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train | 001-80427 | ENG | RUS | CHAMBER | 2,007 | CASE OF PROKOPENKO v. RUSSIA | 4 | Violation of Art. 6-1 | Christos Rozakis | 4. The applicant was born in 1949 and lives in the town of Elektrostal in the Moscow Region. 5. On 27 April 2002 the applicant sued her former employer, a private company, for reinstatement, payment of wage arrears and compensation for non-pecuniary damage. 6. On 30 July 2002 the Elektrostal Town Court dismissed the action. On the same day the applicant lodged before the Moscow Regional Court her statement of appeal against the judgment. 7. The Moscow Regional Court accepted the statement of appeal and fixed a hearing for 12 September 2002. According to the Government, on 5 September 2002 the Town Court summonsed the parties for the appeal hearing. The Government provided the Court with a copy of the covering letter of 5 September 2002 sent by the Town Court to the Moscow Regional Court and the parties, including the applicant. The letter indicated that the Town Court had sent the case-file to the Regional Court and that the appeal hearing had been fixed for 12 September 2002, at 10.30 a.m. The Government also submitted copies of receipts issued by the local post office on 5 September 2002 showing that it had accepted for delivery eight registered letters from the Town Court. 8. On 12 September 2002 the Moscow Regional Court, in the presence of the defendant's representative, upheld the judgment of 30 July 2002. The applicant did not attend the hearing. According to her, in the evening of 12 September 2002 she discovered the letter with summonses to the hearing of 12 September 2002 in her post box. 9. On 3 August 2000 the applicant sued her former employer for provision of free housing. On 21 December 2000 the Elektrostal Town Court dismissed the action. The judgment was upheld on appeal and became final on 6 February 2001 10. In July 2004 the applicant again sued her former employer for provision of free housing. On 24 November 2004 the Moscow Regional Court, in the final instance, disallowed the action because the same dispute between the same parties had been already determined by the final judgment of 6 February 2001. 11. In 2004 the applicant requested the Elektrostal Town Court to quash the judgment of 21 December 2000, re-open the proceedings due to newly-discovered evidence and re-examine her action. On 26 April 2004 the Moscow Regional Court, in the final instance, dismissed request because there was no newly-discovered evidence in the case. 12. The RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time): “Parties and their representatives are to be notified with court summonses of a date and place of a court hearing or certain procedural actions ... A summons is to be served on parties and their representatives in such a way that they would have enough time to appear at a hearing and prepare their case... Where necessary, parties and their representatives... may be summonsed by a phone call or a telegram.” “Summonses are to be sent by mail or by courier. A time when a summons was served on an addressee is to be recorded on the summons and its copy which is to be returned to a court...” “A summons is to be served on a person against his/her signature made on a copy of the summons which is to be returned to a court...” “A civil case is to be heard in a court session with mandatory notification to all parties to the case...” “If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned...” | 1 |
train | 001-108014 | ENG | UKR | CHAMBER | 2,011 | CASE OF VENIOSOV v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-c;Non-pecuniary damage - award | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | 5. The applicant was born in 1968 and lives in Stary Krym. 6. In February 2005 the Prosecutor’s Office of the Autonomous Republic of Crimea (ARC) instituted criminal proceedings against several police officers, including the applicant, on charges of abuse of position. 7. On 28 February 2005 the applicant was arrested in connection with these proceedings. In the course of the proceedings the applicant was detained in various detention facilities, including the Feodosiya Temporary Detention Centre (“the Feodosiya ITT”), where he was held from 25 August 2005 to 5 January 2006 and from 25 January to 5 February 2006. 8. On 3 March 2005 the applicant was brought before the Central District Court of Simferopol (the “District Court”) which ordered that more information on the applicant be obtained to decide on his further detention. The District Court also decided that, pending the collection of this information, the applicant’s detention should be extended until 10 March 2005. 9. On 10 March 2005 the District Court extended the applicant’s detention for two months. It noted, in particular, that the applicant had been charged with numerous counts of abuse of position, connected to illtreatment of individuals and unlawful entry into residential premises. Regard being had to the nature of the charges and to the applicant’s official status, there was a high risk that he would engage in new criminal acts, put pressure on witnesses or obstruct the investigation in other ways. 10. On 22 March 2005 the Court of Appeal of the ARC (“the Court of Appeal”) upheld this decision. 11. On 26 April 2005, following a request by the prosecutors’ office, the District Court extended the applicant’s detention for another two months, noting that the investigation had still been unable to collect all the evidence, and that the applicant’s personal situation had not changed. 12. On 17 May 2005 the Court of Appeal upheld this decision. 13. By 24 June 2005 the investigation had been completed and the prosecutors’ office referred the case to the Chairman of the Court of Appeal to determine which trial court would consider the applicant’s case. 14. On 26 June 2005 the applicant requested the governor of the detention facility to release him in view of the fact that the court order for his detention had expired. His request was refused, with reference to the fact that the pre-trial investigation was finished and the bill of indictment had been transferred to the judicial authorities. 15. On 4 July 2005 the Chairman of the Court of Appeal referred the case to the Feodosiya Town Court (hereafter “the Town Court”) for trial. 16. On 10 August 2005 the Town Court committed the applicant for trial. According to the Government, on the same date the court upheld the applicant’s detention, having found no reasons to release him. According to the applicant, the court did not decide on the issue of extension of his detention on that date. The parties did not provide a copy of the relevant Town Court decision. 17. On 4 January 2006 the Town Court, having examined the case in the course of adversarial proceedings, in which the applicant was represented by an advocate of his choice, found the applicant guilty of several counts of abuse of authority and sentenced him to three years and six months’ imprisonment. The court also prohibited the applicant from occupying a law-enforcement post for three years. 18. On 25 May 2006 the Court of Appeal upheld the judgment of 4 January 2006. 19. On 30 November 2006 the Supreme Court dismissed a cassation appeal by the applicant as unsubstantiated. 20. From 25 August 2005 to 5 January 2006 and from 25 January to 5 February 2006 the applicant was held in the Feodosiya ITT (Temporary Detention Centre). 21. According to the applicant, during his stay in the Feodosiya ITT he shared a five-square-metre cell with four to seven other detainees. The toilet and washstand in the cell were not separated from the living quarters. The cell had no windows, no table and no chairs, and the ventilation was unsatisfactory. For sleeping arrangements the cell had a wooden platform. Once every ten to twelve days the detainees were taken out for half an hour’s exercise. At all other times they remained confined to their cells. Before he was detained, the applicant had been suffering from hypertension. While he was in detention his health worsened to the point that on two occasions an ambulance had to be called. 22. On 18 July 2006 the Prosecutors’ Office of the ARC notified the applicant, in response to his complaints about the conditions of his detention, that disciplinary action had been taken against the Feodosiya ITT governor and three officers for unspecified breaches of the law. 23. On 19 July 2006 the ARC Department of the Ministry of Interior acknowledged to the applicant that the Feodosiya ITT had not been properly equipped and that the detainees had been taken out for exercise only once every ten to twelve days because of the overcrowding of the ITT facilities. They noted that the ITT building had been constructed in 1944 and had not undergone any capital renovations since that time. They also noted that the overcrowding of the ITT had been due to restrictions on the admission of detainees by the Simferopol no. 15 Pre-Trial Detention Facility (SIZO). 24. According to the Government, the Feodosiya ITT had seventeen cells, capable of accommodating thirty-seven inmates. All the cells were located in the basement and had no windows. However, the cells were well lit by electric light, enabling the detainees to read, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platforms, tables, toilets and wash-stands. The detainees were provided with pillows and mattresses. While he was in detention, the applicant was provided with meals, time for outdoor exercise and access to washing facilities. On two occasions (15 and 16 November 2005) an ambulance was called to examine the applicant at his request. He was diagnosed with a respiratory infection and hyperthermia and found not to need in-patient treatment. During his entire stay in the Feodosiya ITT, the applicant was examined regularly by medical professionals and made no other health complaints except those mentioned above. 25. The relevant domestic law concerning pre-conviction detention can be found in the judgment in the case of Molodorych v. Ukraine, no. 2161/02, §§ 57-58, 28 October 2010). 26. The relevant international material concerning the conditions of detention is summarised in the judgment in the case of Melnik v. Ukraine (no. 72286/01, § 47-49, 28 March 2006). | 1 |
train | 001-103232 | ENG | RUS | CHAMBER | 2,011 | CASE OF KHARIN v. RUSSIA | 3 | No violation of Art. 5-1-e;Remainder inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1973 and lives in Arkhangelsk. 7. According to the Government, in the evening of 11 October 2001 the Oktyabrskiy District police station received an emergency call from a local shop. Police officers were sent to the shop to investigate. On their arrival a shop security guard, Mr G., informed the police officers that a drunken man, who was subsequently identified as the applicant, was using offensive language and shouting in the shop, not responding to reprimands and disturbing the work of the shop. The Government provided written statements made by Mr G. and Ms V., a shop assistant, on 14 May 2005. The statements, in so far as relevant, read as follows: “In the autumn of 2001 (October) I was on duty in the shop... At approximately 9 p.m. a man, who was drunk, entered the shop and went to the department of the shop selling beverages. Subsequently he had an argument with a shop assistant, Ms V. I do not know the reason behind the argument. Ms V. asked me to calm the man down. When [the man] entered the sales area, he, being drunk, shouted loudly, using offensive language. Handwritten by me.” “In the autumn of 2001 (I do not remember the date), in the evening...., an unknown man entered the shop and, despite the fact that he was already drunk, began demanding that I sell him alcoholic beverages, and, his request being refused, he began using offensive language, offending shop assistants [and] disturbing the functioning of the shop; I applied to the guard in the shop [Mr G.] for assistance. [Mr G.] escorted the man from the shop; however, several minutes later the man returned and began harassing the shop guard [Mr G.], using offensive language, shouting that he would fire the shop staff; subsequently [Mr G.] pressed an emergency button and police officers arrived; [they] escorted the man from the shop and arrested him.” 8. The applicant was taken to a sobering-up centre of the Arkhangelsk Town Police Department. An officer on duty at the sobering-up centre drew up medical report no. 22. The report, provided to the Court by the Government, consisted of a one-page printed template, in which the dates, the officer's and applicant's names, the applicant's personal data and circumstances surrounding his arrest were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics): “The arrestee was discovered in an intoxicated state... by a police patrol at 9.20 p.m. in the street ... near the house. The drunken [person] exhibited the following [behaviour] at the place of his arrest strong smell of alcohol, shaky walk, scrambled speech, disorientation in time. A medical assistant, Ms S., performed a medical examination, during which a moderate state of intoxication was identified. Symptoms (which must be underlined): smell of alcohol on the breath, excited behaviour, aggressive language, blurred vision, blood pressure was not measured, pulse was not measured, shaky gait, weak legs, impaired movement coordination.... Also established during the medical examination: Conscious when admitted [to the sobering-up centre]. Mydriatic pupils. [the remaining handwritten text is illegible]” The report was signed by the officer on duty, the two police officers who had escorted the applicant to the sobering-up centre, Mr Sa. and Mr Ve., and the medical assistant, Ms S. In addition, the two escorting police officers made a note in the report alleging that the applicant was aggressive and that he had tried to initiate a fight. The applicant refused to sign the report. 9. At the centre the applicant's hands were tied to a bed with “soft ties” because he “had behaved aggressively and gestured actively”. He remained tied up for about an hour. 10. On 12 October 2001, at about 9.40 a.m., the applicant was released from the centre and brought to the Oktyabrskiy District Police Department where a report on an administrative offence was drawn up. The report indicated that the applicant had committed an offence under Article 158 of the RSFSR Code on Administrative Offences. It stated that the applicant had been arrested by the police on 11 October 2001 because he had been drunk, used foul language in a public place, thereby disturbing public order. 11. The applicant was ordered to pay 150 Russian roubles (RUB, approximately six euros) “for medical assistance provided in the sobering-up centre”. 12. On 19 October 2001 the police officers, Mr Sa. and Mr Ve., wrote similar reports to the head of the sobering-up centre, describing the circumstances of the applicant's arrest and placement in the centre. According to the police officers, in response to their request to board a police car, the applicant, who had been in a moderate state of alcohol intoxication, had started waving his hands about, using offensive language and throwing his bag around. After he had been placed in the police car, he had attempted to break metal bars and had banged on the door. He had also behaved aggressively in the sobering-up centre, waving his hands about and attempting to start a fight. Soft ties had been applied to him for a short period of time. According to the report, on admission to the centre the applicant did not have any money. 13. On the same day a deputy head of the sobering-up centre drew up a report, stating that on 11 October 2001, in the street near a house, a police patrol car had found the applicant, who was in a moderate state of alcohol intoxication. The deputy head provided the following description of the subsequent events. The applicant had been brought to the sobering-up centre where a medical assistant, Ms S., confirmed that he was moderately drunk. After the applicant had been asked to go into a room he had resisted, trying to initiate a fight with an officer, had acted aggressively and had used offensive language. The applicant had been tied to a bed with soft tissues for no longer than an hour and had calmed down. 14. Two days later the medical assistant, Ms S., wrote an explanatory statement addressed to the head of the sobering-up centre. The statement read as follows: “On 11 October 2001, at 10.30 p.m., [the applicant], who was in a state of alcohol intoxication, was brought to the duty unit of the sobering-up centre. [The state of intoxication was determined] on the following grounds: strong smell of alcohol on the breath, barely able to stand, unsteady walk. Coordination was impaired. Speech was blurred. The face and whites of the eyes were bloodshot, [the applicant] could not do coordination exercises and was unsteady in the Romberg position (standing upright with eyes closed). [The applicant] was asked to undress for a further medical examination. [He] acted aggressively, waved his hands about, attempted to start a fight, and began swinging his bag around. [He] refused to undress voluntarily and was forced to undress; [he] refused to go to a room to rest. Soft ties were applied to him from 10.30 to 11.30 p.m. to prevent damage to him and other individuals. During that [hour] the ties loosened up. On a number of occasions while he was in the sobering-up room he knocked and asked to be released and said that he was being detained unlawfully. On his release he did not make any complaints, [he] refused to sign [the report] insisting that on his admission [to the sobering-up centre] he had had money with him. He was given back personal belongings in compliance with the list which had been drawn up on his admission.” 15. The applicant asked the Arkhangelsk Town Prosecutor's office to institute criminal proceedings against officials of the sobering-up centre, claiming that they had unlawfully seized more than RUB 8,000 from him. 16. On 26 October 2001 a senior assistant to the Arkhangelsk Town Prosecutor dismissed the applicant's complaint, finding that there was no case to answer. The senior assistant concluded that there was no evidence in support of the applicant's allegation that he had had money on him before his admission to the sobering-up centre. 17. The applicant lodged a complaint with the Oktyabrskiy District Court seeking annulment of the decision of 26 October 2001. In addition, he brought a complaint with the Lomonosovskiy District Court of Arkhangelsk against the sobering-up centre of the Arkhangelsk Town Police Department. While not disputing that on 11 October 2001 he had been under the influence of alcohol, the applicant claimed that he had been arbitrarily detained in the sobering-up centre on the basis of an internal regulation adopted by an order of the Ministry of Interior. He further argued that he had been ill-treated at the centre as the police officers had forced him to stay in a very painful position known as “the swallow” [ласточка]. In addition, the applicant alleged that he had been forced to pay for medical assistance although such assistance was never provided. 18. On 29 October 2002 the Lomonosovskiy District Court dismissed the applicant's complaint against the sobering-up centre. It grounded its findings on medical report no. 22 drawn up in the centre on 11 October 2001 and statements by the medical assistant, Ms S., the police officer, Mr V., who had escorted the applicant to the centre, and the head of the centre. The District Court found as follows: “By virtue of paragraph 18 of [the Regulations on Medical Sobering-up Centres at Town (District) Police Stations], approved by Order no. 106 of the USSR Ministry of Interior on 30 May 1985, individuals in a state of alcohol intoxication (moderate or severe) who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals. Due to the fact that [the applicant] was in a moderate state of alcohol intoxication, and his appearance – his walk was unsteady, he had a hard time keeping himself upright, he talked incoherently, he reeked of alcohol - offended human dignity and public morals, officials of the sobering-up centre had the right to take him to the sobering-up centre and keep him there until he sobered up. ... By virtue of paragraph 9 of [the Instruction on Provision of Medical Assistance to Persons Brought to Medical Sobering-up Centres] a medical assistant ... should determine the period necessary for an individual to sober up; however it should not exceed twenty-four hours. As follows from the case file materials [the applicant] was detained in the medical sobering-up centre from 10.30 p.m. on 11 October to 9.40 a.m. on 12 October 2001, which is no longer than twenty-four hours. ” The District Court also held that the payment for medical assistance had been lawful and that the applicant had paid the sum of RUB 150 voluntarily. It did not address the alleged disappearance of cash. 19. The applicant appealed against the judgment of 29 October 2002. In his statement of appeal he complained that he had been unlawfully detained against his will, that the District Court had grounded its judgment solely on statements by the officials of the sobering-up centre and that his unsteady walk and incoherent speech before his detention in the sobering-up centre had not posed a threat to anyone, including himself. 20. On 3 March 2003 the Arkhangelsk Regional Court upheld the judgment of 29 October 2002, endorsing the reasons given by the Lomonosovskiy District Court. 21. On 5 December 2003 the Oktyabrskiy District Court quashed the assistant prosecutor's decision of 26 October 2001 and sent the case for an additional inquiry, noting that the assistant prosecutor had failed to question the applicant in relation to his complaint about the money allegedly seized in the sobering-up centre. 22. Two weeks later a deputy Oktyabrskiy District Prosecutor closed the additional inquiry, noting that it was impossible to question the applicant. According to the deputy prosecutor, the applicant had not responded to summons sent by the prosecutor's office on a number of occasions. Moreover, police officers who had been sent to his place of residence could not find him. The applicant was served with a copy of the decision. No appeal followed. “Minor disorderly acts, that is utterance of obscenities in public places, abusive solicitation and other similar acts that breach the public order and peace, - shall be punishable with a fine of 10 to 15 minimum wages or with correctional works for one to two months compounded with withholding of 20% days.” 23. The relevant provisions of the Regulations on Medical Sobering-up Centres read as follows: “18. Persons in a state of alcohol intoxication who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals or if they have lost the ability to walk unaided or could cause damage to others or to themselves ... ... 44. Once the person placed in a medical sobering-up centre has sobered up completely, a doctor shall examine him for the second time and give an opinion on the possibility of his release. The period for holding a person in a sobering-up centre shall, in any event, be no shorter than three hours, but no longer than twenty-four hours ...” | 0 |
train | 001-78414 | ENG | UKR | CHAMBER | 2,006 | CASE OF MIRVODA v. UKRAINE | 4 | Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Peer Lorenzen | 4. The applicant was born in 1958 and lives in Krasnyy Luch, the Lungansk region. 5. On 23 October 2000 the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) gave two judgments in favour of the applicant against the State Open Joint Stock Mining Company Krasnolutska (ДВАТ Шахта „Краснолуцька” ДП ДХК „Донбасантрацит”). By these judgments the court awarded the applicant UAH 932.04 in salary arrears and 8,850 kilos of coal, respectively. The judgments became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement. 6. On 28 October 2004 the judgment awarding the applicant salary arrears was enforced in full. The judgment awarding the applicant coal has been partly enforced. To present day the applicant has received 2,950 kilos of coal. In accordance to the Government, the enforcement is impeded by the debtor's economic hardships. 7. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 1 |
train | 001-112127 | ENG | GBR | ADMISSIBILITY | 2,012 | MCCABE v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Thomas McCabe, is a British national who was born in 1964 and lives in Lisburn. He was represented before the Court by Madden & Finucane, a firm of lawyers practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan, Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was born in Northern Ireland, but subsequently moved to England. He became an alcoholic and was convicted of a number of violent offences. On 1 February 1990 he was arrested and charged with the murder of an 18 year old youth, his partner’s cousin. On 29 October 1990 at the Central Criminal Court in London he pleaded guilty to the offence of murder and was sentenced to imprisonment for life. On the same date the trial judge, who described the offence as a “sudden unpremeditated attack in a moment of drunken and unreasoned jealousy upon a complete stranger”, expressed the view that the length of detention necessary to meet the requirements of retribution and general deterrence was 10 years. On 4 November 1990 the Lord Chief Justice of England and Wales expressed the view that he took a slightly more severe view of the case and recommended “that 11 years would be the appropriate minimum” (hereafter referred to as the “tariff”). The Home Secretary duly fixed the tariff at 11 years and the applicant was informed of this. 4. On 21 January 1992 an order pursuant to section 26(1) of the Criminal Justice Act 1961 was made, transferring the applicant to Northern Ireland to serve the remainder of his sentence. The effect of such an order for a life prisoner was that his release would be regulated by the law and practice of Northern Ireland relating to life sentence prisoners. Under the Northern Irish system at that time, the Life Sentence Review Board, an administrative body whose membership included the Permanent Under-Secretary of the Northern Ireland Office and other senior Northern Ireland officials, advised the Home Secretary as to when a life prisoner should be released on licence, but had no power to order release. The Board would generally carry out a review after the prisoner had served three, then six, then ten years in custody, and thereafter at intervals fixed by the Board. This was set out in an explanatory memorandum provided to the applicant. On 23 January 1992 he signed a transfer document agreeing to the transfer to Northern Ireland and acknowledging that the differences between the England and Northern Ireland Prison Systems had been explained to him. 5. On 17 October 1991 the Northern Ireland Prison Authorities were informed by their English counterparts that a tariff of 11 years had been set in respect of the applicant and that a first review should take place in approximately February 1998. In accordance with the Northern Irish procedure, however, the Life Sentence Review Board considered the applicant’s case on 11 April 2000. The result of that review was communicated to the applicant by letter dated 21 April 2000. This stated, inter alia, that the Board had decided that “the appropriate retributive period in this instance would fall at around 11 years in line with the tariff set by the Home Office”. The Board considered that alcohol, drugs and relationships with women were risk factors for the applicant and that a controlled and structured pre-release programme and supervision in the community would be necessary. On that basis the Board recommended that the applicant’s case be referred for consultation with the judiciary with a view to his release on life licence after expiry of the 11-year period. It considered that the combined consultation and anticipated pre-release phase of around a year would be sufficient to test whether or not the applicant was a suitable candidate for release on licence. 6. On 7 July 2000 the applicant was informed by letter, that on 17 July 2000 he would join the Pre-Release Scheme. He was reminded that the setting of a provisional release date did not automatically mean that release on licence would follow. He was further informed that his release was subject to his continued good behaviour and to suitable resettlement arrangements being made. Phase One of the Pre-Release Scheme began immediately. On 31 July 2000 the applicant commenced Phase Two. This involved working at approved jobs and staying in the Pre-Release Unit hostel, with extended paroles at weekends. 7. On 30 October 2000 the applicant was due to commence Phase Three. On that date he failed to attend at an alcohol management programme or to report to work. As a result he was posted as unlawfully at large and remained so for 13 days. He was returned to the prison on 12 November 2000 and formally suspended from the Pre-Release Scheme. On 29 December 2000 the Lifer Management Unit wrote to the applicant confirming that he had been suspended from the Pre-Release Scheme. On 6 September 2001 the decision was taken to restore him to the Pre-Release Scheme, on the condition that he complete an intensive alcohol management programme. The applicant completed the residential course and moved through Phase Two of the Pre-Release Scheme. On 18 February 2002 he commenced Phase Three. On 15 April 2002 he failed to report for work and on 17 April 2002 he was posted unlawfully at large. He was arrested by the police in Newry in an intoxicated state and returned to the prison on 23 April 2002. 8. On 24 April 2002 the applicant was informed by letter that he was formally suspended from the Pre-Release Scheme. He was invited to make written representations to the multi-disciplinary team which would decide whether he should be readmitted to the Scheme. On 7 June 2002 the applicant’s solicitors wrote to the Lifer Management Unit, stating inter alia: “‘Our client was admitted to the Pre-Release Scheme by the Secretary of State acting through a lawfully constituted body, namely the Life Sentence Review Board. While our client has not yet received a tariff under the provisions of the Life Sentence Order it is clear that the punishment element of our client’s sentence has been served. To suggest otherwise would be contrary to the findings of the LSRB who found him suitable for the scheme in both June 2000 and September 2001. Our client was therefore clearly serving that part of his sentence which relates to the prevention of risk and his perceived dangerousness to, society. To our knowledge it has not been alleged that our client has committed any crime whatsoever. We are instructed that the sole reason for his arrest on 23 April was the request by the prison service. This is further supported by the fact that our client has not been charged with any criminal offence and has not been questioned by police in relation to any offence whatsoever. Furthermore we would contend that for any decision to be taken to revoke our client’s status on the Pre-Release Scheme that any such allegations or offences would have to create a belief that our client was at risk of committing a further violent offence. We contend that any such belief is simply untenable in these circumstances. We would contend that to recall our client to HMP Maghaberry without recourse to a judicial authority is therefore unlawful and in breach of our client’s Article 5 and 6 rights as protected under the European Convention of Human Rights.” 9. The Lifer Management Unit replied on 11 July 2002 as follows: “Mr McCabe’s continued suspension from the pre-release scheme is primarily because of his risk of violent offending. The key factors in this assessment are: 1. Alcohol was a significant factor in Mr McCabe’s index offence. In spite of the best efforts of the staff at Carlisle House, Mr McCabe admits to drinking alcohol and to being drunk since his completion of the alcohol programme. Indeed, Mr McCabe now admits to drinking alcohol prior to his suspension from the pre-release scheme on 30 October 2000, during his subsequent period unlawfully at large, prior to his second suspension from the pre-release scheme on 23 April 2002 and during his most recent period unlawfully at large. 2. Mr McCabe had been posted unlawfully at large by the NI Prison Service on 23 April 2002. However, Mr McCabe came to the attention of [the police] because of the disturbance he was causing in the street. 3. Mr McCabe was in an intoxicated state when arrested by Police in Newry on 23 April 2002. Upon his return to HMP Maghaberry he became abusive to Prison Staff during a cell search and was later found guilty of assaulting a Prison Officer. He was awarded two days cellular confinement for this incident, which involved him in pushing his fist into an Officer’s face. 4. Mr McCabe’s behaviour during periods of temporary release clearly shows a pattern where he can not be trusted to comply with the terms and conditions of his release. He has now been found guilty of being unlawfully at large on four occasions as set out below. ... These failures, coupled with his alcohol problem, not reporting for work and not attending alcohol management sessions in October 2000, raise serious questions about Mr McCabe’s ability to comply with the elements of risk management designed to prevent further violent offences. ... Further consideration is required regarding how best to address the risk factors in this case and the investigation into the circumstances surrounding Mr McCabe’s suspension from the pre-release scheme is also still ongoing. In these circumstances, and for all the concerns listed above regarding Mr McCabe’s potential for relapse and violence, Mr McCabe will remain suspended from the pre-release scheme.” 10. On 3 July 2002 the applicant lodged an application for judicial review of the decision to return him to prison. He claimed that his recall to prison and detention from 23 April 2002 was unreasonable, arbitrary and in breach of Article 5 of the Convention, since the tariff set in his case by the Home Secretary had expired in February 2001. The applicant contended that he should only have been detained after that date if there were a risk that he would commit violent offences if released, and that the events which led to his recall involved breach of the conditions of the Pre-Release Scheme, but not violent offending. In addition, he contended that, having served the penal element of his offence, he was entitled to challenge the lawfulness of his continued detention but had been afforded no such opportunity. 11. On 8 October 2001 the Life Sentences (Northern Ireland) Order 2001 (“the Life Sentences Order”) came into effect, changing the system for the release of life sentence prisoners in Northern Ireland. In the case of a prisoner sentenced to imprisonment for life, the trial judge was henceforth required to fix the minimum term the prisoner should serve in order to satisfy the requirements of retribution and deterrence. When the prisoner had served this tariff, the Secretary of State was required to refer his case to the Life Sentence Review Commissioners, a new body created under the Order, which would consider whether it was necessary that the prisoner should be confined further for the protection of the public from serious harm and which was obliged and empowered to order his release if it did not consider further detention necessary. A prisoner was entitled to review by the Life Sentences Review Commission on expiry of the tariff and at two-yearly intervals thereafter. Article 10 of the Life Sentences Order applied the release provisions to life prisoners transferred to Northern Ireland. Article 11 provided that, for existing life prisoners, the tariff would be set by the Secretary of State following a recommendation of the Lord Chief Justice. On 5 November 2002 the Court of Appeal decided that the Lord Chief Justice’s recommendation was binding on the Secretary of State (Re Colin King [2002] NICA 48). 12. On 20 November 2001, in accordance with the provisions of the Life Sentences Order, the applicant was informed that his case would soon be referred to the Lord Chief Justice for him to decide what tariff to recommend to the Secretary of State. The applicant was given the opportunity to submit representations, which he declined. On 5 March 2003 the Lord Chief Justice recommended that the applicant’s tariff be fixed at eleven years. The applicant was advised of this and given a further opportunity to make any representations, which he again declined. His case was referred to the Life Sentences Review Commission on 3 April 2003. 13. The applicant’s judicial review application was heard by the High Court, which delivered judgment on 3 July 2003. The court rejected the applicant’s submission that his case was analogous to that of Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002IV, where a mandatory life prisoner had completed the tariff part of his sentence and was released on licence, subsequently to be recalled to prison following the commission of an offence unrelated to the index offence of murder. In the applicant’s case, once he had been transferred to Northern Ireland, he became subject to the release provisions for mandatory life prisoners which applied in that jurisdiction. He had not been released on licence under section 23 of the Prison (Northern Ireland) Act 1953, nor was he scheduled for such release. According to the decision of the Life Sentences Review Board, the pre-licence part of the applicant’s sentence would not be completed until he had successfully passed through a Pre-Release Scheme. As part of that Scheme, he had been allowed out of prison on a temporary basis, subject to conditions, which he understood. The prison authorities were rightly concerned about the applicant’s breach of his temporary release conditions, in particular his drinking. As regards the alleged violation of Article 5 § 4, the judge noted that at all stages the applicant would have been able to establish the lawfulness of his detention through judicial review proceedings or an application for habeas corpus, although the chances of success in relation to a prisoner lawfully detained following conviction were limited. The Life Sentences Order had introduced a determinate element to the sentences of life prisoners in Northern Ireland, following the expiry of which they would only be lawfully detained if this was necessary to protect the public. The procedure under the Order had been slightly delayed because of the need to determine the legal issues raised by the Colin King case, but the applicant’s tariff had now been considered by the Lord Chief Justice and his file had been referred to the Life Sentence Review Commission. The applicant had not established that his detention was unlawful or arbitrary nor that he had been denied an opportunity to challenge its lawfulness. The application for judicial review was therefore dismissed. 14. At the Life Sentence Review Commission hearing on 18 August 2003, the Commissioners found that the applicant remained a risk to the public because of his tendency to react to stress by abusing alcohol. They declined to order his release and recommended that he should continue with the therapy he was receiving in prison. The applicant re-entered the Pre-Release Scheme in September 2003, but was unlawfully at large again between 27 December 2003 and 18 February 2004. His case came before the Life Sentence Review Commission again on 25 November 2004, on which date the hearing was adjourned to March 2005 in order to obtain psychiatric evidence. Again, the Commission did not direct his release, but recommended that he complete a cognitive self-change programme. At a further hearing in October 2006 the applicant’s case was adjourned for one year to permit him to be tested in a Pre-Release Scheme which commenced in November 2006. 15. The applicant appealed to the Court of Appeal of Northern Ireland against the judgment of the High Court. His appeal was dismissed on 24 April 2007. The Court of Appeal held that, in the light of recent domestic case-law and the Stafford judgment (cited above), the fixing of the applicant’s tariff by the Home Secretary in 1990 or 1991 had been a sentencing exercise rather than an administrative act. When the applicant was transferred to Northern Ireland, therefore, he came as a prisoner sentenced to a mandatory life sentence with a tariff of 11 years. At the expiry of this tariff, the applicant became entitled to a review of the need to continue detaining him on grounds of dangerousness by a tribunal compliant with Article 5 § 4 of the Convention. However, such a review did not take place until April 2003, when a review was carried out by the Life Sentence Review Commission. There had, therefore, been a violation of Article 5 § 4. Nonetheless, the Court of Appeal underlined that although the Life Sentence Review Board had not had the power to order release, as required by Article 5 § 4, it had considered the applicant’s case from April 2000 until the coming into force of the 2001 Order with exemplary care. The applicant was an alcoholic who, at the age of 26, had murdered a young man in a violent attack motivated by jealousy which was without foundation. Despite all the efforts made to keep him off alcohol and to provide him with a release date he had been unable to control his alcoholism. Inevitably, the Board, and subsequently the Life Sentence Review Commission, had been unable to release him on licence since he remained a serious risk to the public. If an independent tribunal had examined his case in February 2001, it would have been bound to reach the same conclusion, namely to require the applicant to complete a Pre-Release Scheme, which he had not been able successfully to complete to date. The applicant had, therefore, suffered no damage as a result of the breach of Article 5 § 4 of the Convention. Furthermore, there had been no breach of Article 5 § 1 as a result of an independent review immediately following the expiry of the tariff, because the detention continued to be justified under the terms of the mandatory life sentence and the delay in fixing the tariff in Northern Ireland and carrying out an independent review was not arbitrary. The Court of Appeal further held that, even if there had been a breach of Article 5 § 1, the declarations sought by the applicant would have been rejected on the same grounds as under Article 5 § 4. 16. The applicant sought permission to appeal to the House of Lords, which was refused by the Court of Appeal on 23 May 2007 and by the Appellate Committee of the House of Lords on 23 October 2007, on the grounds that there was no arguable point of law of public importance involved. | 0 |
