused. It appears from the case file that the proceedings involved 165 hearings at the investigative stage and the examination of more than 250 witnesses or persons accused of offences connected with those with which the applicant was charged. There were also four confrontations; moreover, fourteen hearings were necessary merely to examine the applicant, thirteen of which were held in succession between 4 November and 29 December 1994. Fifty-eight witnesses called by the parties gave evidence at the trial. A large number of documents were lodged on the case file. The hearings between 22 April 1994 and 12 October 1995 were devoted to the hearing of witnesses. Seven pentiti were, for security reasons, questioned in the Rome and Padua prisons where they were detained. The public prosecutor made his submissions over the course of twenty-one hearings held between 23 November 1995 and 19 January 1996. Between 7 February and 29 March 1996, over twenty-two hearings, the applicant’s lawyer made his submissions for the defence. In a judgment of 5 April 1996, which was filed with the court registry on 17 October 1996, the Palermo District Court sentenced the applicant to ten years’ imprisonment for aiding and abetting from the outside (concorso esterno) a mafia-type organisation (Articles 416 bis and 110 of the Criminal Code). In the reasons for its decision it said: “The court considers that the complex and extensive investigation carried out at the trial, at which the parties were able to put forward their respective arguments, enables the conclusion to be reached with total certainty that the accused was completely guilty. That finding is based on the accusations, all of which are consistent, made against him by people who have cooperated with the prosecution and which the court finds to be credible taken as a whole, whether individually or jointly with other items of evidence subsequently corroborated by a very large number of statements and documents from other sources, the accusatory content of which is unequivocal and the evidential value indisputable.” 33. The applicant has appealed. The hearing of his appeal before the Palermo Court of Appeal began on 11 June 1998. At the end of a subsequent hearing on 2 July the appeal was adjourned to 22 October 1998. 34. Article 416 bis of the Criminal Code provides, inter alia: “A person who is a member of a mafia-type organisation of three or more persons shall be liable to imprisonment... An organisation is of a mafia type if its members use the intimidatory power of the bonds of membership and the resulting vows of obedience and silence in order to commit an offence, to acquire (directly or indirectly) the management, or other form of control, of economic activities, licences, permits, public contracts or services or to gain unfair advantages or profits for its members or other persons, or to prevent or hinder the free exercise of the right to vote, or to secure votes for members or other persons in elections. ...” 35. Moreover, Article 110 of the Criminal Code provides that where several persons are accomplices in the commission of an offence, they shall each be individually liable to the punishment laid down for that offence. The case-law has applied the concept of aiding and abetting in cases concerning criminal organisations – and, more particularly, a mafia-type organisation – and has accepted that the offence of aiding and abetting a mafia-type organisation may be committed from the outside. The latter concept applies to a person who is not a member of the organisation and has confined himself to doing one or more acts likely to further that criminal organisation’s aims and motivated by an independent intention – limited in aim, duration and effectiveness – to commit a crime (see, among other authorities, the Court of Cassation judgment no. 88/179169). That interpretation has, however, given rise to controversy among the Court of Cassation judges themselves. Thus, in its judgment no. 2699 of 30 June 1994, the Court of Cassation held as follows: “As regards offences associated with belonging to a criminal organisation, and in particular a mafia-type organisation, the concept of criminal responsibility in the form of ‘aiding and abetting from the outside’ is unacceptable; a defendant who undertakes acts which facilitate the organisation’s aims either specifically intends to contribute to the furtherance of that organisation’s aims and is therefore indistinguishable from a member of the organisation, or does not have that specific intention, whereupon the conduct which facilitates the organisation’s aims should be treated differently from the offence of belonging to a criminal organisation... The impossibility of applying the concept of ‘aiding and abetting an organisation from the outside’ is confirmed by the fact that the offence of ‘aiding and abetting the members of a criminal organisation’ already exists (Article 418 of the Criminal Code) and that several provisions ... already provide for an offence committed ‘in order to facilitate’ the activity of Mafia or similar organisations...” 36. Article 273 § 1 CCP provides: “No one shall be detained pending trial unless there is serious evidence of his guilt.” 37. Article 274 CCP provides that a person may be detained pending trial: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...” 38. Under Article 275 § 3 CCP, as amended by Legislative Decree no. 152 of 1991 (which became Law no. 203 of 1991) and Legislative Decree no. 292 of 1991 (which became Law no. 356 of 1991) there is a rebuttable presumption that such a necessity exists with regard to certain particularly serious offences, including the one with which the applicant was charged. 39. Article 303 CCP lays down the maximum permitted periods of detention pending trial depending on the stage reached in the proceedings. As the applicant was prosecuted for the offence laid down in Article 416 bis of the Criminal Code, the periods applicable to him during the proceedings at first instance were as follows: (i) one year from the beginning of his detention until the order committing him for trial; (ii) one year from the beginning of the trial until his conviction at first instance. Article 303 CCP provides, inter alia, that if the order committing the defendant for trial has not been made or, as the case may be, the defendant has not been convicted at first instance within the relevant period, the detention pending trial shall cease to be lawful and the defendant must be released. Articles 304 and 305 CCP provide for exceptions to these rules. In particular, paragraph 2 of Article 304 provides that for certain offences, including the one provided for in Article 416 bis of the Criminal Code, the periods laid down in Article 303 may be extended during the hearings, the deliberations at first instance or the appeal, if the proceedings prove to be particularly complex. Article 304 provides that the length of detention pending trial must not, under any circumstances, exceed two-thirds of the maximum sentence for the offence with which the defendant is charged or the sentence imposed by the first-instance court. Paragraph 2 of Article 305 provides: “During the preliminary investigation, the public prosecutor may request an extension of a period of detention pending trial that is about to expire, where there is a serious need for precautionary measures which, in particularly complex investigations, make it absolutely necessary to extend the period of detention pending trial.” That provision goes on to provide that such an extension may be renewed only once and that, in any event, the periods provided for in Article 303 cannot be exceeded by more than half. 40. Article 477 CCP provides, inter alia, that where the trial cannot be completed at a single sitting, the President shall order it to continue on the next working day. Moreover, the court may not adjourn the proceedings other than on grounds of absolute necessity and for a maximum of ten working days. In that connection, the Court of Cassation has held that the ten-day period provided for in Article 477 § 2 CCP is a guideline (termine di natura ordinatoria), non-compliance with which does not render the detention unlawful and cannot have any effect on the extension of periods of detention pending trial under Article 304 § 1 CCP. While the court must comply with the time-limits laid down in Article 477 CCP, especially in cases where the length of the trial affects the length of the detention, the ability to adhere to the time-limits is inevitably dictated by the workload of the court concerned; if the court has a heavy workload, the trial cannot always be conducted within the period provided for in Article 477 CCP (see the Butera judgment of 18 February 1994). | 0 |
train | 001-72346 | ENG | MDA | CHAMBER | 2,006 | CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA | 1 | Preliminary objection rejected;Violation of Art. 11;Not necessary to examine under Art. 10;Costs and expenses partial award - Convention proceedings | Ján Šikuta;Javier Borrego Borrego;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Stanislav Pavlovschi | 8. The applicant party, the Christian Democratic People's Party (“the CDPP”), is a parliamentary political party in the Republic of Moldova which was in opposition at the time of the events. 9. Towards the end of 2001, the Moldovan government made public its intention to make the study of the Russian language compulsory in schools for children aged seven and over. 10. This initiative prompted vehement criticism from the opposition and generated a heated public debate. 11. On 26 December 2001 the parliamentary group of the CDPP informed Chişinău Municipal Council of its intention to hold a meeting with its supporters on 9 January 2002, in Great National Assembly Square, in front of the government buildings. It stated that the meeting would relate to the introduction of the compulsory study of Russian in schools. It relied on section 22 of the Status of Members of Parliament Act (see paragraph 35 below) which, according to the CDPP, did not require members of parliament to obtain prior authorisation for meetings with their supporters. 12. By a decision of 3 January 2002, the Municipal Council classified the gathering to be held on 9 January 2002 as a “demonstration” within the meaning of sections 4, 8, 12 and 13 of the Assemblies Act (see paragraph 36 below) and authorised the parliamentary group of the CDPP to hold it in National Opera Square. It did not give any reasons for the change of location. 13. Later, on 23 January 2002, the Municipal Council addressed a letter to the Ministry of Justice, informing it that there was a discrepancy between the provisions of the Status of Members of Parliament Act and those of the Assemblies Act and that it did not know which to apply. It stated, inter alia, that a number of reputable lawyers supported the idea that the CDPP members of parliament had the right to hold meetings with their supporters in Great National Assembly Square without obtaining prior authorisation, in accordance with the provisions of sections 22 and 23 of the Status of Members of Parliament Act. It cited in that respect the opinion of an ombudsman who considered that, since section 23 of the Status of Members of Parliament Act proclaimed the right of MPs to raise demands on the spot for action to remedy a breach of the law, the CDPP members of parliament were entitled to raise their demands for the cessation of the alleged breaches concerning the introduction of compulsory Russian lessons in front of the government building, as it also housed the Ministry of Education. Accordingly, the Municipal Council requested the Ministry of Justice to ask Parliament for an official interpretation of the legislation in question. 14. On 26 January 2002 the Municipal Council issued a decision which stated, inter alia: “Having regard to the fact that the provisions of the domestic legislation are contradictory in respect of the demonstrations organised by the CDPP and that the opinions of legal experts are contradictory, and bearing in mind the considerable social impact of a possible decision regarding the matter and the consequences it might entail, the Municipal Council has formally requested the Ministry of Justice to ask Parliament for an official and urgent interpretation of the relevant legislation. ... The Municipal Council's decision of 3 January 2002 is hereby suspended until Parliament has given its official interpretation.” 15. In the meantime, on 9 January 2002, the parliamentary group of the CDPP held a gathering in Great National Assembly Square, in front of government headquarters. It also held gatherings on 11, 13, 15, 16 and 17 January 2002. The CDPP informed the Municipal Council in advance of each gathering; however, it did not seek authorisation in accordance with the Assemblies Act. 16. On 14 January 2002 the Ministry of Justice issued an official warning to the CDPP in accordance with section 27 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). It stated, inter alia, that the CDPP had breached the provisions of section 6 of the Assemblies Act by organising demonstrations in Great National Assembly Square on 9, 10, 11 and 13 January 2002, notwithstanding the authorisation issued by the Municipal Council, which only gave permission for a demonstration on 9 January 2002 in National Opera Square. It called for an immediate halt to the gatherings, which it considered to be illegal and unconstitutional and which it claimed were not meetings with voters within the meaning of the Status of Members of Parliament Act, but demonstrations falling under the Assemblies Act. It asked the CDPP for a written explanation within three days and warned that, if it failed to comply with the warning, the Ministry would impose a temporary ban (suspendarea activităţii) on the party's activities in accordance with section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). 17. On 17 January 2002 the President of the CDPP wrote a letter to the Ministry of Justice in which he stated that the gatherings had not been organised by the CDPP but by members of its parliamentary group, and that it was therefore the members concerned who were liable, and not the party. He also relied on section 22 of the Status of Members of Parliament Act, arguing that it was a very specific Act, applicable to meetings between members of parliament and voters, while the Assemblies Act was general in nature. He finally submitted that the threatened ban on the party's activities would amount to a political measure taken by the Communist Party in order to repress the opposition. 18. On 18 January 2002 the Ministry of Justice issued a decision imposing a one-month ban on the CDPP's activities, in accordance with section 29 of the Parties and other Socio-Political Organisations Act. 19. The measure was imposed on the basis of the organisation by the CDPP of unauthorised demonstrations on 9, 10, 11, 13, 15, 16 and 17 January 2002. 20. The Ministry of Justice dismissed the CDPP leader's argument that the party could not be held liable. It stated, inter alia, that the gatherings organised by the CDPP on the above dates had in fact been demonstrations and marches and therefore fell within the scope of the Assemblies Act rather than the Status of Members of Parliament Act as the CDPP had claimed. 21. According to the decision, the CDPP had breached the provisions of sections 5, 6, 7, 8, 9 and 11 of the Assemblies Act by not obtaining prior authorisation from the Municipal Council to stage demonstrations and by blocking the public highway. 22. The participation of minors in the CDPP demonstrations had been in breach of Article 15 of the International Convention on the Rights of the Child (see paragraph 38 below), section 13(3) of the Protection of Children Act (see paragraph 39 below) and section 56(g) of the Education Act (see paragraph 40 below). 23. The CDPP's actions also disclosed a violation of sections 27 and 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below), section 15(1) and (2) of the Status of Members of Parliament Act (see paragraph 35 below) and Article 32 of the Constitution (see paragraph 34 below). The use of such slogans as “I'd rather be dead than a communist” (Mai bine mort decât comunist) could be interpreted as a call to public violence and an act undermining the legal and constitutional order. 24. On 24 January 2002 the CDPP challenged the decision of the Ministry of Justice arguing, inter alia, that the gatherings had been meetings with voters within the meaning of the Status of Members of Parliament Act, and not assemblies falling within the scope of the Assemblies Act. 25. On 8 February 2002 the Ministry of Justice issued a decision lifting the temporary ban imposed on the CDPP's activities. It stressed that the CDPP had breached all the laws mentioned in the decision of 18 January 2002 and that the temporary ban had been necessary and justified. However, following an inquiry by the Secretary General of the Council of Europe under Article 52 of the Convention, and having regard to the forthcoming local elections, the CDPP was authorised to resume its activities. The decision of 8 February 2002 did not, however, set aside the decision of 18 January 2002. 26. On 7 March 2002 the Court of Appeal found in favour of the Ministry of Justice and ruled that the decision of 18 January 2002 had been lawful. It dismissed the CDPP's argument that the party could not be held liable for the actions of its members, namely its parliamentary group. It found that the gatherings organised by the CDPP had in fact been demonstrations, meetings and marches which fell under the provisions of the Assemblies Act, and not meetings with voters. Even assuming that the gatherings had been intended as meetings with voters, they had gradually taken on the nature of demonstrations and, accordingly, the CDPP needed authorisation in order to organise them. It also stated that, as a result of the demonstrations, the public transport company had suffered losses of 12,133 Moldovan lei (MDL) (the equivalent of 1,050 euros (EUR) at the time). The participation of minors in the demonstrations had been in breach of the International Convention on the Rights of the Child, the Protection of Children Act and the Education Act. 27. The CDPP lodged an appeal against this decision with the Supreme Court of Justice, relying, inter alia, on Articles 10 and 11 of the Convention. 28. On 17 May 2002 a panel of the Supreme Court of Justice delivered its judgment, in which it dismissed the appeal lodged by the CDPP. It endorsed the arguments of the Court of Appeal and found, inter alia, that since the demonstrations organised by the CDPP had been illegal, the sanction imposed on it had not been disproportionate. It also stated that in any event the decision of the Ministry of Justice had not had any negative effects on the CDPP since it had not been enforced, the CDPP's accounts had not been frozen and the party could continue its activities unhindered. 29. The Ministry of Justice did not reply to the Municipal Council's request of 23 January 2002 for interpretation of the law and did not address any request to Parliament. However, on 21 February 2002 the government lodged an application with the Supreme Court of Justice asking it, inter alia, to declare the demonstrations organised by the CDPP illegal and to order their cessation. 30. On 25 February 2002 the Supreme Court of Justice ruled in favour of the government and declared the gatherings illegal. It stated, inter alia: “Even if one could accept that the CDPP had the initial intention of holding meetings with its supporters, those meetings later took on the character of demonstrations, marches, processions and picketing, which fall under the provisions of the Assemblies Act. In these circumstances, the leaders of the CDPP were required to comply with the provisions of the Assemblies Act ...” 31. The CDPP appealed. 32. On 15 March 2002 the Supreme Court of Justice dismissed the appeal and the judgment of 25 February 2002 became final. 33. In the course of the present proceedings before the Court, the Government submitted a video with images of gatherings held by the CDPP deputies on 15, 16, 17 and 18 January 2002. The gatherings were held in Great National Assembly Square, in a pedestrian area, in front of the government buildings. The participants appeared to number several hundred and included people of different ages varying from schoolchildren to pensioners. According to the time displayed on the images, the gatherings commenced at around 1 p.m. and lasted for about two hours. Different personalities made speeches critical of the ruling Communist Party, the government and its policy. It appears from the video that traffic was not disrupted as a result of the gatherings held on those dates, and no signs of violence can be seen. “The Layabout's Anthem” (Imnul Golanilor – a song that originated in the 1990 Bucharest student demonstrations) was played frequently. The chorus of the song had the following wording: “I'd rather be a slacker than a traitor (Mai bine haimana, decât trădător) I'd rather be a hooligan than a dictator (Mai bine huligan, decât dictator) I'd rather be a layabout than an activist (Mai bine golan, decât activist) I'd rather be dead than a communist (Mai bine mort, decât comunist).” 34. Article 32 of the Constitution of the Republic of Moldova reads as follows: “3. Denial and defamation of the State and of the people, incitement to war of aggression, incitement to hatred on ethnic, racial or religious grounds, incitement to discrimination, territorial separatism or public violence, as well as other acts undermining the constitutional order shall be forbidden and shall be punishable under the law.” 35. The relevant provisions of the Status of Members of Parliament Act of 7 April 1994 provide: “(1) Members of parliament shall be obliged strictly to observe the Constitution, the laws and the rules of morality and ethics. (2) Members of parliament shall have a duty to be dependable and to contribute by their own example to the consolidation of State discipline, the fulfilment of civil obligations, the protection of human rights and the observance of the law. (3) Alleged breaches of the rules of ethics by members of parliament shall be examined by the Parliamentary Commission on Legal Affairs, Appointments and Immunity.” “Local authorities shall provide members of parliament with all necessary assistance for the organisation of their work with voters. They shall place premises at their disposal for meetings with voters.” On 26 July 2002 section 22(3) was amended as follows: “Local authorities shall provide members of parliament with the necessary assistance for the organisation of their work with voters. For this purpose, they [the local authorities] shall ensure access to buildings or other public places, provide equipment and any necessary information and inform voters in good time about the place and the time of meetings with members of parliament.” On 26 July 2002 a new section 22(1) was introduced: “Members of parliament shall have the right to organise demonstrations, meetings, processions and other peaceful gatherings in accordance with the Assemblies Act.” “(1) Members of parliament, in their capacity as representatives of the supreme legislative power, shall have the right to raise demands on the spot for action to remedy a breach of the law ...” 36. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: “Assemblies may be conducted only after the organisers have notified the local council.” “(1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.” On 26 July 2002 the following provision was added to the section: “(2) Teachers or other school staff members shall not involve students in unauthorised assemblies.” “Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war of aggression and incitement to hatred on ethnic, racial or religious grounds; (c) incitement to discrimination, territorial separatism or public violence; (d) acts that undermine the constitutional order.” “(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings. (2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors' offices, the courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors' offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.” “The date and time of the assembly shall be agreed by the organiser and the local council of the city, town or village.” “(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act. (2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to ensure and answer for the sound conduct of the assembly; (g) the services the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.” “(2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation.” 37. The relevant parts of the Parties and other Socio-Political Organisations Act of 17 September 1991 provide: “... In the event that breaches of the statute or of the law are discovered in the activities of a party or a socio-political organisation, the Ministry of Justice shall warn its leaders in writing, requesting that the breaches be remedied within a fixed time-limit.” “The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act, or does not comply with a warning.” On 21 November 2003, this paragraph was amended as follows: “The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution. In this case, the Ministry of Justice shall inform the party's leadership in writing of the breaches of the law which have taken place and will set a time-limit for action to remedy them. During electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice. During the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections. Once all the breaches of the law have been remedied, the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days. The activities of the party or other socio-political organisation may be suspended for a period up to six months. If the breaches of the law are not remedied its activities may be suspended for a period of one year.” 38. The relevant provisions of the International Convention on the Rights of the Child of 20 November 1989 read as follows: “1. States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” 39. The relevant parts of the Protection of Children Act of 15 December 1994 provide: “(1) Children shall have the right to membership of non-governmental organisations in accordance with the law. (2) The State must provide children's non-governmental organisations with financial support, place premises at their disposal and provide them with fiscal incentives. (3) The involvement of children in politics and their membership of political parties shall be forbidden.” 40. The relevant parts of the Education Act of 21 July 1995 state: “It shall be the duty of teachers: ... (g) not to involve children in street actions (meetings, demonstrations, picketing, etc.).” 41. The relevant part of the Code of Administrative Offences of 29 March 1985 reads as follows: “2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between ten and twenty-five times the minimum monthly wage. ... ... 4. Active participation in an assembly referred to in paragraph 2 of the present Article shall be punishable by a fine in an amount between MDL 180 and MDL 450.” On 26 July 2002 the following provision was added to the Code: “7. The involvement of children in unauthorised assemblies shall be punishable by a fine of between MDL 180 and MDL 360.” | 1 |
train | 001-5127 | ENG | AUT | ADMISSIBILITY | 2,000 | G.K. v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian citizen, born in 1955 and residing in Vienna. At the material time the applicant was a civil servant in the Federal Ministry for Foreign Affairs serving as a member of the diplomatic corps. Since 1993 the applicant is retired. The facts of the case, as submitted by the parties, may be summarised as follows. From 1988 to 1990 the applicant was assigned to the Austrian embassy in New Delhi as “Legation Councillor”, i.e. a diplomat who may be called upon to represent the Ambassador. In 1991, after having returned to Vienna, he applied for a hardship allowance (Erschwerniszulage) for the time of his service in New Delhi which was granted to him on 28 May 1997 by the Austrian Administrative Court (Verwaltungsgerichtshof). His requests to have the case reopened were rejected on 29 December 1997. | 0 |