train | 001-106247 | ENG | GBR | ADMISSIBILITY | 2,011 | AMEH AND OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicants, Ms Nkechi Clareth Ameh (“the first applicant”) and her three children, are Nigerian nationals who were born in 1976, 2003, 2005 and 2007 respectively and live in Sunderland. 2. 3. The first applicant entered the United Kingdom on 17 December 2005 on a valid visit visa, accompanied by her two eldest children. The first applicant remained in the United Kingdom following the expiry of her visa and did not come to the attention of the authorities until she claimed asylum in July 2009. 4. The basis of her claim was that she had married in 2002 and, when her eldest daughter was born in 2003, her husband’s family had raised the idea of having both her and the first applicant herself circumcised. Both the applicant and her husband had been averse to the idea. However, the applicant and her husband had separated when she was pregnant with her son, who was born in 2005, and their marriage ended definitively in 2009. Her third child, a girl born in the United Kingdom in 2007, was the result of a brief reconciliation with her husband. The applicant claimed to fear that, without the support of her husband, she would not be able to withstand his family’s pressure to have her two daughters, and herself, circumcised. 5. Her asylum claim was refused on 15 April 2010. The Secretary of State noted that the applicant was no longer in contact with her husband or his family. The applicant had remained in Nigeria following her first daughter’s birth, and even after separating from her husband, indicating that she did not genuinely fear her in-laws. Her last noted address had been in Lagos, which was not where her in-laws lived. It was therefore believed that she could return to that city or relocate elsewhere in Nigeria and thus avoid her ex-husband’s family, who would not be aware of her return, given their lack of contact. Furthermore, the background evidence indicated that the Nigerian authorities were taking steps to combat female genital mutilation (“FGM”) and had successfully outlawed the practice in several states. There were a number of women’s non-governmental organisations that could offer support to the first applicant. It was therefore considered that there was a sufficiency of protection available to her. She also had family, including two brothers, living in Nigeria and would therefore have a support network. Her claim was certified as clearly unfounded, meaning that she could not appeal against the refusal of asylum from within the United Kingdom. 6. The first applicant was advised by her legal representatives that any application for judicial review of the decision to certify her claim had a very poor chance of succeeding, as her claim was weak. Since her case was publicly funded, her representatives could not bring such an application on her behalf given that there was no reasonable prospect of success. As a result of the withdrawal of publicly funded legal assistance, the first applicant did not seek judicial review of the certification of her asylum claim as clearly unfounded. 7. Directions were set for the applicants’ removal on 4 February 2011. On 20 January 2011, the applicants sought an interim measure from this Court in order to prevent their removal. On 1 February 2011, the Acting President of the Fourth Section, to which the case had been allocated, indicated to the Government of the United Kingdom that the applicants should not be removed until further notice. Upon further consideration of the case, the Section on 15 March 2011 lifted the interim measure previously indicated. The applicants notified the Court on 25 March 2011 that, notwithstanding the lifting of the interim measure under Rule 39, they wished to continue with their complaints under the Convention. 8. Section 94(2) of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, provides that, where a person has made an asylum or human rights claim and the Secretary of State has certified that that claim is clearly unfounded, the person may not bring an appeal whilst still in the United Kingdom. A claim will be certified as clearly unfounded only where, taking the claim at its highest, on any legitimate view it could not succeed. 9. The only means by which a person can challenge the certification of their claim under section 94(2) is by judicial review. The test that will be applied by the courts is whether, based on the material before the Secretary of State, there is a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, would uphold an appeal (see R (on the application of YH) v. Secretary of State for the Home Department [2010] EWCA Civ 116, paragraphs 20-21). | 0 |
train | 001-118340 | ENG | POL | CHAMBER | 2,013 | CASE OF PIOTR KOZŁOWSKI v. POLAND | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court) | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1961 and lives in Spała. 6. By a judgment of 14 April 2010 the Warsaw Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision by which the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego) had refused to declare the Łódź Governor’s decision of 13 November 2009 null and void. 7. On 12 May 2010 the judgment of 14 April 2010, together with its written grounds, was served on the applicant. 8. On 24 May 2010 the applicant filed a motion to be exempted from the payment of court fees and for the assistance of a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Administrative Court. 9. On 12 June 2010 the time-limit for lodging a cassation appeal expired. 10. On 13 July 2010 the Warsaw Regional Administrative Court dismissed the motion for exemption from court fees but granted the applicant the assistance of a legal-aid lawyer. 11. On 9 November 2010 the registry of the court requested the Warsaw Bar Association to assign a lawyer to the applicant’s case. 12. On 16 November 2010 the Bar Association assigned E.K.S to represent the applicant. 13. On 1 December the applicant received a letter from E.K.S. informing him that she had been appointed as his legal representative. 14. On 15 December the legal-aid lawyer, E.K.S., asked the applicant to pay the court fees for the cassation appeal and to return to her confirmation of the bank to transfer in order to attach it to the cassation appeal. 15. By a letter of 17 December 2010, served on the applicant on 20 December 2010, the lawyer informed the applicant that she had found no legal grounds on which she could draft a cassation appeal. 16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010. 17. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination. 18. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007). 19. In a number of decisions delivered before 2010 the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed the relevant caselaw of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of his or her assignment to the case. The court was of the view that the latter approach was far too rigid and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009). | 0 |
train | 001-101963 | ENG | TUR | ADMISSIBILITY | 2,010 | TOYAKSI AND OTHERS v. TURKEY | 3 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicants are Turkish nationals. Their names, dates of birth and places of residence appear in the table below. In all four applications, the applicants were issued minor fines by the Court of Cassation and the Supreme Military Administrative Court under section 442 of the Code of Civil Procedure (Hukuk Usulü Muhakemeleri Kanunu) following the rejection of requests for rectification they had brought before those courts. All of the applicants complained under Article 6 § 1 of the Convention that their right of access to court was violated by the imposition of fines for having used a legal remedy, which was made available to them by law. The other complaints that were raised by the applicants and specific facts relevant to these complaints are indicated in the table below. Section 440 “Rectification of a Court of Cassation decision may be requested for the following reasons, within fifteen days after the notification of the impugned decision: If in the appeal proceedings, the Court of Cassation failed to respond to the parties’ appeal requests; If the Court of Cassation decision contains contradictory paragraphs; If it is established that some of the documents examined during the appeal proceedings were fraudulent or false; If the Court of Cassation decision is against domestic procedure or domestic law.” “If the request for rectification is not based on one of the conditions (set forth by Section 440 of this Code), it shall be rejected and a fine shall be imposed on the applicant.” “Sections 440-444 of the Code of Civil Procedure shall be abolished as of 1 June 2005.” “Sections 427-454 of the Code of Civil Procedure shall be applied, without taking into account the changes made by Law no. 5236, as regards judgments which had been appealed against prior to the date the District Courts take office.” | 0 |
train | 001-100657 | ENG | UKR | CHAMBER | 2,010 | CASE OF VLADIMIR POLISHCHUK AND SVETLANA POLISHCHUK v. UKRAINE | 3 | Violation of Art. 8;Violation of Art. 13+8;Remainder inadmissible | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicants are spouses. They were born in 1966 and live in Tokmak. 5. According to the applicants, in the period between January 2000 and August 2001 the first applicant lived and worked outside Tokmak. 6. On 21 January 2001 an unknown person broke six windows in a building near the applicants' flat. 7. On 30 January 2001 the Tokmak Town Police Office (“the Police Office”) instituted a criminal investigation into that event. 8. On 20 March 2001 the Police Office, suspecting that the first applicant might have been involved in that event, ordered a search of his residence. The decision to carry out the search was based on the reason that evidence related to the event could be found in the first applicant's home. On the same day the search order was approved by the local prosecutor. 9. On 21 March 2001, when the applicants' son was celebrating his birthday with a number of his friends, the police officers entered the applicants' flat to carry out the search. The second applicant, who was in the early stage of pregnancy, objected to the search, stating that the search order contained no reasonable explanation for her or her husband's possible involvement in the crime or for the need to search the flat. In response, the police officers allegedly threatened her and began the search operation in the presence of the guests. The first applicant was absent. 10. In the course of the search nothing was identified or seized for the purpose of the investigation. 11. On unspecified date the applicants complained to the Zaporizhzhya Region Prosecutor's Office (“the Regional Prosecutor's Office”) alleging that the search had been unlawful. 12. On 12 October 2001 the Regional Prosecutor's Office informed the applicants that following an inquiry it had been established that the search had been carried out without a valid reason, in breach of Article 177 of the Code of Criminal Procedure. 13. On 13 November 2001 the Regional Prosecutor's Office informed the applicants that the police officers who had carried out the search had been disciplined. 14. On 19 August 2002 the applicants instituted proceedings in the Tokmak District Court against the Police Office, the Regional Prosecutor's Office, and the Zaporizhzhya Region State Treasury Department, seeking to have the search operation declared groundless and unlawful. The second applicant additionally claimed compensation for non-pecuniary damage caused by the unlawful act. She relied on Articles 440-1 and 443 of the Civil Code and on the Act “On the procedure for compensation for damage caused to citizens by unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor's offices and courts” (“the Compensation Act”). 15. On 22 May 2003 the Tokmak District Court considered the applicants' claims. As to the first applicant, the court found that the search had been carried out two months after the crime and there had not been sufficient grounds to believe that evidence could be found in the applicants' home. The court therefore allowed his claim and declared that the search had been groundless and unlawful. As to the second applicant, the court examined the invoked provisions of the Civil Code and the Compensation Act and concluded that damage caused by the procedural acts of bodies of inquiry, investigative authorities, prosecutor's offices and courts could be compensated only in cases provided for by the Compensation Act. It further stated that the search had been carried out in connection with the suspicion against the first applicant only; the second applicant was not entitled to claim damages for procedural acts which had been carried out in respect of another person. For those reasons it rejected the second applicant's claim. 16. On 26 August 2003 the applicants appealed against the judgment of 22 May 2003, stating, inter alia, that the first applicant had not suffered any damage on account of the unlawful search, and that it had been the second applicant who had incurred damage, as she had been present in the flat at the time. 17. On 16 December 2003 the Zaporizhzhya Region Court of Appeal endorsed the rejection of the claim of the second applicant, reconfirming that it was only the Compensation Act that had to be applied and that under that provision the second applicant could not claim any damages, since the search had been carried out only in connection with the first applicant, who had been a suspect in the criminal proceedings. The court further quashed the judgment of 22 May 2003 as regards the claim of the first applicant and dismissed it, stating that such a claim had to be considered in the course of relevant criminal proceedings. 18. On 8 January 2004 the applicants appealed in cassation against the decision of 16 December 2003, reiterating in particular that it had been the second applicant, but not the first, who had suffered damage on account of the unlawful acts. They asked the Supreme Court to adopt a new judgment satisfying the claim of the second applicant. 19. On 31 January 2006 the Supreme Court rejected the applicants' cassation appeal as unsubstantiated. 20. The relevant extracts of the Code provide as follows: “Acts and decisions of a body of inquiry can be challenged before the prosecutor, while their decisions on termination of criminal proceedings can also be challenged before the courts ...” “A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept on certain premises. ...” “Investigators' acts can be challenged before a prosecutor ...” 21. In accordance with Article 355 of the Code, an application for review of the civil case may be submitted on the ground that an international judicial authority, whose jurisdiction was recognised by Ukraine, found that Ukraine violated its international obligations in the course of consideration of the civil case by the courts. 22. The relevant extracts of the Code provide as follows: “Non-pecuniary damage caused to a citizen or an organisation ... shall be compensated by the person who has caused that damage unless the latter proves not to have been guilty. ...” “Damage caused to a citizen by unlawful conviction, unlawful bringing to criminal responsibility, unlawful pre-trial detention in the course of criminal proceedings, unlawful imposition of such administrative penalties as arrest or correctional labour shall be compensated for by the State in full regardless of the guilt of the officials of the bodies of inquiry, pre-trial investigation authorities, prosecutor's offices and courts, in accordance with the procedure established by the law.” 23. The relevant provisions of the Act can be found in the judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006). 24. In accordance with paragraph 7 of this Resolution, moral (nonpecuniary) damage shall be compensated to the physical person or legal entity whose rights have been directly affected by the unlawful acts (inactivity) of the other persons. | 1 |
train | 001-67906 | ENG | FRA | CHAMBER | 2,004 | CASE OF MERGER AND CROS v. FRANCE | 2 | Violation of Art. 14+P1-1 with regard to the inheritance rights;No violation of Art. 14+P1-1 with regard to the capacity to receive assets as a gift;Not necessary to examine Art. 14+8 with regard to the inheritance rights;Violation of Art. 14+8 with regard to the capacity to receive assets as a gift;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicants were born in 1968 and 1936 respectively and live in Paris. 9. The first applicant was born on 6 December 1968 of a relationship which began in 1964 between the second applicant, a widow and the mother of a daughter born in 1957, and Mr R. Merger, a married man and the father of four children born in 1942, 1944, 1945 and 1947. At the time her birth, her father and mother had been living together since 1965. Her father formally acknowledged paternity on 7 December 1973 and she has borne his name since 17 May 1985. 10. On 11 May 1980 the first applicant's father drew up a private deed dividing his movable property between his five children. The document was signed by the four legitimate children and by the father on the first applicant's behalf. 11. On 11 October 1984 he made a manuscript will in which he left to the first applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, came to one quarter. He stipulated that it was to be taken free of his wife's life interest. 12. In a second manuscript will dated 16 June 1985 he stated that he wished the estate to be divided into five parts to be allocated by the drawing of lots in the presence of all his children, for the disposable portion of the estate to pass to the first applicant after an account had been taken of any gifts that had been made and for his wife's life interest to attach only to the share of the four legitimate children. The first applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted. 13. The first applicant's father died on 12 March 1986 leaving as his heirs his wife, four legitimate children and the first applicant, an illegitimate child conceived while he was bound by marriage to a person other than its mother. 14. A notary was instructed to wind up the estate. He took an inventory at the home on 20 June 1986. The first applicant (who was sitting her baccalaureate that day) was represented by the second applicant, who pointed out that certain movables were missing. The widow laid claim to certain items which she said belonged to her. The total value of the movables listed in the inventory was estimated at 114,175 French francs (FRF). 15. Since an amicable division of the estate proved impossible, the deceased's four legitimate children and their mother brought proceedings against the applicants in the Paris tribunal de grande instance seeking, inter alia, orders setting aside the gift of the disposable portion to the first applicant and the gifts their father had made to the second applicant – which were deemed to have been made to the first applicant – and restricting the first applicant's rights to 10 % of the net estate. 16. The applicants asked the Court, inter alia, to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on 11 May 1980. 17. In a judgment of 6 November 1992, the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in Paris and a sum of FRF 500,000 were gifts that had been made to the first applicant through an intermediary and set them aside under Articles 908 and 911 of the Civil Code. It added that the value of the property that had been acquired with those gifts had to be brought into account. Relying on those provisions, the tribunal de grande instance ruled that the first applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. Relying principally on Article 931 of the Civil Code, it held that the deed of division dated 11 May 1980 was null and void as it was not in the correct form and added, in the alternative, that the first applicant could only lay claim to 10% of the movables that were divisible in kind. Lastly, it declared that the first applicant was to receive her share of the estate free of any life interest. 18. The applicants appealed against that judgment. The first applicant completed her studies in December 1993. 19. In a judgment of 24 September 1996, the Paris Court of Appeal transferred the case to the Dijon Court of Appeal, as one of the parties was a judge of the Paris tribunal de grande instance and the other had been admitted to the Paris Bar while the proceedings were under way. 20. In a judgment of 27 November 1997, the Dijon Court of Appeal upheld the judgment of the court below in so far as it had refused to grant the first applicant identical inheritance rights to those of the four legitimate children or to allow her to take the disposable portion and had ruled that the assets of the second applicant – who it noted had lived with the deceased since 1965 – were gifts acquired through an intermediary. Noting that the first applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother, it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate. 21. The applicants appealed to the Court of Cassation. 22. On 4 February 1999 the notary liquidated the estate and drew up the deed of division. The first applicant signed the deed “without prejudice to the appeal to the Court of Cassation which has been served on the parties”. Under the terms of the deed of division, she was required to pay an equalising balance to the other heirs in the French franc equivalent of 236,187 euros (EUR). 23. The second applicant sold her home to pay that balance on behalf of her daughter, who had no property of her own. 24. In a judgment of 3 May 2000, the Court of Cassation dismissed the applicants' appeal. 25. Following that judgment, the equalising balance was duly paid to the other heirs. 26. The relevant provisions of the Civil Code as worded at the material time were as follows: “Part I: Succession ... Chapter III: Orders of succession ... Section III: Rights of descendants to inherit “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ascendants, without distinction on grounds of sex or primogeniture, and even if born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants. ... Section VI: Rights of illegitimate children to inherit Illegitimate children shall, in general, have the same rights to inherit from their father and mother or other ascendants and from their brothers and sisters and other collateral relatives as legitimate children. Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage to another person shall not prevent such other person from inheriting from the father or mother if he or she would have been entitled to inherit under Articles 765 and 766 below but for their birth. In such eventuality, irrespective of their number, the illegitimate children shall receive only half of that which would have devolved to the spouse under the aforementioned Articles but for their birth, the calculation being made line by line... Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born shall be entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The fraction by which their share of the estate is thus reduced shall revert solely to the children born of the marriage damaged by the adultery. It shall be divided between them in proportion to their share in the estate. Titre II: Inter vivos and testamentary gifts ... Chapter II: Capacity to use or receive inter vivos and testamentary gifts Illegitimate children shall not be entitled to receive by way of inter vivos or testamentary gift from their father or mother a share of the estate in excess of that to which they are entitled under the aforementioned Articles 759 and 760 if the donor or testator was, at the time of their conception, bound by marriage to another person. An action for abatement may, however, only be brought by the spouse or children of the marriage, as the case may be, and only once the estate has passed to the heirs. Any disposition to a person without capacity shall be null and void, whether disguised as a contract for consideration or made in the name of intermediaries. The father, mother, children, descendants, and spouse of a person without capacity shall be deemed to be intermediaries. ... Chapter III: The portion of disposable assets and abatement ... Section I: The portion of disposable assets Gifts, whether inter vivos or testamentary, may not exceed one half of the donor's assets if on his death he leaves only one legitimate child, one-third if he leaves two or one quarter if he leaves three or more. An illegitimate child whose share in the estate has abated pursuant to Articles 759 and 760 may, if in need, claim maintenance from the estate in exchange for abandoning his or her rights in favour of the heirs. Such maintenance shall be governed by Article 207-1 of this Code. The heirs may, however, settle such a claim by granting the applicant a share equal to that which he or she would have received under Article 759 and 760. ... Chapter IV: Inter vivos gifts ... Section I : Formal requirements for inter vivos gifts Any deed providing for an inter vivos gift shall be made before a notary in the ordinary form applicable to contracts; an original shall be kept by the notary, on pain of nullity.” 27. On 4 December 2001 Law no. 2001-1135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children one of whose parents was, at the time of their conception, bound by marriage to another person. It repealed the provisions of the Civil Code (in particular, Articles 759, 760, 908 and 915-2) that gave children whose father or mother was married to another person at the time of their conception less favourable inheritance rights. It also repealed the provisions that protected the spouse alone if he or she was competing solely with such children. 28. The Montpellier tribunal de grande instance held as follows in a judgment of 2 May 2003: “Since it creates a difference between children's inheritance rights depending on their birth, the application of Article 760 of the Civil Code violates the provisions of the Convention ..., as the European Court recently held (in its judgment of 1 February 2000 in the case which Mr Mazurek brought against the French State). ... Thus, Article 760 of the Civil Code must be disregarded, as it contains provisions that discriminate against children of an adulterous relationship with no properly justified basis and it is inconsistent with the European Convention on Human Rights, which, by virtue of Article 55 of the Constitution, ranks ahead of the provisions of domestic law and, in accordance with settled case-law, is directly applicable by the French courts.” | 1 |
train | 001-86298 | ENG | NOR | CHAMBER | 2,008 | CASE OF ORR v. NORWAY | 3 | Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. On 7 August 2001, the applicant co-piloted a British Airways flight from Newcastle to Gardermoen Airport outside Oslo. There were three other crew members on board, including Ms C. (1st Cabin Crew). All four crew members were to stay overnight at an airport hotel before flying back to the United Kingdom the next day. 6. On 1 November 2002 the Eidsvoll District Court (tingrett) convicted the applicant of having raped C and sentenced him to 2 years’ and 6 months’ imprisonment and ordered him to pay her NOK 75,000 for non-pecuniary damage and NOK 160,000 for pecuniary damage. 7. On an appeal by the applicant, the Eidsivating High Court (lagmannsrett), sitting with a jury, held a fresh hearing in the case. The jury answered the questions relating to the charges in the negative (no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury’s verdict and acquitted the applicant by a judgment of 20 March 2003. 8. Ms C. maintained the claim that the applicant was civilly liable to pay compensation under the Damage Compensation Act 1969. The High Court, consisting of the professional judges, considered the claim the next day. By two votes to one the High Court concluded, in the same judgment, that the applicant was liable and ordered him to pay NOK 74,000 in compensation for pecuniary damage and NOK 25,000 for non-pecuniary damage. 9. The High Court’s judgment included the following account and reasoning: “The High Court jury was asked one main question, which concerned forcible coitus. The jury answered the question in the negative. Thereafter the jury was asked one main question as to whether the accused was guilty of obtaining, by gross negligence, sexual relation by violence or threatening behaviour. There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus. The jury answered the main question in the negative. The court bases the judgment on the jury’s verdict. [The applicant] is therefore acquitted of the indictment raised against him. The victim’s assistant counsel stated, after the jury’s verdict had been made known, that the compensation claim for pecuniary and non-pecuniary damage would be maintained. The victim has claimed an amount up to NOK 74,000 in compensation for pecuniary damage and up to 75,000 NOK for non-pecuniary damage. The accused has pleaded that he should be released from the claim. Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal. The compensation issue shall be determined under the Damage Compensation Act 1969. If the victim has been exposed to an infringement or misconduct as described inter alia in Article 192 of the Penal Code, compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections 3-1 and 3-3 of the Damage Compensation Act. In section 3-5 it is further stipulated that a person who with intent or gross negligence has “... committed infringement or an act of misconduct as mentioned in section 3-3” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non-pecuniary caused thereby. Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [klar sannsynlighetsovervekt] that the act has taken place. This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case. [The applicant] and [Ms C.] spent the night from 7 to 8 August 2001 at SAS Radisson Hotel at Gardermoen. [...] On the basis of [Ms C.]’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof, the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during the night with the pretext that he needed to borrow or to get some drinks as he himself had ‘gone dry’. [Ms C] was lying asleep when the telephone rang and was irritated about the disturbance, but she replied that he could come and get something from her mini-bar. Immediately thereafter he knocked on the door. [Ms C.] who was not wearing night clothes did not have the time to get dressed, but covered herself with her quilt, opened the door and let the applicant into the room. She could see that he was intoxicated. He went to the mini-bar and fetched something to drink, but instead of leaving he sat down on her bed and started talking. After a short time he began pulling her quilt in order to remove it. She asked him to leave, but he did not follow her suggestion. At a certain point in time he managed to get the quilt off her, but she managed to get up and put it around her again. [The applicant] continued to pull the quilt and drew her towards himself and also got himself undressed. In the end they were both in the bed. The High Court unanimously finds that on the balance of probabilities it is clearly probable that [the applicant] during this night had sexual intercourse with [Ms C.] and that this intercourse was not consensual on her part. As to the question whether the remaining conditions for making an award of compensation have been fulfilled, the High Court is divided in a majority and a minority. The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C.]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold]. Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled. [...] The minority, ..., has found that the conditions for ordering the accused to pay compensation have not been fulfilled. The minority does not find it has been made sufficiently probable that [the applicant] understood that the sexual intercourse was not consensual on [Ms C.]’s part or displayed gross negligence in this respect.” 10. On 12 May 2004, on the basis of the High Court’s judgment, the applicant’s appeal within the company against his dismissal from his job as a pilot for British Airways was refused. 11. The applicant appealed to the Supreme Court against the High Court’s procedure, assessment of evidence and application of the law. The appeal on the latter point was on the ground that, contrary to Article 6 § 2 of the Convention, the High Court had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges. By a decision of 9 October 2003 the Appeals Selection Committee of the Supreme Court granted leave to appeal with respect to this ground of appeal, while refusing such leave for the remainder. 12. In support of his appeal against the High Court’s application of the law, the applicant argued, inter alia the following. For a judgment awarding compensation to be rendered after an acquittal, there was a requirement under the European Court’s case law relating to Article 6 § 2 of the Convention that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal. This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation. It ought to be made clear that the subject-matter for the two issues, respectively criminal and civil liability, are different and that the award of compensation did not weaken the acquittal. In this case, the High Court had failed to create the necessary distance between the two issues, since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation. Moreover, no express reservation had been stated with regard to the acquittal. Furthermore, the applicant argued, it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal. In several places, the High Court had used such formulations, including the expressions “guilty”, “the use of force” and “sexual intercourse by force”. This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated. Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case. In this connection the applicant relied on the Court’s judgment of 11 February 2003 in Y. v. Norway (no. 56568/00, ECHR 2003II). The applicant, again referring to the aforementioned Y v. Norway judgment and also to Article 13 of the Convention, submitted that, if the Supreme Court were to find a breach of the Convention in the present case, it would have to quash the lower court’s judgment. Where a decision suffered from such defects, due process required that there be an entirely fresh assessment of the evidence. If there was no basis for setting the impugned judgment aside, then at the very least a declaratory judgment ought to be rendered, stating a violation of the Convention. 13. On 24 February 2004 the Supreme Court unanimously rejected the applicant’s appeal against the High Court’s judgment on compensation, finding no breach of Article 6 § 2 of the Convention. The first voting judge, Ms Justice Stabel, gave the following reasons: (23) I have concluded that the reasons given by the High Court do not contravene the presumption of innocence in Article 6 § 2 of the Convention [...] and accordingly that the appeal will not succeed. [...] (25) With regard to the details of the provision applied in our case, it is in my view appropriate to base our assessment on the judgment rendered by the Supreme Court on 27 November 2003 in Case No. 2003/227. This judgment was rendered after the guiding judgments by the European Court of 11 February 2003 in Y. v. Norway [cited above] and Ringvold v. Norway [no. 34964/97, ECHR 2003II]. Reference is made to the thorough discussion of the decisions – and past case-law of the European Court – contained therein. Therein it is stated that Article 6 § 2 protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence, without his having been convicted in a criminal case. (26) It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case, even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability. However, where a person who has been acquitted of a criminal charge is ordered to pay compensation, it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal. Moreover, provided that the compensation order is not formulated in this way, Article 6 § 2 of the Convention [...] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related. (27) According to Article 3 of the Code of Criminal Procedure, ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case, provided that the claim derives from the same act as the criminal case. The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing two trials. The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases. An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case, based on the finding that he committed the act in respect of which s/he had been acquitted. In order to enable this without creating doubts about the acquittal, strict requirements should apply to the reasoning contained in the judgment awarding compensation. (28) The ground for the appeal is that the reasons given in the High Court’s judgment on this point violated the presumption of innocence. In its judgment of 27 November 2003, the Supreme Court found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error. This too is my finding. (29) Under Article 144(4) of the Code of Civil Procedure, the reasoning in a judgment in a civil case must ‘state precisely and exhaustively the facts on which the Court bases its decision ...’. In our case the basis for compensation for pecuniary and non-pecuniary damage is sections 3-3 and 3-5(1)(b)of the Damage Compensation Act 1969. It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in Article 192 of the Criminal Code. The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision. The subjective conditions for liability also coincide to some extent, namely that compensation for pecuniary and non-pecuniary damage requires intent or gross negligence and that Article 192 (4) of the Criminal Code also makes sexual assault by gross negligence a criminal offence. (30) Given the manner the conditions for compensation have been formulated, it is not possible to avoid coming close to a criminal- law assessment. In order to do this, without casting doubt on the acquittal, the court must in my view take as a starting point what inter alia distinguishes the legal consequences, i.e. the requirement of proof that the conditions have been fulfilled. The finding that, in objective terms, a breach of Article 192 has occurred cannot be avoided. The same applies to the subjective conditions for compensation. What must be avoided is casting doubt over the correctness of the acquittal, in view of the strict evidentiary requirements that apply in criminal cases. (31) The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [the applicant], under Norwegian law [Ms C.] has not forfeited her right to claim compensation for pecuniary and non-pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place. The Court continues: ‘Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.’ (32) The defence has argued that the interjection ‘in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment. I do not agree with this, nor that the High Court, when providing in a subsequent paragraph a further description of the evidentiary requirements, refers to [Ms C.]’s claim that [the applicant] was ‘guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law. The expression ‘guilty’, which in fact was a quote from [Ms C.]’s submissions, must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions. (33) After having outlined the chain of events that it has found established, the High Court concluded that ‘it is clear on the balance of probabilities that on this night [the applicant] had sexual intercourse with [Ms C.] and that this intercourse was not voluntary on her part’. This cannot in my view be regarded as an attack on the acquittal. Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present. The same applies when the majority of the High Court states that on the balance of probabilities it was clearly probable that [the applicant] realised that [Ms C.] did not want sexual intercourse with him and that ‘[the applicant] by the use of violence has gained sexual intercourse with [Ms C.].’ (34) To sum up, I note that the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation. Moreover, the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury. Furthermore, as I have already noted, I do not find that expressions of a typically criminal- law character were used. Factors of this nature were found to be decisive when the Supreme Court ruled on 27 November 2003 that the presumption of innocence had been violated in that case, see paragraphs 36 and 38 of the decision. In our case, I am accordingly of the view that the High Court marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways. (35) I have concluded on this basis that the appeal must be rejected.” The four other judges agreed with the first voting judge “in the main and the conclusion”. 14. The applicant has submitted a letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (Kontoret for voldsoffererstatning). It states that by a decision of 24 May 2004 the Office had granted Ms C. NOK 182,313 in compensation, “having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act.” It further notified the applicant that the Office might seek restitution of NOK 124,000 from him. 15. In so far as relevant, Article 192(1) and (2) of the Penal Code read: “Any person who a) engages in sexual activity by means of violence or threats, [...] shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years. In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act, importance shall be attached to whether the aggrieved person was under 14 years of age. A penalty of imprisonment for not less than two years shall be imposed if a) the said activity was sexual intercourse, or [...] A person who, due to gross negligence, is guilty of rape according to the first paragraph above shall be punished with minimum five years’ imprisonment. ... ” 16. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g. self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 17. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...” 18. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.” No reasons are given for an acquittal. 19. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. The claim is decided by the three professional judges who have taken part in the criminal case, without the participation of the jury. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with... The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29...”. 20. The court will determine the claim on the basis of the evidence adduced during the trial. However, it may receive further evidence. Article 144 of the Code of Civil Procedure, then in force, (tvistemålsloven- Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code) required that the professional judges, precisely and exhaustively, state the facts on which they base their decision on the alleged victim’s civil claim. 21. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: Article 427 “In a public prosecution, the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ... When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...” Article 428 “Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a main hearing is held. ...” Article 435 “A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.” 22. Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Section 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a. Caused personal injury or b. Committed an infringement or an act of misconduct as mentioned in section 33, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” 23. Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 192 of the Penal Code. 24. A claim for compensation for nonpecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. However, in a landmark ruling of 1996 concerning civil liability for forced sexual intercourse (Norsk Retstidende 1996, p. 864, at p. 876; Ringvold v. Norway, no. 34964/97, §§ 16-19, ECHR 2003II) the Norwegian Supreme Court held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed (“klar sannsynlighetsovervekt”). This burden was heavier where liability may have serious consequences for the respondent’s reputation, though it was less than for criminal liability. 25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2). 26. The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, subchapter 1.2.1). 27. The above-mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal. It may serve the interests of economy of procedure and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings. In comparison with civil proceedings, such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims. If the compensation proceedings had to await a final outcome in the criminal case (at three levels of jurisdiction), it could take years before they could start. For the victim, and also for the acquitted, this could involve a considerable extra psychological burden. Moreover, in joint proceedings, the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim. Furthermore, the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones. On the contrary, in view of the problems related to examining the criminal evidence twice, the effect would tend to be more consistent under the latter. Finally, in criminal cases giving rise to more than one civil claim, deciding them all at the same time in connection with the criminal process would ensure a greater degree of “procedural equality” and coherence (ibidem, Chapter 6, sub-chapter 6.3.1 and 6.3.2). | 1 |