train | 001-79253 | ENG | SVK | ADMISSIBILITY | 2,007 | HAMPEK v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Petr Hampek, is a Slovakian national who was born in 1944 and lives in Banská Bystrica. Having been granted legal aid, the applicant is represented by Ms Z. Bejdová, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was employed and, as such, contributed to the State pension scheme (dôchodkové zabezpečenie). On 1 February 1999 he retired and started receiving a retirement pension. In July 1999 the applicant restarted working as a night watchman. As he was simultaneously receiving a retirement pension, he acquired the status of an “employed pensioner”. Being employed, he was liable to pay income tax on his salary. Being a pensioner, he was not entitled to have a so-called “untaxable amount” deducted from his income tax base unlike other employed persons. On 1 January 2000 an amendment (Law no. 345/1999 Coll.) to the Social Security Administration Act (Law no. 274/1994 Coll. – “the SSA Act”) entered into force. It cancelled an exemption, which employed pensioners had enjoyed until then, from the obligation to pay contributions to the State pension scheme. The applicant thus became liable to contribute to this fund like any other employed person. On 1 August 2000 another amendment (Law no. 232/2000 Coll.) to the SSA Act entered into force which re-introduced the above exemption. Between 1 January and 1 August 2000 the applicant paid 2,138 Slovakian korunas (SKK) in contributions to the pension scheme. The applicant unsuccessfully requested the President, the Prosecutor General, the National Council and the Constitutional Court to bring about a change in the relevant legislation. In a letter of 25 October 2000 the Prosecutor General informed the applicant that employed pensioners were not eligible for the deduction of the untaxable amount from their income tax base unless the total of their pension was less than the untaxable amount. If their pension was below the untaxable amount, an amount equal to the difference between the actual pension and the untaxable amount would be deducted from the tax base on their salary. The letter further explained that the purpose of the pension scheme was to provide income for persons who were unable to provide for themselves by working, for example on account of their retirement age. As the State allowed retired persons to obtain income from employment in addition to their retirement pension, it was justified to impose certain restrictions on them, for example by taxing their salaries. As for the applicant’s complaint that he was liable to contribute to the pension fund, he was informed that as from 1 August 2000 the rules had changed (see above). On 13 November 2000 the applicant brought an action against the State in the form of the Ministry of Labour and Social and Family Affairs in the Banská Bystrica District Court (Okresný súd). He sought repayment of the contributions which he had paid to the pension scheme between January and July 2000 (see above). On 22 November 2000 the Banská Bystrica District Court forwarded the action to the Bratislava I District Court on the ground that it fell within the territorial jurisdiction of the latter court. On 13 December 2000 the Bratislava I District Court submitted the question of jurisdiction to the Supreme Court (Najvyšší súd), which ruled on 26 April 2001 that the action should be determined at first instance by the Bratislava I District Court. However, the case file was only forwarded to that court on 25 June 2001. On 18 June 2001 the District Court requested the defendant to submit observations in reply, which the Ministry did on 25 July 2001. The District Court scheduled a hearing for 29 November 2001. The applicant stated that he would not be able to appear. He submitted his arguments in writing and requested the court to hear the case in his absence. On 29 November 2001 the District Court held a hearing following which, on the same day, it dismissed the action. Having heard the defendant’s representative and having examined complex documentary evidence, the court found that the amount claimed had been withheld from the applicant’s salary under the relevant provisions of the SSA Act. The Ministry had not breached any legal obligation and thus could not be held responsible for any loss incurred by the applicant. The judgment of 29 November 2001 was served on the applicant on 20 June 2002. On 2 July 2002 he appealed arguing that the bill for the amendment no. 345/1999 Coll. had been drafted by the Ministry and that, therefore, it was the Ministry which was liable for the damage caused to him by implementing that amendment. On 25 July 2002 the District Court requested the defendant to submit observations in reply to the appeal, which the Ministry did on 13 August 2002. The Bratislava Regional Court (Krajský súd) listed a hearing of the appeal for 8 May 2003. The applicant stated that he would not be able to appear. He requested the court to hear the case in his absence and submitted his arguments in writing. On 14 May 2003 the Regional Court upheld the first-instance judgment. It observed that before a bill became law it was subject to a complex legislative process. Drafting and submitting a bill as such could not engage liability for damage. There was no indication that the Ministry had breached any legal duty in connection with the process of amending the SSA Act. The appellate court’s judgment was served on the applicant on 27 August 2003. On 6 May 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He directed the complaint against the Bratislava I District Court and argued, in substance, that the length of the proceedings had been excessive. He claimed SKK 100,000 by way of just satisfaction. On 7 October 2002, on his request, the Constitutional Court appointed an ex officio lawyer to the applicant and, at the same time, declared the complaint admissible. In 26 March 2003 the applicant requested his lawyer for a report on the progress of the proceedings. In a letter of 31 March 2003 the lawyer informed the applicant that at the Constitutional Court’s request he had provided further and better particulars of the complaint and had agreed to the Constitutional Court deciding on the case without holding an oral hearing. In a letter of 18 August 2003 the applicant informed the lawyer that, by accepting that there would be no public hearing before the Constitutional Court, the lawyer had acted contrary to the applicant’s right to be heard in court. On 28 August 2003 the applicant made a written submission to the Constitutional Court in which he sought to include in his constitutional complaint the undue delays in the proceedings before the Regional Court. On 10 September 2003 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) and “within a reasonable time” (Article 6 § 1 of the Convention). It awarded the applicant SKK 5,000 by way of just satisfaction in respect of his nonpecuniary damage and ordered the reimbursement of his legal costs. The Constitutional Court found that the overall length of the proceedings had been 2 years and 8 months. During that period, the case had been pending before the Supreme Court for 6 months and before the Bratislava Regional Court for 11 months. However, the subject-matter of the constitutional proceedings had been determined by the admissibility decision of 7 October 2002 which, as the applicant’s original complaint, concerned the proceedings before the District Court alone. Therefore, in the framework of the present constitutional proceedings, it was not possible to examine the proceedings before the Regional Court which the applicant had contested after the admissibility decision. As regards the proceedings before the Bratislava I District Court, the Constitutional Court found that an unjustified delay had occurred between 29 November 2001 and 13 June 2002 (i.e. approximately 6 months). All human beings are equal in dignity and rights (Article 12 § 1) regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status (Article 12 § 2). Every person has the right to have his or her case tried without unjustified delay (Article 48 § 2). Income from employment is subject to personal income tax (section 3 (1) (a) in conjunction with section 6 (1)). The personal income tax base is in general calculated as the difference between the income and the expense incurred in order to achieve it (section 5 (1)). The tax base does not comprise income exempted from tax (section 5 (5)) such as, for example, a retirement pension (section 4 (1)). Section 12 defines untaxable amounts which are to be deducted from the tax base. These include inter alia SKK 38,760 per year in respect of the taxpayer himself (subsection 2 (a)). This amount cannot be deducted if the taxpayer was receiving a retirement pension at the beginning of the taxation period unless the total of the pension is less than the above untaxable amount. In the latter case the taxpayer can deduct the difference between the untaxable amount and the pension received (subsection 4). Employed persons (zamestnanci) and their employers are liable to pay contributions to the pension scheme (section 14 (1) (a) and (d)). Employed persons, who were receiving a retirement pension, were exempted from such liability (section 14 (7) (e)) until 1 January 2000. As from 1 January 2000 the exemption under section 14 (7) (e) was repealed by amendment no. 345/1999 Coll. and then reintroduced by amendment no. 232/2000 Coll. as from 1 August 2000. The amendment no. 232/2000 Coll. had been drafted by an individual member of the parliament. In the explanatory report (dôvodová správa) on the bill the deputy considered that the repeal of the exemption under section 14 (7) (e) had been contra bonos mores in that employed pensioners had been made to contribute to the pension scheme but had received nothing in return. The Ministry of Labour and Social and Family Affairs submitted the bill to the Cabinet with an introductory report (predkladacia správa) in which they disagreed with the drafter. According to this report the exemption in question had given an unjustified advantage to employed pensioners over other employed persons in that as no contributions had been associated with the employment of pensioners, the latter group had been a more attractive work force than other employees. This had distorted the labour market and had to be corrected by the amendment no. 345/1999 Coll. Another reason for that amendment had been the recent passive balance of the retirement pension fund. The situation of persons who are employed after becoming entitled to a retirement pension but do not draw such a pension is addressed in section 23. The amount of the pension to which they are entitled increases with the length of their employment after retirement age according to a formula defined in sub-section 1. If a person entitled to a retirement pension takes up employment, the retirement pension is suspended (section 98 (1)), unless the employment is for a term shorter than 1 year (section 98 (2)). On 1 January 2001 another amendment (Law no. 467/2000 Coll.) to the SSA Act entered into force. It again repealed the exemption under section 14 (7) (e) and provided that employed persons participate in the pension scheme and are liable to pay contributions to the pension fund (subsection 2). As from 1 January 2004 the SSA Act lost legal effect and the social security regulation was completely re-codified. Article 26 § 3 provides that national laws may provide that the benefit of a person otherwise entitled to it may be suspended if such a person is engaged in any prescribed gainful activity or that the benefit, if contributory, may be reduced where the earnings of the beneficiary exceed a prescribed amount and, if non-contributory, may be reduced where the earnings of the beneficiary or his other means or the two taken together exceed a prescribed amount. | 0 |
train | 001-102254 | ENG | HUN | CHAMBER | 2,010 | CASE OF TERNOVSZKY v. HUNGARY | 2 | Violation of Art. 8 | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1979 and lives in Budapest. 6. At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of section 101(2) of Government Decree no. 218/1999 (XII.28.), any health professional assisting a home birth runs the risk of conviction for a regulatory offence and, indeed, at least one such prosecution has taken place in recent years. In the applicant's view, while there is no comprehensive legislation on home birth in force in Hungary, this provision effectively dissuades health professionals from assisting those wishing home birth. 7. The Constitution provides as follows: “(1) Everyone living in the territory of the Republic of Hungary has the right to the highest possible level of physical and mental health. (2) The Republic of Hungary shall implement this right through institutions of labour safety and health care, through the organization of medical care and the opportunities for regular physical activity, as well as through the protection of the urban and natural environment.” “(2) The Republic of Hungary shall implement the right to social support through the social security system and the system of social institutions.” 8. Section 15(1) of the Health Care Act 1997 provides that a patient's right to self-determination can be restricted only as prescribed by law. According to section 15(2), it is the free choice of a patient to accept or reject certain treatments. Under section 20(1), a competent patient may reject medical treatment unless this endangers the life or limb of another person. 9. Section 101(2) of Government Decree no. 218/1999 (XII.28.), as in force in the relevant period, provides that a health professional who carries out activities within his or her qualifications without a licence, or carries out such activities in a manner which is not in compliance with the law or the licence, is punishable with a fine of up to 100,000 Hungarian forints. 10. Act no. CLIV of 2009 (adopted on 14 December 2009) on the Amendment of Certain Health-Related Acts provides as follows: “Section 247(1) of the Health Care Act [1997] shall be completed with [the following provision]: « (v) [The Government shall] determine [in a decree] the professional rules and conditions governing birth outside an institution and the causes excluding the possibility of such birth. »” “... Although risk assessment may be appropriately performed by trained birth attendants their advice about the place of birth, made on the basis of such assessment, is not always followed. Many factors keep women away from higher level health facilities. These include the cost of a hospital delivery, unfamiliar practices, inappropriate staff attitudes, restrictions with regard to the attendance of family members at the birth and the frequent need to obtain permission from other (usually male) family members before seeking institutional care ... Often, high and very high risk women do not feel ill or show signs of disease, so they give birth at home, attended by a family member, by a neighbour or by a TBA ... However, a properly attended home birth does require a few essential preparations ... [T]ransport facilities to a referral centre must be available if needed. In practical terms this means that community participation and revolving funds are necessary to enable transport to be arranged for emergencies in areas where transportation is a problem. In some developed countries birth centres in and outside hospitals have been established where low-risk women can give birth in a home-like atmosphere, under primary care, usually attended by midwives. In most such centres electronic fetal monitoring and augmentation of labour are not used and there is a minimum use of analgesics. An extensive report about birth centre care in the USA described care in alternative birth centres in and outside hospitals ... Experiments with midwife-managed care in hospitals in Britain, Australia and Sweden showed that women's satisfaction with such care was much higher than with standard care. The number of interventions was generally lower, especially obstetric analgesia, induction and augmentation of labour. The obstetric outcome did not significantly differ from consultant-led care, though in some trials perinatal mortality tended to be slightly higher in the midwife-led models of care ... In a number of developed countries dissatisfaction with hospital care led small groups of women and caregivers to the practice of home birth in an alternative setting, often more or less in confrontation with the official system of care. Statistical data about these home births are scarce. In an Australian study data were collected which suggested that the selection of low-risk pregnancies was only moderately successful. In planned home deliveries the number of transfers to hospital and the rate of obstetric interventions was low. Perinatal mortality and neonatal morbidity figures were also relatively low, but data about preventable factors were not provided ... The Netherlands is a developed country with an official home birth system. The incidence of home deliveries differs considerably between regions, and even between large cities. A study of perinatal mortality showed no correlation between regional hospitalisation at delivery and regional perinatal mortality ... A study conducted in the province of Gelderland, compared the “obstetric result” of home births and hospital births. The results suggested that for primiparous women with a low-risk pregnancy a home birth was as safe as a hospital birth. For low-risk multiparous women the result of a home birth was significantly better than the result of a hospital birth ... There was no evidence that this system of care for pregnant women can be improved by increasing medicalization of birth ... So where then should a woman give birth? It is safe to say that a woman should give birth in a place she feels is safe, and at the most peripheral level at which appropriate care is feasible and safe ... For a low-risk pregnant woman this can be at home, at a small maternity clinic or birth centre in town or perhaps at the maternity unit of a larger hospital. However, it must be a place where all the attention and care are focused on her needs and safety, as close to home and her own culture as possible. If birth does take place at home or in a small peripheral birth centre, contingency plans for access to a properly-staffed referral centre should form part of the antenatal preparations.” | 1 |
train | 001-22137 | ENG | DEU | ADMISSIBILITY | 2,001 | PETERSEN v. GERMANY | 4 | Inadmissible | Lucius Caflisch | The applicant, Werner Petersen, is a German national, who was born in 1947 and lives in Neustadt. He was represented before the Court by Mr Rixe, a lawyer practising in Bielefeld. The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. Further applications concerning his right of access to his son and related matters are pending before the Court (No. 38282/97 and No. 68891/01). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of the child Sinja Johannes, born out of wedlock in Helmstedt on 3 May 1985. The applicant had been living with Ms S. B., the child’s mother, since May 1980. They agreed that the child should bear his mother’s surname, i.e. B. After their separation in November 1985, the applicant continued to pay maintenance and he had regular contacts with the child until autumn 1993. In August 1993 Ms S. B. married Mr K., who was the father of her daughter, born out of wedlock in 1990 and bearing the surname K. They chose the husband’s surname name as their family name and she availed herself of the right to put her surname in front of that. In November 1993 the applicant asked the Youth Office of the Bremen Municipality whether Ms B.-K. had applied for a change of Sinja’s surname. By letter of 20 December 1993 he was informed that she had inquired into this possibility, however, no request had been filed yet. In his letter, the competent administrator, acting for the Youth Office as guardian, added that, should such a request be lodged, he would agree as the stepfather had already been living together with Ms. B.-K. and the child for more than one year and the child fully accepted him. On 30 December 1993 Ms B.-K. and Mr K. had statements recorded at the Bremen Registry Office according to which they gave their family name to Sinja Johannes. They also filed a document issued by the Bremen Youth Office on 29 December 1993 according to which, on behalf of the child, it agreed to the change of surname. The Bremen Registry Office informed the Helmstedt Registry Office accordingly and the registrar at Helmstedt Registry Office thereupon added the change of the child’s surname to the record of his birth. Following correspondence with the Bremen Youth Office, the applicant filed an action with the Bremen Administrative Court against the Bremen Municipality, complaining that the Youth Office had failed to hear him on the question of the envisaged change of his son’s surname. On 19 May 1994 the Bremen Administrative Court ruled that it was incompetent to entertain the applicant’s action and transferred the case to the Braunschweig District Court. On 21 October 1994 the Braunschweig District Court dismissed the applicant’s claim for rectification of the record of his son’s birth as far as the entry of the change of surname was concerned. The court found that this entry was correct as the child’s surname had been changed in accordance with section 1618 of the Civil Code and the relevant procedural rules. The Court further considered that section 1618 of the Civil Code did not amount to discrimination and was not in breach of Article 8 of the Convention. The Court observed that the legislator was called upon the ensure that children born out of wedlock had the same opportunities for their physical and spiritual development and their place in society as were enjoyed by children born in wedlock. The legislator had meanwhile enacted legislation to this effect. Even assuming that further measures were necessary, on the whole, section 1618 of the Civil Code did not affect the equality between children born out of wedlock and children born in wedlock. Rather, in providing for the possibility of having the same surname, section 1618 secured that the child’s status as a child born out of wedlock was not disclosed to the public. Moreover, as far as procedural matters were concerned, the proceedings for a change of surname in which the natural father did not participate could not be objected to from a constitutional point of view. In particular there was no breach of the applicant’s rights as a natural parent as his child had never borne the father’s surname. The change of surname served the interests of the child. In any event, a mere right of the natural father to be heard in the proceedings, as argued by the applicant, without a possibility to prevent the change of surname would not be effective because the mother and the step-father would eventually decide. On 4 January 1995 the Braunschweig Regional Court dismissed the applicant’s appeal. The Regional Court endorsed the reasoning of the District Court and stated in particular that there were no indications that the legal provisions applied in the present case were unconstitutional. The Court further confirmed that the change of surname served the interest of the child’s well-being which prevailed over the interests of the natural father. On 10 March 1995 the Braunschweig Court of Appeal dismissed the applicant’s further appeal. Referring to case-law of the Federal Constitutional Court, it considered that section 1618 of the Civil Court could not be objected to from a constitutional point of view. The applicant could not derive from his rights as a natural father a right to be heard in the proceedings for the change of his child’s surname, because his rights conflicted with the rights of the mother and in particular of the child whom this provision intended to protect. The child’s interests are safeguarded in that the Youth Office participates in the proceedings. If the child’s mother, her husband and the guardian agree upon the change of the child’s surname, this change is generally in the interest of the child’s well-being. In January 1994, following problems in having access to his son, the applicant applied to the Bremen District Court for a decision granting him a right of access to Sinja Johannes. In April 1994 the District Court granted him provisionally access. Subsequently, the child’s mother no longer fully complied with the decision and prohibited visits as from October 1994. On 3 January 1995 the applicant instituted proceedings with the Bremen District Court against Ms B.-K. claiming a sum amounting to 370.80 German marks (DEM) as compensation for damages suffered by him, namely costs for travelling, due to her refusal of access to his son on 16 October and 13 November 1994. On 5 April 1995 the Bremen District Court, following an oral hearing on 22 March 1995, dismissed the applicant’s action. The court found that there was no legal basis to claim compensation for an alleged refusal of access to his son. In this respect, the court noted that, pursuant to section 1711 of the Civil Code, the person having custody and care of a child born out of wedlock determines contact arrangements with the father, and that the father can only claim personal contacts if they are in the child’s interests. The court also observed that its decision of August 1994 on provisional visiting arrangements was formulated as granting the child a right to visit the applicant, not as a right of access awarded to the applicant. On 17 August 1995 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaints against the decisions taken in the above proceedings concerning the change of his son’s surname and the refusal of his compensation claim, respectively. The Constitutional Court found that the conditions for admitting these complaints for a decision on their merits were not met. The Constitutional Court considered in particular that the applicant’s complaint about the change of his son’s surname did not raise any questions of fundamental importance. Referring to its decision of 7 March 1995, the Constitutional Court recalled that fathers of children born out of wedlock enjoyed the right to the care and upbringing of the children under the Basic Law (Grundgesetz) even if they were not living with the child’s mother and were not educating the child together with her. However, the legislator was called upon to enact rules in case of conflict between the parents. In the present case, there was no indication that the courts, in interpreting and applying section 1618 of the Civil Code, had disregarded the applicant’s right as a parent. As regards the District Court’s decision of 5 April 1995, the Constitutional Court considered that there were no indications that the applicant’s constitutional right as a parent to have access to his child had to be safeguarded by means of an action in tort. The decision was served on 22 August 1995. The statutory provisions on family matters are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. Pursuant to section 1617 of the Civil Code, a child born out of wedlock was given the surname which the mother was bearing at the time of the child’s birth. A change of the mother’s surname on account of her marriage did not affect the child’s surname. Section 1618 of the Civil Code provided that the mother of a child born out of wedlock and her husband could declare for the record of a registrar that the child, who was bearing a surname in accordance with section 1617 and was not married, should in future bear their family name; and the father of the child could declare for the record of a registrar that the child should in future bear his surname. The child had agree to the change of surname, and, in case that the father declared that the child should bear his surname, the mother also had to agree. A minor child was represented in these matters by the competent Youth Office acting as guardian pursuant to sections 1706, 1709 of the Civil Code. As regards children born in wedlock, section 1616 of the Civil Code provided that they were given their parents’ common family name or, if they have not chosen a family name, the mother’s or the father’s surname, as chosen by them. In the absence of a determination by them, the competent court transferred the right to choose the surname to one of the parents whose surname would be the child’s surname in the absence of a decision within one month. According to section 1616a § 2, a change of the surname of one of the parents on account of marriage did not affect the child’s surname. A change of surnames of children born in wedlock following divorce and remarriage of the parent having the right to custody was governed by the general rules on the change of surnames under the Change of Surnames Act (Namensänderungsgesetz). According to section 3 § 1, a surname may only be changed if there is an important reason to justify such a change. The relevant circumstances are to be established ex officio, and all persons directly affected by the envisaged change (unmittelbar Beteiligte) as well as the local police office and other persons possibly affected by the envisaged change of the surname shall be heard (section 3 § 2). The relevant provisions of the Civil Code, as amended, distinguish between three situations. Children are given the common family name of their parents (section 1616). If there is no common family name and custody is exercised jointly, both parents determine the child’s surname (section 1617 with special rules in the absence of such common determination). If there is no common family name and one parent has the sole custody, the child is given that parent’s surname (section 1617a § 1) or, upon the request of the parent exercising custody and in agreement with the other parent, the child can be given the other parent’s surname (section 1617a § 2). Section 1618 provides in particular that a parent, who has the sole custody for an unmarried child, and this parent’s spouse who is not a parent of the child, can declare for the record of a registrar that the child shall in future bear their family name. If the child has borne the other parent’s surname, that other parent has to agree to the change; the agreement can be replaced by a court decision if necessary in the interest of the child. Before the entry into force of the amended Law on Family Matters, the relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation): Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in section 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” Section 1626 § 1 reads as follows (the Court’s translation): “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. Proceedings in family matters are governed by the Act on NonContentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. Persons with a legitimate interest in a case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular case (section 34 § 1). | 0 |
train | 001-82701 | ENG | AUT | ADMISSIBILITY | 2,007 | RIESS-PASSER v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Ms Susanne Riess-Passer, is an Austrian national who was born in 1961 and lives in Salzburg. She was represented before the Court by Gheneff-Rami, a law firm in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 September 2002 the applicant who, at that time, was the Vice-Chancellor of the Republic of Austria, brought proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News, a limited liability company which is the owner of the weekly “Format”, since it had published an article accusing her of corruption. The applicant was represented by counsel in these and the subsequent proceedings. By judgment of 13 February 2003 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) found that the accusations voiced against the applicant amounted to defamation and ordered Verlagsgruppe News to withdraw the issue of “Format”, to publish the judgment and to pay compensation to the applicant. That judgment was upheld by the Vienna Court of Appeal (Oberlandesgericht) on 15 September 2003. On 5 December 2003 the applicant requested the Vienna Regional Criminal Court to impose a fine on Verlagsgruppe News under Section 20 of the Media Act, arguing that it had not duly published the judgment of 13 February 2003. In particular, she claimed that, although the judgment had been published in “Format” on 5 December 2003, the heading had been incorrect and the publication was smaller and less visible than the incriminated article had been. Subsequently, the applicant filed further identical requests each time a new issue of “Format” was published without rectifying these shortcomings. By decision of 31 December 2003 the Vienna Regional Criminal Court dismissed the applicant’s requests, finding that the change of heading was irrelevant and that the publication of the judgment was equivalent to the impugned publication in terms of visibility. Upon the applicant’s appeal the Vienna Court of Appeal quashed the decision on 17 February 2004. It considered that the change of heading was indeed misleading and that the judgment had therefore not been duly published as required by Section 20 of the Media Act. It ordered Verlagsgruppe News to pay the applicant 1,200 euros (EUR). On 9 March 2004 Vienna Regional Criminal Court granted the applicant’s requests made after its initial decision of 31 December 2003. It ordered Verlagsgruppe News to pay EUR 3,800 to the applicant. Verlagsgruppe News appealed against this decision. On 14 April 2004 the Vienna Court of Appeal partly granted the appeal, dismissing those of the applicant’s requests which had been made after the decision of 31 December 2003 but before the service of the appeal judgment of 17 February 2004. Consequently, it reduced the fine to be paid to the applicant. Throughout the proceedings under section 20 of the Media Act, the courts took their decisions sitting in camera. The applicant did not request a hearing nor did she complain about the lack of a hearing in her appeals. In cases in which publication of a judgment has been ordered but has not been duly and/or timely complied with, Section 20 of the Media Act provides that the court shall, upon the claimant’s request and after having heard the media owner, impose a fine on the latter which is payable to the claimant. The Media Act does not provide for the holding of hearings in proceedings concerning the imposition of fines. The courts’ practise is to take decisions under Section 20 of the Media Act in camera. In the light of the Court’s Werner v. Austria judgment of 24 November 1997 (Reports of Judgments and Decisions 1997VII) the Supreme Court found in a judgment of 30 June 1999 (13Os86/99) that the relevant provision, namely section 6 § 3 of the Criminal Proceedings Compensation Act, which required the courts to hear the claimant but was silent as regards the holding of a public hearing, had to be interpreted in conformity with the requirements of Article 6 § 1 of the Convention. The courts were therefore required to hold a public hearing. In a judgment of 12 December 1999 (G 259/98) the Constitutional Court confirmed that such an interpretation of section 6 § 3 of the said Act was in conformity with the constitution. | 0 |