train | 001-67062 | ENG | AUT | ADMISSIBILITY | 2,004 | FALKNER v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Veronika Falkner, is an Austrian national, who was born in Sölden and lives in Wattens. She is represented before the Court by Mr Heiss, a lawyer practising in Innsbruck. On 27 February 2001 the applicant had a road traffic accident. On 2 March 2001 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) withdrew the applicant's driving licence for 8 months as it found that the applicant had caused an accident under the influence of alcohol and was therefore not reliable as a driver in traffic. On 14 March 2001, the Innsbruck District Administrative Authority found that she had been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (b) of the Road Traffic Act 1960 (Straßenverkehrsordnung) and sentenced her to a fine of ATS 12,000 (approximately 872 €). The applicant did not appeal against this decision. On 28 June 2001 the Hall District Court found the applicant guilty of causing bodily harm by negligence “after allowing herself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which excluded her responsibility ...”. It therefore convicted her under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced her to a fine of ATS 12, 000. The applicant appealed against the District Court's judgment and submitted that she had already been convicted for drunken driving by the District Administrative Authority. The District's Court's judgment was therefore contrary to Article 4 of Protocol No. 7 to the Convention. On 6 November 2001 the Innsbruck Regional Court partly granted the applicant's appeal. It found the applicant guilty of negligently causing bodily harm and convicted her under Article 88 § 1 of the Penal Code. However, it deleted the reference to the aggravating circumstances of Article 88 § 3 and reduced the fine to ATS 10,000 suspended on probation. The Regional Court held that whereas the District Administrative Authority, on 2 March 2001, had withdrawn the applicant's driving licence and, on 14 March 2001, had sentenced her for driving under the influence of alcohol, the District Court's conviction of driving under the influence of alcohol in particularly dangerous circumstances was in breach of the principle of ne bis in idem under Article 4 of Protocol No.7. On 8 February 2002 the Procurator General's Office (Generalprokuratur) filed a plea of nullity for the preservation of law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). On 22 August 2002 the Supreme Court (Oberster Gerichtshof) quashed the District Court's judgment of 28 June 2001 and the Regional Court's judgment of 6 November 2001. It found that the District Administrative Authority had based its decision on the same facts which were considered by the ordinary courts. Thus, the applicant's conviction by the Administrative Authority constituted in principle a technical bar to prosecution (Verfolgungshindernis) of the applicant by the ordinary courts from the point of view of Article 4 of Protocol No. 7. The criminal proceedings before the ordinary courts should therefore be suspended pursuant to Article 412 of the Code of Criminal Procedure (Strafprozeßordnung). Furthermore, the Supreme Court held that the applicant's conduct clearly fell within the jurisdiction of the ordinary courts, as it constituted a criminal offence and not an administrative offence. It referred in this regard to S. 99 subsection (6) (c) of the Road Traffic Act which provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Thus, the Administrative Authority had convicted the applicant although it had not been competent to do so. On 23 September 2002 the Innsbruck District Administrative Authority informed the Hall District Court that the proceedings against the applicant were discontinued and the fine paid by the applicant reimbursed. In a further statement it confirmed that the decision of 14 March 2001 had been annulled. On 15 November 2002 the Hall District Court again convicted the applicant under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions, and sentenced her to a fine of 726 € suspended on probation. As regards the sentence the court referred to the Innsbruck Regional Court's judgment of 6 November 2001 and the principle prohibiting a “reformatio in peius” of the sentence. The applicant appealed and submitted that the proceedings were contrary to Article 4 of Protocol No. 7 as she had been convicted for drunken driving by the District Administrative Authority. The conditions for reopening the case under § 2 of Article 4 of Protocol No. 7 were not met. On 22 August 2003 the Innsbruck Regional Court dismissed the applicant's appeal. It noted that the Administrative Authority had annulled its conviction. Thus, the temporary technical bar to prosecution (Verfolgungshindernis) of the applicant before the ordinary courts did no longer exist. The courts could therefore resume the proceedings in the applicant's case which might be qualified as the re-opening of a case within the meaning of § 2 of Article 4 of Protocol No. 7. S. 5 of the Road Traffic Act 1960 (Straßenverkehrsordnung) provides that it is an offence for a person to drive a vehicle under the influence of alcohol. S. 99 of the 1960 Act provides, so far as relevant, that: “(1b) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than € 581 and not more than € 3 633 or, in default of payment, with one to six weeks' imprisonment, for any person to drive a vehicle when under the influence of drink ...” S. 99 subsection (6) (c) of the Road Traffic Act provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts Under Article 88 § 1 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by up to three months' imprisonment or a fine up to 180 day-rates, to cause physical injury by negligence. Article 88 § 3 increases the sentence in respect of causing injury by up to six months' imprisonment and up to 360 day-rates, if the special circumstances of Section 81 § 2 apply. Article 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol ...”. Article 412 of the Code of Criminal Procedure (Strafprozeßordnung) provides that criminal proceedings have to be suspended inter alia when the offender temporarily cannot be prosecuted by the courts. According to Article 451 § 2 proceedings have to be discontinued inter alia when prosecution is not possible. | 0 |
train | 001-121176 | ENG | ARM | ADMISSIBILITY | 2,013 | MELTEX LTD v. ARMENIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Meltex Ltd, is a private Armenian broadcasting company (“the applicant company”), that was set up in 1995 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr A. Ghazaryan and Mr A. Zeynalyan, lawyers practising in Yerevan. 2. 3. Between June and December 2003 the National Television and Radio Commission (“the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies, put out calls to tender for band 25, bands 31, 39 and 51, bands 3 and 63, and band 56. The applicant company submitted bids for all of the above bands. 4. The NTRC awarded all of the licences to other bidders. 5. The applicant company instituted proceedings in the Commercial Court against the NTRC, contesting the results of the tenders. All the claims were dismissed in the final instance by the Court of Cassation on 27 February and 23 April 2004 respectively. 6. On 27 August 2004 the applicant company and its chairman, Mr Mesrop Movsesyan, lodged an application with the Court (application no. 32283/04) against the Republic of Armenia under Article 34 of the Convention. The applicants alleged that the refusal of the state authorities to award a broadcasting licence amounted to a violation of their freedom of expression under Article 10 of the Convention. In particular they submitted that the NTRC was obliged by law to inform them of the reasons for denying the applicant company a licence. The mere presence of the applicant company’s representative during the presentation of competitive bids and a points-based vote which, moreover, indicated only a total score, did not constitute proper provision of a reasoned decision. The NTRC’s letters announcing the outcome of the calls to tender could not be considered as notification of reasons either, since they simply announced the relevant decisions without stating the grounds for them. According to the applicants this rendered the licensing process arbitrary and not as prescribed by law. 7. The application was considered by the Court, which gave judgment on 17 June 2008 (Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, 17 June 2008). The Court first considered that the application, in so far as it concerned the second applicant, was incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3, and therefore limited its examination of the complaints raised in the application to those which concerned the applicant company. In that respect, the Court held that there had been a breach of Article 10 of the Convention as the interferences with the applicant company’s freedom to impart information and ideas did not meet the Convention requirement of lawfulness. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression (ibid., § 83). 8. As to the application of Article 41 of the Convention, the Court awarded the applicant company EUR 20,000 for non-pecuniary damages together with EUR 10,000 in legal costs and expenses for the proceedings before the Court (ibid., §§ 103-108). 9. On 17 December 2008, on the basis of the Court’s judgment, the applicant company applied to the Court of Cassation for the final two judgments given at domestic level to be reviewed on the basis of a new circumstance. 10. In its two decisions of 19 February 2009 the Court of Cassation dismissed the applications to reopen the proceedings. It held in particular that: “The complaint of the [applicant] Company to the European Court was about the failure of the NTRC to give reasons for not recognising the [applicant] Company as a winner in the competitions held by the NTRC, and the European Court merely considered and found that the lack of such reasoning was in conflict with the requirements of Article 10 of the Convention. Whereas, in [this] appeal the applicant [company] requested that the decisions recognising other companies as winners be declared void and a new competition be opened. The [applicant] Company based the above-mentioned requests on the principle of “restitutio in integrum”. The above principle implies restoration of the situation existing before the breach, that is, restoration of everything the person had prior to the violation of his right. However, the complaints raised in the [applicant] Company’s requests, namely about declaring null and void the decisions on recognising other companies as winners in the competition, recognising [the applicant company] as a winner and granting it a licence cannot be deemed a restoration of the situation existing before the violation, since the judgment of the European Court solely provided that the NTRC had failed to reason its decision on not recognising the [applicant] Company as a winner. The failure to reason the refusal does not automatically mean that the decision in respect of the winning company should be declared void and a new competition opened since the rights of the [applicant] Company (Article 10 of the Convention) were violated as a result of the failure to provide reasons for not recognising it as the winner and not as a result of recognising the other company as the winner in the competition ... ... it is not always possible to repair the consequences of violations established by the European Court by providing compensation, and the respondent state may be required to adopt individual or general measures in respect of the applicant. In particular, the European Court may require a new examination of the case, as it did in the case of Barbera, Messeque and Jabardo v. Spain of 6 December 1998. Meanwhile ... it is necessary to mention that the application of such measures becomes binding only when the European Court directly requires the application of such measures. The judgment of the European Court in this case, besides the obligation to provide compensation, only mentioned that the unreasoned decisions of the Commission were unacceptable. The Court of Cassation therefore finds that the claims of the applicant, such as annulment of the decision on recognising the other company as the winner and granting a licence are not in line with the logic of the judgment of the European Court...” 11. On 19 August 2009 the applicant company lodged an application with the Constitutional Court seeking to annul Article 20428 of the Code of Civil Procedure applied in its case by the Court of Cassation. 12. By its decision of 23 February 2010 no. DCC-866 the Constitutional Court terminated the proceedings. In doing so it held in particular that Article 20428 of the Code of Civil Procedure had already been recognised as unconstitutional in its decision no. DCC-755 and no law had been adopted to bring it into conformity with the Constitution. 13. Relying on the decision of the Constitutional Court, the applicant company lodged two appeals with the Court of Cassation seeking the reopening of the cases on the ground of new circumstance, namely the decision of the Constitutional Court of 23 February 2010 (see above § 12). 14. On 13 August 2010 the Court of Cassation adopted two decisions dismissing the applicant’s appeals. In doing so, the Court of Cassation in particular stated: “... relying on the decision no. DCC-866 of the Constitutional Court ... the Court of Cassation notes that its decision of 19 February 2009 is to be reviewed. At the same time the Court of Cassation states that Article 20428 sets out the types of decisions to be taken by the court in the event of revision based on new circumstances, which means that the decision ... no. DCC-866 relates [solely] to the procedural norm applied by the Court of Cassation in its decision of 19 February 2009 and does not concern the reasons for dismissing the claims of the [applicant] Company from a legal point of view ...” 15. The Court’s judgment of 17 June 2008 became final on 17 September 2008. 16. In a letter dated 20 May 2009 the applicant company informed the Directorate General of Human Rights and Rule of Law (“DGI”) of the Council of Europe about the refusal of the Court of Cassation to review the final judgments in its case. 17. In a letter dated 1 February 2010 the applicant company informed DGI about application no. 45199/09 lodged with the Court, raising an issue of a continuing violation of Article 10. 18. In a letter dated 10 February 2011 the applicant company informed DGI about the second refusal of the Court of Cassation to review its case. By the same letter DGI was informed that a new call to tender had taken place in December 2010. The applicant company alleged that it had submitted a competitive bid but in the results of the NTRC’s point-based voting another company had been announced as the winner of the tender. 19. The Committee of Ministers of the Council of Europe concluded its examination of application no. 32283/04 on 8 June 2011 by adopting Resolution CM/ResDH(2011)39, the relevant parts of which read: “... Having regard to the judgment transmitted by the Court to the Committee once it had become final; Recalling that the violation of the Convention found by the Court in this case concerns the applicant company’s right to freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting licence without giving reasons for its decisions (violation of Article 10) (see details in Appendix); ... Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention; Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix), Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate: - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and - of general measures preventing similar violations; Having taken note that the applicant company had participated in a tender in December 2010, that it received a reasoned decision from the NTRC and that it has the possibility to contest the results of the licensing tender in the courts of the Republic of Armenia; Having taken note of the authorities’ commitment that the NTRC will fully and properly substantiate and reason its decisions, “both in respect of winners of competitions as well as other participants”; ... DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close the examination of this case. Appendix to Resolution CM/ResDH(2011)39: Information about the measures to comply with the judgment in the case of Meltex and Mesrop Movsesyan against Armenia Introductory case summary The case concerns a violation of the applicant company’s freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting licence (violation of Article 10). The European Court concluded that there had been interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression. I. Payment of just satisfaction and individual measures a) Details of just satisfaction Non-pecuniary damage - 20000 EUR Costs and expenses - 10000 EUR Total - 30000 EUR Paid on 27/11/2008 b) Individual measures A call for new licensing tenders for digital broadcasting on 25 national and local frequencies was announced on 20 July 2010. The applicant company took part in a tender for one frequency (competition No. 11). The results of the licensing tender “On winners in the 11th competition” are set out in Decree No. 96A of the National Television and Radio Commission, dated 16 December 2010. The applicant company did not win the tender. Nothing prevents it from contesting the results of the licensing tender in the courts of the Republic of Armenia. II. General measures The Law on Amendments and Additions to the Television and Radio Broadcasting Act was adopted on 10 June 2010. The provision of the TV and Radio Broadcasting Act concerning reasoning of decisions of the NTRC, Article 49(3), reads as follows “The National Commission shall decide the winner of the competition on the basis of the results of the point-based vote. The decision of the National Commission shall be properly substantiated and reasoned”. In order to alleviate any misunderstanding of the obligation on the NTRC to reason all types of decisions, the Government Agent made the following official statement : “Article 49(3) of the TV and Radio Broadcasting Act should be interpreted in accordance with Article 10 of the Convention, and in the light of the Meltex judgment, in a way that a single decision of the Commission provides a full and proper substantiation and reasoning of the results of the points-based vote, including both in respect of the winner of the competition, as well as of all of its other participants”... It is therefore expected that any future decision of the NTRC will be taken in conformity with the European Convention of Human Rights and the case-law of the European Court of Human Rights. III. Conclusions of the respondent state The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Armenia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.” 20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: “Article 20420 The grounds of revision of judicial acts based on new circumstances 1. Judicial acts can be reviewed on the ground of the following: ... 2) a final decision or judgment of an international court ... which substantiates a violation of human rights provided by an international agreement of the Republic of Armenia; ... 2. Final judicial acts of first instance courts, the Court of Appeal and the Court of Cassation can be subject to appeal on the basis of new circumstances. Article 20428 The power of the court in the event of revision In the event of revision of the judicial act on the basis of new circumstances the court is empowered: 1) not to grant the appeal and leave the previous judicial act in force; 2) to change the judicial act fully or partially; 3) to terminate the proceedings fully or partially.” | 0 |
train | 001-114056 | ENG | NLD | ADMISSIBILITY | 2,012 | DJOKABA LAMBI LONGA v. THE NETHERLANDS | 1 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Bède Djokaba Lambi Longa, is a national of the Democratic Republic of the Congo, born in 1966. He is currently detained in the United Nations Detention Unit within Scheveningen Prison, The Hague, the Netherlands. He was represented before the Court by Mr W. Eikelboom, Mr F. Schüller and Mr G. Sluiter, lawyers practising in Amsterdam. 3. The applicant was a prominent member of the Union of Congolese Patriots (Union des patriotes congolais, “UPC”), a political movement created in the Ituri region of the Democratic Republic of the Congo. The UPC’s military wing, the Forces Patriotiques pour la Libération du Congo, “FPLC”) was one of the armed factions active in that area in recent years. 4. On 19 March 2005 the applicant was arrested in Kinshasa together with other members of the UPC or the FPLC including Thomas Lubanga Dyilo, the UPC’s president and the FPLC’s commander-in-chief. 5. It appears that the applicant was charged with participation or complicity in the murder of nine Bangladeshi members of the United Nations Organization Mission in the Democratic Republic of the Congo (Mission de l’Organisation des Nations unies en République démocratique du Congo, “MONUC”). The applicant has consistently denied these charges. 6. The applicant’s detention on remand was extended several times. The last detention order contained in the Court’s case file expired on 2 July 2007. The applicant states that no subsequent extension of his detention was ever authorised and that he has been detained without legal basis ever since. 7. On 17 March 2006 Thomas Lubanga Dyilo was arrested under a sealed warrant of arrest of the International Criminal Court and transferred to The Hague. It was announced on 28 August 2006 that Mr Lubanga Dyilo had been charged by the Prosecutor of the International Criminal Court with enlisting, conscripting and using children under 15 years of age to participate actively in hostilities. 8. On 27 March 2011 the applicant was transferred from detention in the Democratic Republic of the Congo into the custody of the International Criminal Court in The Hague to give evidence at Mr Lubanga Dyilo’s trial as a defence witness. It would appear that the applicant consented to this transfer. It is stated in Trial Chamber I’s decision of 5 August 2011 (see below) that the authorities of the Democratic Republic of the Congo undertook to respect the applicant’s privilege against self-incrimination. 9. The applicant gave evidence on various dates between 30 March and 7 April 2011. 10. On 7 April 2011 the applicant lodged a request with Trial Chamber I for “special measures relating to his asylum application”. He stated that he feared reprisals upon his return to the Democratic Republic of the Congo at the hands of members of the government of that country, including President Kabila himself. He also submitted that he had health problems for which he required medical treatment that was not available in the Democratic Republic of the Congo. 11. On 1 June 2011 the applicant lodged an asylum request with the Netherlands authorities (see below). On the same day he asked the International Criminal Court to order “special measures” pursuant to Rule 88 § 1 of the International Criminal Court’s Rules of Procedure and Evidence (see below) in the form of, as relevant to the present case, a stay of his removal to the Democratic Republic of the Congo. 12. The Trial Chamber invited observations from the authorities of the Democratic Republic of the Congo, who asserted that they continued to detain the applicant throughout the entirety of the proceedings, having temporarily transferred only actual custody. In their view, the Convention relating to the Status of Refugees of 28 July 1951 and the Protocol thereto of 31 January 1967 did not take precedence over the Rome Statute of the International Criminal Court, particularly Article 93 thereof (see below). 13. The Netherlands government, in observations received by the Registry of the International Criminal Court on 7 June 2011, submitted that the applicant was in the temporary custody of the International Criminal Court and thus outside the jurisdiction of the host State. However, if an application of asylum was received, the government would consider and decide on it, “whatever the result”. The host State would, however, defer to the assessment of the International Criminal Court as to whether the applicant could be returned safely to the Democratic Republic of the Congo; any safety risks identified by the International Criminal Court were to be resolved by it under its witness-protection programme. In the meantime, the applicant should remain in the care of the International Criminal Court. 14. The International Criminal Court’s Victims and Witnesses Unit, in response to an order given by the Trial Chamber, carried out a risk assessment on the issue of protective measures for the applicant and for certain other witnesses in a different case who had raised similar concerns. This assessment included reviewing transcripts of the applicant’s testimony, evaluating the current political situation in the Democratic Republic of the Congo and meeting with the Director of the detention centre where the applicant had been held (the Makala detention centre, Kinshasa). The Victims and Witnesses Unit concluded that following his return to the Democratic Republic of the Congo the applicant would not be exposed to any additional risk to his security or psychological or physical well-being as a result of his testimony before the International Criminal Court. As to the specific fears which the applicant had expressed that his testimony about influential figures in the Congolese government put him at risk if he returned to the Democratic Republic of the Congo, the Victims and Witnesses Unit expressed the view that the applicant’s evidence did not reveal anything to the Congolese authorities of which they were not aware. Moreover, “the desire of [the applicant] to implicate the Congolese authorities, and particularly President Kabila, [was] public knowledge”. The Victims and Witnesses Unit concluded that it was unlikely that the applicant’s evidence would have an impact on politics within the Democratic Republic of the Congo such as to lead to reprisals. Moreover, assurances had been received from the Congolese authorities that the applicant would receive adequate protection, and the applicant’s safety would be sufficiently secured by continued monitoring once he had been returned to the Makala detention centre. 15. Medical information was available from which it appeared that the applicant had received medical treatment appropriate to his condition and was fit to travel. 16. On 4 July 2011 Trial Chamber I gave its decision. It recognised that the International Criminal Court had an obligation pursuant to Article 93 § 7 (b) of its Statute and Rule 192 § 4 of its Rules of Procedure and Evidence, as well as under Standard Operating Procedures which had been agreed between its Registry and the Democratic Republic of the Congo, to return the applicant to the Democratic Republic of the Congo once the purposes of his transfer had been fulfilled – which they were, since the applicant had finished giving his evidence. However, Article 21 § 3 of the Statute required the application and interpretation of the applicable law to be consistent with internationally recognised human rights. The Trial Chamber had therefore first to consider the implications of the applicant’s asylum claim. 17. It was for the Netherlands authorities, not for the International Criminal Court, to consider the applicant’s asylum request. The International Criminal Court had, however, to provide a proper opportunity for the Netherlands authorities to do so and for the applicant to make his case. It was for the Netherlands authorities to decide whether it was necessary to intervene in order to take control of the applicant until such time as the asylum proceedings, and any appellate phase in those proceedings, were concluded. 18. The Trial Chamber instructed the Registry to allow the applicant reasonable access to the lawyers representing him for the asylum request; to submit a report on the domestic procedure to be followed in order for the Netherlands to be able to discharge its obligations pursuant to the asylum request before the applicant was returned to the Democratic Republic of the Congo (unless asylum was granted); to liaise with the Congolese authorities, prior to any return of the applicant to the Democratic Republic of the Congo, in order to determine the extent of, and to implement, any protective measures that the Registry considered necessary, and report back accordingly; and to monitor the position of the applicant following his return to the Democratic Republic of the Congo. 19. On 2 August 2011 the Netherlands Ministry of Foreign Affairs submitted a note verbale informing the Trial Chamber of the need to hold interviews with the applicant and the likelihood of further investigations, as well as ensuing litigation. The note included the following: “The foregoing administrative and judicial proceedings may take considerable time and the Netherlands requires the detained witness to remain at the International Criminal Court Detention Centre throughout.” 20. On 13 July 2011 the Netherlands government requested leave to appeal against the Trial Chamber’s decision. The Democratic Republic of the Congo submitted a document indicating that it took issue with the decision, which the Chamber decided to treat as a request for leave to appeal. On 4 August 2011 the Trial Chamber granted both requests. On an unknown later date the Appeals Chamber decided that the grant of leave to appeal to the Netherlands was ultra vires and therefore improper. 21. In an order of 15 August 2011, the Trial Chamber reiterated that it was for the Netherlands “to decide whether, according to its national and international obligations, it [would] take control of the witness until such time as the asylum application and any appellate phase in those proceedings [were] determined”. Furthermore, “The Host State [was] urged to consider without delay whether it [intended] to defer [the applicant’s] departure from the Netherlands. The Registry [was] to consult with the Dutch authorities on the transfer of the witness into the ‘control’ of the Netherlands if the Host State [intended] to defer his departure pending its decision on the asylum application. A reasonable time frame for the transfer [was] to be arranged between the Registry and the Host State.” 22. On 26 August 2011 the Netherlands Ministry of Foreign Affairs sent a note verbale to the International Criminal Court in the following terms: “The position of the Netherlands has consistently been that the witness [i.e., the applicant] is to remain in the custody of the Court during the asylum procedure. In this respect the Netherlands draws attention to its note verbale of 2 August 2011, in which it set out the procedure to be followed by the Netherlands to be able to discharge its obligation pursuant to the asylum request, including the administrative and judicial proceedings. Therein the Netherlands stated that it ‘requires the detained witness to remain at the [International Criminal Court] Detention Centre throughout’. The witness has been temporarily transferred in custody from the Democratic Republic of the Congo to the Court [i.e., the International Criminal Court] pursuant to an agreement between them under Article 93 § 7 of the Statute. Under this agreement the witness shall remain in custody and shall be returned to the [Democratic Republic of the Congo] when the purposes of the transfer have been fulfilled. This agreement was concluded between the [International Criminal Court] and the [Democratic Republic of the Congo] to facilitate the prosecutions undertaken by the [International Criminal Court]. The Netherlands fails to understand how an obligation to accept undocumented or illegal foreigners into its territory would follow from a bilateral agreement to which it is not a party. The Court does not have the authority under the Statute or the Headquarters Agreement to transfer the witness to the Netherlands, nor does it have the authority to impose such a transfer upon the Host State. Neither, as it was acknowledged by the [International Criminal Court], is the Netherlands obligated to accept the transfer of the witness into its control. In this regard the Netherlands would also note that under the current circumstances it lacks jurisdiction to keep the witness in custody throughout the consideration of his asylum application. Moreover, it is not the Netherlands that intends to defer the departure of the witness. The Netherlands notes that the decision reiterated the responsibility of the Court to ensure that the witness has a real – as opposed to a merely theoretical – opportunity to make his request for asylum to the Dutch authorities before his return to the Democratic Republic of the Congo. It is the understanding of the Netherlands that this responsibility implies that the Court will not undertake the transfer of the witness to the [Democratic Republic of the Congo] during the procedure pertaining to the asylum request. Consequently, the position of the Netherlands remains that the witness is to remain in the custody of the Court pending the consideration of the asylum application. Therefore, the Netherlands does not consider that there is a need to consult with the Registry of the Court at this time.” 23. After a request by the applicant to reconsider its decision of 4 July 2011, the Trial Chamber gave an order on 1 September 2011 which included the following: “As the Host State has now informed the Chamber that it does not intend to defer the transfer of [the applicant] back to [the Democratic Republic of the Congo] and it has declined to consult with the Registry on the transfer of custody to the Host State, the Request for reconsideration of the Chamber’s Implementation Order is moot. The judges are of the view that the Chamber has provided the Registry with clear guidance, namely that deferring the departure of [the applicant] was subject to the condition that custody of the witness [i.e., the applicant] is transferred to the Host State pending the latter’s decision on the asylum application. The Chamber has discharged its obligations under Article 21 § 3 of the Statute and it is now for the Host State, to whom the asylum application is directed, to decide whether it is necessary to intervene in order to take control of the witness [i.e., the applicant] until such time as the application and any appellate phase in those proceedings are determined. It follows that the Registry should proceed with regard to [the applicant] in the way specified in Article 93 § 7 (b) of the Statute and Rule 192(4) of the Rules. ... In the event that travel is appropriate ... the Registrar should inform the Host State of the intended departure date of [the applicant] to the [Democratic Republic of the Congo]. If at any time before he finally leaves for the [Democratic Republic of the Congo] the Dutch authorities indicate that they intend to take control of the witness, the Registrar is to cooperate in the transfer of [the applicant] to the Host State.” 24. In a decision of 15 December 2011, the Trial Chamber dismissed the applicant’s request to revoke the order for his return to the Democratic Republic of the Congo and instead order his release, conditionally if need be. It added: “The Court’s Order [of 1 September 2011] remains in force. The Chamber reiterates its instructions to the Registry to prepare for the return of [the applicant] once he is fit to travel, pursuant to Article 93 § 7 (b) of the Statute and Rule 192 § 4 of the Rules. It is for the Dutch authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings. Until [the applicant] returns to the [Democratic Republic of the Congo], he is to remain in detention on the basis of Article 93 § 7 (b) of the Statute, unless custody is transferred to the Dutch authorities at the latter’s request. The Chamber has no competence to review any decision by the [Democratic Republic of the Congo] to detain the witness once he has arrived back in that country, and it is to be noted that in the decision of 4 July 2011 the Chamber examined its responsibilities, based on Article 68 § 1 of the Statute, as regards the return of [the applicant] to the Democratic Republic of the Congo.” 25. As already mentioned, on 1 June 2011 the applicant lodged a request for asylum with the Netherlands authorities through his lawyer, Mr Schüller. The request stated that the applicant feared persecution if returned to the Democratic Republic of the Congo, having made statements before the International Criminal Court linking the President of that country to war crimes. 26. On an unknown date, but in reply to a letter sent by the applicant’s representative, Mr Schüller, and dated 28 September 2011, the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) stated that since the applicant was not within the jurisdiction of the Netherlands it was not possible for him to request asylum. That being the case, his request would be treated as a request for protection (bescherming), to be considered in the light of the prohibition of refoulement flowing from the 1951 Convention relating to the Status of Refugees and Article 3 of the Convention; it would of course be borne in mind that the applicant was not within Netherlands jurisdiction. It was announced that the applicant would be interviewed. 