train | 001-58264 | ENG | POL | CHAMBER | 1,998 | CASE OF STYRANOWSKI v. POLAND | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award | null | 7. The applicant, a retired judge, was born in 1923 and lives in Olsztyn, Poland. 8. The applicant retired in May 1991. The amount of his pension was calculated by the Social Security Board (Zakład Ubezpieczeń Społecznych), a public institution responsible for, inter alia, the administration of old age pensions. The applicant’s pension was calculated in accordance with the relevant provisions of the Old Age Pensions Act of 1972. It was based on his contributions to the pension scheme and on the amount of his salary at the time of his retirement, which was equivalent to 314 per cent of the average salary. 9. On 1 December 1991 the Social Security Board issued a new decision concerning the applicant’s pension. This decision was based on the law amending the Old Age Pensions Act adopted on 17 October 1991 and it reduced the applicant’s pension by 1,075,600 old zlotys. The reduction resulted from a provision in the amending legislation which imposed a ceiling on the amount of the salary used for the calculation of the pension. The ceiling was equal to 250 per cent of the average salary, regardless of the actual amount of the salary at the time of retirement. 10. On 17 December 1991 the applicant appealed against this decision to the Olsztyn Regional Court (Sąd Wojewódzki). He submitted that the 250 per cent ceiling introduced by the amendment deprived him of a part of his pension. 11. On 25 May 1992 the Warsaw Court of Appeal (Sąd Apelacyjny) agreed to the request submitted by all the judges of the Olsztyn Regional Court to have the applicant’s case examined by another court in view of the fact that he had been their superior for many years. The case was subsequently transferred to the Warsaw Regional Court. 12. On 8 September 1992 the Warsaw Regional Court held a hearing and dismissed the applicant’s appeal against the decision of 1 December 1991. It considered that the impugned decision was in conformity with the relevant provisions of the Old Age Pensions Act as amended. 13. Subsequently, on 9 February 1993 the Social Security Board took another decision concerning the applicant’s pension. It was based on certain new documents indicating that the applicant’s salary at the time of his retirement had in fact been higher than the amount which had been used as the basis of the decision taken on 1 December 1991 (see paragraph 9 above). The applicant appealed against this decision, repeating his earlier complaint that the basis for the recalculation of his pension should not have been limited to 250 per cent of the average salary. On 14 May 1993 the Warsaw Regional Court allowed the applicant’s appeal in part as regards the period up until 1 January 1992 but dismissed it in so far as it related to the period after that date, i.e. after the entry into force of the amendment of 17 October 1991. 14. On 17 December 1991 the applicant also filed with the Olsztyn District Court a compensation claim against the Social Security Board. He complained that his pension had been recalculated and reduced in accordance with applicable legislation and in disregard of the fact that his actual salary at the time of his retirement had been equivalent to 314 per cent of the average salary. Furthermore, the applicant submitted that the Social Security Board, in basing itself on the 1991 law imposing a ceiling of 250 per cent of an average salary on the amount used for the calculation of a pension, had failed to respect its obligations towards him. These obligations arose from the applicant’s payment of contributions to the social security old age pension scheme over a period of forty-four years. Throughout this period no legal provision had ever provided for any ceiling on the amount of the retirement pension. The applicant alleged that the actions of the Social Security Board were unlawful and rendered the Board liable in tort. 15. On 20 May 1992 the Warsaw Court of Appeal agreed to the request submitted by all the judges of the Olsztyn Regional Court to have the appeal in the applicant’s compensation proceedings examined by another court. That request was based on the fact that the applicant used to be a Deputy President of the Olsztyn Regional Court. It ordered that the appeal proceedings in the case be transferred to the Ostrołęka Regional Court which received the case file on 19 June 1992. 16. On 26 June 1992 the Ostrołęka Regional Court agreed to the request submitted by all the judges of the Olsztyn District Court to have the case examined in the first instance by another court and decided that the case should be tried by the Szczytno District Court. 17. On 29 September 1992 the Ostrołęka Regional Court, at the request of the judges of the Szczytno District Court, decided that the case should be examined in the first instance by the Przasnysz District Court. 18. The first hearing before the Przasnysz District Court was fixed for 9 November 1992. However, the court adjourned the hearing because it did not receive a confirmation that the defendant Social Security Board had received the summons. 19. On 17 November 1992 the applicant informed the Przasnysz District Court that he maintained his claim and requested that a certain witness be heard. The Przasnysz District Court requested the Olsztyn District Court to hear this witness. 20. The hearing before the Olsztyn District Court was fixed for 24 November 1992 but was adjourned as the witness requested by the applicant failed to appear. 21. The date of the hearing before the Olsztyn District Court was then fixed for 30 December 1992. The applicant requested that this hearing be adjourned. The Olsztyn District Court fixed a new hearing for 14 January 1993 and heard the witness requested by the applicant on that date. 22. On 19 January 1993 the applicant requested that the Olsztyn District Court rectify the minutes of the hearing held on 14 January 1993. The Olsztyn District Court complied with this request on 15 April 1993. 23. The next hearing before the Przasnysz District Court was scheduled for 18 May 1993 but was adjourned, as the court did not receive a confirmation that the defendant had received the summons. 24. On 17 September 1993 the applicant complained to the Przasnysz District Court about the length of the compensation proceedings and requested that the date of the next hearing be fixed. He also requested that the former Prime Minister be heard as a witness to support his claim that in the past social security contributions had been used by the State for purposes other than the payment of social security benefits. 25. On 20 September 1993 the applicant requested that the date of the next hearing be fixed without delay. On the same date the presiding judge ordered that the applicant be informed that due to serious staffing difficulties the date of the hearing would be fixed at a later stage. 26. The next hearing was fixed for 25 January 1994. On 21 January 1994 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing, at which his presence was not obligatory. He maintained his claim and referred to the Constitutional Court’s judgment of 11 February 1992 which had found certain provisions of the amendment to the Old Age Pensions Act of 17 October 1991 to be incompatible with the Constitution. On 25 January 1994 the hearing was adjourned, as the parties did not appear. 27. The next hearing was fixed for 23 September 1994. On 16 September 1994 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing, at which his presence was not obligatory. He maintained his claim and again requested that the former Prime Minister be heard. 28. On 23 September 1994 the hearing was further adjourned as the Przasnysz District Court decided to request the Social Security Board to submit the applicant’s case file to it. It reached the court on 27 October 1994. 29. On 7 December 1994 the applicant complained to the Minister of Justice about the length of the proceedings and in particular about the hearings having been adjourned on numerous occasions without justification. 30. The President of the Ostrołęka Regional Court replied in a letter of 10 January 1995 informing the applicant that his case should be considered privileged since, in view of the fact that the Przasnysz District Court was understaffed, the intervals between the hearings were such as to secure appropriate progress in the proceedings. He also pointed out that the applicant had failed to appear at all these hearings and that the next hearing had been set for 7 February 1995 and that the case was ready for a prompt ruling. 31. In his reply of 11 January 1995 the applicant stressed that he had been present at the hearing of 14 January 1993 and had extensively pleaded his case. Although it was true that he had not been present at other hearings, he had requested that the case be considered in his absence. Moreover, the court had never required his attendance at any of the hearings. He had submitted several letters to the court explaining his position in the light of the progress in the case. It had not transpired from the information which he had obtained on the phone after every hearing that any of the hearings had been adjourned either because of his absence or his failure to submit documents or evidence required by the court. 32. In a letter to the Przasnysz District Court of 2 February 1995 the applicant stated that he would be unable to attend the hearing on 7 February 1995 and pointed out that his attendance was not obligatory. He maintained his claim and submitted additional written pleadings to support it. 33. On 7 February 1995 the Przasnysz District Court rejected the applicant’s claim, considering that the matter was res judicata. It noted that the issue of the ceiling imposed on his pension had already been decided in two sets of proceedings which resulted in the judgments of 8 September 1992 and 14 May 1993 (see paragraphs 12–13 above). 34. On 8 February 1995 the applicant requested the reasoned judgment which was served on him on 3 April 1995. 35. On 5 March 1995 there was a fire in the building of the Przasnysz District Court. 36. On 6 April 1995 the applicant lodged an appeal against the decision of 7 February 1995. 37. On 13 July 1995 the Ostrołęka Regional Court quashed the decision of 7 February 1995 and ordered that the case be reconsidered. It observed that in the appeal proceedings the only issue which had been decided was whether the calculation of the applicant’s pension complied with the relevant legal provisions. However, in the compensation proceedings the applicant claimed compensation for the alteration of the conditions of the contract with the Social Security Board and his claim was based on tort. As these two claims were not identical, the compensation claim could not be considered res judicata. 38. The next hearing before the Przasnysz District Court was held on 3 October 1995. The court deferred the delivery of the judgment. It was then delivered on 17 October 1995. On 29 October 1995 the applicant requested the reasoned judgment which was served on him on 5 December 1995. On 13 December 1995 the applicant filed an appeal with the Ostrołęka Regional Court which dismissed it on 16 January 1996. | 1 |
train | 001-4617 | ENG | POL | ADMISSIBILITY | 1,999 | MALUSZCZAK v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant is a Polish national born in 1949. He is currently detained in Strzelce Opolskie prison. On an unspecified date in the 1990s, the applicant was convicted of burglary and sentenced to imprisonment. Between 17 March 1997 and 3 June 1997, the applicant stayed at the Wrocław Prison Hospital. He was admitted to that facility after he had been diagnosed as suffering from anaemia and from an infection on the inside of his left cheek. The applicant underwent a histopathological examination which showed that the condition of his cheek was not cancerous but rather caused by a self-inflicted injury. In addition, a haematologic examination led to the conclusion that the applicant’s anaemia resulted from a heavy loss of blood caused by self-inflicted injuries as well. The applicant was treated with ferric preparations. When his condition improved, he was discharged from the hospital and transferred to a nearby residential facility of the Wrocław Prison Hospital. However, an examination of the applicant conducted a few days later showed a low level of haemoglobin and a loss of tissue on the inside of his left cheek. He was brought back to the hospital, where he was given a blood transfusion which led to an improvement of his condition. On 3 June 1997, the applicant was discharged from the hospital and transferred to Wołów prison. On 23 October 1997, the applicant was admitted to the Cracow Detention Centre Hospital, where he was diagnosed as suffering from anaemia, an infection of his left cheek and suspected self-mutilation. During his hospitalisation in that facility, he underwent the following examinations: blood, urine and stool tests, a chest x-ray, an ultrasound of the abdominal cavity, ECG, histopathological, dental and rectal examinations. He was also examined in the maxillofacial surgery ward. Moreover, the applicant was treated with ten different medicines and received a transfusion of red blood cells. Subsequently his condition improved and on 22 December 1997 he was transferred to Nowy Wiśnicz prison. On 5 January 1998, the applicant lodged a complaint with the Central Prison Administration concerning the allegedly inadequate medical care he had received in the Cracow Detention Centre Hospital. On 29 January 1998, his complaint was transmitted to the District Director of the Prison Service in Cracow. On 31 January 1998, the District Director rejected the complaint as unfounded. He pointed out that during his hospitalisation, the applicant had undergone several examinations and had received pharmaceutical treatment. He further informed the applicant that he agreed with the doctors who had examined him and had found that no other treatment was required by his condition. In addition, the District Director observed that it appeared that the applicant had been mutilating himself by bloodletting and advised him that any further self-mutilation would lead to a deterioration of his state of health. In a letter of 5 February 1998 addressed to the District Director of the Prison Service, the applicant contested the conclusions stated in the Director’s letter of 31 January 1998. On 16 February 1998, the Director informed that applicant that he saw no reason to change his position and objected to the insults the applicant had used in his letter against prison doctors, in particular to a comparison of the Cracow Detention Centre with a concentration camp. On 17 February 1998, the Penitentiary Judge dismissed the applicant’s complaint concerning the allegedly inadequate medical treatment received by him at the Cracow Detention Centre. On 10 April 1998, the Cracow District Prosecutor informed the applicant that she had requested his medical file to be submitted to her in order to investigate his complaint about inadequate medical care provided by the Cracow Detention Centre. On 13 May 1998, a physician from Wołów prison provided the applicant, upon his request, with a health certificate which described his state of health as “average”. | 0 |
train | 001-88527 | ENG | GBR | ADMISSIBILITY | 2,008 | FORSYTH v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Morris Peter Forsyth, is a British national who was born in 1937 and lives in Newport. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 31 March 1995. They had no children from the marriage. His claim for widows’ benefits was made on 5 December 2000 and was rejected on 12 December 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 28 January 2001. The applicant was informed of this on 19 February 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-104883 | ENG | HUN | ADMISSIBILITY | 2,011 | BARANYAI v. HUNGARY | 4 | Inadmissible | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | The applicant, Mr Zoltán Baranyai, is a Hungarian national who was born in 1973 and lives in Mosonmagyaróvár. He was represented before the Court by Mr J. Palatinus, a lawyer practising in Mosonmagyaróvár. When introducing the application, the applicant was serving a sentence in Budapest Prison. The respondent Government were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 September 2002 the Mosonmagyaróvár District Court imposed on the applicant a cumulative sentence of nine years and four months’ imprisonment. This sentence corresponded to his convictions for the offences of abuse of firearms, forging documents, robbery, assault on an official person and escape from detention. In 2006 the applicant was serving his sentence in Veszprém Prison. Between 8 and 15 March 2006 he was treated at Tököl Prison Hospital, where his left leg was operated on 10 March. On 15 March, while he was waiting for transport back to Veszprém Prison, a penitentiary officer handcuffed him to a pipe of the Prison Hospital’s heating system situated in the corridor. The applicant states that he had to wait in this position for five hours, during which time he could not properly sit down, drink or go to the toilet, was mocked by the passers-by, and his freshly operated leg was hurting badly. On 15 May 2006 he filed a complaint with the prosecution authorities. Having investigated the incident, on 14 September 2006 the Pest County Public Prosecutor’s Office issued a memorandum in which it stated that the measure, not denied by the Tököl Prison administration, was unlawful and might be capable of leading to a violation of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Subsequently, the Pest Surroundings Investigation Office instituted an investigation for abuse of official power. After remittals, on 1 October 2007 the Budapest Military Public Prosecutor’s Office discontinued the investigation. Relying on testimonies given by witnesses, documentary and medical evidence, and an experiment, the Office held that – although the findings of fact corroborated the applicant’s complaint, and the officer in charge had already been sanctioned in disciplinary proceedings – it could not be proven that the applicant was subjected to the impugned measure with an intention to cause him unlawful disadvantage, which was a sine qua non condition of the offence of abuse of official power. On 16 November 2007 the Military Chief Public Prosecutor’s Office dismissed the applicant’s complaint. The applicant did not file a private bill of indictment under section 199 of the Code of Criminal Procedure against the penitentiary officer responsible, nor did he file with the investigating judge a request, under section 191(3) of the Code, for the resumption of the criminal proceedings in pursuit of his allegations. On 6 April 2010 the Pest County Regional Court acknowledged, in a judgment adopted in regard to the applicant’s civil action for compensation against Tököl Prison, that the measure applied to him had been unlawful and amounted to inhuman treatment and awarded him 400,000 Hungarian forints (1,500 euros) plus accrued interests in compensation. The appeal proceedings are still pending. | 0 |
train | 001-79065 | ENG | GBR | ADMISSIBILITY | 2,007 | R. v. THE UNITED KINGDOM | 3 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant is a British citizen born in 1987 and resident in Chester-le-Street. He is represented by Gordon Brown Associates, solicitors practising in Chester-le-Street. In November 2001, five girls at the applicant’s school alleged that he had committed indecent assaults on them. The applicant then aged 14 was suspended from school pending investigation. On 5 December 2001, the school informed the police of the allegations. Between 13 December 2001 and 9 January 2002, the police interviewed the five complainants. On 11 January 2002, the applicant was summoned to the police station. He was arrested on suspicion of indecent assault and caution. The police interviewed him in the absence of a legal representative but with his stepfather present. The police had asked whether they wanted a solicitor present but they stated that they did not. The applicant admitted to “horseplay” and actions amounting to indecent assault in respect of three girls. The applicant was released pending further assessment of the case. On 29 January 2002, the applicant attended the police station where Acting Inspector Pullen informed him that the police had decided to deal with him by way of a warning under section 65 of the Crime and Disorder Act 1998. The Inspector did not ask the applicant if he consented to the warning and the applicant was duly warned regarding the allegations of all five complainants. Neither the applicant nor his stepfather were advised by the police that a consequence of the warning was that the applicant would be required to sign onto the Sex Offenders Register, which warning was required by paragraph 73 of the guidance issued by the Secretary of State. On 6 February 2002, R. refused to sign the register. On 23 April 2002, the applicant issued an application for judicial review of the decision to warn him under section 65, complaining effectively that he had been subject to a public declaration of guilt by an administrative process to which he had not consented. On 10 June 2002, Mr Justice Sullivan refused his application. On 25 July 2002, the Divisional Court upheld his appeal and granted permission. The case was joined with the case “U”. Issues were raised, inter alia, under Articles 6, 8 and 14 of the Convention. On 13 November 2002, following a hearing, the Divisional Court held that the imposition of the warning without informed consent or a waiver amounted to a prima facie breach of Article 6 §§ 1 and 2 of the Convention. Lord Justice Latham found the admissions made by R. had been reliable and not made in response to any inducement and the police were entitled to rely on them for the purposes of applying the section 65 scheme. As regards the failure of the police to obtain the applicant’s informed consent to a warning, he did not consider that this rendered the decision to administer the warning unlawful under domestic law as the scheme under the 1998 Act did not require the young offender’s consent. However, as regarded Article 6, he found that the Secretary of State was right to concede that Article 6 was engaged and that the police would have been entitled to decide not to prosecute and discontinue the proceedings. In the applicant’s case though, he was required to subject himself to a procedure which had the effect of publicly pronouncing his guilt of the offence of indecent assault. That was the consequence of the final warning being recorded on the Police National Computer (PNC) and available to all those with access to it. This prima facie infringed Articles 6 § 1 and 2. The procedures for cautions and warnings did not have to breach Article 6, being a sensible means of ensuring resources were not wasted and seeking to prevent youth re-offending. It was possible for a mechanism to be provided by which a person waived his right to have his case dealt with by a court; this required informed consent and there was nothing in the 1998 Act requiring the police to proceed without the consent of the offender. The appropriate practice was to ensure that, before a reprimand or warning was administered, the offender and his parent, carer or appropriate adult should be told of the consequences and asked whether or not they consented to that course being taken. As there had been no informed consent in this case, there had been a breach of Article 6 and the decision had to be quashed. The Divisional Court certified two points of general public importance to be referred to the House of Lords. On 17 March 2005, the House of Lords overturned the Divisional Court judgment. Lord Bingham found that there was nothing in the Act which envisaged that the consent of the young offender be obtained and concluded that the only reasonable inference was that Parliament had intended to dispense with such need for consent. He expressed doubt that Article 6 had been engaged, considering that arrest was not sufficient and that the applicant had neither been charged nor informed that criminal proceedings were likely. On the assumption that there had been a criminal charge, he thought that it was inescapable that it ceased to exist when a firm decision was taken by the police not to prosecute. The warning procedure did not involve any penal or punitive element. Further, the record on the PNC was far from a public announcement or declaration of guilt, access being limited to a relatively small number of police, prison and probation officers and agencies fulfilling public functions. Access to the Sex Offenders’ Register was similarly controlled and in neither case did members of the public have access. Thus, he was of the clear opinion that the warning did not involve the determination of a criminal charge and his fair trial rights were not engaged. He did not consider that the scheme infringed the United Nations Convention on the Rights of the Child (1989). Without dissenting, Lady Hale and Lord Steyn expressed concern that the decision was inconsistent with children’s rights under international law. Lady Hale thought that the system imposed consequences that could be explained away individually as preventative but cumulatively had seriously modified a child’s legal status. She found, however, no public pronouncement of guilt and no determination of a criminal charge. The Crime and Disorder Act 1998 sets out the overall aim of the youth justice system to prevent offending and re-offending by children and young persons, inter alia, by diverting them from their offending behaviour before entering the court system. It replaced the system of cautions for children and young persons with a structured approach. Depending on the seriousness of the offence, a reprimand is normally given for a first offence and a final warning for a second offence; thereafter the young offender should generally be charged. Following a final warning, the police have a duty to refer the young offender to a youth offending team in order to determine whether or not to provide an intervention programme. Neither a caution nor a reprimand/warning can be given unless the offender has admitted the relevant offence(s). The critical difference between the informal system of cautions and the system of warnings was that a caution can only be given if the offender gives his informed consent to being cautioned. Neither the 1998 Act nor the guidance issued by the Secretary of State makes any provision for consent. Section 65 provides, as regards reprimands and warnings: “1. Subsections (2) to (5) below apply where- (a) a constable has evidence that a child or young person (“the offender”) has committed an offence; (b) the constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted; (c) the offender admits to the constable that he committed the offence; (d) the offender has not previously been convicted of an offence; and (e) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted. (2) Subject to subsection (4) below, a constable may reprimand the offender if the offender has not previously been reprimanded or warned. (3) The constable may warn the offender if- (a) the offender has not been previously warned; or (b) where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought; but no person may be warned under paragraph (b) more than once. (4) Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning. (5) The constable shall –(a) where the offender is under the age of 17, give any reprimand or warning in the presence of an appropriate adult... Section 66 provides for the effects of reprimands and warnings, inter alia that where an offender has been warned the constable shall refer the person to a youth offending team who should assess them and arrange as appropriate for them to participate in a rehabilitation programme. Where a child or young person has been warned or reprimanded in respect of an offence covered by the sexual offenders’ legislation, they become subject to the notification requirements. In the case of indecent assault, the offender will be registered for two and a half years (the Sex Offenders Act 1997, sections 1(4) and 4(2)). A reprimand or warning is not regarded as a conviction under domestic law. | 0 |
train | 001-108162 | ENG | RUS | CHAMBER | 2,011 | CASE OF ERGASHEV v. RUSSIA | 4 | Violations of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 6-2 | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The applicant was born in 1957 and lives in St Petersburg. 7. In 1989 the applicant became a mullah in the mosque of Mamurobod in Uzbekistan. In 1999 he graduated as a qualified Arabic teacher from the Foreign Languages Institute in Andijan, Uzbekistan. From 1999 to 2007 he was not officially employed and provided religious consultations about Islam, as well as teaching Arabic and Koran studies. 8. In May 2007 the applicant moved to Russia. On 6 June 2007 he was registered as a migrant in St Petersburg. 9. On 8 December 2007 the Andijan Region Investigations Department of the Uzbek Ministry of the Interior charged the applicant in absentia with a number of crimes including membership of an extremist organisation, attempting to overthrow the State’s constitutional order and dissemination of the views of a radical extremist movement. The applicant’s name was put on the wanted list; an arrest warrant was issued against him. 10. On 25 September 2008 the Prosecutor General’s Office of Uzbekistan forwarded a request for the applicant’s extradition to the Russian Prosecutor General’s Office. 11. On 23 January 2009 the Prosecutor General’s Office of Uzbekistan informed the Russian Prosecutor General’s Office that it “... guarantee[d] that the prosecution of U. Ergashev [would] be carried out in strict compliance with Uzbek legislation”. 12. On 2 March 2009 the Andijan Town Court ordered the applicant’s arrest. The decision did not set any time-limits for the applicant’s detention. 13. On 1 September 2008 the applicant was arrested in St Petersburg on the basis of a letter from the Uzbek authorities and placed in a detention centre. 14. On 22 June 2009 the Russian Prosecutor General’s Office issued an extradition order against the applicant. The text of the decision included the following: “... the Andijan Region Investigations Department of the Uzbek Ministry of the Interior is investigating a criminal case against U. Ergashev ... The charges against U. Ergashev state that between 22 May 1999 and 2007, in the Andijan region of Uzbekistan, being an active member of the prohibited religious extremist movement ... with the aim of overthrowing the State’s constitutional order, ... he actively participated in the criminal activities of the supporters of the extremist religious movement ... and publicly called for the overthrow of the constitutional order of the Republic of Uzbekistan by engaging in ‘jihad’ (holy war) and for the creation of an Islamic State ... ... The actions of U. Ergashev are punishable under Russian criminal law and correspond to paragraph 1 of Article 280 (public calls for extremist activities), paragraph 2 of Article 282 (incitement to hatred) and paragraph 2 of Article 2823 (membership of an extremist organisation) of the Russian Criminal Code; the penalties envisaged under those Articles entail deprivation of liberty for more than one year. The limitation period for the above crimes under Russian and Uzbek law has not expired ...” 15. The applicant appealed against the extradition order to the St Petersburg City Court (“the City Court”), stating, among other things, that he was being persecuted by the Uzbek authorities for his political and religious beliefs and that if extradited, he would be subjected to ill-treatment in Uzbekistan. 16. On 14 August 2009 the City Court overruled the extradition order, stating that it had been issued prematurely – that is, before the examination of the applicant’s request for temporary asylum – and ordered the applicant’s release from detention. 17. The prosecutor’s office appealed against that decision to the Supreme Court of the Russian Federation (“the Supreme Court”). On 30 September 2009 the Supreme Court overruled the decision of 14 August 2009 and remitted the case for a fresh examination. 18. On 5 May 2010 the City Court again examined the applicant’s complaint and upheld the extradition order, referring, amongst other things, to the guarantees provided by the Uzbek Prosecutor General’s office to the effect that the applicant would not be subjected to ill-treatment in Uzbekistan. The applicant appealed against that decision to the Supreme Court. 19. On 22 June 2010 the European Court of Human Rights granted a request by the applicant for the application of interim measures under Rule 39 of the Rules of Court entailing the suspension of his extradition to Uzbekistan. 20. On 7 July 2010 the Supreme Court dismissed the applicant’s appeal and the extradition order became final. 21. On 1 September 2008 the applicant was arrested. On 3 September 2008 the Smolninskiy District Court of St Petersburg (“the Smolninskiy District Court”) authorised the applicant’s detention on the basis of the arrest warrant issued by the Uzbek authorities on 8 December 2007 (see paragraph 12 above). In its decision the court referred to Article 108 of the Code of Criminal Procedure (“the CCP”). No time-limits were set for his detention. 22. On 17 October 2008 the Smolninskiy District Court further authorised the applicant’s detention with a view to extradition without laying down any relevant time-limits. In its decision the court referred to Articles 108 and 466 of the CCP. 23. On 29 January 2009 the applicant complained to the Smolninskiy District Court that his detention pending extradition was unlawful. On 2 February 2009 the court allowed his complaint in full and released him. The court’s decision stated, amongst other things, that the applicant’s detention had not been extended by court orders and its length was uncertain, in violation of Article 109 of the CCP and of Article 5 of the Convention. 24. The prosecutor’s office appealed against that decision. On 12 February 2009 the St Petersburg City Court upheld the decision of 2 February 2009 on appeal and reaffirmed that the applicant’s detention during the above period had been unlawful. 25. On 3 March 2009 the applicant was arrested again. On 4 March 2009 (in the documents submitted the date was also referred to as 6 March 2009) the Tsentralniy district prosecutor’s office of St Petersburg (“the prosecutor’s office”) requested that the Dzerzhinskiy District Court of St Petersburg (“the Dzerzhinskiy District Court”) authorise the applicant’s detention with a view to extradition. 26. On 6 March 2009 the Dzerzhinskiy District Court refused to grant the prosecutor’s request, stating that the applicant had already been detained on the same grounds and that the authorities had failed to prove that he intended to abscond. In spite of the above decision, the applicant was not released from detention as on the same date the prosecutor’s office ordered his detention on the basis of the arrest warrant issued by the Andijan Town Court on 2 March 2009. 27. On 18 March 2009 (in the documents submitted the date was sometimes given as 10 March 2009) the applicant complained to the Dzerzhinskiy District Court, stating, among other things, that in the absence of an extradition order his detention was unlawful, that he had already been detained with a view to extradition between 1 September 2008 and 2 February 2009 and that his further detention from 3 March 2009 was against the law as it was based on the same grounds. 28. On 18 March 2009 the Dzerzhinskiy District Court examined the applicant’s complaint under Article 125 of the CCP (complaints against acts and decisions of officials involved in criminal proceedings) and dismissed it, stating that the prosecutor’s detention order of 6 March 2009 was lawful and substantiated as it had been based on the detention order issued by the Andijan Town Court on 2 March 2009. The court did not examine the applicant’s allegation that his continued detention from 3 March 2009 was against the law as it was based on the same grounds as his previous detention between 1 September 2008 and 2 February 2009. 29. On 8 May 2009 the City Court upheld the decision of 18 March 2009 on appeal. It did not examine the applicant’s allegations concerning the use of the same grounds for his continued detention either. 30. On 13 May 2009 the applicant again complained to the Dzerzhinskiy District Court, stating that his detention was unlawful and excessively lengthy as the two-month time-limit for the detention had expired and his further detention had not been authorised by the Russian courts. 31. On 27 May 2009 the Dzerzhinskiy District Court allowed the applicant’s complaint and acknowledged the excessive length of his detention. However, the applicant remained in detention. The applicant appealed against that decision. 32. On 3 August 2009 the City Court overruled the decision of 27 May 2009 on appeal and remitted the case for a fresh examination. The applicant remained in detention. 33. On 25 August 2009 the Dzerzhinskiy District Court again allowed the applicant’s complaint of 13 May 2009. The court stated that the applicant’s detention as of 7 May 2009 had been unlawful as it had not been duly extended by the domestic courts. It ordered the applicant’s release from detention even though he had actually been released on 14 August 2009 following the decision of the City Court (see paragraph 16 above). The prosecutor’s office appealed against the decision. On 27 October 2009 the City Court upheld the decision of 25 August 2009 on appeal. 34. On 6 September 2010 the applicant was arrested by the National Interpol Bureau in St Petersburg and the Leningrad Region and taken to the Viborgskiy district department of the interior in St Petersburg (the Viborgskiy ROVD), where he was detained from 11.35 a.m. to 5.30 p.m. before being released on an undertaking to visit the Viborgskiy district prosecutor’s office. 35. On 8 September 2010 the Viborgskiy district prosecutor’s office placed the applicant under house arrest “pending extradition to Uzbekistan”. 36. At about 10.30 a.m. on 3 March 2009 the applicant was arrested in the building of the Dzerzhinskiy District Court (see paragraph 25 above). He was taken to a police station (78th office of the St Petersburg department of the interior – 78-й отдел милиции), where he was detained until 1 p.m. on 7 March 2009. 37. During these four days the applicant was detained in an administrative-detention cell. The conditions of his detention were as follows: the cell, which measured 6 sq. m, had a tiny window; it did not have ventilation; there was no bed or toilet; the applicant slept on a narrow wooden bench which was designed for seating; no food or drink was given to him throughout the detention; and he was allowed to use the toilet in the adjacent area only with the permission of the police officers. The applicant had to obtain drinking water from the toilet. 38. At about 1 p.m. on 7 March 2009 the applicant was transferred from the police station to remand prison IZ-47/4 in St Petersburg. 39. Between 7 and 11 March 2009 the applicant was detained in cell no. 82, measuring 18 sq. m, with ten other inmates. There were only eight bunk beds; the applicant therefore had to sleep on the floor. The cell had neither a table nor hot water. No proper bedding was provided for the applicant. His personal space amounted to 1.6 sq. m. The inmates constantly smoked in the cell, which had an adverse effect on the applicant’s health. On 11 March 2009 the applicant was allowed to take his first five-minute shower since his arrest on 3 March 2009. 40. On 12 March 2009 the applicant was transferred to cell no. 130/2 (tuberculosis cell) as it had been established that he was suffering from tuberculosis. The cell measured about 30 sq. m and had fifteen bunks. Between 12 and 15 March 2009 it held seven inmates; between 16 and 18 March it held eleven inmates; between 19 and 28 March it held twelve inmates; between 5 and 17 May thirteen inmates; on 18 May nine inmates; on 19 May ten inmates; and between 20 and 25 May eleven inmates. Depending on the number of inmates the applicant’s personal space varied from 4.6 to 2.5 sq. m. The table in the cell was a few metres from the toilet; no disinfectant was provided for the latter. The inmates had to do their laundry in the cell using a basin. Irrespective of the gravity of their medical condition and the degree of contagiousness, the inmates were kept together in the same cell. 41. On 29 March 2009 the applicant was transferred to cell no. 130/3, which measured about 32 sq. m, had fourteen bunks and housed from eight to twelve other inmates. Between 29 and 31 March it held twelve inmates; between 1 and 8 April it held eleven inmates; between 9 and 13 April twelve inmates; between 14 and 19 April nine inmates; between 20 and 28 April ten inmates; on 29 and 30 April twelve inmates; and between 1 and 4 May thirteen inmates. Depending on the number of inmates, the applicant’s personal space varied from 3.6 to 2.5 sq. m. On 5 May 2009 the applicant was transferred back to cell no. 130/2. 42. On 25 May 2009 the applicant was transferred to cell no. 158, which measured 20.3 sq. m and had twelve bunks. On 25 May it held twelve inmates; on 26 May eleven inmates; on 27 May ten inmates; and between 28 May and 9 June twelve inmates. Depending on the number of inmates the applicant’s personal space varied from 2 to 1.7 sq. m. On 9 June 2009 the applicant was transferred to another cell. 43. On 10 June 2009 the applicant was placed in cell no. 160, which measured 20.9 sq. m and had eight bunks. Between 9 June and 14 August 2009 the cell held seven or eight inmates. The applicant’s personal space amounted to less than 3 sq. m. In addition, the inmates smoked in the cell, which had an adverse effect on the applicant’s health as the cell was not properly ventilated. 44. The applicant substantiated his account of the conditions of detention in the remand prison by the following documents: a witness statement by Mr K. Petrov, who was detained with the applicant in cell no. 82, dated 16 February 2011; a witness statement by Mr Z. Elmuratov, who was detained with the applicant in cells no. 130/2 and no. 149, dated 16 February 2011; a witness statement by Ms E. Polyakova, head of a human rights NGO which monitored the conditions of detention in remand prison IZ 47/4, dated 8 February 2011; and a number of photographs of the applicant’s detention cells. 45. On a number of occasions between 4 and 29 March 2009 the applicant was handcuffed and taken to the Dzerzhinskiy District Court in a lorry for transporting detainees (Avtozak). The lorry was equipped with three cages measuring 1.5 m by 3 m; each cage contained ten inmates, who were transported in cramped conditions. 46. Upon arrival in the courthouse, the applicant was placed for several hours in a cell without windows, measuring 12 sq. m, with a narrow bench and without ventilation. He was usually detained there with two other men. No food or drink was given to him in the courthouse. 47. On 18 March 2009 the applicant complained to the Dzerzhinskiy District Court, alleging, amongst other things, that the conditions of his detention were inadequate (see paragraph 27 above). 48. In its decision of 18 March 2009 the Dzerzhinskiy District Court left the applicant’s complaint about the conditions of his detention unexamined. The applicant did not raise the issue of the conditions of his detention on appeal as he considered that an appeal would be ineffective. 49. From the documents submitted it appears that the applicant neither applied for medical assistance while in remand prison IZ-47/4 nor complained about the lack of such assistance to the prison’s administration. 50. On 20 October 2008 the applicant applied to the St Petersburg Department of the Federal Migration Service (“the FMS”) for refugee status in Russia, referring to his politically motivated persecution in Uzbekistan and the risk of ill-treatment. 51. On 22 December 2008 the FMS rejected the applicant’s request, stating that it had been motivated by an attempt to avoid lawful criminal prosecution in Uzbekistan and that his allegations of a risk of ill-treatment there were unsubstantiated. The applicant was informed of the refusal on 22 January 2009. 52. On 4 March 2009 (in the documents submitted the date is sometimes given as 4 April 2009) the Dzerzhinskiy District Court upheld the refusal by the FMS. The applicant did not appeal against that decision and the decision of 22 December 2008 became final. 53. On 8 April 2009 (in the documents submitted the date is sometimes given as 27 April 2009) the applicant applied to the FMS for temporary asylum in Russia. 54. On 6 May 2009 the FMS rejected the request. The applicant appealed to the Russian FMS against the refusal. 55. On 6 August 2009 the Russian FMS overruled the decision of 6 May 2009 and referred the applicant’s request back for a fresh examination. 56. On 11 November 2009 the FMS again rejected the applicant’s request for temporary asylum. The applicant appealed to the Russian FMS. 57. On 23 February 2010 (in the documents submitted the date is sometimes given as 28 February 2010) the Russian FMS overruled the decision of 11 November 2009 and again referred the applicant’s request back for a fresh examination. 58. On 30 April 2010 the FMS rejected the applicant’s request for temporary asylum for the third time. 59. On 24 May 2010 the applicant again appealed against the refusal to the Russian FMS. On 30 August 2010 the Russian FMS overruled the decision of 30 April 2010 and again referred the applicant’s request back for a fresh examination. 60. On 16 December 2010 the FMS rejected the applicant’s request for temporary asylum for the fourth time. The applicant appealed against the refusal to the Russian FMS. The proceedings appear to be still pending. 61. At 6 p.m. and 11 p.m. on 3 March 2009 the Russian television channel NTV broadcast its regular TV news bulletin in St Petersburg. News reports, quoting the press unit of the Main Department of the Interior of St Petersburg and the Leningrad Region (the GUVD), displayed full-face and profile photographs of the applicant and contained the following information: Newscaster: “... a terrorist from Uzbekistan, who worked in St Petersburg as a driver of a KAMAZ lorry, was arrested today in the city centre by Interpol officers. The leading member of the Wahhabi extremist religious movement had moved to St Petersburg two years ago and since then had worked as a driver for various companies. Having graduated from a foreign languages institute, he worked in Uzbekistan as a mullah. The 52-year-old Urinboy Ergashev has been on the authorities’ wanted list for two years; he has been charged with a number of serious crimes, including terrorism ...” Newscaster: “Mr D.R., the deputy head of the National Interpol Bureau in St Petersburg and the Leningrad Region, commented ...” Mr D.R.: “... having studied the ideas of the political extremist movement ... [the applicant] had created the ‘Khalka’ group to spread the ideas of the Wahhabi movement in order to change the existing State order in Uzbekistan, seize power and remove lawfully elected officials ...” Newscaster: “... the law-enforcement bodies presume that the group headed by Ergashev was planning to create an Islamic State in the Fergana valley; it was financed by foreign organisations from Afghanistan and Pakistan prohibited by the Uzbek authorities. Currently the arrested man ... is in detention and after all the paper formalities he will be extradited to his homeland, where a trial is awaiting him ...” 62. The applicant was detained in the 78th office of the St Petersburg department of the interior from 10.30 a.m. on 3 March 2009 until an unspecified time on 7 March 2009. 63. The applicant was detained in an administrative-detention cell measuring between 3 and 3.2 sq. m, which was not equipped for sleeping, and therefore no bed linen was provided. The applicant was allowed to use the toilet in the adjacent area of the police station with the permission of the police officers. The toilet was equipped with cold water. There were no shower facilities. The applicant’s cell was ventilated twice a day by the police officers. The applicant was not provided with food by the authorities, but the officers allowed his relatives to bring him food and drink. 64. The applicant was transported from the detention centre to the courthouse on three occasions, on 17 and 18 March and on 27 May 2009, in specially equipped GAZ-3307 and GAZ-32594 vehicles. The vehicles have twenty-six seating places, which are divided between two shared cells and one solitary cell. 65. On 17 March 2009 the applicant was transported in the same vehicle with twenty-three other detainees; on 18 March 2009 with twelve other detainees; and on 27 May 2009 with ten other detainees. 66. On each occasion the applicant was provided with a daily ration of food as prescribed by the relevant regulations. 67. From 7 March to 14 August 2009 the applicant was detained in seven different cells; in each cell the number of inmates matched the number of bunk beds, and therefore the applicant had an individual bed. He was provided with bed linen and cutlery. The applicant was detained: from 7 to 11 March 2009 in cell no. 82, measuring 18.1 sq. m, with three other inmates (capacity: four inmates); from 11 to 30 March 2009 in cell no. 130/2, measuring 32.3 sq. m, with seven other inmates (capacity: eight); from 30 March to 5 May 2009 in cell no. 130/3, measuring 32.2 sq. m, with seven other inmates (capacity: eight); from 5 May to 25 May 2009 in cell no. 149, measuring 20.3 sq. m, with four other inmates (capacity: five); from 25 May to 9 June 2009 in cell no. 158, measuring 20.3 sq. m, with four other inmates (capacity: five); from 9 to 10 June 2009 in cell no. 163, measuring 9.8 sq. m, with one other inmate (capacity: two); from 10 June to 14 August 2009 in cell no. 160, measuring 20.9 sq. m, with four other inmates (capacity: five). 68. The Government substantiated their account of the amount of personal space afforded to the applicant in the remand prison with poorquality copies of several pages of a registration log “on transfers of inmates between cells” dated February 2009 to February 2010. The document did not contain any comprehensible information and included tables of numbers; no names or other information about the inmates were provided. The Government also furnished several statements by the remand prison’s staff confirming the number of bunk beds in each of the applicant’s cells. These statements neither provided information as to the actual number of inmates detained in each cell nor specified whether the number of detainees exceeded the cell’s capacity at the given period of time. 69. According to the Government, the sanitary conditions in each cell complied with the relevant regulations. Medical staff of the remand prison checked the sanitary conditions of all cells on a daily basis and disinfected the cells at prescribed intervals. The ventilation in all cells was in working condition, and each cell was equipped with a cold water basin. On request the inmates could obtain hot water; they were also allowed to use electric kettles. The applicant was allowed a weekly fifteen-minute shower; his bedlinen was changed weekly. The inmates’ laundry was collected for washing once a week; the inmates were also allowed to do their laundry in plastic buckets provided by the administration. 70. According to the copies of documents enclosed with the Government’s submissions, from 11 March to 25 May 2009 the applicant was detained in the remand prison’s tuberculosis centre to receive medical treatment for the disease. 71. According to the Government, the applicant’s detention on remand was based on Article 466 §§ 1 and 2 of the CCP. 72. On 3 September 2008 the Smolninskiy District Court authorised the applicant’s detention from 1 September 2008 to 2 February 2009. 73. On 17 October 2008 the Smolninskiy District Court again authorised the applicant’s detention with a view to extradition. 74. According to the Government, on 4 March 2009 the Dzerzhinskiy District Court authorised the applicant’s detention. However, from the documents submitted it appears that on 6 March 2009 the District Court actually refused to authorise the applicant’s detention (see paragraph 26 above). 75. On 6 March 2009 the Tsentralniy district prosecutor’s office of St Petersburg detained the applicant on the basis of the Andijan Town Court’s detention order of 2 March 2009. 76. In their observations of 17 January 2011 the Government submitted that the text of the TV broadcast had been prepared on the basis of the official statement provided by the National Interpol Bureau in St Petersburg and the international search warrant issued against the applicant. The broadcast had stated that the applicant had been charged with serious crimes by the Uzbek authorities, but not that he was guilty. The law-enforcement bodies had only suspected that the applicant was pursuing extremist goals. The expression “terrorist from Uzbekistan” had been used by the TV journalists and had not been part of the official information statement issued by the National Interpol Bureau in St Petersburg. 77. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 78. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within eighteen days of arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed forty days from the date of that arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 79. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 80. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent. A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 81. A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 82. The term “court” is defined by the Code of Criminal Procedure (“the CCP”) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54). 83. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 84. Chapter 13 of the CCP (“Preventive measures”) governs the use of preventive measures (меры пресечения), which include, in particular, placement in custody. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable by at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge’s decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 85. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The court must examine the complaint within five days of its receipt. 86. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 87. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 88. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article 258 § 1). “Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... once six months has passed since the case was sent to it, extend a defendant’s detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending a defendant’s detention once the previously authorised timelimit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Article 10 § 2 and Article 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution ...” 90. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 91. In the Constitutional Court’s view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms laid down in Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without abiding by the procedure established in the CCP, or in excess of the time-limits fixed therein. 92. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with the aim of extradition. 93. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for keeping a person in custody with the aim of extradition. That was a matter for the courts of general jurisdiction. 94. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that the detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 95. In this ruling the Supreme Court reiterated that the arrest and detention of a person with the aim of extraditing him or her under Article 466 of the CCP should comply with the requirements of Article 108 of the CCP, and that detention pending extradition could be extended only in compliance with the requirements of Article 109 of the CCP. 96. The 1995 Law on the conditions of detention of suspects and accused persons (as amended) provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell (section 23). The Law also provides that inmates are entitled to medical assistance (section 17). If an inmate’s health deteriorates, the medical officers of the remand prison are obliged to examine the inmate promptly and inform him or her of the results of the examination in writing. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate suffers from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (section 24). 97. The European Committee for the Prevention of Torture (“the CPT”), in its 15th General Report of 22 September 2005 on its activities covering the period from 1 August 2004 to 31 July 2005, expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture: “38. Reference was made in the Preface to the potential tension between a State’s obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of ‘diplomatic assurances’ in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. 39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and illtreatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 40. In response, it has been argued that mechanisms can be devised for the postreturn monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.” 98. United Nations (“UN”) General Assembly Resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148)) reads as follows: “The General Assembly ... 12. Urges States not to expel, return (refouler), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement ...” 99. In his interim report submitted in accordance with Assembly Resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: “51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return. 52. The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognised as refugees.” 100. Specifically referring to the situation regarding torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials ... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition – their obligations under international law – by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 101. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated as follows to the 3rd Session of the UN Human Rights Council on 18 September 2008: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ... 743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...” 102. The UN High Commissioner for Refugees’ Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows: “22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State’s compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that ‘unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel’. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling ‘... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.’ 24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and non-derogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that: ‘in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.’” 103. The relevant passage of the United States Department of State’s 2010 Country Reports on Human Rights Practices concerning Uzbekistan, dated 8 April 2011, reads as follows: “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Sources reported that torture and abuse were common in prisons, pre-trial facilities, and local police and security service precincts. Reported methods of torture included severe beatings, denial of food, sexual abuse, tying and hanging by the hands, and electric shock. Family members of prisoners reported several cases of medical abuse, and one person reportedly remained in forced psychiatric treatment. The government reported that during the first six months of the year, it opened 226 criminal cases against 285 employees of law enforcement bodies. Of these, 75 persons were accused of charges related to abuse of power, and four were charged with torture or other brutal or degrading treatment. The remaining cases were for unspecified offenses. During the first nine months of the year, the government dismissed and brought criminal charges against 186 employees of law enforcement bodies for unstated reasons ... Prison and Detention Center Conditions Prison conditions were in some circumstances life threatening. Officials reported that the prison system is filled to only 74 percent of capacity, but reports of overcrowding were common, as were reports of severe abuse and shortages of medicine. Inmates and their families reported that food and water were of poor quality but generally available. There were reports of political prisoners being held in cells without proper ventilation, and prisoners occasionally were subjected to extreme temperatures. Family members of inmates reported incidents of sexual abuse. Family members also reported that officials frequently withheld or delayed delivery of food and medicine intended for prisoners. Relatives of prisoners reported the deaths of several prisoners serving sentences, most of whom received sentences related to religious extremism. In some cases, family members reported that the body of the prisoner showed signs of beating or other abuse, but authorities pressured the family to bury the body before examination by a medical professional ... According to family members and some NGOs, authorities failed to release prisoners, especially those convicted of religious extremism, at the end of their terms. Prison authorities often extended inmates’ terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society ...” 104. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other illtreatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other illtreatment remains the exception rather than the rule. ... Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible. ... The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.” | 1 |