27. Basing his argument on the premise that his detention was a measure under section 59 of the 2000 Aliens Act (Vreemdelingenwet 2000, see below), the applicant lodged an appeal with the Regional Court (rechtbank) of The Hague. 28. The Regional Court gave its decision on 27 October 2011 following adversarial proceedings. It held that although the Netherlands was prepared to give consideration to the applicant’s request for protection and had asked the International Criminal Court to continue the applicant’s detention, the detention of the applicant had not for that reason been brought under the authority or control of the Netherlands authorities. 29. The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which gave its decision (Landelijk Jurisprudentie Nummer (National Jurisprudence Number) BW0617) on 22 March 2012 following adversarial proceedings. 30. The Administrative Jurisdiction Division quoted the following from a letter of 19 October 2011 sent by the Registrar of the International Criminal Court to the Ministry of Foreign Affairs: “On the specific matter of the detained witnesses, the Registrar hereby confirms the position that the four detained witnesses, one attached to the case The Prosecutor vs. Thomas Lubanga Dyilo (ICC 01/04-10/06) [i.e., the applicant], and the remaining three attached to the case The Prosecutor vs. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07), are currently detained under the exclusive authority of the Democratic Republic of the Congo (‘DRC’) following the requests of both Trial Chamber I and Trial Chamber II, respectively, to facilitate their viva voce testimonies at the seat of the Court, pursuant to Article 93 § 7 of the Rome Statute. These persons are currently detained under the custody of the Court, pursuant to Rule 192 § 2 of the Rules of Procedure and Evidence of the Court and to an agreement between the Congolese authorities and the Court. ... For its part, Trial Chamber I has ordered the Registry to consult also with the Dutch authorities on the transfer of the witness into the control of the Host State pending its decision on the asylum application. With this background into consideration [sic], the Registrar further confirms that the International Criminal Court judges have, at no stage, issued any decision requesting the Host State to assume the custody of the four detained witnesses. ...” The Administrative Jurisdiction Division’s reasoning included the following: “2.1.6. It follows from the above that the alien [i.e., the applicant] is detained under an order of the Congolese authorities and that this detention is now taking place in a detention centre that is under the control and authority of the International Criminal Court, at the request and on the responsibility of the International Criminal Court based on Article 93 § 7 of the Statute, Rule 192 of the [International Criminal Court’s Rules of Procedure and Evidence] and the agreement concluded between the Congolese authorities and the International Criminal Court. 2.1.7. Pursuant to Article 88 of the International Criminal Court (Implementation) Act[,] Netherlands law does not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court. Already for that reason the alien’s detention cannot be based on the exercise, or presumed exercise, of any authority delegated to the Minister in the 2000 Aliens Act. The Regional Court therefore rightly held that the tribunals competent to hear cases concerning aliens [vreemdelingenrechter] lack the competence to consider the legality of this detention. ...” 31. On 27 September 2012 the Registrar, duly authorised by the President of the Court, gave urgent notification of the present application to the Netherlands Government (Rule 40 of the Rules of Court). In reply, the Government informed the Court that on 4 September 2012 the applicant had, after consulting his lawyer, Mr Schüller, withdrawn his asylum request. Copies of the applicant’s handwritten withdrawal letter, in French, and of an official record were appended to the Government’s reply. 32. On 12 May 2011 three witnesses appearing in a different trial before the International Criminal Court (The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07)) lodged requests for asylum with the Netherlands authorities. As a decision was not given within the time-limit set for that purpose by law, they lodged objections against a notional refusal (fictieve weigering); these were declared inadmissible on 6 June 2011. They then appealed to the Regional Court of The Hague. 33. On 28 December 2011 the Regional Court gave its decision. It dismissed the argument of the Minister for Immigration and Asylum that the 2000 Aliens Act was inapplicable to the applicants’ asylum requests. Such an argument could not be based on the Headquarters Agreement, whose Article 8 declared the laws of the Host State applicable save as otherwise provided; nor on the International Criminal Court (Implementation) Act, whose Article 88 contained a provision declaring domestic Netherlands law inapplicable to deprivation of liberty on premises under the authority of the International Criminal Court; nor on the Statute of the International Criminal Court, save in so far as the application of the 2000 Aliens Act might thwart the International Criminal Court in the exercise of its duties – which, given the International Criminal Court’s deference to the Netherlands authorities for a decision on the asylum request, in the view of the International Criminal Court itself was clearly not the case here; nor even on the 2000 Aliens Act itself or on delegated legislation based on it, given that the three witnesses were on Netherlands soil and thus could not seek the protection of any other State on whose territory they were not present, nor of the International Criminal Court, which had no territory. The Minister was accordingly ordered to give a decision on the witnesses’ asylum requests within six months. 34. No appeal was lodged against this decision, which accordingly became final. 35. On 11 June 2012 the Minister for Immigration and Asylum gave notice of his intention (voornemen) to refuse asylum to [B] and [C] on the ground that they were suspected of having committed crimes against humanity within the meaning of Article 1F of the 1951 United Nations Convention on the Status of Refugees. For health reasons, no notice was given in the case of [A]. 36. [B] and [C] have submitted their written comments (zienswijze). A decision in their cases was expected in October 2012. 37. On an unknown date [A], [B] and [C] summoned the Netherlands State before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of The Hague, Civil Division, in summary proceedings (kort geding), seeking an order for the State to declare to the International Criminal Court that the State was prepared to take over the applicants from the International Criminal Court and for that purpose to enter into consultation (overleg) in the appropriate and usual way. 38. The Provisional Measures Judge gave judgment on 26 September 2012. He held as follows: “3.1. The plaintiffs [i.e., [A], [B] and [C]] have based their claim on the ground that the State is committing a tort against them [jegens hen onrechtmatig handelt]. That being the case, the competence of the civil courts – in the present case, the Provisional Measures Judge in summary proceedings – to take cognisance of the claim is established. The plaintiffs’ claim is also admissible, since for what they wish to achieve no other judicial remedy offering adequate guarantees is available. 3.2. The parties differ as to whether the State is under an obligation to declare to the International Criminal Court that it is prepared to take the plaintiffs over from the International Criminal Court and enter into consultations with the International Criminal Court for that purpose. 3.3. The State has stated in its defence that the title of the plaintiffs’ detention lies in the agreements reached between the International Criminal Court and the Democratic Republic of the Congo and that the State cannot and will not exercise jurisdiction over the plaintiffs. According to the State, the Headquarters Agreement requires it only to transport the plaintiffs across Netherlands territory at the request of the International Criminal Court. In support of its position the State has prayed in aid, inter alia, the decision of the Administrative Jurisdiction Division [of 22 March 2012, see paragraphs 29 and 30 above] and the decision of 9 June 2009 given by the European Court of Human Rights (‘the Court’) in the Galić case (no. 22617/07; Nederlandse Jurisprudentie [Netherlands Law Reports] 2010, no. 267). According to the State, the fact that the plaintiffs have lodged an asylum request does not imply either that the Netherlands is obliged to take them over from the International Criminal Court, since the lodging of an asylum request does not grant an entitlement to stay in the Netherlands if the asylum-seeker [verzoeker] from a legal point of view is not actually in the Netherlands [juridisch gezien niet in Nederland verblijft]. In the State’s view, the plaintiffs will have to await the outcome of the asylum proceedings. Only afterwards, in the State’s submission, will it need to be considered whether Article 3 constitutes an obstruction for the return of the plaintiffs to the Democratic Republic of the Congo. The State has pointed out in this connection that the asylum request is being processed with the necessary expedition and that, considering the intentions mentioned ... [see paragraph 35 above], it is likely that the asylum requests of [B] and [C] will be turned down. The State submits that in view of this situation diplomatic consultations are under way which are in a terminal phase. The Provisional Measures Judge, considering this defence, holds as follows: 3.4. Although it is in itself correct that formally the plaintiffs are in the custody of the Democratic Republic of the Congo, implemented by the International Criminal Court, it cannot be denied, considering also the position of the International Criminal Court, that the plaintiffs are now in a dead-end (detention) situation. Since its decision of 24 August 2011 [in which the International Criminal Court orders its Registrar to enter into consultations with the Netherlands Government], the International Criminal Court considers itself bound by its Statute to return the plaintiffs to the Democratic Republic of the Congo, but the asylum proceedings, which remain pending, prevent an order for their return based on Article 93 § 7 of the Statute. Irrespective of whether – quite apart from the asylum proceedings – it is at all possible for the plaintiffs to be returned to the Democratic Republic of the Congo safely, the fact remains that also in view of the appeals that may be lodged in the asylum proceedings there is no prospect of a speedy end to those proceedings. This means that, as of 24 August 2011, the plaintiffs are no longer lawfully detained [zich niet meer in een rechtmatige vorm van detentie bevinden]. They have no prospect of release or trial within a reasonable time and it is unclear whether they can have the lawfulness of their detention examined by a competent jurisdiction. Neither the International Criminal Court nor the Democratic Republic of the Congo is in a position to put an end to the situation that has now emerged. 3.5. The defence that the State has no jurisdiction over the plaintiffs cannot be followed. It can only be deduced from the decision of the Administrative Jurisdiction Division of the Council of State, which the State cites, that the detention of the plaintiffs is not based on the exercise, or presumed exercise, of powers based on the 2000 Aliens Act, which is correct. This does not make any difference to the possibility that the State may be legally bound to take over the plaintiffs from the International Criminal Court. 3.6. Nor is the comparison with the Galić case apposite. The Court held in that case that the fact that the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) had its seat in the Netherlands did not suffice to impute the alleged violations of the applicant’s human rights to the Netherlands. On this point, the Court held as follows: ‘In view of the above, the Court cannot find the sole fact that the ICTY has its seat and premises in The Hague sufficient ground to attribute the matters complained of to the Kingdom of the Netherlands. In arriving at that conclusion the Court has had regard to the particular context in which the question arises before it. The Court stresses that the present case involves an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights, and that moreover the basic legal provisions governing that tribunal’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.’ Unlike in the Galić case, which concerned a suspect who was being tried under rules relating to an international tribunal set up by the United Nations and could make use of the (procedural) guarantees of that tribunal, the present case concerns witnesses in proceedings before another United Nations tribunal who, with regard to their detention, cannot actually make use of the guarantees of that tribunal, as is also apparent from the position taken by the International Criminal Court. In this situation it cannot be excluded that the International Criminal Court’s seat in Netherlands territory offers sufficient links to assume that the Netherlands has jurisdiction. 3.7. The above applies in particular given that it is because of the Netherlands asylum proceedings that the plaintiffs cannot be returned to the Democratic Republic of the Congo. It may well be that the asylum requests subvert [doorkruisen] the system provided under international law, but as it is, the State is obliged on the ground of the decision of this court (sitting in Amsterdam) [of 28 December 2011, see paragraph 33 above] – against which it has not appealed – to consider the plaintiffs’ asylum requests. The plaintiffs cannot be blamed for lodging asylum requests. 3.8. Leaving aside the correctness of the defence that an asylum request lodged by persons who are not within (the jurisdiction of) the Netherlands does not create a right to stay in the Netherlands, it remains the case that the State must concern itself with the fate of the plaintiffs and may not leave them in the custody of the International Criminal Court pending the asylum procedures being processed in accordance with the 2000 Aliens Act, the end of which is not yet in sight. The State must therefore enter into consultations with the International Criminal Court to put an end to the unlawful detention of the plaintiffs. 3.9. It follows from the above that the plaintiffs’ claim will be allowed in the following way. The time-limit within which the State must enter into consultations with the International Criminal Court shall be four weeks, to enable the State to make adequate preparations. To the extent that the State fears that the plaintiffs will, after their claim has been allowed, abscond into illegality [in de illegaliteit zullen verdwijnen], it is its responsibility to take appropriate preventive measures.” 39. It is not yet known whether the State has lodged an appeal against this judgment. 40. Provisions of domestic law relevant to the case are the following. “Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.” “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.” “1. Any interested party [belanghebbende] can lodge an appeal against an administrative decision [besluit] with the Regional Court. ...” “1. If necessary in the interests of public order or national security, [the competent Minister] may, for the purpose of expulsion [uitzetting], order the detention of an alien who: (a) is not lawfully resident; ...” “1. ... [A] measure taken in pursuance of Chapter 5 of this Act [including Article 59] purporting to restrict or deprive someone of their liberty shall, for the purpose of applying Article 8.1 of the General Administrative Law Act, be equated with an administrative decision. ...” “1. The International Criminal Court’s requests for cooperation in whatever form, as referred to in Article 93 of its Statute, shall be complied with as desired, as far as possible ...” “... 2. Transit of persons [i.e., other than suspects] who have been transferred, or who have come, to the Netherlands at the request of the International Criminal Court shall take place on the instructions [in opdracht] of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice (Minister van Justitie)]. 3. Transport of persons outside the spaces subject to the authority of the International Criminal Court [buiten de onder het gezag van het Strafhof staande ruimten] of persons who have been deprived of their liberty on the orders of the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice]. 4. The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.” “1. Transit of persons who are to be handed over to the authorities of a foreign State by the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice]. 2. The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.” “1. If witnesses, experts, victims or other persons whose presence is required at the seat of the International Criminal Court, of whatever nationality, come to the Netherlands pursuant to a subpoena or summons [dagvaarding of oproeping] or an arrest warrant issued by the International Criminal Court or in response to a request for admission made by the International Criminal Court to the Netherlands ..., they shall not be subject to prosecution, arrest or any other measure limiting their freedom in respect of facts or convictions preceding their arrival in the Netherlands. 2. The immunity referred to in the first paragraph shall be lost if the person in question, having had the possibility of leaving the Netherlands for fifteen consecutive days from the moment on which his presence was no longer required by the International Criminal Court, has remained in the country or has returned to it after having left.” “Netherlands law shall not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court.” 41. In this section, the expression “Court” refers to the International Criminal Court. “1. The seat of the Court shall be established at The Hague in the Netherlands (‘the host State’). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.” “1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.” “1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” “... 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. ...” “1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. ... 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in Article 43, paragraph 6. ...” “1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: ... (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; ... (j) The protection of victims and witnesses and the preservation of evidence; ... (l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. ... 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i) The person freely gives his or her informed consent to the transfer; and (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. ...” “1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.” “1. The premises of the Court shall be under the control and authority of the Court, as provided under this Agreement. 2. Except as otherwise provided in this Agreement, the laws and regulations of the host State shall apply on the premises of the Court. ...” “1. Witnesses shall enjoy the following privileges, immunities and facilities to the extent necessary for their appearance before the Court for purposes of giving evidence ...: (a) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host State; ... (e) for purposes of their communications with the Court and counsel in connection with their testimony, the right to receive and send papers and documents in whatever form; (f) exemption from immigration restrictions or alien registration when they travel for purposes of their testimony; (g) the same repatriation facilities in time of international crisis as are accorded to diplomatic agents under the Vienna Convention. ... 5. Witnesses shall not be subjected by the host State to any measure which may affect their appearance or testimony before the Court.” “1. The Court shall cooperate with the competent authorities to facilitate the enforcement of the laws of the host State, to secure the observance of police regulations and to prevent the occurrence of any abuse in connection with the privileges, immunities and facilities accorded under this Agreement. 2. The Court and the host State shall cooperate on security matters, taking into account the public order and national security of the host State. 3. Without prejudice to their privileges, immunities and facilities, it is the duty of all persons enjoying such privileges, immunities and facilities to respect the laws and regulations of the host State. They also have the duty not to interfere in the internal affairs of the host State. 4. The Court shall cooperate with the competent authorities responsible for health, safety at work, electronic communications and fire prevention. 5. The Court shall observe all security directives as agreed with the host State, as well as all directives of the competent authorities responsible for fire prevention regulations. 6. The host State will use its best efforts to notify the Court of any proposed or enacted national laws and regulations having a direct impact on the privileges, immunities, facilities, rights and obligations of the Court and its officials. The Court shall have the right to provide observations as to proposed national laws and regulations.” “1. The transport, pursuant to the Statute and the Rules of Procedure and Evidence, of a person in custody from the point of arrival in the host State to the premises of the Court shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court. 2. The transport, pursuant to the Statute and the Rules of Procedure and Evidence, of a person in custody from the premises of the Court to the point of departure from the host State shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court. 3. Any transport of persons in custody in the host State outside the premises of the Court shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court. ...” “... 2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit; (b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality. ... 4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential.” “1. The Victims and Witnesses Unit shall exercise its functions in accordance with Article 43, paragraph 6. 2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate: (a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances: (i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection; (ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures; (iii) Assisting them in obtaining medical, psychological and other appropriate assistance; (iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality; (v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate; (vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule; (b) With respect to witnesses: (i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (ii) Assisting them when they are called to testify before the Court; ...” “1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to Article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure. ...” “1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to Article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure. 2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness. ...” “1. Transfer of a person in custody to the Court in accordance with Article 93, paragraph 7 [of the Rome Statute], shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State. 2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court. 3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber. 4. In accordance with Article 93, paragraph 7 (b) [of the Rome Statute], when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State.” “1. The Registry shall take all necessary measures to maintain a protection programme for witnesses, including accompanying support persons, and others considered to be at risk of harm and/or death on account of a testimony given by such witnesses or as a result of their contact with the Court. 2. An application for inclusion in the protection programme may be filed by the Prosecutor or by counsel. 3. In assessing admission to the protection programme, in addition to the factors set out in Article 68, the Registry shall consider, inter alia, the following: (a) The involvement of the person before the Court; (b) Whether the person himself or herself, or his or her close relatives are endangered because of their involvement with the Court; and (c) Whether the person agrees to enter the protection programme. 4. Inclusion in the protection programme shall be subject to the decision of the Registrar after the assessment made under sub-regulation 3. 5. Before being included in the protection programme, the person or – where the person is under the age of 18 or otherwise lacks the legal capacity to do so – his or her representative, shall sign an agreement with the Registry.” 42. In a decision of 2 December 2009 in the case concerning Jean-Pierre Bemba Gombo (Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’), the Appeals Chamber of the International Criminal Court held as follows (footnote references omitted). “104. The Appeals Chamber, for the reasons explained below determines that the Pre-Trial Chamber erred in deciding that Mr Bemba should be released with conditions without also specifying the appropriate conditions or identifying a State willing to accept Mr Bemba and enforce the conditions. 105. In the Appeals Chamber’s view, a decision on interim release as already explained in paragraph 59 above is not discretionary. If the Pre-Trial Chamber is satisfied that the conditions set forth in Article 58 § 1 of the Statute are not met, it shall release the person, with or without conditions. If, however, the release would lead to any of the risks described in Article 58 § 1 (b) of the Statute, the Chamber may, pursuant to Rule 119 of the Rules of Procedure and Evidence, examine appropriate conditions with a view to mitigating or negating the risk. As the list of conditions in Rule 119 § 1 of the Rules of Procedure and Evidence indicates, the Chamber may also, in appropriate circumstances, impose conditions that do not, per se, mitigate the risks described in Article 58 § 1 (b) of the Statute. The result of this two-tiered examination is a single unseverable decision that grants conditional release on the basis of specific and enforceable conditions. Put differently, in such circumstances, release is only possible if specific conditions are imposed. 106. Furthermore, the Appeals Chamber considers that in order to grant conditional release the identification of a State willing to accept the person concerned as well as enforce related conditions is necessary. Rule 119 § 3 of the Rules of Procedure and Evidence obliges the Court to seek, inter alia, the views of the relevant States before imposing or amending any conditions restricting liberty. It follows that a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release. 107. In addition, the Appeals Chamber notes that the International Criminal Court exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are enforced. Without such cooperation, any decision of the Court granting conditional release would be ineffective. 108. In the circumstances of this case, the Appeals Chamber notes that the Pre-Trial Chamber, after concluding its examination of the conditions under Article 58 § 1 of the Statute, decided that Mr Bemba should be ‘released, albeit under conditions’. The Chamber went on to clarify that the set of conditions to be imposed will be determined at a later stage. Furthermore, at paragraph 83 of the Impugned Decision, the Chamber reiterated that ‘no ruling is rendered on the question [of] which set or type of conditions restricting liberty are deemed appropriate to be imposed on Mr Jean-Pierre Bemba and in which State he shall be conditionally released’. Finally, at the operative part of the Impugned Decision, paragraph (a), the Pre-Trial Chamber decided to grant Mr Bemba conditional release until decided otherwise. Thus in the instant case, the Impugned Decision is flawed because the Pre-Trial Chamber failed to specify the appropriate conditions that make the conditional release of Mr Bemba feasible. 109. For these reasons, the Appeals Chamber determines that the Pre-Trial Chamber erred in granting conditional release without specifying the appropriate conditions that make conditional release feasible, identifying the State to which Mr Bemba would be released and whether that State would be able to enforce the conditions imposed by the Court.” 43. In its decision of 9 June 2011 concerning the three defence witnesses (the above-mentioned [A], [B] and [C]) in the case of Germain Katanga and Mathieu Ngudjolo Chui (“Decision on an Amicus Curiae application and on the ‘Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d’asile’ (Articles 68 and 93 § 7 of the Statute)”), Trial Chamber II held as follows (footnote references omitted). “1. What is the precise scope of the duty to protect witnesses as enshrined, inter alia, in Article 68 of the Statute? a. Necessary distinctions 59. At the status conference, the Chamber stressed the distinction which must be made between measures which the Court may take pursuant to Article 68 of the Statute in order to protect witnesses on account of their cooperation with the Court, and those which it is requested to take in order to protect them against potential or proven human rights violations in the broad sense of the term. The Chamber adds that these two types of measures should not be confused with those which, more specifically, protect asylum applicants from the risk of persecution they might suffer if they returned to their country of origin. 60. These distinctions form the theoretical underpinning of this decision. While the Chamber is cognisant of how the overall human rights situation, in the broad sense of the term, of a given country may influence the assessment of the risks faced by witnesses as a result of their cooperation with the Court, the three types of risks set out above must not be conflated, so as not to misconstrue the Court’s mandate with respect to witness protection. 61. In the Chamber’s view, the Statute unequivocally places an obligation on the Court to take all protective measures necessary to prevent the risk witnesses incur on account of their cooperation with the Court. That is the one and only appropriate interpretation of Article 68 of the Statute, which is a framework provision on the matter. Furthermore, although Rule 87 of the Rules and Regulation 96 of the Regulations of the Registry do not state so explicitly, a logical and joint reading of these two provisions supports the view that the role of the Court is restricted to protecting witnesses from the risk they face on account of their testimony. 62. Contrary to the submissions of Duty Counsel and the Defence for Germain Katanga, the Chamber is of the view that it is not duty-bound to protect witnesses against risks which they might face not only as a result of their testimony but also as a result of human rights violations by the [Democratic Republic of the Congo]. By virtue of its mandate, the Court protects witnesses from risks arising specifically from their cooperation with it, not those arising from human rights violations by the authorities of their country of origin. Article 21 § 3 of the Statute does not place an obligation on the Court to ensure that States Parties properly apply internationally recognised human rights in their domestic proceedings. It only requires the Chambers to ensure that the Statute and the other sources of law set forth at Article 21 § 1 and 21 § 2 are applied in a manner which is not inconsistent with or in violation of internationally recognised human rights. 63. Nor is the Court duty-bound to assess the risks of persecution faced by witnesses who are applying for asylum. In this respect, the Chamber reiterates its observation at the status conference that the criteria for considering an application for asylum, in particular those pertaining to the risk of persecution incurred by the applicants, are not identical to the criteria applied by the Court to assess the risks faced by witnesses on account of their testimony before the Court. 64. Accordingly, it cannot endorse the host State’s argument that the Chamber should conduct an assessment of the risks faced by the witnesses in light of the principle known as ‘non-refoulement’ ... which is enshrined in several international instruments, including Article 33 of the Geneva Convention of 28 July 1951. Admittedly, as an international organisation with a legal personality, the Court cannot disregard the customary rule of non-refoulement. However, since it does not possess any territory, it is unable to implement the principle within its ordinary meaning, and hence is unlikely to maintain long-term jurisdiction over persons who are at risk of persecution or torture if they return to their country of origin. In the Chamber’s view, only a State which possesses territory is actually able to apply the non-refoulement rule. Furthermore, the Court cannot employ the cooperation mechanisms provided for by the Statute in order to compel a State Party to receive onto its territory an individual invoking this rule. Moreover, it cannot prejudge, in lieu of the Host State, obligations placed on the latter under the non-refoulement principle. In this case, it is therefore incumbent upon the Dutch authorities, and them alone, to assess the extent of their obligations under the non-refoulement principle, should the need arise. b. Role of the Chamber 65. Currently faced with the disagreements between the VWU [the Victims and Witnesses Unit] and Duty Counsel, the Chamber has not yet ruled on the need to implement operational protective measures, within the meaning of Article 68 of the Statute, for the three detained witnesses in order to obviate the risks they face on account of their testimony. The Chamber notes that, on 24 May 2011, it ordered the VWU, on the basis, inter alia, of discussions with the authorities of the [Democratic Republic of the Congo], to conduct a final assessment of the risks those witnesses might incur and of the protective measures which might be implemented for them. A report on the discussions and the possible resulting proposals was filed by the Registrar on 7 June 2011. In the event of disagreement between the party calling the witness and the Registry after the parties and participants have made their submissions, the Chamber will, in accordance with a previous Appeals Chamber judgment, issue a decision on instituting the operational protective measures which it considers it may adopt within the scope of its mandate. 66. However, in light of the distinction established above, that decision cannot prejudice the ongoing asylum procedure before the Dutch authorities. The Chamber will now address the asylum procedure. 2. Is an immediate application of the provisions of Article 93 § 7 of the Statute consistent with internationally recognised human rights? 67. As for any other individual, whether detained or not, the three witnesses in question are afforded the right to submit an application for asylum. In addition to the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees, Article 14 of the Universal Declaration of Human Rights of 1948 provides that everyone has the right to seek and to enjoy in other countries asylum from persecution. Furthermore, the United Nations General Assembly has adopted a Declaration on Territorial Asylum enshrining the right to seek and to enjoy asylum. The Chamber also notes that Article 18 of the Charter of Fundamental Rights of the European Union adopted on 7 December 2000 guarantees the right to asylum with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees and in accordance with the Treaty establishing the European Community, and that Article 19 § 2 of that Charter recalls that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The Chamber further notes that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 sets forth a similar rule to that contained in the Geneva Convention of 1951 and, although narrower in scope, has acquired customary status. It prohibits a State from expelling or extraditing a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 68. The ‘non-refoulement’ principle is considered to be a norm of customary international law and is an integral part of international human rights protection. All individuals are entitled to enjoy its application by a State. 69. The Chamber cannot therefore disregard the importance of the rights invoked in Duty Counsel’s Application. In addition to the aforementioned right to apply for asylum, the Chamber must also pay particular attention to the right to effective remedy, as enshrined, inter alia, in Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, Article 13 of the European Convention on Human Rights, Article 7 of the African Charter of Human and Peoples’ Rights, and Article 25 of the American Convention on Human Rights. The Chamber cannot disregard this fundamental rule and stresses that, in order for the asylum procedure to be effective, there must be open recourse to it, both in law and in practice, and that there must be no obstacles to the entering of an application for asylum as a result of acts or omissions that may be imputed to the Court. 70. As provided in Article 21 § 3 of the Statute, the Chamber must apply all of the relevant statutory or regulatory provisions in such a way as to ensure full exercise of the right to effective remedy, which is clearly derived from internationally recognised human rights. 71. In the matter at hand, the three detained witnesses were transferred to the Court pursuant to Article 93 § 7 of the Statute for the purposes of giving testimony. Article 93 § 7 further provides that the transferred person shall remain in custody and that when the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State – in this case, the [Democratic Republic of the Congo]. 72. The witnesses completed their testimony on Tuesday, 3 May 2011. At this juncture, the Chamber considers that it must settle only the issue of whether an immediate application of Article 93 § 7 of the Statute would not constitute a violation of the detained witnesses’ rights to apply for asylum. 73. As matters stand, the Chamber is unable to apply Article 93 § 7 of the Statute in conditions which are consistent with internationally recognised human rights, as required by Article 21 § 3 of the Statute. If the witnesses were to be returned to the [Democratic Republic of the Congo] immediately, it would become impossible for them to exercise their right to apply for asylum and they would be deprived of the fundamental right to effective remedy. Furthermore, were the Chamber to decide to oblige the Host State to cooperate with the Court in order to return the witnesses to the [Democratic Republic of the Congo] immediately by transporting them to the airport, it would be constraining the Netherlands to violate the witnesses’ rights to invoke the non-refoulement principle. 74. Moreover, the Chamber is of the view that it need not rule on the issue of the witnesses’ legal status, which has been discussed at length. In this respect, the Dutch authorities have clearly indicated on several occasions that, in the event that an application for asylum is submitted to them – as has already happened in the instant case – they would be obliged to consider it. Indeed, they also confirmed, as did the Registry, that Article 44 of the Headquarters Agreement applies in this case. Nor is it necessary, in the Chamber’s view, to rule on the alleged legal effects of the immunities which the witnesses enjoy, since it considers this argument to be unfounded. ... I. Conclusion and consequences 79. For all of the aforementioned reasons, the Chamber decides at this point to delay the return of the three detained witnesses, in so far as the issue of their protection within the meaning of Article 68 of the Statute has not yet been resolved, and as their return ‘without delay’ would breach internationally recognised human rights. Accordingly, it instructs the Registry to inform the United Nations Security Council of the situation of Witness DRC-D02-P-0236 and to notify it of this decision. 80. For the time being, the witnesses under a detention order issued by the Congolese authorities shall remain detained in the custody of the Court pursuant to Article 93 § 7 of the Statute and Rule 192 of the Rules. The Chamber does not endorse the Registry’s argument that their continued detention would have no legal basis now that they have completed their testimony before the Court. 81. In the Chamber’s view, the legal instruments cited above authorise the Court to maintain the witnesses in its custody. Those provisions shall continue to apply until such time as the Chamber has ruled on the critical issue of whether the obligation under Article 93 § 7 of the Statute to return the witnesses can be implemented without contravening the Court’s other obligations under Article 68 of the Statute and without violating the three witnesses’ internationally recognised human rights.” 