train | 001-4522 | ENG | SWE | ADMISSIBILITY | 1,999 | PRANJKO v. SWEDEN | 3 | Inadmissible | Josep Casadevall | The applicant, born in 1971, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality. a. On 11 December 1992 the applicant arrived in Sweden with his wife and requested asylum. His wife being unhappy with the living conditions in the refugee camp where they were placed, they withdrew the asylum request on 14 April 1993 and left Sweden on 12 May 1993. They went to Croatia where his wife’s father lived. The wife later left the applicant and went to Germany with her father. The applicant was left in Croatia without any income or a place to live. He received no help from the Croatian authorities. Before leaving for Sweden he had been active in the defence organisation in his hometown Jajce in BosniaHercegovina. Following disagreements he left the organisation and joined the Bosnian-Croatian army in which he served until 28 October 1992 when Serbian forces took over Jajce. He deserted from the army and, on a second attempt, he was able to cross the border to Croatia. After his return to Croatia from Sweden he was allegedly afraid of being arrested and sent back to Bosnia-Hercegovina to be put on trial for desertion. He therefore left for Sweden a second time. He arrived on 8 January 1994 and requested asylum. He claimed that he could not return to Bosnia-Hercegovina as he could not get any protection there. Nor could he return to Croatia where he would be drafted for military service or punished for desertion. Further, he would be at risk of being sent back to Bosnia-Hercegovina. Despite the fact that he held a Croatian passport, he could not be considered a citizen of that country as he had not applied for Croatian citizenship. On 20 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Noting that the prevailing situation in Bosnia-Hercegovina rendered a deportation to that country impossible, the Board examined the applicant’s situation with respect to Croatia. The Board found that he did not risk to be sent from Croatia to Bosnia-Hercegovina. Further, he did not risk harassment or persecution in Croatia and he would not be forced to take part in any armed conflict. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 11 September 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country. On 7 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added the following. He is wanted for desertion by the Bosnian-Croatian army and might be forced to rejoin his military unit and take part in the conflict in Bosnia-Hercegovina. In this respect, he invoked a Bosnian arrest warrant and a Croatian draft order. He claimed further that he feared reprisals for comments he had made to Swedish newspapers about people profiting from the war and for having participated in demonstrations and other actions against Croatia in Sweden. Moreover, having had special assignments within the Bosnian-Croatian army, he was in possession of sensitive information and could thus be in great danger if caught by “the wrong people”. He stated also that his mental health was failing due to his experiences from the war and that he regularly saw a psychologist. His medical journals showed that he was in great need of psychiatric help on account of those experiences. According to two district nurses whom the applicant had been seeing, the applicant had suicidal thoughts. Moreover, the applicant invoked family ties in Sweden: one of his brothers lived there and his mother and another brother had applied for asylum in the country. His parents were divorced and his father had returned from Sweden to Jajce in October 1995. The applicant claimed also that he had integrated well into Swedish society and that he should be given a residence permit on humanitarian grounds. In a decision of 23 July 1997 the Immigration Board rejected the applicant’s new application and ordered that he be deported to either Bosnia-Hercegovina or Croatia. The Board referred to a guiding decision taken by the Swedish Government on 28 November 1996 according to which the possibility of returning to one’s home district in Bosnia-Hercegovina was dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it was possible to return to the home district where one’s own ethnic group was in the majority. The Board noted that the majority of the population in Jajce were Croats. Consequently, the applicant could return to Jajce without having to fear any harassment or outrage. As regards the possible deportation of the applicant to Croatia, the Board considered that there was no reason to assume that Croatia would not afford him protection. In this respect, the Board referred to information available from the Swedish Government and the United Nations High Commissioner for Refugees (UNHCR). This view had been confirmed also by the Croatian Government. With respect to the applicant’s alleged actions against Croatia, the Board noted that the applicant had not been politically active in his home country and that there was no indication that his activities in Sweden had attracted the attention of Croatian authorities. The Board further called into question the veracity of the applicant’s statements as to his being in possession of sensitive information since he had not made this allegation until 17 July 1997. Moreover, having regard to the amnesty laws enacted in Bosnia-Hercegovina and Croatia, it was not likely that the applicant would be punished for desertion. Finally, the Board considered that the applicant’s mental problems, his alleged integration into Swedish society and his family ties did not constitute sufficient reasons to grant him a residence permit on humanitarian grounds. The applicant appealed to the Aliens Appeals Board. He invoked a statement by psychologist L.S. who claimed that the applicant showed signs of suffering from a posttraumatic stress syndrome and that it had been considered whether to admit the applicant for institutional care due to the risk of suicide attempts. On 18 May 1998 the Appeals Board upheld the Immigration Board’s decision. By a decision of 30 July 1998 the Appeals Board granted the applicant’s mother a permanent residence permit in Sweden on account of her family ties. The Board recalled that, under Swedish law, a residence permit could be given to a foreigner who used to share a home with a relative living in Sweden, if it could be shown that the persons in question were in a state of dependence vis-à-vis each other. As regards the circumstances of the particular case, the Board noted that the applicant’s mother had been living with her three sons – including the applicant – in Jajce until the autumn of 1992. Her son B had left for Sweden in December 1992 and had been granted a permanent residence permit on 20 October 1993. Another son, S, had arrived in Sweden in February 1994. On 3 July 1997 he had been granted a residence permit based on his ties with his Swedish wife with whom he had a child. The Board noted further that the applicant had been refused a residence permit. The applicant’s mother had arrived in Sweden in March 1994 and had been living with S until, in November 1995, he moved in with his wife. The Board concluded that there was such a state of dependence between the applicant’s mother and her sons living in Sweden that she was entitled to a residence permit. Following the decision concerning his mother, the applicant submitted another application for a residence permit. He claimed that he had been living with his mother in Croatia and that they had continued to live together after her arrival in Sweden in March 1994. On 4 September 1998 the Aliens Appeals Board rejected the application, finding that no new circumstances had been invoked in the case. On 27 October 1998 the applicant submitted yet another application. Again, he referred to his ties with his mother and claimed that these circumstances had not properly been taken into account by the Appeals Board. By a decision of 3 November 1998 the Board suspended the enforcement of the applicant’s deportation order. The examination of the merits of the latest application is still pending before the Board. Relevant domestic law Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision. | 0 |
train | 001-79318 | ENG | RUS | CHAMBER | 2,007 | CASE OF DEYKINA v. RUSSIA | 4 | Violation of Art. 6 and P1-1 | Christos Rozakis | 4. The applicant was born in 1957 and lives in Voronezh. 5. She brought civil proceedings against her local authority requesting arrears of child benefits due to her. 6. On 25 August 2000 the Levoberezhny District Court of Voronezh granted her claims and awarded her the arrears in the amount of roubles 4,287.36 (RUR). The judgment was not appealed against and became final on 4 September 2000. 7. On 28 November 2000 a writ of execution was issued. 8. As the judgment remained unexecuted, on an unspecified date the applicant forwarded the writ to the debtor's bank and requested it to debit the sum due from the debtor's account, but the bank refused. 9. She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of 25 August 2000. 10. On 17 April 2003 the Justice of the Peace of the Second Circuit of the Central District of Voronezh dismissed the applicant's claims on the ground that the bank had not been at fault in refusing to enforce the judgment of 25 August 2000. On appeal, the judgment was upheld by the Central District Court of Voronezh on 10 November 2003. 11. On 30 December 2004 the applicant received RUR 1,402.56 in execution of the judgment of the Levoberezhny District Court of Voronezh of 25 August 2000. 12. On 26 January 2005 the applicant received RUR 818,16, and on 14 December 2005 the outstanding balance of RUR 2,066.64 thus completing full execution of the judgment. | 1 |
train | 001-109074 | ENG | RUS | CHAMBER | 2,012 | CASE OF VALYAYEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1975 and lives in Pereslavl-Zalesskiy, Yaroslavl Region. He is serving a prison sentence in Rybinsk. 6. On 24 July 2000 the applicant was arrested in Pereslavl-Zalesskiy on suspicion of organised murder and robbery. He was placed in a temporary detention facility at the police station (ИВС при УВД – IVS) in Pereslavl-Zalesskiy. On 27 July 2000 he was remanded in pre-trial custody. 7. According to the applicant, at about 6 p.m. on 31 July 2000 the applicant was checked out of the IVS in Pereslavl-Zalesskiy; he was handcuffed with his hands behind his back, blindfolded with a canvas bag pulled over his head, and put on the floor of a police minibus. Several police officers and two other detainees were in the same vehicle. As soon as the vehicle drove off the policemen began punching and kicking the applicant to force him to confess to the murder and to make him sign some documents. They hit him on the body and head, twisted his fingers, pulled on the handcuffs and tightened them behind his back. This lasted for at least ten minutes, until they arrived at a place described by the applicant as “somewhere in a forest”. The applicant was taken out of the vehicle and the beatings resumed. The applicant was spread on the ground, strangled with a rope or a belt, then his shoes were taken off and the police officers hit him on the heels with a wooden baton. The applicant claimed that he passed out several times, but when he regained consciousness the beating resumed; he was hit in the head and on the body, kicked on the groin, and strangled again. The applicant claimed that the ill-treatment in the forest lasted between thirty minutes and one hour. After that the policemen put the applicant back into the van and drove on. In the van they continued to beat and intimidate him. The applicant remained blindfolded the whole time. When they arrived at the Regional Department of the Interior in Yaroslavl the bag was removed from his head and he was checked into the Department’s IVS. He was placed in cell no. 23. 8. The applicant remained in the IVS in Yaroslavl until 3 August 2000. He allegedly requested to see a doctor, but this was refused. On the latter date the applicant was brought back to Pereslavl-Zalesskiy and released there. 9. On 4 August 2000 the applicant saw a doctor at Central District Hospital in Pereslavl-Zalesskiy; he reported the ill-treatment and complained of headaches, vertigo, pain in the chest and abdomen and injuries to his feet and wrists. He was diagnosed with a head injury, possible concussion, and bruises on the chest and on the left foot. 10. On an unidentified date between 6 and 9 August 2000 the applicant requested the prosecutor’s office of the Pereslavl-Zalesskiy District to investigate the ill-treatment in criminal proceedings. On 9 August 2000 the applicant was questioned by the police about the alleged ill-treatment. The case was then assigned to the assistant prosecutor who questioned the applicant on 14 August 2000. Both times the applicant spoke in detail about the episode of 31 July 2000. 11. On 14 August 2000 the assistant prosecutor ordered a medical examination by forensic experts to identify the applicant’s injuries, establish their origin and the time of their occurrence. On the same day he was examined by the forensic expert who then requested the applicant’s medical file from the Central District Hospital. 12. On 15 August 2000 the assistant prosecutor questioned the guard who was on duty at the IVS when the applicant was checked out. He submitted that on 31 July 2000 the applicant was checked out at about 5.30 p.m. by two police officers from the special squadron. After the applicant had been signed out they picked up his belongings, handcuffed the applicant and pulled a canvas bag over his head. Two other detainees were checked out at the same time and were taken away in the same vehicle. As far as he could tell, nobody ill-treated the applicant before the group left the IVS. 13. On 16 August 2000 the assistant prosecutor questioned two detainees, M.A. and S.A., who were transferred to Yaroslavl on 31 July 2000 with the applicant, and on 17 August 2000 he questioned one of the convoy policemen. M.A. and S.A. both said that they did not see anything because they were blindfolded, and that they did not hear any violence during the transfer. The convoy officer submitted that he and other policemen had carried three detainees in the minibus and that they had made no stops on the way and had not used any force during the transfer. 14. On the same day the applicant was detained again, and remained in detention pending trial. 15. On 4 September 2000 the chief medical officer of the Central District Hospital replied to the enquiry from the prosecutor’s office, stating that on 4 August 2000 the applicant had been examined by a traumatologist and had been sent for an X-ray, after which he did not come back to the admissions office. He stated that the applicant had indicated that the injuries were caused on 31 July 2000 and were the result of a domestic accident. 16. On the same day the prosecutor’s office refused to open a criminal investigation into the allegation of ill-treatment, on the grounds that they were unsubstantiated. 17. On 15 September 2000, having received the applicant’s medical file from the hospital, the forensic expert drew a report stating, in so far as relevant, as follows: On the right side of the abdomen, covering a total area of 10 cm x 7 cm, barely visible, are healing multiple abrasions ..., an abrasion on the outside of the right wrist 1 cm x 0.3 cm ..., on the same level below the elbow bone there is a healing abrasion 5 cm x – 0.4-0.5 cm ... On the inner left wrist there is an abrasion of 1 cm x 0.5 cm ..., on the outside there is a stripe-like abrasion of 3 cm x 0.5 cm. Reports pain during palpation of the right side of the chest at the level of the seventh and the eighth ribs, on the line between the front and armpit, also reports pain when inhaling sharply or coughing. According [to the applicant], he has pain in the soft tissues of the left foot; no injury [can be seen] there. Sought medical aid at the admissions office of the Central District Hospital on 4 and 5 August 2000, [was examined by] traumatologist. Medical files requested. On 5 August 2000, [record made by] traumatologist. Complains of pain in the right side of the chest, headaches, nausea and vertigo. Beaten up a week ago. Objective finding: condition of medium gravity ... Abdomen soft, painful when palpated. Reports pain during palpation of the left side of the chest ... Diagnosis: bruise on the left side of the chest, bruise on the left foot. On 4 August 2000. Headaches, vertigo ... Diagnosis: closed craniocerebral injury, concussion, bruise on the chest. On 11 August 2000, [record made by] traumatologist. Complains of pain in the fingers. Diagnosis: bruise on the chest. No other records made. The X-ray of the right side of the chest made on 4 August 2000 reveals no bone fractures. ... The X-ray of hands and wrists in straight projection reveals no bone fractures. The X-ray of heel bones in two projections reveals no bone fractures. Treatment by traumatologist continues ... . 1. On 14 August 2000 a medical examination established that Mr Valyayev had healing abrasions on the abdomen and the right and left wrist, caused by blunt hard object(s). The abrasions on the wrists could have been caused by objects like handcuffs. These injuries could have dated back to ten to fifteen days prior to the examination. 2. These injuries caused no damage to health. 3. The clinically established diagnosis of concussion is not supported by objective clinical data, and therefore its gravity is not susceptible to evaluation.” 18. The applicant was not informed of the results of the forensic examination and was not provided with a copy of the report. 19. On 30 October 2000 the applicant received a letter informing him of the decision dispensing with a criminal investigation into the alleged ill-treatment. On 2 November 2000 he lodged a complaint with the prosecutor of Pereslavl-Zalesskiy contesting that decision. 20. On 16 November 2000 the Central District Hospital provided the prosecutor’s office with an extract from the applicant’s medical file. It stated that on 4 August 2000 the applicant complained of pains in the head and chest and was sent for X-ray screening. On 5 August 2000 he was examined by a traumatologist. The chest and head X-ray did not reveal any pathology. He was diagnosed with bruises on the chest and left foot. On 11 August 2000 he was again examined by the traumatologist, with the same diagnosis, and by the neurologist who diagnosed him with a head injury and possible concussion. 21. On 28 November 2000 the applicant requested the prosecutor’s office to send him a copy of the forensic report. 22. On 6 December 2000 the prosecutor’s office issued another decision refusing to institute criminal proceedings into the alleged ill-treatment. It relied on the statements of the IVS staff and the cellmate denying that force had been applied to the applicant at the IVS. 23. As he had received no reply to his letter of 28 November 2000, on 28 December 2000 the applicant reiterated his request for a copy of the forensic report. 24. On 30 January 2001 the applicant’s cellmate at the IVS in Yaroslavl, S., wrote to the prosecutor’s office of Pereslavl-Zalesskiy confirming the applicant’s allegations of ill-treatment. He contended that on 31 July 2000 at about 9 p.m. the applicant was placed in cell no. 23; that he was bleeding and bruised, his clothes were torn and bloodstained and he was unable to move around the cell without help. He had confirmed that the applicant had apparently been tortured by the special squadron police during his transfer from Pereslavl-Zalesskiy and stated that no medical help was provided to the applicant at the detention facility. 25. On an unspecified date the same assistant prosecutor requested a further report on the applicant. On 14 February 2001 an expert drew up the report. The applicant himself was not present, and the expert studied only a one-page extract of the applicant’s medical file issued on 16 November 2000. He concluded that it contained insufficient information and that, in the absence of the original medical documents, he could not establish whether the applicant had suffered any injuries. 26. On the same day the prosecutor’s office refused again to institute criminal proceedings into the alleged ill-treatment, referring to the statements of S.A. and M.A. and to the fact that the expert had been unable to establish any injuries in the report of 14 February 2001. 27. On 23 February 2001, following complaints by the applicant, the Prosecutor’s Office of the Yaroslavl Region quashed the decision of 14 February 2001 and ordered the inquiry to be continued. She gave detailed instructions to the prosecutor’s office of Pereslavl-Zalesskiy to carry out a number of steps to verify the allegations, including questioning of the medical personnel who examined the applicant on 4 and 11 August 2000, obtaining the original medical records, establishing the identity of the staff members who had made or required the extracts of the medical files, and questioning IVS staff and cellmates about the applicant’s injuries. 28. On 23 April 2001 the prosecutor’s office of Pereslavl-Zalesskiy took a new decision refusing to institute criminal proceedings into the alleged ill-treatment. The decision essentially reiterated the preceding ones and concluded that the applicant’s allegations were unsubstantiated. The applicant complained to the prosecutor’s office about the refusal to hold an investigation and requested access to the file. 29. On 20 July 2001 S.A. wrote to the applicant to apologise for the false statement he had made to the office of the prosecutor conducting the ill-treatment inquiry. He explained that although he had remembered the “monstrous” beatings the applicant was subjected to during the transfer, he felt that telling about it would put him at risk. 30. On 23 July 2001 the Yaroslavl Regional Court held a hearing in the applicant’s criminal case and gave judgment. The applicant was found guilty of burglary and aggravated murder and sentenced to twenty years’ imprisonment. During the trial the applicant complained of ill-treatment, and several witnesses testified that he been injured. The court did not examine the issue further. 31. Following requests by the applicant, on 5 December 2001 and 6 February 2002 the prosecutor’s office refused to grant him access to the inquiry file. The applicant challenged the refusal before the Pereslavl District Court. On 14 August 2002 the court granted the applicant’s claim and ordered the prosecutor’s office to give the applicant access to the case file. Sixty-five pages of copies of the documents were sent to the applicant on 10 November 2002. They did not include the expert report of 15 September 2000. 32. On an unidentified date the applicant challenged the decision of 23 April 2001 refusing the investigation of his ill-treatment before the Pereslavl District Court. Among other arguments he referred to the forensic examination that he underwent on 14 August 2000 and requested that the results be included in the case file. On 28 July 2003 the court returned his complaint, stating that it could not examine the matter while a similar complaint was under examination by the prosecutor’s office. The applicant appealed. 33. On 30 September 2003 the Deputy President of the Yaroslavl Regional Court replied to the applicant that the Pereslavl District Court had never received the applicant’s complaint challenging the decision of 23 April 2001, and that in any event the latter was not amenable to judicial review because the applicant’s arguments had already been examined in substance in the criminal proceedings against the applicant which had ended in his conviction. 34. Despite the above letter, the applicant’s complaint was subsequently accepted for examination by the Pereslavl District Court, and the applicant requested to attend the hearing. He also requested that his lawyer be informed about the date of the court hearing. The applicant claims that neither he nor his lawyer were notified of when the hearing was scheduled. 35. On 9 July 2004 the court examined the complaint. Neither the applicant nor his counsel were present, but the public prosecutor took part in the hearing. The court upheld the decision of 23 April 2001 dispensing with a criminal investigation. The applicant appealed. 36. On 17 December 2004 the Yaroslavl Regional Court examined the applicant’s appeal and upheld the decision of 9 July 2004, finding the allegations of ill-treatment unsubstantiated and the prosecutor’s decision well-founded. It appears that neither the applicant nor his lawyer were present at the hearing, while the prosecutor was. 37. On 25 June 2009 the Court gave notice of this application to the respondent Government. 38. On 21 August 2009 the Prosecutor of the Yaroslavl Region submitted a request to the Yaroslavl Regional Court to have the decisions of 9 July 2004 and 17 December 2004 quashed in supervisory-review proceedings. The ground for the request was the absence of the applicant from the proceedings at both levels of jurisdiction. On 2 September 2009 that request was granted, and the applicant’s complaint was remitted for fresh examination by the district court. 39. On 16 September 2009 the Yaroslavl Department of the Interior issued a report on the internal inquiry relating to the applicant’s complaints of ill-treatment. Having referred to the previous decisions by the prosecutor’s office and the courts, it stated that the applicant’s allegations of ill-treatment were unsubstantiated. 40. On 17 September 2009 the Pereslavl District Court scheduled a hearing on 23 September 2009 and ordered that the applicant be brought from the correctional facility to take part in the proceedings. The applicant requested three times that the hearing be postponed. The requests were granted, the first time to allow him time for preparation, the second time following the replacement of his counsel and the third time to allow him more time to read the file. The hearing was postponed until 27 October 2009, then until 10 November 2009, and finally until 20 November 2009. 41. On the latter date the court began examining the applicant’s claim. The applicant was present at the hearing and made oral submissions. The hearing continued until 30 November 2009, when the court held a judgment dismissing the claims. The applicant appealed. 42. On 2 April 2010 the Yaroslavl Regional Court granted the applicant’s appeal, reversed the judgment of 30 November 2009 and remitted the case for fresh examination by the district court. 43. On 2 June 2010 the district court examined the applicant’s claims in fresh proceedings and granted them in full. It noted that the prosecutor’s office had not taken all the measures necessary to enable a reasoned, lawful and well-grounded decision, in particular that it had failed to take into account the results of the forensic examination that took place on 14 August 2000. It therefore declared the refusal to investigate the applicant’s allegations of ill-treatment in criminal proceedings unlawful and ordered the prosecutor’s office to rectify the omissions. 44. On 23 July 2010 the Yaroslavl Regional Court upheld the judgment of 2 June 2010. 45. The parties did not inform the Court what follow-up measures had been taken by the prosecutor’s office, if any. | 1 |
train | 001-86901 | ENG | UKR | CHAMBER | 2,008 | CASE OF ARTSYBASHEV v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1971 and lives in Makiyivka. 5. On 25 August 1997 criminal proceedings were instituted against the applicant and two other individuals on suspicion of murder. On the same date the applicant was arrested and remanded in custody. 6. In December 1997 the applicant was committed for trial. 7. On 19 March 1998 the Chervonogvardiysky District Court of Makiyivka (Червоногвардійський районний суд м. Макіївка) remitted the case to the investigative authorities for additional investigation. 8. On 31 August 1998 the additional investigation was terminated and the case was referred back to the District Court. 9. On 21 May 1999 the District Court convicted the applicant of aggravated murder and sentenced him to eleven years’ imprisonment. 10. On 20 July 1999 the Donetsk Regional Court (Донецький обласний суд) quashed the judgment and remitted the case for additional pre-trial investigation. 11. On 15 December 1999 the additional investigation was terminated and the case was referred to the District Court. 12. On 2 June 2000 the District Court remitted the case for additional investigation. 13. In September 2000, after the additional investigation was terminated, the case was referred back to the District Court. 14. On 27 October 2000 the District Court again remitted the case for additional investigation. 15. In February 2001 the case was referred to the Regional Court to act as a first-instance court. 16. On 24 July 2001 the Regional Court convicted the applicant of aggravated murder and sentenced him to fourteen years’ imprisonment. 17. On 11 July 2002 the Supreme Court upheld the judgment. 18. Throughout the course of the proceedings some thirty-two hearings were scheduled by the trial court. Some twelve of them were adjourned on account of one or more of the five witnesses’ failures to appear. Two hearings were adjourned in view of the authorities’ failure to bring the applicant, who was kept in custody, before the court. On seven occasions the hearings were postponed on account of the judge’s ill health. | 1 |
train | 001-110997 | ENG | POL | ADMISSIBILITY | 2,012 | SLIWA v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano | 1. The applicant, Mr Robert Śliwa, is a Polish national who was born in 1969 and lives in Jarosław. He was represented before the Court by Mr P. Blajer, a lawyer practising in Jarosław. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 1. The facts of the case, as submitted by the parties, may be summarised as follows. 2. The applicant, a former customs officer, was charged with accepting a bribe from another customs officer, P.D., in 2004. 3. On 29 August 2006 P.D. was convicted by the Przemyśl Regional Court of, inter alia, offering a bribe to the applicant in 2004. The court was composed of Judge A.S., and two lay judges, D.B. and C.J. 4. Subsequently, on 9 November 2006, the same court, in the same composition, convicted the applicant of accepting the same bribe from P.D. 5. On an unspecified date the applicant’s lawyer appealed against the firstinstance judgment. In his appeal he did not raise a complaint regarding the composition of the court. 6. On 26 April 2007 the Supreme Court adopted a resolution and held that in circumstances such as those in the present case, where evidence which had constituted the basis for the conviction of one of the perpetrators of a crime was also to be the basis for the conviction of another perpetrator of the same offence, the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators (see “Relevant domestic law and practice” below). 7. On 17 August 2007 the applicant’s lawyer sent a letter to the secondinstance court and, relying on the Supreme Court’s resolution of 26 April 2007 submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings. He furtheredings (“the Code”) (see below). 8. On 18 October 2007 the Rzeszów Court of Appeal dismissed the appeal and upheld the first-instance judgment. It admitted that the three judges should not have examined the applicant’s case. However, it found that the complaint had not been raised in the appeal and therefore could not be taken into account as one of the bases of the appeal. It also considered that the shortcoming in the proceedings before the first-instance court did not constitute one of the specific grounds for appeal referred to in Article 439 of the Code, which the court of appeal had to take into account ex officio. The Court of Appeal further noted that the only way to amend the first-instance judgment was to apply Article 440 of the Code; however, it found no grounds to do so. 9. Article 41 § 1 of the Code provides as follows: “A judge shall be withdrawn from the examination of a case if there are circumstances which may give rise to justified doubts as to his or her impartiality in a particular case.” 10. Article 440 of the Code provides as follows: “If upholding a first-instance judgment would be manifestly unjustified, the judgment shall be amended in favour of the accused person or quashed, notwithstanding the complaints raised in an appeal.” 11. Article 433 of the Code provides as follows: “The appellate court shall examine the case within the framework of an appeal. It shall examine the case beyond the framework of an appeal if it is provided for by law.” 12. Article 439 of the Code, in so far as relevant, provides as follows: “Irrespective of the framework of an appeal, the complaints raised and the influence of a shortcoming on the contents of a decision, the appellate court shall quash the challenged decision if: (1) the decision was issued by or with the participation of a judge who should have been withdrawn pursuant to Article 40 of the Code (...).” 13. On 26 April 2007 the Supreme Court adopted a resolution in which it stated as follows: “If evidence which has constituted the basis for the conviction of one of the perpetrators of a crime is also to be the basis for the conviction of another perpetrator of the same offence, the judge who examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators, on account of a justified suspicion regarding his or her impartiality within the meaning of Article 41 § 1 of the Code of Criminal Procedure.” | 0 |
train | 001-91360 | ENG | UKR | CHAMBER | 2,009 | CASE OF KRYSHCHUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property | Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1959 and lives in the town of Chervonograd, Lviv Region, Ukraine. 5. In 2003 the applicant instituted proceedings in the Chervonograd Town Court against the Lvivvugillya State Enterprise, seeking compensation for non-pecuniary damage caused by the failure of the defendant to provide the applicant with an apartment, to which he had been entitled according to an agreement between them. 6. On 10 November 2003 the court partly found for the applicant and ordered the defendant to pay the applicant 42,000 Ukrainian hryvnias in compensation. 7. That judgment became final and on 11 December 2003 the Chervonograd Town Bailiffs’ Service instituted enforcement proceedings. 8. On 30 December 2005 the enforcement proceedings were terminated in accordance with the 2005 Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”. 9. The judgment in the applicant’s favour remains unenforced. 10. The Law of 23 June 2005 “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises” (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу” від 23 червня 2005 року) introduced a new mechanism for payment and amortisation of companies’ debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company’s presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company. By the most recent amendments to the Law, the effect of the debt payment and amortisation program was extended until 1 January 2009. 11. The remainder of the relevant law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 1 |