44. The International Criminal Tribunal for the Former Yugoslavia was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993. Annexed to this Resolution was the Statute of that Tribunal, which contains the following provision: “The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.” 45. The Rules of Procedure and Evidence adopted in pursuance of that provision, in their relevant part, provide as follows: “(A) Any detained person whose personal appearance as a witness has been requested by the Tribunal shall be transferred temporarily to the detention unit of the Tribunal, conditional on his return within the period decided by the Tribunal. (B) The transfer order shall be issued by a Judge or Trial Chamber only after prior verification that the following conditions have been met: (i) the presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested State during the period the witness is required by the Tribunal; (ii) transfer of the witness does not extend the period of his detention as foreseen by the requested State; (C) The Registry shall transmit the order of transfer to the national authorities of the State on whose territory, or under whose jurisdiction or control, the witness is detained. Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar. (D) The Registry shall ensure the proper conduct of the transfer, including the supervision of the witness in the detention unit of the Tribunal; it shall remain abreast of any changes which might occur regarding the conditions of detention provided for by the requested State and which may possibly affect the length of the detention of the witness in the detention unit and, as promptly as possible, shall inform the relevant Judge or Chamber. (E) On expiration of the period decided by the Tribunal for the temporary transfer, the detained witness shall be remanded to the authorities of the requested State, unless the State, within that period, has transmitted an order of release of the witness, which shall take effect immediately. (F) If, by the end of the period decided by the Tribunal, the presence of the detained witness continues to be necessary, a Judge or Chamber may extend the period on the same conditions as stated in Sub-rule (B).” 46. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement, in its relevant parts, provides as follows. “1. Subject to the provisions of this Article, a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State; b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State. 2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State. ... 3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply: a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent; ii. offences arising out of any act or omission done in the performance of official duty. b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction. c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance. 4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State. 5. a. The authorities of the receiving and sending States shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions. b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent. c. The custody of an accused member of a force or civilian component over whom the receiving State is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State. 6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them. ... 10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises. b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force. ...” 47. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to nonNATO member States participating in the Partnership for Peace. 48. On 18 September 1998 the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom of Great Britain and Northern Ireland concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series, pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002. 49. Article 6 of the Agreement, entitled “Law and Authority on the Premises of the Scottish Court”, provided as follows: “(1) The premises of the Scottish Court shall be under the control and authority of the Scottish Court, as provided in this Agreement. (2) Except as otherwise provided in this Agreement, the laws and regulations of the host country shall apply within the premises of the Scottish Court. (3) The Scottish Court shall have the power to make regulations operative on the premises of the Scottish Court for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Scottish Court shall promptly inform the competent authorities of regulations thus made in accordance with this paragraph. No law or regulation of the host country, which is inconsistent with a regulation of the Scottish Court, shall, to the extent of such inconsistency, be applicable within the premises of the Scottish Court. (4) Any dispute between the Scottish Court and the host country as to whether a regulation of the Scottish Court is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Scottish Court authorised by this Article, shall be promptly settled by the procedure set out in Article 28 [i.e., negotiation and consultation between the Parties]. Pending such settlement, the regulation of the Scottish Court shall apply and the law or regulation of the host country shall be inapplicable within the premises of the Scottish Court to the extent that the Scottish Court claims it to be inconsistent with its regulation.” 50. The United Kingdom gave effect to the Agreement by means of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (Statutory Instruments 1998, no. 2251), which, in its relevant part, provides as follows: Witnesses “12. (1) Witnesses in the United Kingdom who are cited to appear for the purpose of proceedings being conducted by virtue of this Order may be cited to appear at the premises of the court. (2) Any warrant for the arrest of a witness shall be authority for him to be transferred, under arrangements made in that regard by the Secretary of State, to the premises of the court. (3) It shall be competent for witnesses who are outwith the United Kingdom to be cited to appear before the High Court of Justiciary sitting in the Netherlands in the same way as if the court had been sitting in Scotland and, accordingly, subsection (1)(b) of section 2 of the Criminal Justice (International Co-operation) Act 1990 (service of United Kingdom process overseas) shall have effect as if the reference to a court in the United Kingdom included the High Court of Justiciary sitting, by virtue of this Order, in the Netherlands.” | 0 |
train | 001-97493 | ENG | SWE | ADMISSIBILITY | 2,010 | HOLLAND v. SWEDEN | 3 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Peter Holland, is a British national who was born in 1958 and lives in Stockholm. 2. On 31 January 2005 the applicant was convicted by the District Court (tingsrätten) of having harassed a woman with whom he previously had been living and of threatening her new partner. He was given a suspended sentence and a fine. The applicant appealed against the judgment to the Svea Court of Appeal (hovrätten) where a hearing was held on 31 January 2006. In a judgment of 14 February 2006, the Court of Appeal upheld the lower court's judgment in full. On 12 April 2006 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. 3. On 24 April 2006 the applicant lodged an application with the Court (application no. 17504/06) in which he complained under several Articles of the Convention that the criminal trial against him had been flawed in various ways. In particular, he claimed that he had never been informed of the charges against him in English, although he had requested this during the preliminary investigation, that the courts had not presumed him innocent, that the trial had been unfair since the Supreme Court had refused leave to appeal and that he had been punished without law as the courts had taken into account the possible motives of the people involved. On 12 June 2007 the application was declared inadmissible by a Committee as being manifestly ill-founded. 4. Subsequently, on 28 September 2007, the applicant complained to the Chancellor of Justice (Justitiekanslern) that the tape recordings from the oral hearing before the Court of Appeal had been destroyed. He submitted that he needed the tape recordings in order to complain to the Court and that the destruction of the tapes hindered him from effectively exercising this right in accordance with Article 34 of the Convention. Moreover, he claimed that the time-limit of two months “after the final hearing” for destroying the records according to Swedish law was too short and not in accordance with Sweden's obligations under Articles 35 of the Convention, which afforded individuals a period of six months to complain to the Court. 5. In its reply dated 9 October 2007, the Chancellor of Justice first observed that the tape recordings from the Court of Appeal's hearing on 31 January 2006 had been destroyed at some point in May 2006 and the applicant had requested a copy of the recordings in October 2006. It then noted that, according to the Ordinance on Cases and Matters before the General Courts (förordning [1996:271] om mål och ärenden i allmän domstol; hereafter “the Ordinance”), a person who requested a copy of a tape recording from a hearing had the right to obtain it and it was possible to have the copy as soon as the protocol from the hearing had been finalised. However, the tape recordings had to be kept for two months following judgment in the case or, if the judgment was appealed against, until final judgment or decision had been rendered. In the applicant's case, the Chancellor of Justice observed that the Court of Appeal had not destroyed the tape recordings until after the Supreme Court had refused leave to appeal. Consequently, it had acted in accordance with the law. The Chancellor further considered that the two months time-limit imposed under Swedish law could not be considered insufficient for an individual to obtain a copy of the tape recording if he or she wanted to complain to the Court. 6. The applicant wrote a second letter to the Chancellor of Justice on 9 April 2008 in which he repeated that he considered the time-limit for the destruction of tape recordings to be in conflict with Sweden's obligations under Articles 34 and 35 of the Convention. However, in a letter dated 16 April 2008, the Chancellor of Justice referred to its previous letter and clarified that it did not consider that the relevant Swedish legislation was in violation of Sweden's obligations under the Convention. 7. According to Chapter 6, Article 6 of the Code of Judicial Procedure (Rättegångsbalken, 1942:740) accounts which are given as evidence at a hearing shall be recorded on tape or, if the accounts can be assumed to be of importance to the case, written down. 8. Section 19 of the Ordinance stipulated that, if someone requested information on the contents of a tape recording which had been made in accordance with Chapter 6, Article 6 of the Code of Judicial Procedure, he or she should be given a copy of that recording, unless the court considered that there were special reasons to furnish the person with a transcript instead. When a transcript was made, its accuracy had to be attested and a copy of the transcript should be included in the case file. 9. Moreover, according to section 20 of the Ordinance, a tape recording had to be kept for two months after the court ruled in the case. However, if the decision or judgment was appealed against, the tape recordings had to be kept until the case had been adjudicated through a domestic judgment or decision which had gained legal force. | 0 |
train | 001-5192 | ENG | POL | ADMISSIBILITY | 2,000 | ZDEBSKI, ZDEBSKA AND ZDEBSKA v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicants are Polish citizens. The first applicant was born in 1946. He died of cancer on 31 December 1995. The second applicant, born in 1953, was the first applicant's former wife who subsequently returned to live with him. The third applicant is the daughter of the first and second applicants. The applicants are represented before the Court by Mr Adam Włoch, a lawyer practising in Kraków. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 February 1994 the second applicant, who is a teacher, requested the Kraków educational authorities to issue her a licence to run an adoption agency ("agencja adopcyjna"). In reply, she was informed by an undated letter that centres dealing with adoption and custody matters could only be run by associations governed by the Associations Act, whose statutory purposes so provided. On 19 September 1994 the Kraków Regional Prosecutor charged the first applicant with trading in children, an offence provided for by Article IX of the Transitory Provisions of the Criminal Code of 19 April 1969, applicable at the material time. On 20 September 1994 the first applicant was arrested. On the same day the applicant was examined by a psychiatrist from the Department of Psychiatry of the Jagiellonian University, since at the time of his arrest he had submitted that he had been suffering from depression for the last ten years. The medical opinion stated that, having regard to the first applicant’s state of mental health, he should be detained in the psychiatric ward of the Kraków Detention Centre. On 21 September 1994 the Kraków Regional Prosecutor remanded him in custody for a period of three months on suspicion of trading in children. On the same day the prosecutor asked the Kraków Detention Centre to place the applicant in the psychiatric ward. On 22 September 1994 the applicant was examined by a physician from the detention centre hospital. The medical examination did not show any pathological changes in the applicant’s thorax, skeleton, nervous system, urinary system or abdominal cavity. The physician recommended that the applicant should be seen by a psychiatrist and a specialist in internal medicine and should have an X-ray. An X-ray taken afterwards showed a shadow at the top of his right lung. On 11 October 1994 therefore the X-ray was repeated. It showed a shadow of 4 cm in his lung. On 30 September 1994 written grounds of a decision of 19 September 1994 were served on the first applicant. The prosecutor considered that there was a strong suspicion that in September 1993 he had contacted Mr and Ms C. and, taking advantage of their difficult financial situation, convinced them to give for adoption their child which was soon to be born. At the beginning of October 1993, upon discharge of the mother from the hospital where the child had been born, he had placed it with third parties. The biological parents had not had any further contact with the child. Later, a week before a court hearing in the adoption proceedings, the first applicant had organised a meeting at the law firm of A.W. attended by Mr and Ms C. and an American couple, the Ks. On the day of the hearing and after a favourable decision as to adoption by Mr and Ms K. had been rendered by the court, the first applicant had given 8,500,000 old zlotys (PLZ) to the Cs. and had retained PLZ 1,500,000 for himself, apparently as reimbursement of costs which he had borne for the maintenance of the child. It had further been established that in November 1993 the first applicant had had contacts with K.B., who had been pregnant at that time. After her child had been born, he had taken it from K.B. upon her discharge from hospital and had placed the child with third parties. The mother had not had any further contact with the child. From June 1993 to November 1993 the first applicant had paid to K.B. PLZ 9,000,000 in monthly instalments of PLZ 1,500,000. The child had apparently later been adopted by another American family. On 28 and 30 September 1994, the prosecutor consulted doctors from the detention centre hospital in order to establish whether the applicant could take part in the criminal proceedings conducted against him. They informed him that the applicant’s health did not prevent him from participating in the proceedings. On 1 October 1994 the Office of Kraków Municipal Council registered the first applicant's company. In accordance with the terms of the registration certificate he was allowed to run a legal advice company, providing, inter alia, legal counselling concerning adoption proceedings and "cooperation with agencies dealing with adoption matters" ("współpraca z agencjami adopcyjnymi"). On 13 October 1994 the first applicant was examined by a lung specialist who ordered that he should undergo a new X-ray or tomographical examination, and bronchoscopy. On 17 October 1994 the detention centre established that the applicant could have a bronchoscopy at the Jan Paweł II Hospital in Kraków on 21 October 1994. On 21 October 1994 the Kraków Regional Public Prosecutor had a phone conversation with doctors from the detention centre in order to establish whether the applicant could participate in the criminal proceedings. He was informed that the applicant was undergoing diagnostic tests since suspect shadows had been found in his right lung. By a letter of the same date the prosecutor requested the prison hospital to provide information in writing about the applicant’s health as soon as possible. The tomography of the applicant’s lungs was carried out on 18 November 1994. Its interpretation, given on 23 November 1994, confirmed the presence of suspect changes in his lungs. On 18 November 1994 the applicant’s defence counsel filed with the Regional Public Prosecutor’s Office a request for release based on Article 218 of the Code of Criminal Procedure, submitting that the applicant should be released as there was a suspicion that he was suffering from lung cancer. On 21 November 1994 the Kraków Regional Prosecutor refused to release the applicant, having regard to the fact that information obtained from the detention centre hospital regarding the applicant’s health was insufficient to establish whether he was suffering from cancer. On 30 November 1994 the applicant underwent a bronchoscopy. On 6 December 1994 a panel of physicians of the Kraków detention centre hospital stated that the applicant should be released as he was suffering from lung cancer. The prosecutor requested that a further medical report be prepared concerning the compatibility of the applicant’s health with his continued detention. On 14 December 1994 two specialists from the Institute of Forensic Medicine of Kraków University confirmed that there was a strong likelihood that the applicant was suffering from lung cancer. On 19 December 1994 the applicant was released. A medical certificate issued on the day of his discharge from the prison hospital stated that cytological tests had shown the presence of suspect cells in his lungs. There was a strong likelihood that he was suffering from lung cancer. An examination by a lung specialist was urgently necessary. The applicant's condition also necessitated a tomographical examination of his lungs as well as a bronchoscopy. The applicant was also suffering from depression. While hospitalised, he had been receiving various drugs. On 29 December 1994 the applicant was admitted to a hospital in Kraków. He subsequently underwent a course of radiation therapy. On 11 January 1994 the Kraków Court of Appeal refused the public prosecutor's request for prolongation of detention on remand of another suspect detained in the same case, A.W., who was an advocate. The court stated that the acts with which A.W. had been charged could not reasonably be qualified as trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code. This was so because, in the assessment of what could constitute the offence of "trading in children", regard had necessarily to be had to the fact that adoption was in a child's best interest, whereas the notion of trading in human beings inherently involved acts to the detriment of the victims of such trade. Whereas it was true, the court continued, that adoption did, to a certain extent, limit the liberty of a person to be adopted, its purpose was to improve a child's conditions of life and to enhance its prospects of well-being. Therefore, adoption in itself had to be perceived as being beneficial for a child. In the case under examination, it had not been established by the investigating authorities that the acts with which A.W. had been charged had caused any harm to any children, or to other persons. The court attached importance to the fact that Section IX of the Transitional Provisions of the Criminal Code which penalised trading in human beings was to be replaced, following a proposal by a committee charged with drafting a new Code, by a separate offence of organising adoptions for commercial purposes. It indicated, the court emphasised, that it was impossible to charge A.W. with the offence defined in Section IX of the Transitional Provisions, as the offence of trading in human beings was considered by an unanimous opinion of eminent legal scholars, members of the drafting committee, to constitute an offence separate from the one of organising adoptions for commercial purposes. The court concluded that the mere fact that A.W. had acted as a lawyer and as an intermediary in numerous adoption proceedings and had received fees for it, was not sufficient for a reasonable suspicion that an offence punishable under Section IX had been committed. On 21 February 1995 the first applicant underwent an operation. A part of his lungs was removed. During the operation the presence of metastases in his lymph nodes was established. He was discharged from hospital on 23 March 1995. On 31 December 1995 the applicant died of lung cancer. On 31 January 1996 the second applicant requested that criminal proceedings be instituted concerning the causes of the first applicant's death. She submitted that, after his admission to the prison hospital, an X-ray had showed possible symptoms of cancer. At the beginning of October 1994 the prison medical services had accordingly notified the prosecutor and had pointed out the possibility of a quick and violent progress of the cancer. They had emphasised the necessity of the applicant's further examination by specialists and, possibly, of an operation. The second applicant further submitted that, throughout the first applicant's stay in the prison hospital, the prosecutor I. K.-B. had been informed on an ongoing basis by the applicant's lawyers of the fact that his continued detention entailed an immediate danger to his life. She had entirely disregarded this information. Likewise, she had disregarded the results of the first applicant's medical examinations. She had also ignored the medical opinions of the prison hospital and of the Forensic Medicine Institute indicating that the applicant's condition had been incompatible with his continued detention. She had kept refusing to release him, considering that the applicant had been prevaricating. The second applicant further stated that the first applicant's treatment after his release had been ineffective, mainly owing to the fact that the illness had already been in an advanced stage. The first applicant had received a course of radiation therapy and had subsequently undergone the operation. The second applicant stated that the evidence to prove the accuracy of her assertions was to be found in the first applicant's medical records at the prison hospital and the Kraków Pulmonological Hospital, and in the applicant's medical records kept by the Kraków Forensic Medicine Institute. The second applicant asserted that the first applicant's death had been caused by his detention from September to December 1994 and by the lack of any adequate treatment against cancer throughout that time. She submitted in particular that had the first applicant been released earlier to receive adequate treatment, he would have had a chance to be saved. The fact that during his detention he had been deprived of treatment, amounted, in the second applicant's opinion, to manslaughter within the meaning of the relevant provisions of the Criminal Code. On 12 January 1996 the Ministry of Justice ordered that the investigation of the second applicant's allegations should be conducted by a prosecutor from a prosecutor's office outside of Kraków. On 25 March 1996 the Kraków Regional Prosecutor, in view of the first applicant's death, discontinued the criminal proceedings against him. On 8 March 1996 the Tarnów Regional District Prosecutor refused to institute criminal proceedings concerning the first applicant's death. On 29 April 1996 the Appellate Prosecutor in Kraków quashed this decision and ordered that the investigations be resumed. On 30 July 1996 the investigations were discontinued as the Public Prosecutor found that no criminal offence had been committed. Two copies of this decision were sent to the second applicant’s addresses in Kraków and in Nowy Targ. It is not contested that the first one was served on the applicant on 6 August 1996, and the second one on 12 August 1996. The applicant lodged an appeal against this decision on 19 August 1996. On 22 August 1996 the Tarnów Regional Prosecutor refused to accept her appeal, considering that the seven-day time-limit should have been calculated from the date of the effective service of the decision on the second applicant, i.e. from 6 August 1996 and that, therefore, the applicant had submitted her appeal out of the statutory time-limit. B. Relevant domestic law 1. Detention on remand Under Chapter 23 of the Code of Criminal Procedure, as applicable at the material time, the lawfulness of the Public Prosecutor's detention order could be challenged before a court. The authorities competent to decide in relation to detention on remand were specified in Articles 210 and 212 of the Polish Code of Criminal Procedure, which at the material time read as follows: Article 210: "1. Preventive measures [including detention on remand] are imposed by the court; before a bill of indictment is sent to the court, they are imposed by the prosecutor (...)." Article 212: "1. The decision concerning preventive measures may be appealed [to the higher court] (...). 2. The prosecutor's order on detention on remand may be appealed to the court competent to consider the criminal proceedings at issue. (...)" 2. Proceedings for compensation for unjustified detention Chapter 50 of the Code of Criminal Procedure, as applicable at the material time, provided for compensation regarding damages arising out of imprisonment resulting from conviction which has subsequently been quashed and the convicted person acquitted, for obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation had been met. The decision of the Regional Court could be appealed to the Court of Appeal. According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. ialia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7). The proceedings relating to a request under Article 487 of the Code of Criminal Procedure were to be regarded as independent of the original criminal proceedings in which the detention was imposed. They were not designed to secure release from detention but financial reparation for damage arising from unjustified detention on remand. The person concerned, by instituting such proceedings, could retrospectively seek a ruling as to whether his or her detention was justified. He or she could, however, challenge the lawfulness of continuing detention on remand and obtain his or her release. 3. Civil liability in tort of the State Treasury Under Article 417 of the Civil Code, the State Treasury is liable for damage caused by an agent of the State in the exercise of his or her duties. | 0 |
train | 001-67200 | ENG | GBR | CHAMBER | 2,004 | CASE OF MILLER v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings | Matti Pellonpää;Nicolas Bratza | 4. Mr Miller was born in 1972 and he resides in Stockton-on-Tees, Mr Morrison was born in 1970 and he resides in Aberdeen and Mr Gillespie was born in 1974 and he resides in Greenock. They are represented before the Court by Mr Blades, a lawyer practising in Lincoln. 5. In April 1996 the first applicant was a soldier and the second applicant was a non-commissioned officer in the regular forces of the British Army. On 29 April 1996 they were charged along with two others (pursuant to section 70 of the Army Act 1955) with four counts of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956. 6. The convening officer, by order dated 26 July 1996, convened a general court-martial to try them. On 10 September 1996 the first applicant was found guilty on two of the charges and was sentenced to 4 years' imprisonment and to be dismissed with disgrace. The second applicant was found guilty on three of the charges and sentenced to 5 years' imprisonment, to be dismissed from the service with disgrace and to be reduced to the ranks. On 19 December 1996 the confirming officer reduced the first applicant's sentence to two years' imprisonment and the second applicant's sentence to three years and six months' imprisonment, but otherwise the findings of the court-martial were confirmed. 7. The applicants petitioned the Defence Council against conviction and sentence. By letters dated 18 February 1998 and 27 February 1997, their representatives were informed of the decisions (taken by the Army Board) to reject their petitions. 8. Both applicants applied to the single judge of the Courts-Martial Appeal Court (“CMAC”) for leave to appeal to that court against conviction and sentence. The first applicant pointed to various alleged failings by the judge advocate during the court-martial and argued that his sentence was excessive. The single judge granted leave to appeal to the full CMAC. Before the full CMAC, the first applicant added a new ground of appeal (that he did not have a fair trial by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention, citing Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I). The second applicant argued before the single judge that the judge advocate had erred and misdirected the court and that he had been denied a fair hearing by an independent and impartial tribunal (referring also to the Findlay judgment). The single judge granted leave to appeal to the full CMAC. 9. On 4 March 1996 the applicant, a soldier of the regular forces of the British Army, was charged (pursuant to section 70 of the Army Act 1955) with wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and with inflicting grievous bodily harm contrary to section 20 of that Act. 10. The convening officer, by order dated 13 August 1996, convened a general court-martial. On 6 September 1996 the applicant was found guilty on the first charge and of assault occasioning actual bodily harm contrary to section 47 of the 1861 Act. He was sentenced to three years and six months' imprisonment and to be discharged from the army. 11. His petition against sentence to the confirming officer was rejected and his conviction and sentence were promulgated on 10 October 1996. By letter dated 20 November 1996, his legal representatives were informed that his petition against sentence had been rejected by a Reviewing Authority appointed by the Army Board of the Defence Council. By letter dated 24 March 1997, the applicant's representatives were informed of the decision (taken by the Army Board) to reject his petition against sentence. 12. On 20 May 1997 he presented a further petition to the Army Board of the Defence Council against conviction arguing that he had not had a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in accordance with Article 6 § 1 of the Convention (referring also to the above-cited Findlay judgment). By letter dated 22 May 1997, he was informed that the Reviewing Authority had decided not to waive the relevant time-limit which had by then expired. It was also indicated in that letter that the “Findlay issue” had been frequently rejected by the Army Board and by the CMAC. 13. His application to the single judge of the CMAC was dated 18 July 1997 and raised the Findlay issue together with the fact that he could not appeal against sentence only to the CMAC. On 6 October 1997 the single judge rejected that application considering that the grounds of appeal were not arguable. He renewed his application for leave to appeal to the full CMAC raising the same points. 14. In response to these appeals, affidavits were filed on behalf of the Ministry of Defence explaining that neither the presidents nor the members of the applicants' courts-martial had been under the command of the convening officer and that none had been subordinate to him in the chain of command. Accordingly, the convening officer would not have reported on either the president or the members of the court-martial in their annual confidential reports. A policy decision had been taken that, as from 1 January 1996, all courts-martial would be composed of a president and members who were not in the chain of command of the convening officer. 15. The applicants' appeals were rejected by detailed judgment of 13 November 1998. As to the “Findlay point”, the CMAC noted the change in policy as regards the constitution of courts-martial in place since January 1996. It considered that there was no chain of command influence and no obvious reason why any observer knowing the constitution of the courts-martial and the full facts would suspect any lack of independence or impartiality. In any event, the CMAC pointed out that the applicants' reliance on the Findlay judgment was misconceived as the only power of the CMAC was to enquire as to whether the convictions were unsafe. Where there was abundant evidence to support the conclusion of the courts-martial which had been properly convened in accordance with domestic law, the composition and behaviour of which had not been criticised, the CMAC considered that there was no possible reason to intervene. It noted that the time for having regard to the provisions of the Convention had not yet been reached, but it was difficult to see, even in such circumstances, how the provisions of Article 6 could be of any assistance to the applicants. 16. The relevant provisions of the Army Act 1955 which regulated court-martial procedures at the relevant time are set out in the above-cited Findlay judgment (at §§ 32-51). 17. Following the Commission's report in the Findlay case (Findlay v. the United Kingdom, no. 22107/93, Commission's report of 5 September 1995), it was decided that, as and from 1 January 1996, all courts-martial would be composed of presidents and members not in the chain of command of the convening officer. Thereafter, the 1955 Act was amended substantially by the Armed Forces Act 1996 (“the 1996 Act”) which came into force on 1 April 1997. The new court-martial system for which the 1996 Act provides is summarised in the Findlay judgment (at §§ 52-57) and is outlined in more detail in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-76, ECHR 2003-XII). | 1 |
train | 001-89271 | ENG | POL | CHAMBER | 2,008 | CASE OF WILKOWICZ v. POLAND | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 5. By a decision of 25 August 1995 the Social Insurance Authority in Kraków awarded a pension to the applicant. It was to be paid to him for a period beginning on 1 May 1993. 6. Under the applicable provisions of domestic law, the Military Pensions Office was competent to make payments to the applicant, but it failed to do so. In a letter to the Office dated 16 October 1995, the Director of the Social Insurance Authority confirmed the applicant’s entitlement to a military pension. 7. As the Military Pensions Office still refused to make payments, apparently considering that the 1995 decision was not in conformity with the law, the applicant lodged an action with the Kraków Regional Court on 8 November 1995, complaining about the Office’s failure to pay. In its pleadings, the Office argued that the decision had been given in breach of substantive provisions of the applicable social insurance laws. It further indicated that it had informed the Social Insurance Authority about its doubts as to the lawfulness of the decision. Subsequently, the Authority had summoned the applicant to undergo an additional medical examination. As the applicant had failed to comply with the summons, payment of a part of his pension had been stayed with effect from 1 May 1996. 8. By a judgment of 4 March 1999 the court allowed the applicant’s action. It ordered the Military Pensions Office to pay the amount of pension due for the period from 1 May 1993 to 1 May 1996. It noted the decision staying payment of the applicant’s pension. However, it stressed that the decision given on 25 August 1995 had not been appealed against and, as a result, had become final. The Office was therefore bound by it. There were no grounds for not paying the applicant the amounts due for the years 19931996. The court was not competent to reexamine the lawfulness of the 1995 decision in the proceedings before it. 9. The Military Pensions Office appealed. It reiterated that, in its view, the 1995 decision had not been in compliance with the substantive law. 10. On 28 November 2000 the Kraków Court of Appeal upheld the judgment, finding that the first-instance court had correctly found that it had not been empowered to re-examine the lawfulness of the 1995 decision. It further reiterated that this decision had to be complied with by the Office. 11. On 29 November 2000 the applicant reiterated his request to have the amounts due paid to him, but to no avail. Subsequently, the Military Pensions Office lodged a cassation appeal against this judgment with the Supreme Court. 12. On 1 and 22 March 2001 the applicant complained to the Ministry of Defence and to the Prime Minister about the Office’s failure to pay him the pension. 13. By a decision of 16 May 2002 the Supreme Court dismissed the appeal lodged by the Office, finding that it had failed to comply with the relevant procedural requirements. 14. In December 2002 the Military Pensions Office paid the applicant the amounts in arrears together with statutory interest. 15. Under Article 388 § 1 of the Code of Civil Procedure, as applicable at the material time, judgments of the second-instance courts were immediately enforceable. | 1 |
train | 001-104919 | ENG | LVA | COMMITTEE | 2,011 | CASE OF CERNIKOVS v. LATVIA | 4 | Violation of Art. 5-3;Violation of Art. 6-1 | Ineta Ziemele;Ján Šikuta;Kristina Pardalos | 4. The applicant was born in 1970 and lives in Rīga. 5. On 30 August 1998 the applicant was taken into custody on suspicion of murders and robbery. 6. On 2 September 1998 a judge of the Ogre District Court ordered the applicant’s detention on remand. 7. On 21 October 1998 the Ogre District Court extended the applicant’s detention until 30 November 1998. An appeal lodged by the applicant was dismissed on 13 November 1998 by the Rīga Regional Court. 8. The Ogre District Court further extended the term of the applicant’s detention on the following dates: on 24 November 1998 until 30 January 1999; on 21 January 1999 until 30 March 1999; on 22 March 1999 until 30 May 1999; on 24 May 1999 until 30 July 1999; on 22 July 1999 until 30 September 1999; on 24 September 1999 until 30 October 1999; on 26 October 1999 until 30 December 1999. All the decisions contained an identical phrase which stated that the judge had taken into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal to the Rīga Regional Court against the aforementioned decisions. 9. Meanwhile, on 8 October 1999 the Latgale Regional Court sentenced the applicant to one year and one month imprisonment for an unauthorised acquisition and storage of weapons. The period of detention on remand from 30 September 1998 to 8 October 1999 was included in the term of the sentence, which the applicant served until 30 October 1999. 10. On 26 May 2000 the final indictment was presented to the applicant, and on 30 May 2000 the judge of the Rīga Regional Court remitted the criminal case for trial. The latter was scheduled to take place on 3 January 2002. By the same decision the preventive measure was left unchanged without giving reasons or setting a time-limit. 11. In November 2001 the applicant’s lawyer asked the Rīga Regional Court to adjourn the proceedings. On 3 January 2002 the proceedings were adjourned for an unlimited period. 12. On 6 March 2002 the court informed the applicant that the trial was scheduled to take place on 25 September 2002. 13. On 1 October 2002, the court granted the request of a co-accused to undergo a psychiatric examination, and stayed the criminal proceedings. 14. At the lower court’s request, on 1 November 2002 the Senate, in absence of the applicant or his lawyer, extended the applicant’s detention until 1 May 2003. The Senate relied on the serious nature of the charges, and on the necessity to ensure proper conduct of the court proceedings. The decision was not subject to an appeal. 15. On 28 December 2002 the forensic experts asked for an extension of fifteen days in order to complete their report. 16. On 27 January 2003 the Rīga Regional Court repeatedly requested the Senate to extend the applicant’s detention on remand. It relied on the fact that the case was particularly complex and that the hearing had been scheduled to take place on 4 June 2003. The Senate, in absence of the applicant or his lawyer, extended the applicant’s detention until 1 July 2003. 17. From 4 to 11 June 2003 the hearings were repeatedly postponed due to the absence of witnesses. 18. On 25 June 2003 the applicant was found guilty of two murders and sentenced to sixteen years’ imprisonment. On 2 December 2003 the Rīga Regional Court dismissed the applicant’s appeal, and on 20 August 2004 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. 19. During the municipal election campaign, between 27 February and 11 March 2001, two private TV channels broadcasted an advertisement sponsored by a political party in which B., the Prime Minister at the material time, made statements that a candidate promoted by the political party had been credited with tracking down the applicant’s activities. 20. On 23 May 2001 the applicant brought a civil defamation claim against B., the political party and owners of the TV channels. 21. On 10 August 2001 the Rīga City Central District Court decided that the case felt within the jurisdiction of the Ogre District Court, which on 30 November 2001, following the defendants’ request, stayed the proceedings pending the outcome of the criminal proceedings against the applicant. 22. According to the information submitted by the Government, the next hearing had been scheduled to take place on 11 May 2005, but had been adjourned at the applicant’s request; the next one had been scheduled to take place on 30 August 2005. 23. No further information has been submitted by the parties in respect of the above proceedings. 24. On 17 December 1998 the applicant applied to the prosecutor for permission to receive letters from his relatives. On 30 December 1998 the prosecutor dismissed the applicant’s request, and the latter did not appeal. The applicant was allowed to receive short-term visits with his relatives as from May 2000, whereas on 31 August 2000 the Rīga Regional Court granted the applicant a permission to exchange correspondence with his relatives. 25. The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss) applicable at the material time (in force until 1 October 2005), and other relevant practice are found in Estrikh v. Latvia (no. 73819/01, §§ 54-65; 81-82, 18 January 2007). | 1 |
train | 001-97472 | ENG | UKR | ADMISSIBILITY | 2,010 | GUZENKO v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Volodymyr Stanislavovych Guzenko, is a Ukrainian national who was born in 1960 and lives in the town of Korosten, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's family and Mr. B. shared a communal apartment. In March 1998 the Korosten Local Executive Council granted Mr B.'s request to privatise his part of the apartment (“the disputed property”). Subsequently, Mr B. gave the disputed property as a donation to Mrs T. and Mrs Ta. On 3 November 1998 the applicant and his wife instituted proceedings against Mr B., Mrs T. and Mrs Ta., and the Korosten Local Executive Council in the Korosten Court challenging the privatisation and seeking to have the donation contract declared null and void. In particular, the applicant alleged that Mr B., being a Russian national, had no right to privatise the disputed property. Since Mr B. was residing in Russia, on 19 May 1999 the court asked the Embassy of the Russian Federation in Ukraine (the Embassy) to provide it with the information about Mr B.'s nationality. On 24 May 1999 the Head of the Consular Department of the Embassy replied that the requested information had been confidential. He further indicated that the Ukrainian authorities could lodge a request with the Ministry of Justice of the Russian Federation, as prescribed by Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”). On 16 September 1999 the applicant sought a ruling to request the Russian authorities to state whether Mr B. had been a Russian national on the date of the privatisation. He also requested suspension of the proceedings until the Korosten Court received a reply. On 11 November 1999 the court granted the applicant's petition. In December 1999 the request was transmitted to the Russian authorities. The Korosten Court requested that Mr B. be questioned, the applicant's claim be served on him and that he be summoned to the Korosten Court. The Korosten Court also asked for copies of the documents concerning Mr B.'s nationality on the date of the privatisation. In the period from 3 November 1998 to 15 December 1999 the Korosten Court scheduled some ten hearings. They were scheduled at intervals ranging from several days and two or three months. On 5 June 2000 Mrs T. and Mrs Ta. lodged a counterclaim, seeking a ruling to oblige the applicant's family not to hinder them in their use of the apartment. They also claimed compensation for pecuniary and non-pecuniary damage. On 16 February 2001 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the reply from the Russian authorities had been received. Since the request was not executed in a due manner, it was sent back to the Ministry of Justice of the Russian Federation. On 21 March 2001 the applicant lodged an additional claim. He requested the Korosten Court to rule that he had the right to use the disputed property. On 12 February 2002 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the request in respect of serving the documents and questioning Mr B. had not been performed by the Russian authorities, since Mr B. had failed to appear before them. On 14 March 2002 the court scheduled a hearing. It was adjourned as the parties failed to appear. On 3 April 2002 the Korosten Court dismissed the applicant's petition that a new request be sent to the Russian authorities. The applicant unsuccessfully challenged the judge sitting in his case. On 23 April 2002 the court held a hearing in the case. On 6 August 2002 Mr B. authorised Mr T. to represent him in the proceedings before the Korosten Court. On 21 August 2002 the court partly allowed the claims lodged by Mrs T. and Mrs Ta. and rejected the applicant's claims. In particular, the court found that on the date of the privatisation Mr B. had had Ukrainian nationality. The court found no proof in support of the applicant's allegations. The applicant appealed against the judgment contesting, in particular, the first-instance court's finding that Mr B. had been a Ukrainian national at the time. According to the Government's observations, in October 2002 the court of appeal, following the applicant's request, asked the Ministry of Justice of the Russian Federation to provide it with the information about Mr B.'s nationality. The reply containing information about Mr B.'s nationality reached the court of appeal on 19 June 2003. Neither the applicant nor the Government informed this Court of the content of that reply. On 4 December 2002 the court of appeal dismissed the applicant's appeal as unsubstantiated and upheld the judgment given by the first-instance court. In January 2003 the applicant lodged an appeal in cassation with the first-instance court, which transferred it for consideration to the Supreme Court. On 31 October 2003 the Supreme Court remitted the appeal in cassation to the first-instance court, for certain shortcomings to be rectified by the applicant. In a ruling of 3 December 2003 the Korosten Court stated that the applicant could re-lodge his appeal in cassation after these shortcomings had been rectified, but before 20 December 2003. On 19 December 2003 the applicant re-lodged his appeal in cassation. On 26 February 2004 the Supreme Court upheld the decisions of the lower courts. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January) provides as follows: “1. The judicial authorities of the Contracting States shall extend legal assistance in civil, family, and criminal matters in accordance with the relevant provisions of the present Convention....... “ “When acting pursuant to this Convention, the competent judicial authorities of the Contracting States shall communicate with one another through their central, regional, and other agencies, unless a different liaison procedure is prescribed hereunder. The Contracting States shall determine lists of their central, regional, and other agencies duly empowered to maintain direct contacts by notice to the depository.” “The Contracting States shall provide one another with legal assistance by performing such procedural and other acts as are stipulated by the legislation of the Contracting State requested to take such measures, including, but not limited to, the execution and sending of documents, the conduct of inspections and searches, the recovery and delivery of physical evidence, the performance of expert examinations, the questioning of parties to the proceedings, third parties, suspects, indicts, victims, witnesses, and experts, efforts to track down certain individuals, criminal prosecution, the extradition of persons to be held criminally liable or face that punishment already fixed for them in appropriate sentences, the recognition and enforcement of judgments in civil matters, verdicts on civil claims, executive endorsements, and the service of process.” “1. When acting upon a letter of request, the authority addressed shall apply the legislation of its own country. If petitioned by the authority seeking assistance, it may also apply the procedural rules of the Contracting State where the latter is based, unless such rules are inconsistent with the legislation of the Contracting State where such assistance is sought. 2. If the authority addressed is not competent to satisfy the request submitted, it shall pass it onto a competent authority and shall notify the authority requesting assistance accordingly. 3. If petitioned by the authority seeking assistance, the authority addressed shall notify the latter and the other parties concerned of the time and place of the request's fulfilment so that they should be able to attend its satisfaction in accordance with the legislation of the Contracting State where such assistance is sought. 4. Where the precise address of the person identified in a letter of request is unknown, the authority addressed shall take the measures necessary to ascertain such address in accordance with the legislation of the Contracting State where such authority is based. 5. After completing its action on a letter of request, the authority addressed shall return the corresponding documents to the authority which applied for that assistance; where the legal assistance sought cannot be provided as requested, the authority addressed shall also report those circumstances that prevent such performance and shall return the corresponding documents to the authority seeking that assistance.” “1. That judicial authority addressed by a letter of request shall serve process in accordance with that procedure in effect in its Contracting State if the documents to be delivered have been executed in the latter's language or in Russian or are accompanied by duly certified translations into such languages. Otherwise, it shall pass such documents on to the recipient if the latter agrees to accept them voluntarily. 2. If the documents concerned cannot be delivered at the address indicated in a letter of request, the judicial authority addressed shall initiate the measures necessary to ascertain such address. Should it prove impossible for the judicial authority addressed to find out that address, it shall advise the judicial authority seeking assistance accordingly and return the documents due for service.” “The requested service of process shall be confirmed by an appropriate acknowledgement which shall be signed by the recipient and evidenced by the official seal of the judicial authority addressed, indicate the date of such service, and carry the signature of an officer of the serving judicial authority, or by another document issued by the latter and describing the manner, place and time of the service performed.” | 0 |
train | 001-99556 | ENG | TUR | ADMISSIBILITY | 2,010 | HATZIGEORGIOU AND OTHERS v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | The applicants, all Cypriot nationals of Greek-Cypriot origin, are named as: 1. Mr Zacharias Hatzigeorgiou, born in 1962; 2. Mrs Maria Hatzigeorgiou, born in 1936, is the mother of the other applicants and administrator of the property of her missing husband (see below); 3. Mrs Elena Ioannou-Hatzigeorgiou, born in 1958; 4. Mr Sotiris Hatzigeorgiou, born in 1964; 5. Mr Andreas Hatzigeorgiou, born in 1966; 6. Ms Sofia Hatzigeorgiou, born in 1973. The application was stated to be brought by the applicants, in their own capacity and on behalf of Loizos Hatzigeorgiou-Poirazis, their husband and father respectively, and Georgios Loizou Hatzigeorgiou, their son and brother respectively, who have been missing since August 1974. The applicants are the heirs to the property of Loizos Hatzigeorgiou-Poirazis. Applicants nos. 1, 2, 3, 5 and 6 are living in Nicosia and applicant no. 4 is living in Paphos. They were represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. 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. All the applicants and the missing persons were born in the village of Strogillos in the District of Famagusta which had inhabitants of both Greek- Cypriot and Turkish-Cypriot origin. The applicants stated that until 14 August 1974 they were all living together in the village. After the intervention by the Turkish armed forces in July 1974 the applicants alleged that they remained in their village following reassurances by fellow Turkish-Cypriot villagers and the head of the latter's community in the village that they would protect them. Subsequently, on 14 August 1974 the Turkish armed forces took over the village and arrested the applicants. The applicants claimed that on 15 August 1974 Loizos Hatzigeorgiou-Poirazis, who was 43 years old at the time and Georgos Loizou Hatzigeorgiou, 18 at the time, were taken by the Turkish armed forces and/or Turkish Cypriots under their command along with other men of Greek-Cypriot origin in the village and that they were told that the villagers had been taken to Sinda for interrogation. The applicants stated that they were detained in a house, with other women and children, with armed guards outside and that they were not allowed to go home, or to take care of their animals on the farm or their property. Then they were put onto trucks and taken through various villages, subjected en route to abuse by mobs who were spitting, shouting abuse and throwing objects at them. On 26 August 1984 the applicants stated that they were forced to abandon their home, property and village and flee to southern Cyprus. Since 15 August 1974 the applicants have never seen their husband/father and son/brother again and they claimed that Turkey refused to give any information about their whereabouts. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. In 1981, the United Nations Committee on Missing Person (“CMP”) was set up to look into cases of persons reported missing in the intercommunal fighting as well as the events of July 1974 and afterwards (for further details on the CMP, see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 85-88, ECHR 2009...). The Government stated, inter alia, that it had no knowledge of the missing persons and that the applicants had failed to initiate any inquiry about their missing relatives. | 0 |
train | 001-109812 | ENG | CYP | ADMISSIBILITY | 2,012 | KAZALI AND OTHERS v. CYPRUS | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano | The applicants are: 49247/08 Niazi Kazali born 1922, resident in Kyrenia, in the “Turkish Republic of Northern Cyprus” (“TRNC”), British and Cypriot national; Hakan Kazali born 1947, resident in Norfold, United Kingdom, British and Cypriot national; 49307/08 Esat Mustafa, born 1953, resident in Enfield, United Kingdom, British and Cypriot national; Nafia Mustafa, born 1933, resident in Nicosia, “TRNC”, Cypriot national; Zeka Mustafa, born 1956, resident in London, United Kingdom, Cypriot national; Kenan Mustafa, born 1951, resident in Nicosia, “TRNC”, Cypriot national; Enis Bolcocuk, born 1981, resident in Güzelyurt (Morphou), “TRNC”, Cypriot national; Sabiha Aslanturk, born 1960, resident in Güzelyurt (Morphou), “TRNC”, Cypriot national; Safiye Kansal, born 1962, resident in Famagusta, “TRNC”, Cypriot national; Gokcen Mustafa, born 1964, resident in Nicosia, “TRNC”, Cypriot national; 30792/05 Alp Z. Nouri, born 1931, resident in Mesa, United States of America, US and Cypriot national; Keray F. Nouri, born 1933, resident in Phoenix, United States of America, US national; 1760/05 Savash Kamil, born in 1948, resident in London, United Kingdom, British national; represented before the Court by Mr Z. Necatigil and Mrs Sulen Karabacak, lawyers practising in Nicosia. 4080/06 Erdogan Durmus, born 1934, resident in Famagusta, “TRNC”, Cypriot national; 34776/06 Mehmet Ali Osman, born 1937, resident in Nicosia, “TRNC”, Cypriot national; represented before the Court by Mr A. Yesilada, a lawyer practising in Nicosia. 1545/07 Hassan Houssein Chakarto, born in 1936, resident in Banstead, United Kingdom, British national; Necla Cagis, born in 1950, resident in Güzelyurt (Morphou), “TRNC”, Cypriot national; Mumin Cakartas, born in 1941, resident in Güzelyurt (Morphou), “TRNC”, Cypriot national; Gokcen Bayar, born in 1939, resident in Güzelyurt (Morphou), “TRNC”, Cypriot national; represented before the Court by Mr A. Aksu, a lawyer practising in Ankara. 38902/05 Aiten Abni, born in 1934, resident in Nicosia, Cypriot national; 3240/05 Niyazi Salih, born in 1957, resident in Turnford, United Kingdom, British national; represented before the Court by Mr M. Georgiou, a lawyer practising in Nicosia. 1. Application no. 49247/08 concerns a plot of land (a house with a vineyard and fruit trees) in the village of Vroisha. The applicants moved to Larnaca in 1954 and rented out the property in Vroisha. The applicants continued to visit the village during the summer months until 1964, when the inhabitants of Vroisha left the village due to alleged acts of aggression by Greek Cypriots. 2. Niazi Kazali currently resides on Greek-Cypriot property; Hakan Kazali resides abroad. 3. Application no. 49307/08 relates to several plots of land (a house with vineyards and fruit trees), also in Vroisha, inherited by the applicants from a deceased relative in 1995. The applicants (with the exception of the fifth applicant) left the property in 1964 due to alleged acts of aggression by Greek Cypriots (the deceased mother of the fifth applicant also left Vroisha in 1964). 4. Esat Mustafa and Zeka Mustafa now reside abroad; Nafia Mustafa, Kenan Mustafa, Enis Bolcocuk, Sabiha Aslanturk and Safiye Kansal reside on Greek-Cypriot property; Gokcen Mustafa resides on Turkish-Cypriot property. 5. The applicants allege that their properties were burnt down in or around 1964. 6. Together with other former villagers of Vroisha, the applicants formed the Vroisha (Yağmuralan) Association (“the Association”), which is based in England. On 30 March 2004 the Association made submissions to the Cypriot Minister of the Interior via the Cyprus High Commission in London demanding the return of the village to the legal owners and compensation. On 6 May 2004 the Cyprus High Commission in London replied indicating that the Ministry of the Interior was examining the request. The letter also advised that according to the Ministry of the Interior, under the Turkish-Cypriot Properties Management and Other Matters Law 139/91 (see paragraphs 40-48 below), all Turkish-Cypriot properties which had been abandoned in the free areas of the Republic of Cyprus came under the custodianship of the Custodian of Turkish-Cypriot properties and that since the “Cyprus Problem” was unresolved, the owners of those properties could not exercise their rights with regard to those properties. 7. On 12 January 2006, the Minister of the Interior replied to the Association’s submissions. He indicated that: “... no damage was caused to the properties of the T/C inhabitants of Vroisha village or any loss of life by organs of the Republic. ... The village of Vroisha was voluntarily abandoned by its T/C inhabitants in early 1964 ... What survives from the buildings today are ruins. The destruction is basically due to abandonment and the lapse of time.” 8. He noted that the land had remained unused and unexploited since the village was abandoned. He advised that the Department of Lands and Surveys would be able to furnish owners with information about the properties upon request. He concluded by reiterating that: “... all T/C properties in the area controlled by the Republic came under the custody of the Minister of the Interior acting as the Custodian of the T/C Properties in accordance with the provisions of the T/C Properties (Administration and Other Matters) (Temporary Provisions) Laws of 1991-2003. They will remain so until the end of the abnormal situation created as a result of the Turkish invasion and occupation of 1974.” 9. The applicants in application no. 49247/08 subsequently obtained a search certificate and, on 4 August 2006, the first applicant transferred his interest in the property to his son, the second applicant. 10. The complaints relate to property, including a mansion, in Larnaca transferred to the applicants in 1994 by way of a gift from their mother, who was a citizen of the United States from 1939. The mansion was destroyed through alleged acts of aggression by Greek Cypriots in 1964. A house, shop and restaurant/bar have since been constructed on the property without the applicants’ consent. 11. Alp Nouri and Keray Nouri currently reside abroad. Alp Nouri stays in Greek-Cypriot property when he visits the “TRNC”. 12. The applicants instructed a lawyer in Larnaca to have the title to the property transferred into their names. The new title deed was issued on 5 October 2007. 13. Application no. 4080/06 relates to property in Mari Village (vineyards and a well). In August 1974, the applicant was taken prisoner and released north of the Green Line. He was unable to return to his property. 14. The applicant resides in a house built on Greek-Cypriot property. 15. On 30 April 1992 a notice of expropriation was published in the Official Gazette of the Republic of Cyprus indicating that part of the applicant’s property was to be compulsorily acquired by the Electricity Authority of Cyprus. On 11 September 1992 the expropriation order was published and on 18 February 1993 the Electricity Authority offered compensation in respect of the compulsory purchase. On 17 November 1993 the compensation offered was accepted by the Custodian on behalf of the applicant and the agreed amount was deposited by the Electricity Authority into a special fund on 22 July 1994. 16. A notice of expropriation regarding the remaining part of the applicant’s property was published in the Official Gazette on 28 February 2003. On 4 July 2003 the expropriation order was published and on 23 September 2003 compensation was offered. 17. Application no. 34776/06 concerns property in Kellia in the district of Larnaca (three houses, one of which he occupied, and a plot of land with trees). The applicant left the property in mid-August 1974 due to alleged acts of aggression by Greek Cypriots. 18. The applicant resides in Turkish-Cypriot property. 19. On 22 November 2007 a requisition order by the Cypriot National Guard was issued in respect of part of the applicant’s property. The offer for compensation by the Ministry of Defence is pending. The remainder of the property is being used by a Greek Cypriot for agricultural purposes. 20. On 9 August 2005 the applicants’ lawyer wrote to the Service for the Management of Turkish-Cypriot Properties at the Ministry of the Interior, enclosing the title deeds and seeking the return of the properties and compensation. On 31 August 2005 he received a reply from the Acting Director of the Service for the Management of Turkish-Cypriot Properties in the following terms: “... the Turkish Cypriot Properties, which have been abandoned as a result of Turkish invasion and occupation, have come under the management and custody of the Custodian of Turkish Cypriot Properties, according to the provisions of the Turkish Cypriot Properties (Management and Other Matters) (Temporary Provisions) Law No. 139/91. According to the above Law, the Minister of Interior has been appointed as the Custodian of all the Turkish Cypriot Properties and all abandoned properties came under his management with the aim of meeting the needs of the refugees. In view of the above, I regret to inform you that your application is not able to be considered at present. Any matter outstanding will be considered and settled upon the final solution of the Cyprus Problem.” 21. The applicants did not commence an action in the District Court to seek payment of the compensation deposited in respect of the compulsory acquisitions. 22. The application relates to property comprised of a vineyard and business centre, containing 15 shops and three residences, in Limassol. The applicants allege that they were transferred north of the Green Line in Nicosia in 1974, as a result of the threat to their lives following the events of July 1974 and the kidnapping and disappearance of the fourth applicant’s husband in August 1974. They were unable to return to their property. 23. Hassan Houssein Chakarto now resides abroad but rents a house in the “TRNC” built on Greek-Cypriot property; Necla Cagis, Mumin Cakartas and Gokcen Bayar reside on Greek-Cypriot property. 24. In April 2003 one of the applicants returned to Limassol. The property was within a fenced-off area and was in a poor state of repair. The applicants sought information regarding the property, with no success. They subsequently appointed a lawyer who, in June 2003, wrote to the Service for the Management of Turkish-Cypriot Properties at the Ministry of the Interior, enclosing the title deeds and seeking the return of the properties and compensation. On 19 July 2003, she received a reply in similar terms to those received by the applicants in applications 4080/06 and 34776/06 (see paragraph 20 above). 25. The application concerns two houses in Paphos inherited by the applicant from her parents. She let these houses for some time after moving to Nicosia. Following the events of summer 1974 she was not able to collect rent as she was not able to visit the properties. In 2003 she visited the two houses as well as two plots of land she had bought with her husband. They had been rented to displaced Greek Cypriots by the Cypriot Government since 1974. 26. The applicant currently resides on Turkish-Cypriot property. 27. The applicant never applied to the Custodian to seek the return of her property. She considered that in light of the jurisprudence of the Supreme Court, any legal action would have been ineffective. 28. The application concerns a plot of land (a house with fruit trees) in Mari Village which was partially transferred to the applicant’s mother by the applicant’s maternal grandfather in 1973, with the remainder inherited following his death on an unspecified date. The applicant’s grandfather was forced to leave the property in 1974 due to alleged acts of aggression by Greek Cypriots. The applicant inherited the property following the death of his mother. 29. The applicant, who resides abroad, took no steps to seek to recover the property. 30. The application relates to property (including a house) in Limassol which belonged to the applicant’s father. The applicant’s father left the property in 1959 following an army posting to the United Kingdom and the house was left empty. There has been no access to the property since 1974. 31. The applicant resides abroad. 32. On 13 February 2001, following the death of his father, the applicant wrote to the Land Registry of Cyprus asking for information regarding the property. The Custodian consented to the transfer of the property into the applicant’s name on 21 January 2005. 33. The applicant claimed that he instructed a solicitor to assist in the recovery of the properties, to no avail. 34. Article 6 of the Constitution prohibits discrimination between Turkish Cypriots and Greek Cypriots. 35. Article 13 grants the right to citizens to move freely throughout the island and to reside in any part of it, subject to any restrictions imposed by law and necessary for the purposes of defence or public health or provided as punishment to be passed by a competent court. 36. Article 23 protects the right to property and provides that no deprivation, restriction or limitation of any such right shall be made except where it is imposed by law and is absolutely necessary in the interests of public safety, public health or public morals, town and country planning, the development and use of any property for the promotion of the public benefit or for the protection of the rights of others. 37. Article 28 guarantees the right to equal treatment and nondiscrimination. 38. Article 144 enables a party to any judicial proceedings to raise the question of the constitutionality of any law or decision. However, the provisions of this Article were rendered inoperative following the intercommunal problems in 1963 and the procedure for reference under the above provision is no longer applicable. The Administration of Justice (Miscellaneous Provisions) Law 33/1964 was enacted in order to address a situation of emergency and to set up the necessary judicial machinery for the continued administration of justice. By virtue of this law, the two highest courts, that is, the Constitutional Court and the High Court, were merged into one, the Supreme Court of Cyprus, to which the jurisdiction and powers of the two pre-existing courts were transferred. The establishment and operation of the new Supreme Court was held to be in conformity with the Constitution on the basis of recognised principles of the Law of Necessity (the Attorney-General of the Republic v. Mustafa Ibrahim and others, (1964) C.L.R. 195). As the procedure for reference under Article 144 (1) is no longer applicable in cases other than those of the Family Courts, questions of alleged unconstitutionality are treated as issues of law in the proceedings, subject to revision on appeal in due course, in so far as the lower courts are concerned. All courts when dealing with a case are competent to examine questions of alleged unconstitutionality arising in the case which are material for the determination of any matter at issue. 39. Article 146 vests exclusive jurisdiction in the Supreme Court to adjudicate on complaints that administrative decisions are contrary to the Constitution or any law, including Convention law, or are made in excess of or in abuse of the powers vested in any organ, authority or person. 40. Law 139/1991 (“the Law”) was enacted according to its preamble to regulate the administration of Turkish-Cypriot properties in the Republic of Cyprus: “Whereas, because of the massive removal of the Turkish-Cypriot population as a result of the Turkish invasion to the areas occupied by the Turkish invasion forces and the prohibition by such forces of the movement of such population within the areas of the Republic of Cyprus, properties which consist of movable and immovable property were abandoned, And whereas it became essential for the protection of those properties to take immediate measures, And whereas the measures taken included the administration of such properties by a special committee which was constituted through administrative arrangements, And whereas the regulation by law of the question of the Turkish-Cypriot properties in the Republic became necessary ...” 41. Section 2 provides definitions of relevant terms used in the Law: “‘Abnormal situation’ means the situation created as a result of the Turkish invasion which continues to exist until the Council of Ministers, by notification published in the Official Gazette of the Republic, appoints a date for the termination of such situation; ... ‘Turkish-Cypriot’ means a Turkish-Cypriot who does not have his usual residence in the areas controlled by the Republic and includes a company or other legal person which is controlled by a Turkish-Cypriot, as well as by the Evcaf; ‘Turkish-Cypriot property’ includes every property movable or immovable which belongs to a Turkish-Cypriot and is situated in the areas under the control of the Republic and includes Evcaf property.” 42. Section 3 establishes the post of Custodian of Turkish-Cypriot properties who is to administer such property in accordance with the provisions of Law 139/1991 and exercise the functions conferred on him by that Law during the abnormal situation and until final settlement of this matter is reached. 43. Section 5 stipulates that: “Subject to the provisions of this Law, the Custodian in administering Turkish-Cypriot properties and exercising the functions conferred on him by this Law, shall have all the rights and obligations which their Turkish-Cypriot owner would have: Provided that, notwithstanding the amendment to the principal law made by this Law, all acts or decisions which have been done or taken by the Custodian, in accordance with the principal law, shall be regarded as having been done or taken lawfully.” 44. Section 6 sets out some specific functions of the Custodian, without prejudice to the generality of section 5. These include: “(a) to administer every Turkish-Cypriot property in accordance with the circumstances of each case and to this end– (i) to collect every sum which is due to the beneficiary and to give the necessary receipts; ... (ii) to collect and dispose of the produce of such property in the most beneficial manner for the owner; (iii) to make the necessary payments for the fulfilment of obligations concerning the property under administration; (iv) to arrange for the necessary repairs, improvements, cultivations, plantations or, where necessary, such changes to the property which would be beneficial to the owner; (v) to make arrangements, to enter, terminate or cancel contracts or to undertake obligations or charges concerning each such property and more specifically to lease same at the most favourable terms for the owner; ... (vi) to sell or otherwise dispose of every such movable property which is subject to deterioration or which because of its nature ought to be sold or disposed in the interest of the owner; (vii) generally to do everything which is consequential to or necessary for the administration of Turkish-Cypriot properties. ... (c) To accept service of actions, reference or other judicial process concerning Turkish-Cypriot property, to represent and bind the owner of any Turkish-Cypriot property before any judicial, administrative or other authority in the Republic or anywhere else outside the Republic, to give or receive notifications by virtue of the provisions of any Law applicable in connection with Turkish-Cypriot property and to be present at local enquiries and negotiations concerning such property. (d) To administer the Fund of Turkish-Cypriot properties which is established by virtue of section 11 of this Law; ... Provided that in the case of immovable property, the Custodian, in the exercise of his functions by virtue of this section, cannot take actions as a result of which after the termination of the operation of this Law– (i) The owner would be other than the owner at the date of entry into force of the present Law, except in exceptional cases in which this would be beneficial for the owner or necessary in the public interest; or (ii) the right of the owner concerning the property would be in any way restricted or charged more than what would be absolutely necessary or beneficial for the property or the owner or necessary in the public interest; ...” 45. Section 7 requires the Custodian, in administering the TurkishCypriot properties and in exercising his functions by virtue of Law 139/1991, to look after the needs of refugees and at the same time serve the interests of the owners of the said properties on the basis of “prescribed criteria”. 46. Pursuant to section 9 of Law 139/1991: “The payment of any sum due to an owner of Turkish-Cypriot property in relation to such property is suspended during the abnormal situation which exists in the Republic of Cyprus by reason of the Turkish occupation.” 47. Section 11 establishes a “Special Fund”: “(1) A Special Fund under the name ‘Fund of Turkish-Cypriot Properties’ is constituted by this Law and for the purposes thereof, which is under the administration of the Custodian. In the Fund are deposited all receipts and all payments are made therefrom, in accordance with the provisions of this Law. ...” 48. Section 15 provides that every person who pays any debt due to a Turkish Cypriot to any person other than the Custodian; or assumes possession of or in any way uses a Turkish-Cypriot property in a manner other than that which is provided in Law 139/1991 is guilty of an offence and is liable to imprisonment not exceeding three months or to a fine not exceeding one thousand pounds or to both such penalties. 49. Law 139/1991 was amended by Law No. 39(1) of 2010, published in Official Gazette no. 4240 of 7 May 2010, by the insertion of additional provisions. The following was inserted at the end of section 3: “Provided that in the exercise of his above authority to administer Turkish-Cypriot properties during the abnormal situation the Minister also has the power as custodian, to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular Turkish-Cypriot property or part of it, after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter, including whether the Turkish-Cypriot owner of the property or his heirs or successors in title, as the case may be, occupy property belonging to a Greek-Cypriot in the areas not under the Republic’s control: Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of Turkish-Cypriot property– (a) that the matter concerns the administration of property which at the time it came under its regime of custodianship, its Turkish-Cypriot owner had ordinary residence abroad where he had gone at any time before or after the Turkish invasion of 1974, and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic, (b) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the Turkish-Cypriot owner of the property settled permanently in the Government controlled areas of the Republic and continues to be constantly settled there permanently , (c) that the property under administration concerns a house which its TurkishCypriot owner was living [in] and occupying before the Turkish invasion of 1974 and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the Republic.” 50. A new section 6A was inserted into the Law: “(1) Violation of a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ratified by Law, owing to the application of a provision of this Law, is actionable. (2) A person alleging violation of any right guaranteed by the above Convention and or its Protocols owing to the application of a provision of this Law in his case, is entitled, in case of rejection of his relevant claim by the Minister, to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation, and to claim for the violation the remedies provided for in this section: Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him, the action is also directed against the person lawfully in occupation of the property. (3) In determining in an action under sub-section (2) whether the plaintiff’ (4) Where in an action under this section the court determines that the plaintiff’s right was violated, he is entitled in the action: (a) to compensation for any pecuniary damage, loss, costs, and expenses actually incurred on account of the violation, (b) to compensation for non-pecuniary damage or injury sustained on account of the violation, (c) to legal costs actually incurred by him on account of the violation, (d) to the issue of a binding order of recognition of right under the Courts of Justice Laws, (e) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force, or the applicable general principles of law. (5) For ascertaining the damage attributable to the violation as provided for in subsection (4) and assessing and awarding compensation under the said sub-section, the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they transpire from its case-law in cases of violation of the right concerned which is guaranteed by the above Convention or its Protocols. Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship, the Custodian and the property’s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff, to any amounts of costs that each has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law: Provided that the said right of the lawful occupier is only for costs of repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission. (7) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of Turkish-Cypriot property, he is entitled by action against the owner in whose favour the said judgment was issued, or against his heirs or successors in title, as the case may be, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law while it was under custodianship: Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship, is entitled by action against the above owner, his heirs and successors in title, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission whilst he was in occupation.” 51. The plaintiffs, Turkish Cypriots living in England since 1962, were owners of three plots of land and a house. In 1976 refugee housing was built on one of the plots; the other two plots and the house were granted to refugees for temporary use. The plaintiffs filed a civil action before the District Court of Limassol seeking eviction orders, rents as from the day of trespass and exemplary damages. 52. On 29 September 1995, the District Court found that the respondent had committed trespass. It held that Law 139/1991 was not applicable to the case as no evidence had been put before it establishing that the plaintiffs had abandoned their property as a result of the Turkish invasion of 1974. The court dismissed the plaintiffs’ claim for exemplary damages and awarded them ordinary damages for trespass, noting that they had, during the proceedings, withdrawn their application for return of the house. The Attorney-General appealed the judgment. 53. Handing down its judgment, the Supreme Court set aside the findings of the first-instance court concerning the non-applicability of Law 139/1991 to the case. Relying on the definition of “Turkish-Cypriot” in section 2 of the Law (see paragraph 41 above), the court concluded that the definition of “abandoned property” had been specified by the legislator as the property of a Turkish Cypriot who did not have his ordinary residence in the areas controlled by the Republic. The meaning of the term “abandoned properties” was therefore unambiguous and Law 139/1991 applied in the claimants’ case. 54. The Supreme Court ordered that the case be sent back to the District Court for retrial to determine the amount of compensation from the date of trespass as ascertained by the first instance court until the date of entry into force of Law 139/1991 on 1 July 1991 and to determine whether the relevant provisions of Law 139/1991 were constitutional. It noted that if the answer to the latter question was positive then the claim for damages for the period after 1 July 1991 would have to be dismissed; if negative, then damages would have to be assessed for the period after 1 July 1991. 