train | 001-87114 | ENG | HRV | CHAMBER | 2,008 | CASE OF ISMETA BACIC v. CROATIA | 3 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1958 and lives in Zagreb. 5. On an unspecified date the applicant instituted civil proceedings before the Sveti Ivan Zelina Municipal Court (Općinski sud u Svetom Ivanu Zelini) against her former employer, Zelina Agricultural Enterprise (Poljoprivredni kombinat Zelina), challenging her dismissal from work and seeking payment of her salary for the period of her unemployment. The first-instance judgment of 5 December 2000, granting the applicant's claims, awarded the applicant 42,161.47 Croatian kunas (HRK) together with statutory default interest. The judgment was upheld by the Velika Gorica County Court (Županijski sud u Velikoj Gorici) on 15 January 2003. 6. Meanwhile, in a decision of 17 June 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) opened bankruptcy proceedings against the applicant's former employer and invited all creditors to submit their claims to the bankruptcy administrator, appointed to the case by the Zagreb commercial Court, within thirty days. This was published in the Official Gazette no. 81/02 of 9 July 2002. 7. Examination hearings before the Zagreb Commercial Court were held on 24 September 2002 and 3 March 2003. 8. On 10 March 2003 the applicant lodged her claim, recognised by a final judgment, with the Zagreb Commercial Court before which the bankruptcy proceedings against her former employer had meanwhile been opened. The applicant argued that, since the civil proceedings she had instituted against her former employer before the ordinary courts (that is to say the competent municipal and county courts) had been pending, she considered that her claim had been adequately secured. In this connection she pointed to the provision obliging the regular courts to discontinue civil proceedings concerning any debtor against whom bankruptcy proceedings had been opened in the meantime. 9. On 16 April 2003 the Zagreb Commercial Court declared the applicant's request inadmissible as lodged out of time. It found that the examination hearing (ispitno ročište) had been held on 24 September 2002 and that after the expiry of three months from that date no further claims could be lodged in the bankruptcy proceedings. The relevant part of the decision reads as follows: “In the bankruptcy proceedings against Zelina Agricultural Enterprise ... examination hearing was held and concluded on 24 September 2002. The above-mentioned creditor submitted her claim on 15 April 2003, outside the three-month period following the first examination hearing. Since the claim was submitted too late, that is to say after the period of three months following the first examination hearing, it is to be dismissed pursuant to section 176 paragraph 4 of the Bankruptcy Act.” 10. In her appeal lodged on 30 April 2004 the applicant stressed, inter alia, that the bankruptcy administrator had failed to comply with her duty under section 173 paragraph 2 of the Bankruptcy Act to include the applicant's claim in the list of claims of all the current and former employees of the debtor company and to submit it for her signature. 11. On 8 July 2003 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) upheld the first-instance decision. In so far as relevant it held as follows: “Under section 54 paragraph 3 of the Bankruptcy Act, in a decision on opening of bankruptcy proceedings a bankruptcy panel is obliged to invite all creditors to submit their claims to the administrator within a fixed time-limit, in accordance with the provisions of the Bankruptcy Act. The time-limit for submission of claims has to be fixed to no less than fifteen days and no longer than one month. Claims submitted after the fixed time-limit may be examined at an examination hearing on the initiative of the administrator. Claims submitted after the fixed time-limit which have not been examined at the examination hearing, as well as claims submitted within three months of the first examination hearing but not after the call for the final hearing has been published may be examined at one or more additional examination hearings which are to be scheduled by the administrator pursuant to a proposal made by the creditors who have failed to submit their claims on time, and on condition that they pay in advance and within fifteen days the costs of such a hearing. Claims submitted after the expiry of the time-limit fixed in section 176 paragraph 2 of the Bankruptcy Act are to be declared inadmissible (argument under section 176 paragraphs 1, 2 and 4 of the Bankruptcy Act). The first-instance court acted exactly as described above, in compliance with the Bankruptcy Act, when it declared inadmissible as being lodged out of time the claim submitted by the creditor Ismeta Bačić from Zagreb. The appellant does not dispute that the examination hearing in the bankruptcy proceedings against debtor Zelina Agricultural Enterprise based in Sveti Ivan Zelina was held and concluded on 29 September 2002. The conditions for submitting creditors' claims then ceased to exist and it is therefore of no significance whether the appellant submitted her claim on 10 March or 15 April 2003. In any event it was submitted out of time. The only decision that a court could have adopted in such circumstances is the one pursuant to section 176 paragraph 4 of the Bankruptcy Act that the claim had to be declared inadmissible. Therefore, there has been no wrongful application of the Bankruptcy Act provisions to the appellant's detriment and the impugned decision ought to be upheld in accordance with section 380 paragraph 1(2) of the Civil Procedure Act in conjunction with section 6 of the Bankruptcy Act.” 12. In her subsequent constitutional complaint the applicant argued that the administrator had failed to comply with her duty to inform her of the bankruptcy proceedings and allow her to lodge her claim against her former employer and had thus prevented her from securing the payment of her claim. On 23 March 2006 the Constitutional Court dismissed the applicant's complaint as being ill-founded. The relevant part of its decision reads as follows: “The impugned judgment and the case file show that [the first] examination hearing in the bankruptcy proceedings against Zelina Agriculture Enterprise based in Sveti Ivan Zelina was held and concluded on 24 September 2002 and that the applicant as a creditor submitted her claim after the first examination hearing, on 15 April 2003. Since the applicant submitted her claim after the time-limit fixed in Section 176 paragraph 2 of the Bankruptcy Act, the first-instance court declared her claim inadmissible as being lodged out of time pursuant to section 176 paragraph 4 of the Bankruptcy Act. The High Commercial Court, in its decision on the applicant's appeal, stressed that the appeal was unfounded and that the Zagreb Commercial Court had correctly applied substantial law when it had declared the applicant's claim inadmissible as being lodged out of time.” 13. The Bankruptcy Act (Stečajni zakon, Official Gazette nos. 44/96, 29/99 and 129/00, as applicable at the relevant time) in the relevant parts provided as follows: “[After the bankruptcy proceedings have been opened] the bankruptcy administrator [assigned to the case] shall represent the debtor.” “In a decision on opening of the bankruptcy proceedings creditors shall be invited to submit their claims to the administrator, within a fixed time-limit. The time limit shall be fixed to no less than fifteen15 days and no longer than a month.” “All claims [against a debtor in bankruptcy proceedings] become payable when the bankruptcy proceedings are opened.” “The administrator [assigned to the case] shall intervene on behalf of the debtor in all pending civil proceedings concerning disputes about the debtor's assets.” “Bankruptcy creditors shall enforce their claims against the debtor in bankruptcy proceedings only.” “(1) Bankruptcy creditors shall submit two copies of their claims to the bankruptcy administrator together with supporting documents confirming the existence of their claims. (2) The bankruptcy administrator shall make a list of all claims which have become due before the opening of the bankruptcy proceedings of the present and former debtor's employees and submit the list to then be signed and the claims approved by the employees concerned ... ...” “(1) At the examination hearing the claims submitted shall be examined according to the amounts claimed and their rank. (2) The administrator shall expressly state whether he accepts or contests each of the claims submitted. ...” “(1) Claims submitted after the fixed time-limit may be examined at a request of the bankruptcy administrator. (2) Claims submitted after the fixed time-limit which have not been examined at the examination hearing, as well as the claims submitted within three3 months of the first examination hearing, but not after the call for the final hearing has been published, may be examined at one or more additional examination hearings, which shall be scheduled by the bankruptcy administrator pursuant to a proposal made by the creditors who have failed to submit their claims on time, and under the condition that they pay y advance of the costs of such a hearing in advance and within 15 days. ... (4) Claims submitted after the expiry of the above time-limits shall be declared inadmissible. ...” 14. Section 212(5) of the Civil Procedure Act (Zakon o parničnom postupku) obliges a civil court to stay the proceedings pending before it where the insolvency bankruptcy proceedings have been instituted against any of the parties to the civil proceedings. | 1 |
train | 001-60885 | ENG | FIN | CHAMBER | 2,003 | CASE OF K.A. v. FINLAND | 3 | No violation of Art. 8 with regard to taking into care;No violation of Art. 8 with regard to involvement in decision-making process;Violation of Art. 8 with regard to failure to promote reunification;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 10. The applicant and his wife S. have three children, K., born in 1980, A., born in 1981, and J., born in 1986. S. suffers from mental problems and is on early retirement. On 28 January 1992 the Social Welfare Office of the relevant city was contacted by a private individual raising a suspicion that the children were being sexually abused by their parents. The matter was considered by the child welfare support group of the local Social Welfare Board (sosiaalilautakunta, socialnämnden) on 5 February 1992. The group included Drs H.L. and U.K. of the Central Hospital located in the same city, the school welfare officer, a nurse of the child welfare clinic, the leading psychologist of the family advice centre and the director of J.’s nursery. Since no proof of incest was found, no further action was taken. 11. From 24 to 29 February 1992 J.’s development was monitored in the children’s ward of the Central Hospital. The examination revealed no signs of sexual abuse. On 16 March 1992 his nursery notified the social welfare authorities that he had shown a strong regression after having remained at home with his mother for one week following his hospital stay, and that similar regression had appeared whenever he had been spending longer periods at home. 12. Between 27 and 30 April 1992 the social welfare authorities were contacted on three further occasions with regard to the family. The information received again raised a suspicion that the mother was sexually abusing the children. It was alleged that the children were watching pornographic films, that the mother was walking around at home nearly naked and that she was using sexually explicit language when talking with and about the children. The parents were allegedly also consuming large quantities of beer on a daily basis. 13. The child welfare support group again considered the matter on 29 April, discussing for the first time the possible need to place the children in public care, and on 25 May 1992. On the same day social officials, the school welfare officer and the school nurse interviewed K. and A. together with their parents. According to the social welfare officer’s entry in the Board’s records, the daughters had confirmed the suspicions of sexual abuse, whereas the parents denied it. According to the applicant, the parents did not attend this interview. Moreover, A. had denied having been sexually abused by her parents, whereas K., when prompted to discuss her breasts, had stated that the mother had touched them in the sauna. 14. The parents consented to having the children undergo an examination in the child psychiatric department of the Central Hospital. The children were admitted to the Central Hospital on 25 May 1992 and their examination took place between 1 and 17 June 1992. Social welfare officials were in contact with the parents on 1 and 9 June 1992, raising the possibility of taking the children into public care. The parents objected to any such measure. 15. By emergency orders of 12 June 1992 the children were placed in public care in pursuance of section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen 683/1983) with a view to ensuring that the incest investigation could be completed. The Court has not been provided with copies of these orders which were apparently issued by the Chairman of the Social Welfare Board on its behalf. In the care orders of 24 June 1992 the Board referred to its decision of 12 June 1992, at paragraph 24 of the minutes, to issue such orders. The social welfare office’s case reports contain no entry of that date recording the emergency care. According to the Government, the orders of 12 June were grounded on the need “to ensure the investigations concerning incest following the closing of department B 14 of the Central Hospital of S. and in order to place the children in the children’s home of [P.]”. The Government explained that as the child psychiatric examination had not been finished by that date – the day when the children’s ward was closing due to the summer holidays of the staff – it was necessary to issue emergency care orders allowing for the examination to be completed and for a final assessment of the possible need for further measures. 16. On 15 June 1992 the parents were interviewed at the child psychiatric department by Dr H.L. The interview was followed through a one-way mirror by the two psychologists in charge of examining the children, a doctor and a nurse from the children’s ward, the children’s nurse at the children’s home, a social worker and a nurse from the child psychiatric clinic as well as the social welfare official in charge of the case. The interview was not recorded. The parents were informed that clear evidence had been found of the sexual abuse of the girls, the parents’ heavy drinking and domestic violence also directed against the children. The parents denied the sexual abuse and did not, in the opinion of the working group, realise the gravity of the situation. 17. In letters of 22 and 23 June 1992 M. and E. informed the Social Welfare Board of their readiness to serve as lay helpers to the family, whom they had known for a long time. M., a foster parent herself, stated that the parents and, in particular, the applicant had been taking good care of the children. E., whose daughter had been looked after by S. occasionally, stated that the family was leading a settled and normal life. The applicant’s employer attested to his steady employment and the fact that he had not been unnecessarily absent during the preceding year. 18. On 24 June 1992 the Social Welfare Board upheld the emergency orders after having heard the parents in person. The parents had also submitted written observations in which they, inter alia, rejected the allegations of sexual abuse contained in the documents to which they had had access. They also assured the Board that they had given up consuming beer. In addition to the parents’ written observations and the submissions indicated in the preceding paragraph, the Board had before it a report by the school nurse and school welfare officer dated 29 May 1992 in which they recounted their interview with A. and K. on 25 May 1992. It had also received an opinion by the director of J.’s day care centre. 19. The Social Welfare Board reasoned as follows: “1. In addition to the previously appearing difficulties relating to [the parents’] mental health and financial situation, incest has been found to have been directed against the children in the family, which seriously endangers their development and health. In addition, the parents have been consuming alcohol on an everyday basis over a long period of time. In these circumstances the children are not able to receive such care and support from their parents as their age would warrant. 2. The family has been receiving assistance for domestic chores on a regular basis, in an attempt to support their survival as a family in spite of their problems. In order to support the children’s development they have been provided with day care. Subsistence allowance has been granted whenever necessary, in spite of [the parents’] income. As the incest is linked to other serious problems it is not possible to ensure the children’s development and health in their home by affording open-care assistance. 3. The public care and the children’s placement out of their home (sijaishuolto, vård utom hemmet) will enable them to grow up in secure, stable and stimulating conditions, where they can reach, as best as possible, the stage of development typical for children of their age.” 20. The Board ordered that the public care was to be implemented as follows: “The children’s contact with their parents and other persons important to the children will be supported by organising meetings in the children’s home, as need be. The [children’s] need for out-of-home care is of long-term nature. Their first placement will be in the children’s home and the possibility of providing foster care will be explored at a later stage. The children are in need of special support in the form of therapy, which can be afforded on the premises of the children’s home. The overall situation of the family will be taken care of in co-operation with the child psychiatric clinic and the mental health office.” 21. The Board decided to reconsider the care orders under section 17 of the Child Welfare Act within thirty days from the date of the emergency care orders, in pursuance of section 18, subsection 2, of the said Act. 22. In an opinion of 25 June 1992 Dr H.L. drew the following conclusions: “The investigations have shown that [K. and A.] have been sexually abused by their mother apparently for several years. The father has not been able to protect his daughters, even though aware of the abuse. The family conditions seriously endanger the psychological and physical development of all of the children (the serving of alcohol, violence). The children have to use an unreasonable part of their psychological energy on being concerned about themselves, their siblings, their parents and the family situation in general. This renders the children insecure, distressed, frightened and depressed. In my opinion the parents, even if supported by open-care assistance, are not able to secure the children’s situation sufficiently and cater to their physical and psychological needs. The burden caused by the family’s situation can already be seen in the disturbed psychological development of the children. In my opinion their physical and psychological development will be seriously endangered if they are returned to their biological parents. In this situation the biological parents ... also need psychiatric help and support. To this end they have been recommended to continue making appointments at the Mental Health Office. The practical arrangements for providing psychotherapy to the children will be considered in the autumn. For now, priority must be given to taking child welfare measures.” 23. On 6 July 1992 the parents, heard by social workers, maintained their opposition to the public care of their children. The invitation to that meeting stated that the case-file would be available to them for consultation. On 13 July 1992 the Social Welfare Board heard the parents, who denied the allegations concerning abuse and neglect of the children. They handed in written observations as well as a copy of J.’s patient records at the local Health Centre, arguing that they had regularly used its services in matters relating to the children’s health and that nothing in the records suggested that J. had been subjected to physical violence. The parents requested that the Board hear their daughter’s teachers, domestic helpers and others familiar with conditions in the family. They further requested that lay helpers or support families be appointed for the family. They objected to a categorical statement made by one social welfare official to the effect that they would not get their children back. 24. On the same day the Board maintained the public care on the grounds relied on in its decision of 24 June 1992. The parents appealed to the competent County Administrative Court (lääninoikeus, länsrätten) without the assistance of legal counsel. In a statement to the court M. also questioned the care orders. On 19 October 1992 the County Administrative Court, without having held an oral hearing, rejected the appeal and confirmed the public care orders with the following reasoning: “According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s health and development. The open-care assistance has proved to be insufficient and care outside the home has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].” The parents appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing. 25. The care plan was reviewed at a meeting on 7 December 1992 attended by the parents. The parents and the children would continue to meet three times a week and psychotherapy was to be provided to the children starting the same month. The parents objected to foster care for the children and preferred to await the outcome of the appeal proceedings. According to the Government, meetings took place four times a week from 12 June to 20 November 1992. 26. The care plan was again reviewed on 26 February 1993 at a meeting attended by the applicant. The children and the parents had continued to meet three times a week and the children had been on three weekend leaves to visit relatives. The possibility of placing the children in foster care was again raised but the applicant remained opposed to such care, preferring to await the outcome of the appeal. He was told that the Supreme Administrative Court would not necessarily reverse previous decisions and that the foster care needed to be planned at a sufficiently early stage. Moreover, on 17 February 1993 the children themselves had been consulted about their possible foster care. 27. On 16 March 1993 the Supreme Administrative Court rejected the parents’ appeal without holding an oral hearing and without adducing further reasons. 28. The care plan was again reviewed on 5 April 1993 in the presence of the parents. They were told a decision now had to be made as to whether the children should remain in the children’s home or be placed in a foster family. When consulted by a social welfare official the children had preferred to be placed in a foster family, “if they could not return home”. The applicant stated he would pursue his attempts to have them returned home. Meanwhile, they should stay in the children’s home. The applicant was told that even if the children were placed in a foster family, they would continue to see their biological parents, “although naturally not as frequently”. The meeting was adjourned at the applicant’s request until 13 April 1993. At that meeting the parents were informed that a foster family had already been found and that the children had repeated their willingness to move there, “since their return to their [original] home was not possible”. The parents were informed that the Social Welfare Board would receive a proposal for transferring the children into the foster family, since such care was in many respects a better alternative than care in an institution, considering that the public care was going to continue and given the children’s best interests. 29. At a further meeting on 31 May 1993 the parents were informed that between 1 July 1993, when the children would be transferred to the foster family, and October-November 1993 they would not be able to meet with the children. Subsequently, four meetings a year would be organised. According to the care plan of 1 June 1993, the temporary absence of meetings was aimed at ensuring a peaceful implementation of their transfer and adaptation to their new family, school and nursery. The care plan was to be reviewed at the end of 1994 or earlier, if necessary. 30. On 16 June 1993 the Social Welfare Board decided to transfer the children into foster care and adopted the updated care plan. It noted that the family conditions had been deemed seriously to endanger the children’s development and, as the matter concerned incest, their future health and development could only be secured by long-term foster care. Placing them in a foster family was thus in their best interests. The Board had regard to a written statement by the director of the children’s home and a joint statement by the leading social welfare official, the aforesaid director and the children’s individual nurses. 31. The applicant appealed, seeking to have the public care revoked or, in the alternative, to have meetings organised more frequently and to have the care plan reviewed at the latest in December 1993. On 12 October 1993 the County Administrative Court declined to examine the merits of the appeal, as it was not competent to examine, in the first instance, the request for termination of the care. The adoption of the care plan had not comprised any binding decision on the applicant’s right to see his children. Any access restriction had to be ordered separately by the Social Welfare Board pursuant to section 25 of the Child Welfare Act. The expected time-limit for reviewing the care plan had the character of a guideline, since under the law such a plan was to be reviewed whenever necessary. The County Administrative Court relied on sections 11, 20, 24 and 25 of the Child Welfare Act and on section 4 of the Child Welfare Decree. The applicant did not appeal further to the Supreme Administrative Court in respect of the decision to transfer the children into foster care. 32. On 1 November 1993 the applicant requested that the public care be terminated. On 19 January 1994 the Social Welfare Board refused the request. It found that continued public care was in the best interests of the children, considering “the difficulties relating to the mental health and the use of alcohol as well as the incest directed against the children”, which had formed the background to their placement in public care. In a meeting with the leading social welfare official on 8 December 1993 and in their written statements of the same day K. and A. had stated their wish to remain in the foster family. J. had not been heard due to his young age. The Board also had regard to Dr H.L.’s opinion of 25 June 1992. Moreover, in a written statement of 30 December 1993 two teachers of J.’s nursery had attested to his gain of self-confidence. The foster parents noted that the children were adapting to the foster family. It was therefore in the children’s best interests to remain there. The Board also had regard to a one-page background summary by leading social worker P.V. 33. In his appeal the applicant stated, inter alia, that he would move away from his wife and request sole custody of the children. In its opinion to the County Administrative Court the Social Welfare Board maintained its view that the biological parents’ living situation had not changed significantly. Terminating the public care would therefore not be in accordance with the children’s best interests. 34. In an entry into the case-notes on 18 April 1994 social worker P.V. wrote that the divorce proposed by the applicant would change nothing, as the children had been placed in long-term care, “up to their adulthood, in my opinion”. 35. On 6 June 1994 the County Administrative Court rejected the appeal with the following reasoning: “According to the evidence transpiring from the documentation on file, the County Administrative Court considers that the need for public care outside the [children’s original] home still exists. The Social Welfare Board has therefore been under an obligation to maintain the public care of the children.” 36. On 30 November 1994 the Supreme Administrative Court rejected the applicant’s further appeal without adducing further reasons. 37. According to the care plan adopted on 28 February 1997 the biological parents had not, at a meeting on 17 January 1997, expressed any wish to meet the children more frequently. On 10 April 1997 the leading social welfare official invited the parents to clarify their wishes in respect of meetings with the children. The parents, now represented by counsel, requested that unsupervised meetings with their children be allowed in their home every weekend during one day. They stressed that the access restrictions should be based on the circumstances at that time and not on the events and allegations described in Dr H.L.’s opinion of 1992. K. and A. wished to have at least six meetings year, whereas J. and the foster parents objected to any increase. 38. On 6 May 1997 the local Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden; previously the Social Welfare Board) maintained the access restriction but allowed six supervised visits a year. The restriction was to remain in force until the respective children had turned 18, i.e. until 8 May 1998, 30 May 1999 and 14 August 2004. The Board recalled the incest as established in Dr H.L.’s opinion of 1992 and also had regard to the children’s own opinions. 39. The parents’ appeal was rejected by the County Administrative Court on 17 October 1997, except with regard to the access restriction applicable to J., which was ordered to remain in force only until 30 May 1999. The parents were refused cost-free proceedings, as domestic law did not provide for such an award in respect of access restrictions. 40. On 8 May 1998 K. reached the age of majority and her public care ceased pursuant to section 20 of the Child Welfare Act. 41. According to the care plan adopted on 14 January 1999, A. and J. and the biological parents would be allowed to meet three times up to the end of May 1999. 42. According to the care plan adopted on 7 May 1999, J. and his biological parents would be allowed to meet twice a month up to the end of 1999. As from the end of August 1999 the meetings would no longer be supervised. 43. On 30 May 1999 A. reached the age of majority and her public care ceased. 44. According to the care plan adopted on 31 January 2000, J. and his biological parents would be meeting once a month. The plan was preceded by several consultations with the biological and foster parents. The applicant had requested that meetings be allowed with the same frequency and that every other meeting take place over a weekend in the home of the biological parents, whereas J. had favoured one meeting a month involving no overnight stay. 45. On 28 February 2000 the biological parents again requested the Social Welfare Board to terminate J.’s public care. On 13 March 2000 S. informed a social welfare official that she was no longer in therapy. According to a case entry, she was told that J. now needed to undergo a child psychiatric examination. The request for a termination of J.’s care was apparently refused at a later date. 46. No police investigation was conducted into the suspected incest or sexual abuse of the applicant’s children, and no request to that end was made by the social welfare authority. 47. In support of their observations to the Court the Government have adduced extracts from the Mental Health Office’s patient records concerning the applicant and his wife. The extracts contain social welfare official P.-N.J.’s summaries of their statements during some thirty visits which they paid to the Office, either together or separately, between 17 June 1992 and 19 August 1996. One summary is written by R.L., a specialised medical doctor. The summaries also contain an evaluation of certain statements as well as of the parents’ conditions both prior to and after the taking into care of their children. 48. The material submitted by the Government also feature extracts from A.’s patient records at the Central Hospital, dated in June and September 1993 and containing statements by her therapist P.L. 49. The Government have also relied on notes drawn up in November 1997 by a nurse of the children’s home after she had supervised a meeting between the children and their biological parents. 