55. The case was eventually settled at the retrial stage and the constitutionality issue was therefore not determined. 56. On 20 July 2001, the Supreme Court rejected the argument that Law 139/1991 infringed Article 23 of the Constitution by requisitioning property indefinitely, noting that the law did not provide for requisition or acquisition but administration, and for a temporary period only. 57. The Custodian initiated a civil action for possession of certain properties in accordance with Law 139/1991. The defendants submitted that they were in possession of the relevant properties in accordance with their agreement with the Vakf (a public benefit foundation) and that Vakf properties were excluded from the application of the Law. 58. On 15 February 2002, in an interim judgment, the District Court decided that properties owned by the Vakf were not excluded from Law 139/1991. It considered that section 2 of the Law was contrary to Article 23 of the Constitution but that it could be justified on the basis of the doctrine of necessity for the administration and protection of the abandoned TurkishCypriot property. The defendants appealed. 59. On 29 September 2003 the Supreme Court dismissed the appeal. It held that following the Turkish invasion and occupation, the State was entitled to take measures which entailed limitation or even deprivation of the rights and liberties set out in the Constitution. Law 139/1991 introduced measures to allow the State to meet the needs that arose due to the Turkish invasion and, the court concluded, the measures were both necessary and proportionate. 60. The plaintiff, a Turkish Cypriot, was the owner of a property in the district of Limassol since 1963. Following the enactment of Law 139/1991, his property was vested in the Custodian and used by two Greek Cypriots. In September 2002, the plaintiff moved from the occupied area of Cyprus to the government-controlled area and requested that his house be returned to him. His request was dismissed on the ground that as a result of the Turkish invasion of 1974, all Turkish-Cypriot properties had been vested in the Custodian until final settlement of the Cypriot problem. 61. The plaintiff lodged a recourse against this decision with the Supreme Court under Article 146 of the Constitution (see paragraph 39 above). He contended, inter alia, that he was entitled to recover his property as he resided in the government-controlled area, relying on section 2 of the Law (see paragraph 41 above). The Attorney General argued that “residence” was determined on the day the Law entered into force and not at any subsequent time so that from the moment the Custodian took over the administration of Turkish-Cypriot property, such administration would continue as long as the Law was in force. 62. On 24 September 2004 the Supreme Court rejected the Government’s interpretation of section 2, finding that such an interpretation would constitute an illogical, unjustifiable and excessive limitation of the fundamental constitutional right to property. It referred to the preamble of the Law (see paragraph 40 above) and held that: “... the Legislator also decided, as it appears from the definition of the term ‘Turkish-Cypriot’, as his criterion, that only in the case where the owners of the properties in question are not resident in the areas controlled by the Republic is their protection necessary, evidently as those Turkish properties whose owners live in the areas controlled by the Republic do not need such protection, thus establishing a criterion which does not apply generally to Turkish-Cypriots en masse but specifically to each owner. The ordinary residence of the specific owner in the areas controlled by the Republic, as the criterion of the same Legislator, puts the said specific properties on the same footing as all the other properties there and rules out the intervention or further intervention of the Custodian in their protection and administration. As things are, it does not matter whether the specific owner acquired his ordinary residence in the areas controlled by the Republic before or after 1.7.1991 and whether he returns to his ordinary residence there and seeks to live in his own house. In such a case, the criterion of the Law itself excludes the property from the administration of the Custodian. And, furthermore, it is certainly not only, to avoid referring to elementary human logic, the normal rules of interpretation which dictate this view but also the fundamental principles of interpretation which require the interpretation of the laws to be compatible with constitutional rights and to be analogously restrictive. If the Law were to be interpreted otherwise so as to cover the continuation of the administration of Turkish-Cypriot property after the reestablishment of the ordinary residence of the owner in the areas controlled by the Republic, in all probability it would constitute an unjustified and excessive, even as regards the necessity expressly stated in the Law as justifying this, restriction of the fundamental constitutional right to property. This approach also arises from the jurisprudence of the ECHR as regards the validity of the principle of proportionality, as an objective and reasonable criterion, concerning the restrictions which may be placed on the basis of discrimination in violation of Article 14 of the Convention (which is reflected in Article 28 of the Constitution). It is sufficient for me to refer to a very recent decision in the case of Aziz v Cyprus, 69949/01, 22.6.2004.” 63. Accordingly, the Supreme Court upheld the recourse and annulled the decision in question. 64. The Attorney General filed an appeal against the judgment but withdrew this on 13 February 2005. The plaintiff’s property was returned to him on 22 February 2006. 65. The plaintiff, a Turkish Cypriot, was appointed administrator of the estate of his deceased father, who owned a half share of a plot of land in the district of Limassol which had vested in the Custodian. Part of the property had been granted to refugees for temporary use and part was compulsorily purchased, with the Custodian’s consent, for public interest purposes. An amount in respect of compensation for the compulsory acquisition had been deposited in the Special Fund of Turkish-Cypriot properties (see paragraph 47 above). However, payment of the sum to the plaintiff was suspended, in accordance with section 9 of Law 139/1991, for as long as the abnormal situation continued to exist (see paragraph 46 above). 66. The plaintiff sought the transfer of the property to the legal heirs and payment of the amount due as a consequence of the compulsory acquisition. Although the Custodian gave his consent to the issue of letters of administration, he noted that the Turkish-Cypriot owners and their heirs did not have the right to the use of their properties vested in the Custodian and were barred from exercising any property rights without the permission of the Custodian as long as the abnormal situation created by the Turkish occupation continued. He further noted that the request for payment of the compensation could not be satisfied because, in accordance with section 9 of Law 139/91, payment of any amount owed to an owner of TurkishCypriot property was suspended. 67. The plaintiff lodged a recourse requesting the recovery of his property and claiming that Law 139/1991 was contrary to Article 23 of the Constitution and the constitutional principle of equality, and that the compulsory acquisition had been unlawful. 68. On 19 January 2007 the Supreme Court dismissed the recourse. It found that, as the plaintiff had been living in the occupied areas, Law 139/1991 was applicable to the case. It further found that the plaintiff was not prevented from fulfilling his obligations as administrator of the deceased’s estate and from distributing and transferring the property to the lawful heirs. He was only prevented temporarily from possessing and administering the property. This limitation did not affect his rights and interests, which would be granted to him when the abnormal situation ended. 69. The court also dismissed the plaintiff’s claim as to the incompatibility of Law 139/1991 with Article 23 of the Constitution. In this respect it observed that the State, in 1974, had found itself faced with circumstances which necessitated the creation of a state of emergency. The State had, therefore, the duty to adopt measures even if these limited the fundamental rights and liberties protected by the Constitution. The mass movement of Turkish Cypriots and the abandonment by them of their properties in areas which were controlled by the Republic of Cyprus gave rise to a need to protect these properties for their owners’ benefit, as stated in the preamble of the Law (see paragraph 40 above). The enactment and adoption of the Law was completely justified. 70. The plaintiff lodged an appeal. The judgment in the appeal was handed down on 15 September 2009. The court noted that the applicants did not request the Custodian to return the property. It further observed that issues arose as to the constitutionality of section 9 of Law 139/1991 and it encouraged applicants to go to the District Courts, which had jurisdiction to examine the matter. 71. The plaintiff was a Turkish Cypriot who had abandoned his property as a result of the events of 1974 and had since been living in the occupied part of Cyprus. Part of his property had been granted to refugees for temporary use and part of the property had been compulsorily acquired for public benefit purposes. 72. The plaintiff requested damages for the part of his property that had been compulsory acquired and the return of the remainder of his property. The requests were rejected and the plaintiff filed a recourse before the Supreme Court. He complained that Law 139/1991 infringed Articles 6, 13, 23 and 28 of the Constitution (see paragraphs 34-37 above) and Article 1 of Protocol No. 1 of the Convention. He further claimed that following the relaxation of restrictions on movement from the occupied areas to the areas controlled by the Republic, the abnormal situation on which the abovementioned law was based had ceased to exist. He relied on the Court’s judgments in the case of Loizidou v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996VI and Aziz v. Cyprus, no. 69949/01, ECHR 2004V. 73. On 21 May 2007 the Supreme Court dismissed the recourse. It reaffirmed the need to protect the abandoned properties of Turkish Cypriots and to help displaced Greek Cypriots who had lost their property that had been created following the Turkish occupation. The abnormal situation still existed and would only cease to exist following a decision of the Council of Ministers to that effect, in accordance with section 2 of the Law. Turkish Cypriots were not deprived of their property as they continued to be the owners, notwithstanding the fact that during the abnormal situation, the administration of the properties was vested in the Custodian. The court further considered that the fact that the abnormal situation had continued for so many years did not affect the temporary nature of the Law as it did not intend to impose permanent limitations or to deprive the lawful owners of their rights. The measures adopted were absolutely necessary and proportionate to the situation which had to be faced. 74. With regard to Article 1 of Protocol No. 1 the court noted: “Article 1 of the Convention’s protocol, after recognising the right of every natural or legal person to peaceful enjoyment of his property, refers to the exceptions, to set aside the right for public interest purposes under conditions provided for by the law and by the general principles of public international law. The protection afforded by Article 1 does not take away the right of the state to enact such laws as it considers to be necessary for controlling the use of property in accordance with the general interest ... The exception of Article 1 exists in the present case. Law 139/91 was mandated for reasons of public interest which are obvious. On the contrary in Turkey’s case the deprivation of the rights of Ms. Loizidou was made without any legal basis and of course without the existence of any law. Let us not forget that the occupied part of Cyprus does not constitute a state recognised by the international community. Moreover, in the case of Law 139/91 ownership remains with the Turkish-Cypriot owners and the Custodian simply has the responsibility and competence to administer the property until the end of the abnormal situation ...” 75. The plaintiff lodged an appeal before the Supreme Court but the appeal was withdrawn on 15 June 2010 in order for an action to be lodged with the District Court in accordance with the amended Law 139/1991 (see paragraph 50 above). 76. On 18 May 2010 the Supreme Court, hearing an appeal from the District Court, handed down its judgment in a case where the plaintiff had argued that Law 139/1991 violated the Constitution and the Convention. It noted that the constitutionality of Law 139/1991 was well-established in Cypriot jurisprudence, referring to its judgment in Solomonides. It accordingly dismissed the appeal. 77. The plaintiffs were Turkish Cypriots residing in the occupied part of Cyprus. They filed a recourse before the Supreme Court challenging the decision of the Custodian to refuse to return the property they owned in Larnaca, arguing that they had not abandoned their property following the Turkish invasion and that, accordingly, Law 139/1991 did not apply. 78. On 8 June 2007 the Supreme Court dismissed the recourse. It relied, inter alia, on the judgments of the Supreme Court in the cases of Solomonides, Ali Kiamil and Suleyman and (see paragraphs 57-59, 65-70 and 71-75 above). 79. On 14 February 2011 the Supreme Court sitting as an appellate court dismissed the plaintiffs’ appeal. It noted the Court’s decision in Sofi v. Cyprus (striking out dec.), no. 18163/04, 14 January 2010, and the Government’s position as presented to this Court in that case. However, it did not consider that in making a proposal for friendly settlement the Government had accepted that Law 139/1991 violated the Convention. It further considered that their undertaking to amend the Law was irrelevant, as the amendment concerned merely the lifting of custodianship for Turkish-Cypriot property owners who permanently resided abroad before or after 1974. 80. In the case before, the court noted that the plaintiffs’ claim was concerned with the applicability of Law 139/1991 and accordingly concluded that the only issue raised in the case was whether the Custodian was a trespasser. This was a matter of private law and there was therefore no jurisdiction in the case. 81. The plaintiff lodged an action for trespass and alleged a violation of his property rights as protected by Article 23 of the Constitution. On 17 February 2011 the District Court handed down its judgment. 82. The court considered whether the applicant’s property fell within the scope of Law 139/1991. It noted that the Law applied to properties owned by Turkish-Cypriots who did not have their usual residence in the territories controlled by the Republic. It referred to the Supreme Court judgment in Solomonides and considered that this decision confirmed that Law 139/1991 could be justified on the basis of necessity. The judge emphasised that ownership of properties was not transferred under Law 139/1991: only the administration vested in the Custodian. Accordingly the measures did not restrict or deprive the owners of their rights and were absolutely necessary. 83. The plaintiff’s claim was accordingly dismissed. 84. Between the entry into force of the amendments to Law 139/1991 on 7 May 2010 and 17 August 2011, when the Government provided statistical information to the Court as to the operation of the amended Law, approximately 115 applications were made to the Custodian requesting the lifting of custodianship over Turkish-Cypriot property. 85. 102 of the applications lodged concerned sales of properties to Greek-Cypriot buyers. In these cases, the relevant sale agreement was lodged with the Land Registry for completion of the necessary procedures prior to referral to the Custodian for a decision on whether to lift the custodianship. Of these, 83 applications were still under examination by the Land Registry. The remaining 19 cases were referred by the Land Registry to the Custodian for decision. 86. Of the 19 sales cases referred to him, the Custodian decided to lift custodianship in 2, in both cases reversing prior negative decisions made before 7 May 2010. He declined to lift the custodianship in 8 cases. In the remaining 9 case, inquiries as to the facts and circumstances were ongoing. 87. Of the 13 applications lodged which did not concern sales, inquiries by the Custodian as to the facts and circumstances were ongoing in 12. These 12 outstanding cases concern the return of property (6 cases), the return of property for occupation by the owners (2 cases), requests for negotiations for the purchase of the property by the Government (3 cases) and a claim that the property does not fall within the scope of Law 139/1991 (1 case). In the only decided case, custodianship was lifted under an agreement with the Turkish-Cypriot owner following negotiations for the purchase of the property by the Government at an agreed price reflecting its present day value. 88. It can therefore be seen that of the 32 applications lodged between 7 May 2010 and 17 August 2011 and put before the Custodian for decision, inquiries were continuing in respect of 21. In the 11 concluded cases, he agreed to lift the custodianship in 3 and refused to do so in 8. 89. The Custodian also examined under the Law as amended a further 34 applications made prior to 7 May 2010. Examination of all 34 applications has been concluded. 90. A total of 29 of these applications concerned sales and the Custodian agreed to lift custodianship in 8 of them. He declined to do so in 21 cases. 91. He agreed to lift the custodianship in the 5 non-sales cases. 4 of these concerned agreements with the Turkish-Cypriot owners following negotiations for the purchase of the property by the Government at an agreed price reflecting its present day value. In the remaining case custodianship was lifted in respect of a transfer under a will. 92. In summary, of the 34 cases lodged prior to 7 May 2010, custodianship was lifted in 13 cases and was not lifted in 21 cases. 93. In total, the Custodian has decided 45 applications to date. In 16 cases he lifted custodianship and in 29 he refused to do so. 94. In 13 of the 16 cases in which custodianship was lifted, the owners had their ordinary residence abroad and did not occupy Greek-Cypriot property in the north of Cyprus. In 2 of them the owners were permanently settled in areas controlled by the Republic. In the remaining case the owner was permanently settled in the north of the island and custodianship was lifted in order to enable the administrator of the estate of a deceased Turkish-Cypriot owner to sell part of the property to cover administration costs and enable distribution of the property to the heirs. Aside from this case, all other cases in which custodianship was lifted concerned sales, either to Greek-Cypriot buyers or to the Government. 95. All 29 cases in which the Custodian refused to lift custodianship were sales cases. In 7 of them, the owners were permanently settled in the north of the island and occupied Greek-Cypriot property. In these cases the occupation of Greek-Cypriot property was a factor taken into account by the Custodian but was not, in most of these cases, the only factor. In 5 cases the owners alleged that they had their ordinary residence abroad but failed to substantiate the claim despite being requested to do so and in 5 cases the owners failed to provide any details about their place of residence despite being requested to do so. In these cases the failure to provide the information was a factor taken into account by the Custodian as it was possible that they occupied Greek-Cypriot property in the north of the island. It was not, however, the only factor. Other relevant factors included low sale prices indicating that buyers were seeking to take advantage of the abnormal situation in order to make a profit at the expense of the owner. In 3 cases the owners had their ordinary residence abroad but also occupied Greek-Cypriot property in the north of the island. In these cases the occupation of Greek-Cypriot property was the only reason for not lifting the custodianship. Finally, in 9 cases the owners had their ordinary residence abroad and did not occupy Greek-Cypriot property in the north of the island. In these cases the Custodian weighed all relevant factors; in most cases the sale price was significantly lower than the property’s market value. 96. Only 3 of the 45 cases decided by the Custodian involved claims for compensation. In 2 cases, civil proceedings had previously been lodged in the District Courts for damages for trespass (loss of rents). These proceedings were withdrawn following the lifting of the custodianship. In the remaining case, the buyer filed civil proceedings in the District Court under the amended law on 16 November 2010 seeking damages for a violation of Article 1 of Protocol No. 1 as a result of the Custodian’s decision not to lift the custodianship of a property subject to a saleagreement with the Turkish-Cypriot owners. The Custodian subsequently agreed to lift custodianship and the proceedings were withdrawn. 97. Following the entry into force of the amendments to Law 139/1991, 6 civil actions were filed with the District Court against the Republic of Cyprus and the Custodian alleging a violation of Article 1 of Protocol No. 1 and claiming compensation and other remedies. 98. Of these, 4 actions concerned refusals by the Custodian prior to 7 May 2010 to lift custodianship so that the property could be transferred under sale agreements. Of these, 1 (the District Court proceedings lodged by a buyer described in paragraph 96 above) was subsequently withdrawn. In another an application has been made to the Custodian for re-examination, which is pending. The plaintiffs in 3 of the cases claim compensation for damage and loss caused by the refusal to lift custodianship and thereby allow a property transfer to be effected pursuant to a sale agreement, as well as general damages for the alleged violation of the Convention as a result of the custodianship. They also seek declaratory judgments that they are entitled to exercise their ownership rights, and orders lifting the custodianship. In the case in which re-examination has been requested, no compensation is sought: the claim brought by the heir of a deceased Turkish-Cypriot owner was for a declaratory judgment recognising her right to the property and an order lifting the custodianship. 99. The remaining 2 actions concern a refusal of the Custodian before 7 May 2010 to lift custodianship and return the property to the owners free of occupation. Damages for loss of use and for an alleged violation of Article 1 of Protocol No. 1 are also claimed. 100. In conclusion, five cases are pending before the District Courts. At the time of submission of the information, the exchange of pleadings had not yet been completed in the cases. | 0 |
train | 001-88320 | ENG | GBR | ADMISSIBILITY | 2,008 | TAYLOR v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Robert Taylor, is a British national who was born in 1936 and lives in Devon. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 10 November 1997. His claim for widows’ benefits was made on 4 October 2000 and was rejected on 20 October 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. 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 | 001-110935 | ENG | SRB | CHAMBER | 2,012 | CASE OF MLADENOVIĆ v. SERBIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque | 5. The applicant was born in 1948 and lives in Belgrade. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 30 July 1991, in the course of a fight between two groups of youths, the applicant’s son (hereinafter “A”), aged 21, was fatally shot by an off-duty police officer (hereinafter “B”), who had apparently attempted to assist his own brother as one of the participants in the said incident. 8. On an unspecified date thereafter the District Public Prosecutor’s Office (Okružno javno tužilaštvo) in Belgrade charged B with murder, as well as a number of other persons for several related crimes. 9. The decision to institute a formal judicial investigation (rešenje o sprovođenju istrage) was adopted on 5 August 1991. 10. On 30 December 1991, however, the charges against B were dropped, and on 13 January 1992 the investigating judge (istražni sudija) of the District Court (Okružni sud) in Belgrade decided to terminate the proceedings against him (obustavi istragu). 11. During the said investigation the defendants had all been heard in person, as had several witnesses, including A’s own brother. The investigating judge had further obtained relevant medical and ballistics reports, as well as other expert testimony. The autopsy report had also been produced. 12. On 4 February 1992 the applicant filed an indictment (optužnica) against B with the District Court, and thus took over the prosecution of the case in the capacity of a “subsidiary prosecutor” (see paragraph 32 below). 13. On 29 January 1996 the District Court acquitted B, stating that he had acted in self-defence. 14. Between 4 February 1992 and 29 January 1996 more than a dozen hearings had been held before the District Court. The applicant and numerous witnesses, as well as medical and ballistics experts, had all been heard, and a re-construction of the events in question had been carried out. 15. On 24 March 1999 the Supreme Court (Vrhovni sud Srbije) quashed the judgment of 29 January 1996 and ordered that the case be re-examined at first instance. In so doing, it described the District Court’s reasoning as incoherent and noted that its establishment of the facts and its assessment of evidence had been fundamentally flawed. 16. On 4 November 2002 the District Court again acquitted B, re-affirming that he had acted in self-defence. 17. On 20 April 2004 the Supreme Court quashed the District Court’s judgment. It noted that the said court’s reasoning had almost exclusively taken into account the evidence in favour of B, having ignored or misrepresented the rest. The District Court was thus ordered to thoroughly review the case and re-assess the evidence. The District Court received the Supreme Court’s decision on 21 September 2004. 18. The next hearing before the District Court was scheduled for September 2006, but was subsequently cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench. 19. On 18 December 2006 the District Court adjourned the hearing because of the inability of B’s lawyer to appear in court due to a prior professional commitment. 20. Following an additional adjournment on 27 June 2007, a new hearing was set for 19 September 2007. 21. On 19 September 2007 the District Court again adjourned the hearing, this time because it had been informed that B, still an active police officer, had been sent, as a member of the Serbian contingent, to take part in the United Nations’ mission in Liberia. The decision of the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) issued in this respect, on 3 August 2007, stated that B’s posting would last for a period of one year, but that it could be extended. The District Court scheduled the next hearing for 2 November 2007, which was apparently when B was supposed to briefly visit Belgrade. 22. On 4 October 2007, however, the applicant was informed that the next hearing would instead be held “on 3 October 2007”. 23. The applicant thereafter went physically to the District Court’s registry and was told that the upcoming hearing was still scheduled for 2 November 2007. 24. On 2 November 2007 the applicant therefore appeared before the District Court, but was informed by the presiding judge that the hearing had been set for 30 October 2007. The judge ultimately accepted to schedule a new hearing for 14 December 2007. 25. On 23 November 2007, however, the applicant received the District Court’s decision of 30 October 2007, declaring that the proceedings had been terminated due to the applicant’s failure to appear before the court on the latter date. 26. On 26 November 2007 the applicant complained about this decision, and on 6 December 2007 the District Court re-instituted the proceedings in question. 27. Between 20 February 2008 and 4 December 2008 a total of six hearings were adjourned by the District Court, the reasons for this being: (i) B’s failure to appear in court (on three occasions); (ii) the presiding judge’s wish to withdraw from the case in view of the applicant’s complaints against him (once); and (iii) the inability of B’s lawyer to appear in court as a result of a traffic accident (twice). 28. By October 2009 the District Court had held another three and adjourned another two hearings. Specifically, the hearings of 24 April 2009, 29 June 2009 and 9 October 2009 had been held, during which B and a number of witnesses had been re-heard, whilst the hearings of 28 January 2009 and 30 November 2009 had been adjourned due to B’s failure to appear in court and the presiding judge’s absence, respectively. 29. In December 2009 the presiding judge was not re-elected to the bench. The case was therefore assigned to another judge and the proceedings started anew. 30. It would appear that no hearings have been scheduled thereafter. 31. Articles 19 and 20 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in the Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10) provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, including murder, the authorised prosecutor is the public prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. 32. Article 61 provides that should the public prosecutor decide that there is no basis to prosecute, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 33. Articles 64 § 2 and 379 provide that in a case where the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor shall nevertheless have the power, up until the conclusion of the main hearing (do završetka glavnog pretresa), to resume the prosecution of the matter ex officio. It is understood that this refers to the main hearing at first instance, including the main hearing following a possible quashing of a first instance judgment, as well as a potential main hearing on appeal (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 136, paragraphs 3 and 4). | 1 |
train | 001-22428 | ENG | GBR | ADMISSIBILITY | 2,002 | MALONE v. THE UNITED KINGDOM | 4 | Inadmissible | Christos Rozakis;Nicolas Bratza | The applicant, Paul Malone, is a United Kingdom national, born in 1945 and living in Liverpool. He is represented before the Court by Mr R. Bhatt, a lawyer practising in Liverpool. The respondent Government are represented by their agent, Mr H. Llewellyn, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. On 31 March 1987 the applicant was convicted by a jury at Chester Crown Court of four armed robberies committed between 5 and 30 April 1986. He was sentenced to fifteen years’ imprisonment. The applicant was arrested at his mother’s flat the morning after the fourth robbery. The police searched his room and claimed to have found clothing similar to that worn by the robber according to a photograph taken by a security camera at the fourth robbery. The applicant denied owning these articles and contended that they were not found in his room but were instead supplied by the police in order falsely to implicate him. Following his arrest the applicant was taken to Ellesmere Port Police Station where he was interviewed by D.I. Holt and D.S. Goulding. At trial, the applicant claimed that during this first interview, of which no note was made, the officers told him that one of the robberies had been committed by two men and that the get-away car had been a blue Cortina, registration number ONT 911N. During the trial the police denied that there had been such a “first interview” or that mention of a blue Cortina had ever been made in the course of the investigation, except as a “ploy” to put the applicant off his guard. A second interview was not in dispute, and the applicant signed the note recording his account of his movements on the day of the fourth robbery. The events which took place during a third interview were, however, also disputed as were certain incriminating statements which police officers claimed the applicant had made during a car journey to retrace that taken by the applicant in the red Escort. The applicant accepted that he signed a record of the conversation in the car, but claimed that the record had been written on alternate lines on a lined notebook. By the time of the trial, the blank lines had been completed, to include admissions by the applicant that he had hidden from the police and “spent some of the money”. Forensic examination carried out for the purposes of the applicant’s appeal indicated that the lines containing the incriminating comments had been added at a later date. At trial, the applicant denied any involvement in the robberies and he gave evidence and called witnesses to show that he had been elsewhere at the relevant times. For the prosecution, in addition to the clothing and identification evidence referred to above, eleven police officers gave evidence as to admissions allegedly made by the applicant in the course of interviews. The applicant was convicted by the jury’s unanimous verdict. On 17 June 1988 the Court of Appeal refused the applicant leave to appeal against conviction or sentence. The applicant maintained his allegations against the police and in 1988 West Yorkshire Police opened an inquiry to investigate them. In 1990 the applicant’s petition to the Home Office asking for his case to be referred to the Court of Appeal was rejected. Between 1990 and 1992 the applicant secured reports by forensic scientists which cast doubt on the authenticity of some of the police interview records relied upon by the prosecution. On the basis of these reports, in 1992, he made a second petition to the Home Office. In August 1992 the West Yorkshire Police presented a report of its investigation to the Crown Prosecution Service. The applicant was informed that on the basis of this report it had been decided that no disciplinary action or proceedings were warranted against the officers involved in his case. In November 1992, however, further forensic reports were completed which cast fresh doubt on the authenticity of the interview records. Later that month the Police Complaints Authority ordered the Metropolitan Police to conduct an investigation into the applicant’s allegations. The investigating officers searched the lockers at Ellesmere Port police station and discovered a file marked “Malone” which contained an envelope marked “ONT 911N” and a note recording the name and address of an ambulance driver, Mr L, who had seen a dark blue car, “possibly a Mark 4 Cortina”, driving at speed from the vicinity of the last robbery at the relevant time. On 8 December 1994 the Home Secretary referred the case to the Court of Appeal. The appeal was heard in December 1996. Mr L was traced and called to give evidence on behalf of the applicant. He testified as to an incident which had occurred at either 11 a.m. or 1 p.m. in which, while waiting in his ambulance, he had seen a blue Cortina approaching from the direction of the estate agents’ offices. As the car pulled up at the kerb opposite him, a second man, carrying what looked like a blue cash bag of the type provided by banks, ran from the direction of the estate agents and got into the passenger seat. The car then drove off at speed. Mr L told the court that his assistant had made a note of the first two digits of the car registration number, and that he had immediately reported what he had seen to the police at Ellesmere Port, stating that he thought that it had been a robbery in progress. He had never been asked to give a statement until he was contacted by the applicant’s solicitors some ten years after the event. The Court of Appeal did not call the police officers involved in the original investigation and prosecution of the applicant to give evidence. Lord Justice Beldam in the Court of Appeal observed in connection with the ambulance driver’s evidence and the documents found by the Metropolitan Police in the lockers at Ellesmere Port police station: Having heard [Mr L’s] evidence, we were satisfied that at the time of the interviews referred to by the appellant no-one at Ellesmere Port Police Station knew the index number of the blue Cortina reported by [Mr L]. We are also satisfied that the index number ONT 911N was an index number known to the appellant and introduced by him into evidence at the trial. On the information available to us, it was first mentioned either in the cross-examination of DI Holt or during the evidence in chief of the appellant. We are satisfied that at no time did [Mr L] have the full index number of the blue Cortina which he reported, that in all probability interest in the blue Cortina evaporated after the far more detailed report received from [Mrs H] and that the first mention of the index number was made by the appellant as we have indicated. [Counsel for the prosecution] accepted that, had the prosecution been aware at the time of the existence of [Mr L’s] report, the defence should have been told. But in the result his description of the type of bag carried by the person he saw was so different from the white plastic bag carried by the person who carried out the robbery ... that his evidence did not detract in any way from that of [Mrs H] who had noticed and clearly described the white plastic bag carried by the man who ran past her. Further, as the defence apparently knew the registration number of the vehicle, they could have made enquiries at the time. We are satisfied that the evidence of [Mr L] would not afford any ground for allowing the appeal, and that it was not consciously withheld from the defence. In the circumstances we do not think that the failure to disclose the report of [Mr L] was material. There remains the question whether, in stating at trial that the introduction of the blue Cortina into the interview with the appellant was a ‘ploy’, DI Holt was telling only half the truth. It could, of course, have been the case that DI Holt both knew of [Mr L’s] report and used it as a ploy. If we are correct in thinking that [Mr L’s] report was not followed up in the course of the investigation, it seems to us not improbable that Inspector Holt may subconsciously have referred to the blue Cortina because he had heard a report of such a sighting but by the time of the trial he had dismissed that report from his mind as a reason why he had introduced the blue Cortina. It is, however, a matter which we bear in mind when we have to assess the overall reliability of DI Holt’s evidence.” In addition, the Court of Appeal heard evidence from a number of expert witnesses. Having heard the evidence of two experts who had examined the security camera photographs, the court decided that the robber could have been of a height similar to the applicant. It considered that further forensic evidence relating to a pair of shoes, said to have been found in the applicant’s bedroom, served only to reinforce the view that they had been regularly worn by the applicant. Having heard forensic evidence suggesting that alternate lines of the record of the conversation between the applicant and police officers in the car might have been added at a later date, the court said: “In approaching this aspect of the case we remind ourselves that the allegations made against police officers that they have deliberately falsified an interview are extremely serious. We do not feel that the evidence adduced is sufficiently cogent to lead to the conclusion that DI Holt added alternate lines to the record of the discussion during the journey in the car. We are certainly not prepared to reject the whole of the evidence given by police officers of the Cheshire Police Force as suggested by [the defence counsel]. Whilst we think it unlikely that the words ‘and hide’ and ‘where I spent some of the money’ were added to the record by DI Holt after the appellant had signed the record of the conversation, we also consider that it would be surprising if the appellant, who had persistently denied that he had committed the robbery, made these statements in an unguarded moment on this car journey. Accordingly we consider that we should disregard them altogether in deciding whether the conviction of the appellant was safe.” The Court of Appeal dismissed the appeal on 31 January 1997, because it did not find that the applicant’s conviction was unsafe (section 2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995). The applicant had also applied to the Court of Appeal for leave to appeal to the House of Lords. He was informed by a letter dated 21 May 1997 that the Court of Appeal had refused to issue a certificate under section 33(2) of the Criminal Appeals Act 1968 (see below) and had refused leave to appeal to the House of Lords. By a letter dated 8 September 1997, the applicant’s solicitors reapplied to the Court of Appeal for leave to appeal to the House of Lords and requested the court to hear oral argument on this question, since counsel had understood that an oral hearing was to have taken place before the court decided the issue in the first place. According to the applicants’ solicitors, this request was refused by telephone some time after 27 November 1997 (the date of the introduction of the application to the European Commission of Human Rights). In June 1997 the Police Complaints Authority informed the applicant that its investigation had produced evidence suggesting that a number of officers had given false or misleading evidence at trial and that those officers still serving with the police would be reprimanded. In criminal cases, there is a right of appeal from the Court of Appeal to the House of Lords, if leave is granted by either court. The Criminal Appeal Act 1968 provides in section 33(2) that “leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by the House”. The Police Complaints Authority was created by section 89 of the Police and Criminal Evidence Act 1984 (“PACE”). It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges. Under section 105(4) of PACE the PCA is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings. | 0 |