50. The Government have furthermore produced a report by Dr H.L. on 4 September 1996 according to which the out-of-home placement of the children had been successful and they were no longer in need of therapy. The circumstances were nevertheless not such as to support a termination of the public care. 51. In a further report dated 25 October 2000 Dr T.S., a specialist in child psychiatry at the Central Hospital of S., concludes however, inter alia, that J.’s foster parents are able to see his need for therapy. 52. Finally, the Government have also adduced information obtained from the municipal legal aid office and relating to the applicant’s contacts with that office in 1994. 53. The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001-VII). Those and further provisions of particular relevance to the present case are described below. 54. When the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, local authorities must provide adequate financial support without delay, and improve the family’s housing conditions. Open-care assistance includes both general support measures in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982) and specific assistance, inter alia by appointing a lay helper or a support family, by providing adequate therapy and by assisting the child in his or her personal needs through financial and other support. The assistance shall be provided in co-operation with the child and its parents or other carers (section 13 of the Child Welfare Act). 55. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her out of the home if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child. Substitute care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The public care ceases when the child turns 18 (the age of majority) or marries (section 20). 56. If a child is in imminent danger for a reason stated in section 16 of the Child Welfare Act or is otherwise in need of an urgent care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts. 57. The Social Welfare Board shall terminate the public care when there is no longer any need for such care and an out-of-home placement, provided such termination is clearly not contrary to the best interests of the child (section 20). 58. In accordance with Section 56 of the Social Welfare Act the social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work, without prejudice to the obligation to respect confidentiality. 59. If, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or a parish finds out that a child is in evident need of family-oriented or individual child welfare, he or she shall notify the Social Welfare Board without delay. Any other person may also contact the Social Welfare Board to this end (section 40 of the Child Welfare Act). 60. The municipality may appoint a support group to assist the Social Welfare Board in child welfare matters. The group shall consist of representatives of the social authorities, experts on children’s growth and development as well as other specialists (section 42 of the Child Welfare Act). 61. The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They shall further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltnings-förfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties. 62. A child who has attained the age of 15 is entitled to state his or her opinion in child welfare matters. A child who has attained the age of 12 is entitled to be heard as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support measures (section 10, subsection 2, of the Child Welfare Act). 63. According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2). 64. According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction. 65. Any decision concerning public care, the transfer of a child into foster or other care outside his or her home, access restrictions and isolation of the child shall be drawn up on a form approved by the Ministry for Social Welfare and Health Affairs (section 14 of the Child Welfare Decree, as amended by Decree 421/1992 which entered into force on 1 July 1992). 66. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in cooperation with those involved. 67. A county administrative court’s decision in respect of a public care order, the transfer of a child into foster care or the termination of public care may be appealed further to the Supreme Administrative Court. Other decisions of a county administrative court relating to child welfare measures cannot be so appealed (section 37 of the Child Welfare Act). 68. According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lagen om fri rättegång 87/1973), as in force at the relevant time, a physical person who was a party inter alia to a case before an administrative court involving the taking into public care of a child, the child’s out-of-home placement or the termination of such care, could be granted cost-free proceedings in full or in part if he or she could not without difficulty meet all costs and expenses. No grant was to be made, however, if the case was of minor importance to the party (sections 1-2). 69. The grant of cost-free proceedings covered, inter alia, the fees of the legal counsel whom the competent court had appointed or approved under the 1973 Act. If a party who had been granted cost-free proceedings was unable to defend his or her rights and interests in an appropriate manner without the assistance of counsel, the court was under an obligation to appoint one (sections 7 and 10). 70. The Act on Cost-Free Proceedings excluded from its scope proceedings concerning, for example, an access prohibition issued on the basis of the Child Welfare Act. 71. Under the 1973 Public Legal Aid Act (laki yleisestä oikeusavusta, lagen om allmän rättshjälp 88/1973), as in force at the relevant time, a person who, given his or her financial situation, could not without difficulty afford to seek legal assistance, was entitled to request free assistance from the municipal legal aid office, provided the matter was not of minor significance or abusive in nature (sections 1-2 and 14). If the person qualified for such assistance in full or in part but the local legal aid office in question was unable to provide it in exceptional cases, for example due to the particular nature of the matter or due to a lack of confidence between the applicant and the local legal aid counsel, the applicant was to be directed to a private practitioner or to a legal aid office in another municipality. The fees and costs incurred on account of such a grant were to be covered in part or in full by the municipality in which the applicant was resident (sections 13-14 and 17). 72. The municipal legal aid board’s decisions could be appealed against in accordance with the rules in the 1976 and 1995 Municipalities Acts (kunnallislaki, kommunallag 953/1976 and 365/1995) on the procedure for challenging decisions of municipal organs (section 30 a of the Public Legal Aid Act, as in force up to 1 January 1997). 73. The Public Legal Aid Act did not exclude the provision of legal aid in the proceedings before a social welfare board relating to the public care of a child or related access restrictions. | 1 |
train | 001-21928 | ENG | NLD | ADMISSIBILITY | 2,001 | CALISKAN v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant, Efraym Caliskan, is a Turkish national of Kurdish origin, born in 1968 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador's household were prevented from leaving the premises. On 17 February 1999, the applicant was arrested and subsequently detained in police custody (inverzekeringstelling) on suspicion of having been involved in the events in the residence of the Greek Ambassador. The applicant was released from custody on 23 March 1999 after having been served with an indictment to stand trial on charges in relation to the events in the Greek Ambassador's residence. On the same day, he was handed over to the aliens' police (vreemdelingenpolitie). He was subsequently placed in aliens' detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). At some unspecified point in time, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. This request was rejected by the State Secretary of Justice (Staatssecretaris van Justitie) at an unspecified point in time. The applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against the State Secretary's refusal of his request for asylum. As the applicant had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. The applicant further requested the Hague Regional Court for an injunction on his expulsion pending the appeal proceedings. In a decision taken on 31 March 1999, the Hague Regional Court rejected an appeal filed by the applicant against his placement in alien's detention. On 23 April 1999, the applicant filed a second appeal with the Hague Regional Court against his placement in aliens' detention. On 19 May 1999, the Hague Regional Court rejected the applicant's appeal against the State Secretary's decision to reject his request for asylum. It further rejected the applicant's request for an injunction on his expulsion. On 26 May 1999, following a hearing held on 25 May 1999, the Hague Regional Court rejected the applicant's second appeal against his placement in aliens' detention. Insofar as relevant, it held: “The Regional Court considers at the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been determined in its decision of 31 March 1999. The present appeal concerns the question whether, after a balancing of all interests involved, a further continuation of the placement should reasonably be considered as unjustified. The Regional Court is of the opinion that it cannot be said that there are no real prospects for expulsion within a reasonable time. On behalf of the <State Secretary> it has been submitted that the alien will be presented to the Turkish <consular> authorities at short notice, given that his request for an injunction in connection with his request for entry to the Netherlands as a refugee or on humanitarian grounds was rejected on 19 May 1999 and the appeal ... declared illfounded. The Regional Court sees no reason to find that <the State Secretary> is proceeding with insufficient diligence. The Regional Court further finds that <the State Secretary>, pending the alien's presentation to the Turkish authorities, can reasonably adopt the position that the alien's placement in aliens' detention should be maintained. As to the complaint of the alien's representative that <the State Secretary> has given undertakings to the effect that the issue of expulsion of Kurds who are being prosecuted for their alleged participation in the occupation of the Greek Ambassador's residence in The Hague will only be addressed once the criminal proceedings have come to an end, the Regional Court considers as follows. It appears neither from the case-file nor the oral submissions in the present case that <the State Secretary> has made solid and legally binding undertakings as to the expulsion of persons who occupied the Greek Ambassador's residence. Neither can such an undertaking be read into the replies given by <the State Secretary> to questions of members of the Lower House of Parliament. The Regional Court further does not perceive a need for the alien who has been placed in aliens' detention to be allowed to remain in the Netherlands pending his trial. After his expulsion, the alien may apply for a visa in order to attend his trial, as has been indicated at the hearing by the representative of <the State Secretary>. Having regard to the above, the Regional Court considers that the appeal is illfounded. The placement in aliens' detention will not be lifted. Having regard to Article 34j of the Aliens Act there is no reason to award compensation.” On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the applicant was released from aliens' detention. On 29 September 2000, the applicant's representative informed the Court that the applicant, following his release on 31 August 1999, had gone to Germany for a family visit. The applicant's representative further stated that the applicant had been apprehended, detained and expelled from Germany to Turkey despite the fact that there were asylum proceedings ongoing in the Netherlands. According to his representative, the applicant was detained in Turkey and tortured for a number of days. Article 26 of the Aliens Act, insofar as relevant, provides: “1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained: a. aliens whose expulsion has been ordered; b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered; c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees. 2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so. 3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month. ...” An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated. It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control. Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127) There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point. On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999. On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin. On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension. | 0 |
train | 001-107658 | ENG | NOR | ADMISSIBILITY | 2,011 | AGALAR v. NORWAY | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicant, Mr Heiresh Kakazar Agalar, is an Iraqi national who was born in 1980 and lives in Strømmen. He was represented before the Court by Mr H. Frihagen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General’s Office (Civil Matters), as their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant stated that he arrived in Norway on 16 August 2006. On the same date he applied for asylum under the name Heiresh Kakazar Agalar. During the asylum interview he informed that his surname was Mahmoud and that Agalar was the name of his home town. He further stated that upon registration of his asylum application he did not know what a surname was. He presented no passport or other recognised travel document which could confirm his identity. According to the applicant he was of Arab origin because his mother was Arab. In Iraq he had been registered as Kurdish because of his father’s Kurdish origin. The applicant affirmed that he came from Kirkuk. As a ground for applying for asylum, he referred to the generally unsatisfactory situation in Kirkuk and to his health problems related to a kidney disease. On 10 December 2007 the Directorate of Immigration refused the applicant’s asylum request for the following reasons: “The Directorate of Immigration considers that in his home country [the applicant] has not been subject to reactions by the authorities, individuals or groups that can be characterised as persecution within the meaning of the Act and the Refugee Convention. General conditions in Iraq do not indicate that [the applicant] fulfils the requirements for asylum. ... The upheavals resulting from the war, occupation and transition to Iraqi sovereignty have led to unrest in various parts of the country. In spite of the general unrest, the Directorate considers that the situation is not so geographically widespread that Iraqi asylum seekers are in general need of protection. [The applicant] comes from a village in the disputed area in Iraq. The Directorate is aware that there is considerable tension in this area between Kurds on the one hand and Arabs and Turkmens on the other. The Directorate is closely following the security situation in the area. Although the security situation is difficult, the Directorate does not consider that the current situation is of such a nature that all the inhabitants of the area are in considerable danger of losing their lives or being made to suffer inhuman treatment.” Represented by the same lawyer as before the Directorate of Immigration, the applicant appealed to the Immigration Appeals Board. It rejected his appeal on 15 October 2008, stating inter alia: “Furthermore, [the applicant] may not be sent back to an area where, for reasons similar to those given in the definition of a refugee, he is in considerable danger of losing his life or of suffering inhuman treatment, cf. section 15(1), second sentence, of the Immigration Act. The provision must be interpreted in accordance with Norway’s international commitments under Article 3 of the European Convention ..., cf. section 4 of the Immigration Act. Under this provision the requirements as to the nature of the danger and the probability that it will occur are somewhat stricter than those under the Refugee Convention. In the Return Advisory and Position on International Protection Needs of Iraqis outside Iraq dated 18 December 2006 and the Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers of August 2007, cf. the Addendum of December 2007, UNHCR advises against all return to Central and Southern Iraq, and states that Iraqi asylum-seekers from these regions should be recognised as refugees. UNHCR recommends furthermore that protection should be afforded to asylum-seekers who are not recognised as refugees. UNHCR refers to the general violence, the large numbers of internal refugees, the inability and unwillingness of the authorities to provide protection, high unemployment, inadequate supplies of fuel, electricity and water, and the inadequacy of health care, education and other services. The Appeals Board considers that the UNHCR recommendations are relevant and should be given weight since they provide important information about the situation in Iraq and make a valuable contribution to decisions on which persons have a right to protection under the Refugee Convention. However, the case cannot be decided on the basis of the recommendations alone. The Board also must take other information into account and arrive at a decision in keeping with the provisions of the Refugee Convention and other existing legislation. [The applicant] has stated that he comes from Kirkuk. The Board is aware that the situation in this area is characterised by violence and unrest, and that the security situation is unstable and difficult. Kirkuk is in the disputed area, the area surrounding the border between the Kurdish Autonomous Region and the rest of Iraq. Most of the inhabitants of the region are Kurds, and the largest minority groups are Turkmens, Assyrians and Arabs. Kirkuk is mainly under Kurdish political and military control, but the minority groups are also represented in government bodies. The level of violence has at times been high over the last few years, partly because of the presence of a number of militant groups. The violence in Kirkuk has mainly taken the form of shooting attacks, road bombs, suicide bombs and car bombs, which are primarily directed at the security forces and the police, but local politicians and their families and the civilian population have also been attacked. However, the Board considers that in spite of this, the current situation is not of such a nature that all the inhabitants of the region are in considerable danger of losing their lives or being made to suffer inhuman treatment. The latest reports from the region, including those compiled by the UN Security Council, the US Department of Defence, UNAMI and UNHCR, indicate that the security situation is improving. The violence is currently more limited in scope and seems to be targeted more often at particular groups than is the case in other central and southern parts of Iraq. The Board’s established practice also indicates that in Kirkuk the general security situation alone does not justify protection of Kurds. In this connection the Board comments that since [the applicant]’s father is a Kurd and since [the applicant] is registered in Iraq as a Kurd, he must be considered to be a Kurd. ... Under section 8(2) of the Immigration Act, a work or residence permit may be granted on grounds of strong humanitarian considerations or when a foreign national has a particular connection with Norway. The provision is not intended to cover circumstances that are common to most appellants. Examples of factors that may be taken into account in an overall assessment are that return to the home country is inadvisable for [the applicant] or that the decision would involve immigration policy considerations. As regards the available information concerning [the applicant]’s state of health, the Board comments that health-related circumstances do not as a rule constitute grounds for a stay in Norway. The claim that treatment in Norway is in general better than in [the applicant]’s home country is not being given weight since it is noted that [the applicant] is able to receive necessary and adequate treatment in his home country. [The applicant] has himself stated that treatment for kidney stones is available in Iraq. If the claim based on [the applicant]’s state of health is to be given weight in the overall assessment, this must in principle be documented in writing in the form of an up-to-date medical certificate issued in Norway. Normally less weight is given to certificates that are not in accordance with chapter 7 of Circular IS-9/2006, “Certificates/medical certificates etc. for use in cases relating to foreign nationals”, published by the Norwegian Directorate of Health. Importance is not normally attached to undocumented or insufficiently documented information concerning health. It is noted that the Board has not received any information concerning [the applicant]’s state of health. If a permit is to be granted on the basis of physical health problems alone, the problem must be sufficiently serious for [the applicant]’s return to his home country to be considered unjustifiable. In practice, this means that the illness must be acute and life-threatening. In exceptional cases, a permit may be granted in the event of a serious chronic illness that would threaten the patient’s life if left untreated. The Board considers that [the applicant]’s health problems are not serious enough to constitute the sole basis for a permit. Kidney stones cannot be considered a serious chronic life-threatening illness. There are therefore no strong humanitarian considerations that would constitute grounds for granting a permit under section 8, second paragraph, of the Immigration Act. According to the information provided by [the applicant], he lived in Iraq until the age of 25, while he has only lived in Norway for less than two years. Furthermore, his family is in Iraq. His connection with his home country is strong, and he has no particular connection with Norway. His stay in connection with his application for asylum cannot be given weight. The Board considers that [the applicant] does not have a sufficiently strong connection with Norway to justify the granting of a work or residence permit. On the basis of an overall assessment, the Board considers that the conditions set out in section 8(2) of the Immigration Act have not been fulfilled. Thus, there are no grounds for granting a work permit under this provision.” On 17 November 2008 the Immigration Unit of the Police gave the applicant until 24 November 2008 to contact the police regarding his departure from Norway. On 15 October 2009 the applicant filed a request to the Court to stop his deportation to Iraq. On 6 November 2009 the President of the First Section decided in the interest of the proper conduct of the proceedings before the Court to indicate to the Norwegian Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Iraq until further notice. On 9 November 2009 the Immigration Appeals Board accordingly decided to suspend the enforcement of its decision. On 5 January 2010 the President decided to give notice of the application, inviting the parties to address the following two questions: “1. Has the applicant exhausted domestic remedies with regard to his submissions to the effect that his expulsion to Iraq would be contrary to the Convention? 2. Bearing in mind, amongst other considerations, the position of the United Nations High Commissioner for Refugees’ with regard to forcible return to Central Iraq and their assessment of the general situation in that part of the country, including in Kirkuk (the applicant’s former place of residence), would his expulsion to Iraq be compatible with Articles 2 or 3 of the Convention?” In the meantime, on 16 October 2009, the applicant provided certain documents, including medical statements according to which he had suffered from a kidney stone disease at a young age and had undergone an operation. Whilst one kidney had a defect, the other functioned normally. He also suffered from chronic muscular- and bone infection, resulting in reduced functional ability and affecting him daily. Arrangements had been made for him to receive physiotherapy. The Immigration Appeals Board interpreted this new information as a request for reconsideration of its rejection of 15 October 2008 and rejected the request on 9 February 2010, giving the following reasons: “There is no basis for altering the Board’s previous decision. The case is essentially in the same position as that previously determined and reference is made to the reasoning in that decision. What is of central importance for an application for asylum is the alleged need for protection according to Article 1 A of the Refugee Convention and/or section 28 of the Immigration Act. By its earlier decision the Board rejected the application for asylum. No new information has emerged suggesting that [the applicant] nonetheless has a need for protection. In the Board’s assessment, there were no such circumstances as mentioned in section 28(1) of the Immigration Act. If justified by strong humanitarian considerations and if the foreign national has particular links to Norway, a residence permit may be granted under section 38(2) of the Immigration Act. Making a concrete assessment of the request for reconsideration and other information in the case, the Board does not find that this condition has been fulfilled. The request for reconsideration is in the main based on the [the applicant’s] state of health. The Board observes that a consideration of a claim to stay in Norway on grounds of a claimant’s health condition must be based on the causes of the health problems, their level of seriousness, the need for treatment and the availability of treatment in the person’s country of origin. It is not decisive whether the treatment offered in Norway is in general better than in the person’s home country, or whether the quality of life is generally better in Norway. It is more a question of whether it is inadvisable to return to the home country. According to the Board’s practice, in cases of physical illnesses there ought, as a starting point, to be an acute and life-threatening suffering. Exceptionally, a permit to stay may be granted if the appellant suffers from a serious and chronic illness that by its nature may be life-threatening if it is not treated. The Board cannot see that the submitted information concerning [the applicant]’s state of health is of such a seriousness, has been caused by such factors, or that there is a future need for medical treatment, as to warrant a residence permit on this ground.” On 31 May 2010 the applicant, with the assistance of a lawyer, applied to the County Governor of Oslo and Akershus for a grant of free legal aid (fri sakførsel) under section 16 (3) of the Free Legal Aid Act 1980, in order to have his case reviewed by the courts. He referred to the Court’s Rule 39 indication of 6 November 2009 mentioned above and to its decision to give notice of the application to the Norwegian Government. The applicant pointed out that he held no residence- or work permit, but his stay in Norway was lawful because the authorities had suspended the enforcement of his expulsion following the Court’s Rule 39 indication. In this situation he had no right to pursue gainful employment or to receive social security benefits and therefore had no means of obtaining an income. The condition of indigence applying to grants of legal aid had therefore been fulfilled. The applicant further emphasised that the case affected him particularly. He feared being killed or exposed to torture, inhuman or degrading treatment upon return to his home country. He stressed that it was only in a small proportion of cases that the Court applied Rule 39 and gave notice of the application to the respondent State. As a starting point the national remedies ought to be exhausted before lodging an application with the Court. The applicant did not have the necessary financial means for obtaining judicial review. The case raised so many complex issues of fact and of law that the applicant could not be expected to represent himself. He did not master Norwegian. Without free legal aid it would not be possible for him to have his case reviewed by the national courts. In this case, where the Court had applied Rule 39 and given notice of the application to the respondent State, it was obvious that the case had reasonable prospects of success. In cases involving allegations of violations of the Convention that were not manifestly ill-founded and were made by litigants who did not have any lawful means of receiving an income, legal aid should be granted liberally. In any event, in this case legal aid should be granted in view of the real and immediate risk the applicant was facing of treatment contrary to Articles 2 and 3 of the Convention upon return. On 16 June 2010, the County Governor, making a global assessment on the basis of Circular G-12/05 and observing that an exemption from the duty to pay court fees was to be dealt with under the same rules as free legal aid (section 25 of the Free Legal Aid Act) refused the request on the ground that he did not consider the conditions in section 16 (3) of Act to have been fulfilled: "The County Governor does not find that there are special reasons to depart from the restrictive practice that applies in respect of a grant of legal aid before the courts in non-prioritized areas such as that of the present case. The [applicant]’s fundamental legal guarantees must be deemed to have been safeguarded through the administrative proceedings in this case. Furthermore, the County Governor has taken into account the argument that the European Court of Human Rights has taken the measure to invite the Norwegian State to submit observations in the case and further that this is done in a very small proportion of the cases, but cannot see that this is a sufficient reason for departing from the very strict practice applied in immigration cases not falling under section 16 (1) no. 4, cf. Circular G-12/05, paragraph 6.5.2.” The applicant appealed but on 28 June 2010 the State Civil Affairs Authority upheld the County Governor’s decision. Albeit satisfied that the applicant fulfilled the financial conditions for free legal aid, it dismissed his appeal notably with reference to section 16 (3) of the Free Legal Aid Act, giving inter alia the following reasons: section 16 (1) no. 1 of the Free Legal Aid Act, cf. the Ministry of Justice’s Circular G-12/05, section 6.5. In immigration cases that are not prioritised, free legal representation is granted only exceptionally, if there are entirely special reasons, for example where the case raises questions of particular interest that have not previously been examined by the courts. The State Civil Affairs Authority finds against the background of the documents presented that the case does not have sufficient common traits with the subject matters mentioned in section 16 (1) and (2). Nor do we find it shown that the case raises questions of principle of particular interest that have not been previously examined by the courts. In practice it is considered that, as a main rule, the public authorities should not grant legal aid in cases concerning judicial review in respect of decisions by the Immigration Appeals Board. The reason for this is that the claimant already has had his or her case reviewed administratively by both the Directorate of Immigration and by the Board. These instances possess special competence within immigration law. The present case has been examined by the immigration authorities three times, without success. ... In this connection it is noted that the [applicant] has been assisted by a lawyer both in connection with his administrative appeal and his request for reconsideration. Therefore, his fundamental need for legal security must be considered to have been safeguarded through the administrative examination of the case. In the assessment regard has also been had to [the applicant’s] allegation that Norwegian authorities by their practice with regard to work-permits and free legal aid put an effective barrier against foreigners to have their cases reviewed by the courts. In this connection the State Civil Affairs Authority point to that fact that the Free Legal Aid Act is a social support arrangement aimed at ensuring legal assistance to persons who do not themselves have the financial conditions for taking care of needs for legal assistance of great importance from an individual point of view and with a view to their personal welfare, cf. section 1 of the Act. The principal aim of the Free Legal Aid Act is to provide assistance to those who do not have financial capacity to cover expenses for legal assistance. Even if the financial conditions for free legal aid are fulfilled free legal aid is not always granted in all types of cases. The Act distinguishes between priority cases without means testing, priority case with means testing and non-prioritised cases. In the present case the [applicant] fulfils the financial criteria, but the case is by nature non-prioritised according to the Legal Aid Act. In such cases a restrictive practise is generally applied. Regard is further had to the argument that the European Court of Human Rights by a letter of 16 November 2009 indicated to the Norwegian authorities not to deport the applicant. The State Civil Affairs Authority does not consider that this indication has been based on a thorough examination of the validity of the Immigration Appeals Board’s decision. It is observed that it does not appear from the case documents on what ground the Court has based its decision. ...” By letter of 30 June 2011 the Government stated that the Norwegian office of the International Organization for Migration (IOM) had informed Norwegian immigration authorities that the applicant had on 3 June 2011 applied, via IOM Norway, for voluntary return to his country of origin. On 12 July 2011 the applicant’s lawyer informed the Court that the application to IOM would be withdrawn the same day. Under the 2005 Code of Civil Procedure (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 1-5, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 29-1) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act 1999). Under Chapters 32 and 34 of the Code, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order. Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines. At the material time, the fee for filing a lawsuit before a City Court or a District Court (tingrett) was 4,300 Norwegian kroner (“NOK”), corresponding to approximately 550 Euros (“EUR”), if the hearing lasted for one day and NOK 6,880 (EUR 880) if the hearing lasted for two days. Pursuant to section 3 of the Court Fees Act 1982, fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. In the event that payment is not effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided: “If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act 1980, a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee. If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities. If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.” An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below). According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2). Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case: “Free legal representation shall be granted without means testing in ... the following instances: ... 4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act [2008] .... ... In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry. In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections. In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation. Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.” In Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2: “In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.” Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided: “In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.” The Government referred in particular to the following provisions of the Code of Civil Procedure: Section 9-4 Conduct of the proceedings. Plan for further proceedings “(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.” Section 11-2 The court’s position with regard to the procedural steps taken by the parties “(1) .... (2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.” Section 11-3 The court’s responsibility to apply the law “The court shall on its own motion apply current law within the scope of section 11-2(1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.” Section 11-5 The court’s duty to give guidance “(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ... (2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules. (3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified. (4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case. (5) The court may encourage a party to offer evidence. (6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel. (7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.” Section 11-6 Duty of the court to take an active part in the conduct of the proceedings “(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner. (2) .... (3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings. ...” According to a report of 18 December 2006 by the United Nations High Commissioner for Refugees (UNHCR Return Advisory and Position on International Protection Needs of Iraqis Outside Iraq), no forcible return of Iraqis from Southern or Central Iraq should take place until there was a substantial improvement in the security and human rights situation in the country. In a follow-up report of August 2007 (UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers), the UNHCR encouraged the adoption of a prima facie approach for Iraqi asylum-seekers from Central and Southern Iraq and stated that they should be considered as refugees based on the 1951 Convention relating to the Status of Refugees in signatory countries. In its more recent Eligibility Guidelines of April 2009, the UNHCR observed that in view of the serious human rights violations and ongoing security incidents which were continuing in the country, most predominantly in the five Central Governorates of Bagdad, Diyla, Kirkuk, Ninewa and Salah-Al-Din, the UNHCR continued to consider all Iraqi asylum seekers from these five Central Governorates to be in need of international protection and stated that, in signatory countries, they should be considered as refugees based on the 1951 Convention criteria (see paragraph 12 of the Guidelines). The Guidelines observed inter alia: “27. In the context of the Central Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din where, even though the security situation has improved in parts, there is still a prevalence of instability, violence and human rights violations by various actors, and the overall situation is such that there is a likelihood of serious harm. Armed groups remain lethal, and suicide attacks and car bombs directed against the MNF-I/ISF [Multinational Forces in Iraq/Iraqi Security Forces], Awakening Movements and civilians, in addition to targeted assassinations and kidnappings, continue to occur on a regular basis, claiming the lives of civilians and causing new displacement. These methods of violence are usually targeted at chosen areas where civilians of specific religious or ethnic groups gather, including places of worship, market places, bus stations, and neighbourhoods. Violence appears often to be politically motivated and linked to ongoing struggles over territory and power among various actors. As clarified above, even where an individual may not have personally experienced threats or risks of harm, events surrounding his or her areas of residence or relating to others, may nonetheless give rise to a well-founded fear. There is also more specific targeting of individuals by extremist elements of one religious or political group against specific individuals of another, through kidnappings and execution-style killings.” As regards Kirkuk, the Guidelines included the following observations (footnotes omitted): “202. Most violence in the Governorate is linked to the yet unresolved administrative status of Kirkuk and related power struggles between the various Arab, Kurdish and Turkmen actors. Security conditions in Kirkuk Governorate, and in particular in Kirkuk City, tend to worsen during political events related to the status of Kirkuk as armed groups aim at influencing political decisions. For example, during intense negotiations over a provincial elections law in summer 2008, a suicide attack on demonstrating Kurds resulted in an outbreak of inter-communal violence, in which more than 25 people were killed and over 200 injured. Conversely, tensions and sporadic violence can complicate future status negotiations. With the postponing of provincial elections in Kirkuk, the security situation has somewhat stabilized. However, simmering inter-communal tensions are prone to erupt into new violence ahead of decisions to be taken in relation to Kirkuk’s unresolved status. Some observers note that tensions among ethnic groups over the unresolved status of Kirkuk could turn into another civil war. Insurgent groups such as AQI [Al-Qaeda in Iraq] also aim at stirring inter-communal violence by attacking proponents of ethnic/religious groups. Furthermore, it has been reported that community groups in Kirkuk are arming themselves in preparation for future clashes. 203. Kirkuk’s Arab and Turkmen communities complain of harassment, intimidation, arbitrary arrests and demographic manipulation at the hands of the Kurds, who dominate the Governorate’s political and security institutions. Kurdish law enforcement personnel and political leaders are in turn popular targets for assassination. PUK and KDP offices are also a regular target of attacks. Recently, two members of the Kurdistan Communist Party have been killed in their homes in Kirkuk. The brother of a high-ranking member of the same party was also killed. Religious and ethnic minorities often find themselves caught up in the middle of struggles for power and territory. 204. In Kirkuk Governorate, there are regular roadside bombings, shootings, and occasional car bombs and suicide attacks. On 11 December 2008, a suicide bomber killed 46 people and wounded nearly 100 when he detonated his explosive vest in a restaurant packed with government officials, women and children during lunch near Kirkuk City. There are also targeted kidnappings and assassinations, including of security officials, tribal leaders/SoI [Sons of Iraq], government officials and employees, (mostly Kurdish) party officials, members of minority groups [referring notably to two incidents of attacks against Christians], journalists and other professionals. Dead bodies continue to be found occasionally in Kirkuk Governorate.” In July 2010 the UNHCR issued a Note on the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers. It contained the following information on security developments (footnotes omitted): “Under the Status-of-Forces Agreement (SOFA) of 30 June 2009, the Iraqi authorities have taken over full responsibility for the security of the country. The former Multinational Forces-Iraq/United States Forces-Iraq (former MNF-I/USF-I) have withdrawn from Iraqi cities, towns and villages and operate from their military bases at the request of the Iraqi Government. Currently, the US is drawing down all combat forces and is expected to complete this process by 31 August 2010. The Iraqi Security Forces (ISF) have almost reached their intended end strength of about 680,000 members. Since spring 2009 the Iraqi Government has been fully responsible for managing and integrating the largely Sunni Awakening Councils or Sons of Iraq (SoI) groups into the ISF and Iraqi government employment. This process is still ongoing and by April 2010, of the 94,000 SoI, some 9,000 had transitioned into the ISF and over 30,000 into other government employment. The Iraq Body Count (IBC), a project which maintains data on civilian deaths, reported that in 2009 the annual civilian death toll was 4,644. Reports for 2010 indicate that some 2,000 Iraqis were killed and some 5,000 others were injured during the first five months of 2010. An upsurge in violence was noted since the 7 March 2010 elections and casualty statistics for the months of April and May 2010 reflect an increase in the numbers of Iraqis killed and wounded in violence. Reports show that in 2009 and early 2010, insurgents carried out several mass-casualty attacks, including on high-profile, highly guarded targets such as Iraqi government institutions, prominent hotels and foreign embassies. The assaults resulted in hundreds of civilians killed or injured in the attacks. Al-Qa’eda in Iraq claimed responsibility for the attacks against embassies in Baghdad and residential targets in mainly Shi’a districts of the capital in early April 2010. The reported incidents mostly took place in the central governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din as well as in Al-Anbar, which has seen an increase in violence since the summer of 2009. The relatively stable security situation in the Southern governorates is reportedly occasionally disrupted by mass-casualty attacks and low level violence mainly in areas close to Baghdad. The Kurdistan Region remains relatively stable, though there have been reported assaults on journalists and political opponents. Among other security related developments worth noting is the start of the implementation of an interim joint security plan for Kirkuk and other internally disputed areas by the USF-I. The plan is based on joint action and coordination by the Iraqi Army and Police as well as the Kurdistan Regional Government (KRG) Peshmerga. Thus far, the joint security plan has resulted in the establishment of a network of checkpoints and joint patrols around major cities, and the training of security personnel. Addressing the overall issue of the status of the “disputed areas” is among the challenges that await the new Government. Crucial matters to be resolved in this area include administrative boundaries, the control of oil resources, minority rights and other matters. Since early 2010, the ISF, with the help of the USF-I, have arrested or killed a large number of senior insurgent leaders, in particular members of Al-Qa’eda in Iraq. Ongoing attacks illustrate that the groups are still intent on, and capable of, attacks. Reports indicate that the targeting of Government of Iraq officials, members of the Iraqi security forces, Awakening Council members and prominent citizens continue unabated. Among the frequently targeted are Shiite civilians and pilgrims as well as religious sites in different areas, religious and ethnic minority groups mainly in Ninewa and Kirkuk Governorates (Yazidis, Turkmen, Shabak and Kaka’i), and the Christian minority, mainly in Ninewa, which includes 5,000 Christians displaced from Mosul in early 2010. Compared to 2008, there has been a significant increase in the use of magnetic and adhesive bombs attached to vehicles as a weapon to assassinate particular individuals. Profiles targeted include, in particular, government officials and employees, party officials, members of the Awakening Councils or Sons of Iraq (SoI), members of the ISF (including off-duty members), religious and ethnic minorities [referring to several incidents of attacks against Christians and a suicide truck bomber in, a Shi’ite Turkmen town 20 km south of Kirkuk destroying homes and damaging another 100 homes, affecting 600 people], Sunni and Shi’ite clerics, journalists, academics, doctors, judges and lawyers, human rights activists and Iraqis working for NGOs or the USF-I and foreign companies, alcohol vendors (which are commonly Christians or Yazidis), women and LGBT individuals. ... III. Conclusion The situation in Iraq is still evolving. UNHCR will continue to monitor developments in the country and will update the April 2009 UNHCR Guidelines once it judges that the situation is sufficiently changed. In the interim, UNHCR advises those involved in the adjudication of international protection claims lodged by asylum-seekers from Iraq and those responsible for establishing government policy in relation to this population continue to rely on the April 2009 UNHCR Guidelines. Accordingly, the current UNHCR position on returns to Iraq also remains unchanged.” The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information, has in a report of 28 October 2008 stated the following about the security situation in Kirkuk city, and the situation for the Kurdish population there (footnotes and references omitted): “2. KIRKUK 2.1 SECURITY SITUATION It is generally recognized that the level of violence in Kirkuk is by far lower than that in Baghdad and Mosul. The majority of the security incidents in the city appear to be attacks against police and military. Most frequent are attacks against road patrols, and against checkpoints and personnel. These attacks both take place on the roads between Kirkuk and surrounding areas and inside the city. Occasional civilian casualties result from such attacks ... . There are also occasional indiscriminate attacks aimed directly at civilians, such as suicide attacks at crowded places inside the city. Additional types of targets have been recorded by Landinfo since October 2005. These targets are very diverse. There have been attacks on local Kurdish political leaders and their families, on engineers and building contractors, oil business executives, private security guards, gas station workers, churches, Shiite mosques, polling stations, and at a Turkmen political party office. In October 2008 an Iraqi journalist was killed. The intensity of attacks against all target groups seems to have remained quite stable over the years. Between September 2005 and March 2006, 44 reported incidents were recorded ... . During November and December 2006, a total of 30 individuals were reported killed in violent incidents (DMHA 2006). In March 2008, it was reported that violence had gone up since 2006, and that security remained highly unstable ... . According to the US military commander in Kirkuk, by the summer of 2008 violence had dropped by two thirds as compared to the summer of 2007 ... . Figures indicate that since August 2008, violence remains stable through October ... . We do not have figures for the summer of 2007, nor do we know for how long period of time ‘summer’ refers to. What the sources indicate, however, is that violence went up by March 2008, then down again by summer the same year, and that it seems to have stabilized somewhat afterwards. With the reservation that we don’t have exact figures to substantiate this trend, we do see, however, that the occurrence of violence is unstable through a fairly short period of time. The factors accounting for the security problems continue to be present for the foreseeable future. Accordingly, an unstable level of violence may be expected to continue. ... 2.3 THE SITUATION FOR KURDS IN KIRKUK It is commonly assumed that Kurds currently make up a majority of the population in Kirkuk city. However, no exact figures are available ... . A planned census has so far not been held. The city is run by a city council at which the main ethnic groups are proportionally represented. Accordingly, the Kurdish parties are in a majority. The city is said to be effectively run by the PUK [Patriotic Union of Kurdistan] ..., which also governs the neighbouring governorate of Sulaymaniyah, The KRG [Kurdistan Regional Government] is reportedly directly financing the teaching of the Kurdish language in Kirkuk’s schools ... . The security in the city is handled by the MNF [Multinational Forces], the Iraqi Army, the Kurdish dominated police and Kurdish intelligence (Asayish) together. Kurdish armed forces are posted inside the city. The Iraqi Army deploys three mainly Kurdish battalions there, which are supported by Kurdish Peshmerga forces not integrated in the Army. The Kurds have reportedly become the main component of the Kirkuk police. The PUK runs a separate Asayish branch in Kirkuk (Asayish Kirkuk) which reports directly to the PUK Political Bureau. Asayish Kirkuk reportedly employs possibly as many as 2000 personnel working undercover ... . There are strong indications that the Asayish plays a crucial role in providing the police and the MNF with vital intelligence about the plans and activities of armed groups operating in and around the city ... . The Kurdish population is protected by forces and agencies run or dominated by the regional Kurdish political leadership, and who are partly or wholly loyal to it. Taking these factors into consideration the Kurds, as members of the majority population in the city, could be regarded as finding themselves in a favourable position compared to members of other ethnic groups. A Thematic Note by Landinfo on the Security Situation in Kirkuk City and the Surrounding Areas (Temanotat IRAK: Sikkerhetssituasjonen i Kirkuk by og områdene rundt), dated 16 March 2010, summarised the situation as follows: “During the last two years, the security situation in Kirkuk has shown a decreasing level of activity on the part of armed groups, in spite of a persistent high level of political tension connected to the disputed political status of the city. Still, both Kirkuk city and Kirkuk province continue to be plagued by persistent political violence. There are no clear signs of open conflict between the Kurds, Arabs and Turkmen population groups, but widespread mutual mistrust seems to prevail along with a possibly increasing physical segregation between them. In this environment, militants continue to carry out attacks. The armed groups operating in Kirkuk, Hawija and Tuz Khormatu are all Sunni Moslem. They appear as periodically connected to each other logistically, and to be coalescing over time.” In Section 2 of the Note it was observed inter alia that the conflict related violence in Kirkuk had continuously decreased since 2007 and had in 2009 reached its lowest level since 2004. Nonetheless, politically motivated violence still occurred on a daily basis. There were otherwise no new patterns of acts of violence. It was still the situation that such acts were primarily targeting authorities, the army and the political milieu. However, the casualties among the civilian population were considerably higher than those of the target groups. The level of political violence appeared relatively low in view of the continuous political tensions related to the unclear political status of the city. At the same time, the political violence was directly linked to unresolved political questions. Both Kurdish regional authorities and the national central authorities claimed a right to governance in the city. There was little information available which systematically presented the situation in the province for each of the three ethnic groups – Kurds, Arabs and Turkmens. According to the newspaper Today’s Zaman of 10 February 2010, the local police was composed of 36% Kurds, 39% Arabs and 26% Turkmens. In the Kurdish areas of the city there were both Kurdish and Turkmen officers. In the Hawija district west of Kirkuk, the officers were Arabs. Even though the different groupings were reasonably well represented within public administration and education, distrust between them had frequently been reported since 2003. The UK Border Agency (Home Office) Country of Origin Information Report of 30 August 2011 provided the following information (footnotes omitted): “Kirkuk 8.80 The UNSC [United Nations Security Council] Report July 2010, dated 29 July 2010, covering events since 14 May 2010 noted that: ‘Kirkuk has been generally stable since the previous reporting period. On 8 June [2010], shots were fired at a USF-I/United Nations convoy travelling in Kirkuk, resulting in one USF-I soldier being wounded. No UNAMI staff members were injured and the convoy immediately returned to Forward Operating Base Warrior.’ However the subsequent UNSC Report November 2010, published 26 November 2010, observed that: ‘[t]he withdrawal of the United States Forces in Iraq is likely to have a short- to medium-term effect on the security situation’. 8.81 The Danish FFM Report on Security and Human Rights in South/Central Iraq conducted February – April 2010, published 10 September 2010 citing a reliable source in Iraq stated: ‘... that Kirkuk, with its unique status, is a completely different matter. The situation is fragile and Iraqi Security Forces (ISF) and US forces have a strong presence in the area. AQIs [Al Qaeda in Iraq] and insurgent groups’ presence contribute to making the situation particularly volatile, and there are reports that AQI is using children as suicide bombers or combatants in Kirkuk.’ See also the section heading on Northern Iraq which highlighted that in February 2011 Kurdish Peshmerga troops entered Kirkuk governorate in violation of agreed security procedures in place between Kurdish and Iraqi forces.” The third report of the UN Secretary-General to the UNSC, pursuant to paragraph 6 of resolution 1936 (2010), included inter alia the following observations: “II. Summary of key political developments pertaining to Iraq A. Political developments ... 8. In Kirkuk, Kurdish parties holding the two most senior political posts, Governor and Chairman of the Provincial Council, agreed to give up the latter, as a gesture of goodwill in order to move the political process forward and to accommodate a long-standing demand by Turkmen and Arab components. Hassan Turan (Turkmen) was elected to the post of Chairman, Najmaldin O. Karim (Kurdish) was appointed as the new Governor and Rakan Sa’id al-Jubouri (Arab) remained Deputy Governor. 9. On 31 March, Kurdish Peshmerga troops that had been deployed around the city of Kirkuk since 25 February 2011 withdrew and returned to the Kurdistan region. The incident served as a reminder of the challenges that remain as the United States Forces in Iraq draw down and the combined security mechanism comes to an end. The combined security mechanism was established to encourage Iraqi security forces and Kurdish Peshmerga troops to coordinate their operations, set up joint patrols and checkpoints and exchange information under the auspices of the United States Forces. The Government of Iraq and the Kurdistan Regional Government have yet to agree on the future of the combined security mechanism or any successor arrangements that could be put into place after the departure of the United States Forces. 10. The United States Forces in Iraq have continued their planned withdrawal from the country with the intention of completing their departure by 31 December 2011, as envisaged under the status-of-forces agreement signed between the Governments of Iraq and the United States of America. Discussions have been ongoing regarding the possibility of some United States forces remaining beyond 2011 to provide training and support. The Prime Minister has stated that the issue would be decided on a consensus basis through dialogue among the political blocs, as formal agreement would require approval by the Council of Representatives. ... III. Activities of the United Nations Assistance Mission for Iraq A. Political activities 21. The standing consultative mechanism met several times during the reporting period. This initiative, which was launched in March 2011 under the auspices of UNAMI, brings together representatives of key political blocs to discuss outstanding issues related to disputed internal territories, including Kirkuk. The participants include representatives of the three main political blocs: Deputy Prime Minister Rowsch Shaways (Kurdistan Alliance), Member of Parliament Hassan al-Sunaid (National Alliance) and Finance Minister Rafi al-Issawi (Iraqiya). The participants agreed to focus on the following issues: (a) Kirkuk, including powersharing issues and conducting provincial council elections; (b) Ninewa, the current political stalemate, power-sharing and security issues; (c) the future of the combined security mechanism; and (d) the census. On 25 April, participants agreed that subsequent meetings would be expanded to include local stakeholders from the Kirkuk and Ninewa governorates. On 16 June, a meeting was held that brought together for the first time all members of the Council of Representatives from Kirkuk in order to discuss issues related to power-sharing and the prospects of holding provincial council elections in Kirkuk. ... E. Human rights activities 41. The reporting period witnessed a significant rise in assassinations of political leaders, government officials and security personnel. ... Assassination attempts were carried out against a Turkmen Member of Parliament from Kirkuk ... on 12 ... May .... 42. Honour crimes committed against women are a continuing source of concern. UNAMI recorded the deaths in suspicious circumstances of nine women between April and May in Kirkuk. Police informed UNAMI that three of the deaths were listed as suicides and four as murders carried out by unknown persons, while the causes of death of the other two women were unconfirmed but regarded as suspicious. ... 43. There continue to be sporadic reports of children experiencing acts of indiscriminate violence and abductions. ... On 2 April, in Kirkuk, criminal gangs abducted a 6-year-old girl who was later released after a ransom was paid. On 21 April, a 12-year-old boy was abducted in Kirkuk; his fate remains unknown. 44. During the reporting period, a number of public demonstrations were held, most of them peaceful. ... F. Security, operational and logistical issues 50. During the reporting period, the United Nations continued to operate in a challenging security environment. On 5 May, a car bomb targeted the Iraqi police headquarters in Hilla, killing 30 policemen. In another incident on 19 May, a complex attack on the Kirkuk Provincial Joint Coordination Centre left 20 people dead and 80 injured, including Iraqi police and civil defence members. This particular attack is believed to have been in response to the recent successful efforts by Iraqi security forces to locate weapons caches and key personnel wanted for terrorist attacks. ... 52. During the reporting period, UNAMI has been working on the transition of security support from the United States Forces to the Iraqi security forces. On 24 April, the Iraqi National Security Council requested that the Office of the High Commander of the Armed Forces, in coordination with the Ministry of Defence and the Ministry of the Interior, support UNAMI protection requirements. 53. During the reporting period, UNAMI also took steps to put in place the necessary logistical arrangements to substitute the support of the United States Forces. UNAMI is also continuing preparations to ensure that it is able to sustain its presence in Kirkuk and Basra. 54. With support from the United Nations standing police capacity, a start-up team of four UNAMI police liaison personnel have been deployed to Baghdad, Erbil and Kirkuk to engage and coordinate UNAMI operations with the Ministry of the Interior and Iraqi police. ... IV. Observations ... 60. Although the status of Kirkuk and other disputed internal territories remain divisive issues, I am encouraged by recent efforts by key Iraqi stakeholders to find common ground. Through the standing consultative mechanism under UNAMI auspices, political leaders, members of parliament and local representatives of Kirkuk have engaged in a dialogue on critical issues that will affect the future of Kirkuk and other disputed areas, including future security arrangements. I encourage the Government of Iraq and the Kurdistan Regional Government to continue to use this important forum to find mutually acceptable solutions that ultimately serve the interests of national reconciliation and long-term stability. The United Nations stands ready to assist in this process upon the request of the Government.” | 0 |
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