train | 001-81202 | ENG | TUR | CHAMBER | 2,007 | CASE OF VEYİSOĞLU v. TURKEY | 4 | Violation of Art. 6-1 | null | 5. The applicant was born in 1978 and lives in Istanbul. 6. At the time of the events, the applicant was a corporal in the Hakkari Mountain Commando Brigade of the Turkish Land Forces. 7. On 29 January 2002 the brigadier general (tuğgeneral) filed an indictment against the applicant with the Hakkari Military Disciplinary Court which was attached to the Hakkari Mountain and Commando Brigade. He accused the applicant of insulting his subordinates, of deliberately hiding the truth from his superiors and of giving abusive commands to his subordinates which did not concern military service. In particular, the applicant was accused of forcing his subordinates to make his bed, or do his personal shopping and laundry. On 6 February 2002, the Hakkari Military Disciplinary Court, which was composed of a major (binbaşı), a captain (yüzbaşı) and a sergeant major (başçavuş), found the applicant guilty as charged and sentenced him to “room arrest” for 110 days. 8. On 19 February 2002 the applicant appealed. 9. On 5 March 2002 the Van Supreme Disciplinary Court attached to the General Command of the Gendarmerie gave a decision of non-jurisdiction regarding the first charge and sent the case file to the Military Court attached to the General Command of the Gendarmerie for reconsideration. It acquitted the applicant of the second charge. However, it established that he had given abusive orders to his subordinates. It therefore upheld the decision of 6 February 2002 in respect of the third charge. As a result, the applicant was ordered to serve 40 days' “room arrest”. 10. On 16 April 2002 the applicant petitioned the Minister of Defence for a referral of his case to the office of the public prosecutor at the Military Court of Cassation, by means of an appeal against the decision of the Van Supreme Disciplinary Court. He complained, in particular, of a breach of Articles 5 § 1 and 6 §1 of the Convention. 11. On 7 June 2002 the Chief Magistrate of Military Justice, acting on behalf of the Ministry of Defence, dismissed the applicant's petition. 12. The relevant provisions in force at the material time provided as follows: “...The Administration shall not impose any sanction resulting in a restriction of personal liberty. Exceptions to this provision may be introduced by law regarding the internal order of the Armed Forces. ...” “Military justice shall be dispensed by military courts and military disciplinary organs. These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel in violation of military law or are committed against other military personnel, on military premises or in connection with military service and related duties. Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated. The jurisdiction of the military courts as regards persons and offences in time of war or a state of emergency, the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary, shall be regulated by law. The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve, shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary, and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service.” 13. The pertinent provisions of Law no. 477, applicable at the material time, provided as follows: “The Disciplinary Courts shall be composed of three commissioned officers. When prosecuting a non-commissioned officer or a private soldier, one of the members of the court shall be selected amongst the non-commissioned officers.” “The members are appointed for one year by the commanding officer of the military unit. They cannot be removed from office during this period. Moreover, the members of the court cannot be subordinate to the accused.” “The president and the members are obliged to have served in the military sections or military institutions for at least one year, not to have been convicted of an offence except for crimes committed by imprudence, not to be of an inferior rank to the suspect and the president must be, at least, a captain in military rank.” “...there must be one officer who is a member of the military legal service or is a military prosecutor ...” “The members of the court are prevented from carrying out this duty in the following conditions: a) if he [or she] is a victim of the alleged crime; b) if he[or she] has any sort of hereditary or marital relation to the accused; c) if he [or she] is a relative of the accused; d) if he [or she] has defended the accused or carried out an executive duty in the course of the proceedings; e) if he [or she] has acted as an expert or a witness during the proceedings; f) if there are reasonable doubts regarding his [or her] impartiality.” “The commanding officer of the relevant military unit, the executive officer of the military institution, or the accused, has the right to appeal against the decision of the Military Disciplinary Court.” “Room arrest or surveillance sentences given by the Military Disciplinary Courts: A) Concerning commissioned and non-commissioned officers, civilian staff members, gendarmerie, corporals and sergeants who are military specialists: ... II. the sentence of room arrest: a) In case of availability, the sentence is served alone in a cell. b) The arrestees cannot give any orders. c) They cannot continue with their general duties. ... C) Concerning privates, sergeants and corporals: a) They serve their room arrest, together with other convicts, in a cell. b) The cell is guarded. c) During their sentence, sergeants and corporals cannot continue with their general duties. Privates may be employed for austere military services.” “The room arrests ordered by the Military Disciplinary Courts, and served by reserve officers, sergeants and corporals (except those who are military specialists) are not considered to be part of military service. Therefore, these officers are discharged from military service after serving the additional time which they have spent in room arrest.” | 1 |
train | 001-103583 | ENG | HRV | ADMISSIBILITY | 2,011 | MAVRINAC v. CROATIA | 4 | Inadmissible | Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | The applicant, Ms Sonja Mavrinac, is a Croatian national who was born in 1960 and lives in Čavli. She was represented before the Court by Mr M. Šegota, an advocate practising in Rijeka. 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. In 1987 the applicant, whilst a passenger in a coach owned by company A., sustained injuries in a road traffic accident. In 1991 she instituted civil proceedings against the company in question before the Rijeka Municipal Court (Općinski sud u Rijeci). On 3 December 1991 that court delivered a judgment in favour of the applicant and awarded her compensation. On 29 March 1994 the applicant’s doctor made a request for an assessment of her work capacity to the Croatian Pension Fund. On 1 June 1994 the Disability Commission of the Croatian Pension Fund carried out an expert medical evaluation and found that the applicant’s work capacity was reduced. It stated depression as the main disorder significantly affecting the applicant’s capacity to work and noted several physical ailments as other disorders affecting that capacity. On the same day the Disability Commission carried out an expert medical evaluation with a view to assessing whether, owing to her physical ailments, the applicant could be considered as having a physical impairment (tjelesno oštećenje) within the meaning of the relevant legislation entitling her to certain benefits on that account. It found that no such impairment existed. On 27 June 1994 the Rijeka Regional Office of the Croatian Pension Fund issued a decision acknowledging the applicant’s reduced work capacity and granting her the rights related thereto, such as the right to employment corresponding to her remaining work capacity and the right to compensation for the loss of salary resulting from a reduced capacity to work. On 9 October 1995 the Disability Commission of the Croatian Pension Fund, of its own motion, carried out an expert medical evaluation of the applicant’s state of health and found that the applicant’s health had deteriorated to the extent that she had lost her capacity to work completely and permanently and thus could be considered disabled for the purposes of awarding her a disability pension. It stated depression as the main disorder causing the applicant’s disability and noted several physical ailments as other disorders contributing to that disability. On 20 November 1995 the Rijeka Regional Office of the Croatian Pension Fund issued a decision granting the applicant a disability pension on the basis of her incapacity to work. On 6 February 1997 the applicant brought a civil action in the Rijeka Municipal Court against company A., seeking compensation for lost earnings on account of her incapacity to work that had resulted from the injuries she had sustained in the road traffic accident in 1987. The Municipal Court heard evidence from a medical expert, who established that the 60% of the applicant’s disability had been caused by the injuries sustained in the road traffic accident in 1987 and 40% by her previous health problems. On 26 February 2002 the Municipal Court delivered a judgment whereby it awarded the applicant 202,429.81 Croatian kunas (HRK) in compensation for lost earnings, together with statutory default interest running from the date of the adoption of the judgment. On 31 May 2006 the Rijeka County Court (Županijski sud u Rijeci) dismissed an appeal by the defendant and upheld the first-instance judgment. However, following an appeal on points of law (revizija) by the defendant, on 30 May 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the lower courts’ judgments and dismissed the applicant’s claim, on the grounds that the civil courts had had no jurisdiction to question the findings of the competent administrative authority as to the reasons for the applicant’s incapacity to work. The relevant part of the judgment reads as follows: “In the [...] proceedings it was established that the plaintiff was injured in a road traffic accident on 29 April 1987 while travelling in the defendant’s coach. On that occasion she sustained blows to her head, torso, left knee, left hip and neck. In the proceedings for damages conducted before the same court ... the plaintiff obtained damages by a judgment of 3 December 1991. In those proceedings it was established, by taking evidence from a medical expert, that owing to the whiplash injury the plaintiff’s capabilities were reduced by 10% [but] that an even greater reduction in her capabilities existed due to previously existing neural disorders and degenerative processes in the plaintiff’s spine and joints, for which she had been treated in previous years. After the traffic accident, the plaintiff continued to work at her job until 1 January 1994 when her employment was terminated as redundant. From then until her retirement she had been registered as unemployed at the Employment Office. It was also established that by a decision of the Croatian Pension Fund of 20 November 1995, the plaintiff had been granted a disability pension as of 9 October 1995 on the basis of a loss of capacity to work due to an illness. Despite the finality of the definitive decision of the Croatian Pension Fund, the [first-instance] court decided to take evidence by obtaining an opinion from a medical expert with a view to establishing that the immediate cause of the plaintiff’s retirement was the consequence of the whiplash injury sustained in the road traffic accident in 1987, and not the disorders that manifested before the tortious event, as established by the Disability Commission of the Croatian Pension Fund in the proceedings for awarding the right to a disability pension. ... The defendant is right in arguing that the lower courts’ judgments are based on a misapplication of substantive law. Where the Disability Commission of the Croatian Pension Fund has established that [a] plaintiff has lost capacity to work owing to an illness and where a final decision of a competent authority is based on that finding, it is not legally possible that the loss of capacity to work was caused by some other reason. A court is bound by this final decision as regards the reasons for the incidence of the loss of the plaintiff’s capacity to work owing to an illness, and the content of that decision can no longer be decided as a preliminary issue. A court cannot examine whether the final decision rendered in the administrative proceedings was correct or assess its validity. Since there is no legal basis for the defendant’s liability in damages for the lost earnings, the defendant’s appeal on points of law has to be allowed and ... the plaintiff’s claim dismissed ...” On 19 November 2007 the applicant lodged a constitutional complaint against the Supreme Court’s judgment. She alleged a violation of her constitutional right to work guaranteed by Article 54 paragraph 1 of the Constitution. In her constitutional complaint the applicant wrote, inter alia: “The purpose and scope of the Croatian Pension Fund’s decision [of 20 November 1995] is that it represents the basis for payment of the complainant’s pension. The Croatian Pension Fund does not have a duty or a right to decide on the causes of one’s difficulties, but [rather] only whether there was an incidence of disability, or alteration or reduction of the capacity to work. Therefore, it cannot be expected that the Croatian Pension Fund be accurate or meticulous when determining other circumstances. Given that the Supreme Court wrongly assessed or interpreted that decision, the constitutionally guaranteed right has been breached.” On 30 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 5 June 2008. The relevant part of that decision reads as follows: “Having examined the arguments raised in the constitutional complaint, the contested judgment and the relevant statutory provisions, the Constitutional Court finds that the constitutional right relied on by the complainant was not breached by the contested judgment. ... The right to work and the freedom of work also entail the right of an individual that his or her employment is not terminated in a manner contrary to that prescribed by the relevant law. The content of this right is also to protect statutorily established rights of citizens arising from their work, including the protection in respect of termination of employment if that termination is contrary to the law. The Constitutional Court therefore finds that the complainant’s constitutional right guaranteed by Article 54 paragraph 1 of the Constitution (Everyone shall have the right to work and enjoy the freedom of work) has not been breached by the contested judgment, which was rendered in accordance with the relevant legislation.” The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: “All shall be equal before the law.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “Everyone shall be guaranteed respect for, and the legal protection of, his personal and family life, dignity, reputation and honour.” “The right of ownership shall be guaranteed. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” “Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia subject to payment of compensation equal to the market value. The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.” “Everyone shall have the right to work and enjoy the freedom of work.” In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” “A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...” “ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.” Section 12(1) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides that when a court decision depends on the prior resolution of an issue whether a certain right or legal relationship exists, and this issue has not yet been resolved by a court or another competent authority (a “preliminary issue”), the court may decide on that issue itself unless special legislation provides otherwise. From that provision it follows, by converse implication, that the court is not entitled to decide on a preliminary issue if that issue has already been finally decided on as a main issue in another set of proceedings. | 0 |
train | 001-57681 | ENG | GRC | CHAMBER | 1,991 | CASE OF PHILIS v. GREECE | 2 | Violation of Art. 6-1;Not necessary to examine Art. 13+6 and 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos | 7. Mr Philis is a Greek national. Since 1970 he has been a consultant engineer. Following a disagreement as to the amount of fees owed to him for a number of projects which he had designed, three disputes arose between him and those who had commissioned the work, two public corporations and a private individual. 8. From 1971 to 1975, and then from 1976 to 1978, the A.O.E.K., a body under the authority of the Labour Ministry, concluded with the applicant a series of contracts for the design of electro-mechanical installations and the supervision of the relevant work. In March 1978 it repudiated these contracts and refused to pay him the agreed remuneration. 9. Between 30 October 1978 and 23 December 1982, the applicant brought, in the Athens first-instance court (Monomeles Protodikeio Athinon), i.e. composed of a single judge, thirteen actions to recover the fees payable for the supervision of the work in question. In addition, he asked the Technical Chamber of Greece (Techniko Epimelitirio Ellados -"T.E.E.") to bring proceedings on his behalf concerning the fees which he claimed in respect of the design of the projects, because, according to the terms of Royal Decree no. 30/1956 (see paragraph 45 below), it alone had the capacity to institute proceedings for the recovery of fees payable to engineers, being subrogated to their rights for this purpose. The T.E.E. brought four actions, on 23 December 1977, 16 December 1978, 5 December 1979 and 12 January 1980. 10. On 25 September 1979 Mr Philis asked the T.E.E. to bring four more actions. He repeated his request on 11 October and 19 November 1982. By a letter of 8 December 1982, the T.E.E. warned him of the poor prospects of success of the additional actions envisaged; consequently, it demanded the pre-payment of the legal fees and the lodging of a bank guarantee intended to cover the costs of the opposing party. The applicant regarded these conditions as unlawful and called upon the T.E.E. not to delay any further, because of the danger that his rights would become time-barred. On 20 December 1982 he repeated his protest but agreed to provide the guarantee requested. On 4 January 1983 the T.E.E. informed him that on 24 December 1982 it had complied with his request of 25 September 1979. It stated however that it would seek purely declaratory judgments (anagnoristikes agoges) if it did not receive payment of the legal costs before the first hearing. 11. In the meantime the first-instance court had allowed two of the actions brought by the T.E.E.; the Athens Court of Appeal (Efeteio) had, however, dismissed them, whereupon the T.E.E. had appealed to the Court of Cassation (Areios Pagos). In the course of the proceedings, the A.O.E.K. requested a stay, with a view to securing an out of court settlement with the applicant. 12. At this point, Parliament adopted, on 13 April 1983, on the basis of a bill prepared by the Labour Ministry, Act no. 1346/1983 which amended and supplemented various provisions of the employment legislation. Section 29 thereof reads as follows: "Transitional provisions ... 5. Works contracts or contracts for the provision of independent services of specified or indefinite duration, concluded prior to the day of the publication of the present Act between the A.O.E.K. and private engineers ... or engineers employed in the public sector or by public corporations ... shall be valid notwithstanding any other statutory provisions. The ... above-mentioned engineers shall be entitled to the remuneration agreed upon; the provisions ... of Act no. 716/1977 ‘on the registers of researchers and the award and design of projects’ shall not apply. The provisions of this paragraph shall also apply to cases currently pending before the courts at any level of jurisdiction in so far as no final ruling has been made." 13. After the entry into force of the 1983 Act, the A.O.E.K. refused any further negotiation. Before the Court of Cassation, Mr Philis complained of the "interference of the executive, through the legislature" in his cases pending before the courts. 14. By two judgments of 25 May and 19 September 1984 (nos. 919/1984 and 1597/1984), the Court of Cassation ruled that the new Act covered all engineers and did not therefore infringe the principle of equal treatment. It added that nothing prevented the legislature from adopting measures affecting civil rights provided that that principle was observed. Finally, it considered that the appeals were unfounded because they were based on provisions which had been repealed. These judgments are not at issue in the present case. 15. On 13 April 1981 the T.E.E. brought an action before the Athens first-instance court for the payment of the applicant’s fees relating to the projects designed in 1977 and 1978 (see paragraph 8 above). On 30 November 1981 the A.O.E.K. was ordered to pay the sum of 898,697 drachmas. It appealed from this judgment on 25 January 1982. The applicant intervened in the proceedings on 26 February 1987 (see paragraph 45 below). 16. On 6 April 1987 Mr Philis requested the T.E.E. to bring additional actions to obtain the compound interest (Article 296 of the Civil Code) which had accrued since 1981 and for the adjustment of his claim in accordance with the rate of inflation (Article 12 para. 10 of the Royal Decree of 19 February 1938). In addition, he complained that the action brought by the T.E.E. of 13 April 1981 had sought merely a declaratory judgment and that it had failed to contest a large number of objections raised by the opposing party. 17. The Athens Court of Appeal dismissed the A.O.E.K.’s appeal on 23 May 1987 (judgment no. 6324/1987). It considered that since 1977 no employment or works contract existed between the applicant and the Organisation. On the contrary, it noted that Mr Philis had designed the disputed projects as an independent engineer within the meaning of Act no. 716/1977 (see paragraph 12 above) and that the Act of 13 April 1983 was therefore not material to the case. The A.O.E.K. appealed to the Court of Cassation on 7 July 1987. 18. Five days previously, the applicant had again requested the T.E.E. to file the additional claims (see paragraph 16 above). On 24 July he complained that it had not yet collected the sum awarded on 30 November 1981 (see paragraph 15 above); in his view, the A.O.E.K.’s appeal did not preclude the execution of the appeal judgment upholding the first-instance decision. He also protested that there had been no replies to his previous representations. 19. By a fourth letter of 8 September 1987 Mr Philis accused the T.E.E. of being responsible for the slowness of the proceedings in the Court of Appeal and demanded explanations from it as to the manner in which it was carrying out its duties. 20. In a memorandum of 24 November 1987 to the T.E.E.’s legal advisor, which was communicated to the applicant, the lawyer assigned to the case stated as follows: "... a) The T.E.E. has never lodged a claim for compound interest against the State or a public corporation. b) Decree no. 676/1987 does not provide for the adjustment of fees. Admittedly, the above-mentioned judgment of the Court of Appeal (the only one in our favour) recognises that the design projects fell within the scope of Act no. 716/1977 which provides for such a possibility, but in our view this judgment is inconsistent with section 29 para. 5 of Act no. 1346/1983 ... . The terms of this provision suggest that the judgment will be quashed on appeal. c) More than twenty actions brought by ourselves and Mr Philis have already been dismissed with final effect. d) The T.E.E. has already paid out considerable amounts for these cases and has had costs awarded against it on several occasions. e) The outcome of the case pending in the Court of Cassation is uncertain. We shall probably lose it. For the above reasons we consider it unwise for the T.E.E. to incur criticism and run financial risks by bringing an action for compound interest and the adjustment of the claim under Act no. 716/1977 before the Court of Cassation has given judgment." 21. The applicant again contacted the T.E.E. on 10 December 1987 and 15 January 1988. 22. By a judgment of 17 January 1989 (no. 24/1989), the Court of Cassation ruled that Act no. 1346/1983 was not applicable and dismissed the A.O.E.K.’s appeal. 23. On 8 February 1989 Mr Philis called upon the T.E.E. to pay him the sum awarded on 30 November 1981 plus interest and various others sums, amounting to some 13,000,000 drachmas, which it had not included in the claims filed at the beginning of the proceedings. On 18 April 1989 the T.E.E. informed him in writing that the legislation in force did not allow it to institute enforcement proceedings against the A.O.E.K., that a request for the re-adjustment of the claim would be unlawful and that an action for interest "would clearly be devoid of any moral basis". It added that until the delivery of judgment no. 24/1989, serious doubts had subsisted as to the outcome of the main proceedings, which had prevented it from filing such claims, but the applicant could lodge them himself by means of a subrogation action (Article 72 of the Code of Civil Procedure, see paragraph 51 below). 24. On 27 March 1984, the T.E.E. re-introduced, in the light of the new legislation, two of the actions which it had brought on 24 December 1982 (see paragraph 10 above) in the Athens first-instance court. Mr Philis intervened in the proceedings. At the hearing on 23 April 1985 the T.E.E. converted these actions into actions for declaratory judgments. 25. The court found for the applicant, by two judgments of 15 November 1985 (nos. 384/1985 and 385/1985), but on 19 and 24 November 1986 the Athens Court of Appeal allowed the A.O.E.K.’s appeal (judgments nos. 9908/1986 and 10040/1986). It ruled that the applicant’s rights were time-barred on the ground that more than five years had elapsed between the end of the budgetary year in the course of which they had come into existence and the date on which the actions had been re-introduced before the court. In reply to the opposing view of the T.E.E., it considered that the initial claims had been made on a different legal basis and had therefore not been capable of interrupting the running of time. 26. On 6 April 1987 Mr Philis complained to the T.E.E. that it had failed to put his case properly. As it refused to lodge an appeal on points of law, he did so himself on 17 June. In his memorial, he stated that the appeal was directed against the T.E.E. as well as against the A.O.E.K. 27. By two judgments of 7 March (no. 213/1989) and 1 May 1989 (no. 450/1989), the Court of Cassation declared inadmissible the submissions concerning the T.E.E. and dismissed the remainder of the appeal as ill-founded. 28. On 2 April 1984 the T.E.E. re-introduced one of its actions of 24 December 1982 (see paragraph 10 above) before the Athens first-instance court, which simply declared the action in question time-barred (judgment no. 326/1985 of 16 September 1986). 29. On 19 November 1986 (judgment no. 8671/1986) the Athens Court of Appeal dismissed the T.E.E.’s appeal. 30. The applicant himself filed an appeal on points of law. His memorial, drawn up by a lawyer of his choice, contained a number of complaints regarding the manner in which the T.E.E. had carried out its duties as a body subrogated to his rights. By a judgment of 7 March 1989 (no. 214/1989), the Court of Cassation declared the appeal inadmissible in so far as it related to the T.E.E. and ill-founded for the rest. 31. In November 1984 the applicant requested the T.E.E. to re-introduce certain of the actions which it had instituted from 1977 to 1980 (see paragraph 9 above). In a report of 18 November 1984 to the head of the T.E.E.’s legal department, the lawyer assigned to the case expressed the view that there were sufficient prospects of success and stressed that no problem of res judicata arose from judgments nos. 919/1984 and 1597/1984 (see paragraph 14 above) of the Court of Cassation. 32. On 20 February 1986 Mr Philis repeated his request and warned the T.E.E. of the risk that the disputed rights would become time-barred. It brought the actions in the court on 26 February, but only in the form of actions for a declaratory judgment. The applicant intervened in the proceedings. On 27 May the court dismissed the actions on the same grounds as in the judgments on appeal of November 1986 (see paragraph 25 above). 33. The applicant’s appeal filed on 7 October 1986 is still pending. 34. On 30 October 1981 the (Patriotiko Idryma Koinonikis Pronoias kai Antilipseos) - Patriotic Foundation for Social Welfare and Assistance - P.I.K.P.A., a public body under the authority of the Ministry of Health and Social Welfare commissioned Mr Philis to design a project for the extension of the heating system of one of its hospitals, the Penteli children’s hospital. On 23 February 1983 this hospital, which in the meantime had become a public-law body, asked the applicant to alter his plans. The project, which was submitted within the time-limits laid down, was approved on 13 April 1983. The applicant considered that a reduction of his fees effected by the P.N.P. was arbitrary and he accordingly asked it to re-examine its method of calculation, but to no avail. On 24 February 1984 he applied to the relevant department of the Ministry of Health and Social Welfare. 35. As he did not obtain satisfaction, the applicant instituted proceedings against the P.I.K.P.A. and the P.N.P. in the Athens Court of Appeal on 1 August 1984 pursuant to section 61 of the "Introductory Act" (Eisagogikos Nomos) to the Code of Civil Procedure. On 26 February 1985 he was asked by the court to provide evidence that he was enrolled on the register of Public expenditure, a condition which allowed an engineer to carry out public works; he did so on 13 January 1986. On 15 July 1986 the court dismissed his action against the P.I.K.P.A. on the ground that all the latter’s rights and obligations had been transferred to the P.N.P. It also ordered the parties to produce expert opinions concerning the work carried out by Mr Philis. 36. At Mr Philis’s request, the Court of Appeal held a second hearing on 22 September 1987. It dismissed the action by a judgment, which became final on 16 November 1987. It ruled that, by virtue of Royal Decree no. 30/1956, only the T.E.E. had the capacity to bring proceedings to recover payment of fees in that it was subrogated to the rights of the engineer (see paragraph 45 below); it acknowledged nevertheless that the applicant could reasonably have believed that he was entitled to bring proceedings himself and ordered both parties to pay costs. 37. In November 1980 a public works contractor, A.S., commissioned the applicant to draw up plans for the installation of a drains system in the town of Amfilohia. 38. By a letter of 30 June 1981 Mr Philis asked for the assistance of the T.E.E. because A.S. had rejected the plans and had not paid the agreed remuneration. In September 1981 the T.E.E. replied to him that it wished to settle the dispute out of court. As the negotiations were unsuccessful, the applicant on 20 January 1982 urged it to bring legal proceedings. 39. On 30 March 1983 he repeated his request and asked the T.E.E. to reassess the sums claimed. On 23 January 1984 he complained to it for not already having brought the action and for having miscalculated the fees. 40. The T.E.E. brought an action in the Athens first-instance court on 16 December 1985. On 26 April 1986 the action was allowed in part; the applicant did not intervene in these proceedings. 41. The T.E.E. and A.S. challenged the judgment in the Athens Court of Appeal. On 11 June 1987 that court ordered A.S. to pay the T.E.E. 139,336 drachmas plus interest; however, it rejected the submission concerning the reassessment of the claim because the T.E.E. had not specified the amount claimed (judgment no. 7439/1987). 42. On 10 July 1987 Mr Philis complained to the T.E.E. for having failed to include in its memorial the information on the basis of which the coefficient for the above-mentioned reassessment could be calculated; he also requested it to institute enforcement proceedings in relation to the judgment of 11 June 1987. 43. On 9 May 1988 he again contacted the T.E.E. He accused it of having waited for four and a half years before bringing the proceedings, of having miscalculated his fees and of having failed to bring the enforcement proceedings to a conclusion with the result that he had received nothing. On 6 July 1988 the T.E.E. replied to him that it could not be accused of negligence and that he had not shown that he had suffered damage. It noted that A.S. had already paid the interest and the legal costs and had sought authorisation to pay the remaining sum in ten monthly instalments. Finally it added that it was for Mr Philis himself to specify such property of A.S. as might be liable to attachment. 44. According to Article 20 para. 1 of the Constitution, "every person shall be entitled to receive legal protection by the courts and may plead before them his views concerning his rights or interests, as specified by law." 45. The following provisions of the above-mentioned Royal Decree of 31 May 1956, as they were applicable at the material time, are relevant: "1. Engineers holding diplomas from the National Polytechnic ... , members of Technical Chamber of Greece (T.E.E.), and persons who pursue, on a full-time or part-time basis, ... in accordance with Act no. 6422/1934, the profession of engineer and naval architect, shall, when commissioned to design a project, communicate to the T.E.E. (...) a declaration attesting to their appointment by the commissioning party and a separate declaration to the effect that they have accepted the assignment; where the project is commissioned by the State or a public corporation, the copy of the document authorising the assignment of the project [shall be communicated to the T.E.E.] ... ..." "1. Any party who commissions the design of plans from the persons referred to in Article 1 ... shall deposit with the T.E.E. or the latter’s authorised representative ... , the full amount of the project fee, such fee being determined by the competent ministry or by the T.E.E. in the manner described below. He may not pay it directly to the person commissioned to carry out the work. ... 4. Where the commissioning party refuses, hinders or delays payment of the deposit or of the fee owed, the T.E.E. shall have the capacity to bring legal proceedings for the recovery of the amount due ... by being subrogated ex officio to the rights of the payee. 5. In such cases, the T.E.E. shall inform the payee that it has introduced proceedings, after which it is freed from any liability in his regard, in particular from any obligation to pay him compensation. The payee or the T.E.E. are entitled at any moment to intervene in the proceedings." "1. The fees paid shall be deposited by the T.E.E. in a special bank account and a sum equivalent to 2% of the total fee shall be credited to the T.E.E.’s account with the Bank of Greece. ... 2. The remainder of the fee, after deduction of the percentages witheld and the charge payable for the professional licence, shall be paid to the payee by the T.E.E. or its authorised representative, free of interest. ... 4. The State shall pay directly to the payees the fees which it owes to them after having deducted 2% of such amounts, which is paid to the T.E.E." 46. The subrogation system set up by Royal Decree no. 30/1956 was initially intended to protect engineers from pressure being brought to bear on them to reduce excessively their fees, but also - and this remains the case - to secure the payment of a compulsory contribution of 10% (since reduced to 2%) to their insurance fund (Article 3). It is applicable only in respect of the recovery of fees payable for the design of projects and not for the supervision of work (Article 1). The T.E.E. has the responsibility of instituting proceedings on the basis of the information provided by the engineer. Once the action has been brought, the latter may intervene (Article 2) and, by filing memorials or even by attending the hearing, support the arguments of the T.E.E., which remains the main party in the proceedings. By so intervening the engineer acquires the right to lodge appeals himself. 47. By a judgment of 17 April 1986 (no. 2827/1986) the Athens Court of Appeal ruled as follows: "... it follows that under the above-mentioned provisions [Article 2 paras. 4 and 5 of Royal Decree no. 30/1956] the T.E.E. has not only a right (discretionary power), but also an obligation, to take legal proceedings on behalf of the engineer to recover fees. This interpretation ... is consistent with the prevailing case-law according to which the payee has no right whatsoever to bring proceedings for the recovery of his remuneration. ... Consequently, in carrying out this obligation, the T.E.E. acts not as the engineer’s representative but as an authority exercising an unfettered and exclusive right conferred on it by law ... ." 48. In a judgment (no. 309/1986) the Court of Cassation held as follows: "... it is clear from ... Articles 1 and 2 of Royal Decree no. 30 of 31 May 1956 ... that the Technical Chamber of Greece, which alone is entitled to collect the disputed renumeration, is subrogated to the rights of engineers, regardless of whether they are members. If it were otherwise the aim of the above-mentioned provisions would be frustrated, that aim being to safeguard the interests of the profession and to deter any competition as regards engineers’ fees, liable to affect adversely the quality of the projects which they design". 49. On the other hand, in a judgment no. 8/1988 the Larissa Administrative Court of Appeal observed: "Royal Decree no. 30 of 31 May 1956 ... provides in paragraphs 4 and 5 of Article 2 thereof: ‘... 5. In such cases, the T.E.E. shall inform the payee that it has introduced proceedings ... . The payee or the T.E.E. are entitled at any moment to intervene in the proceedings’. It follows from these provisions that the T.E.E. has the right to take legal proceedings to secure the payment of remuneration owed to one of its members in respect of the design of a project only where the member in question has not done so himself. If the payee takes proceedings himself to recover the fees, the T.E.E. is entitled only to intervene in the proceedings". 50. The Court of Cassation had occasion to rule on a claim for compensation from an engineer who complained that the T.E.E. had not brought proceedings to recover his fees in sufficient time to avoid the action in question being time-barred. It considered that such negligence gave rise to a right to compensation, but only as from the moment at which the action became time-barred and at which the T.E.E. could therefore no longer bring it (judgment no. 25/1988). 51. The Code of Civil Procedure provides as follows: "Capacity to bring proceedings of parties Any person who can establish a direct legitimate interest may seek judicial protection." "Subrogation action (plagiastiki agogi) Creditors may apply for judicial protection, exercising the rights of their debtors in the event of the latter’s failure to exercise them, except rights of a close personal nature." "Intervention in support of one of the parties (apli prostheti paremvasi) If, in proceedings pending before a court, a third party has an interest in the success of one of the parties, he may intervene in support of the claims of that party until final judgment has been given." "Procedural position of the intervener The intervener may take all the steps in the proceedings in the interests of the party which he supports and is bound to accept any steps which have already been completed before his intervention. The steps which he takes shall be valid in so far as they are compatible with those of the main party in the proceedings ... " "‘Autonomous’ intervention (aftotelis prostheti paremvasi) If the decision in the main proceedings affects the relationship between the intervener and the opposing party, the provisions of Articles 76 to 78 shall apply." (Articles "concerning common interest between the parties" - "omodikia") 52. The subrogation action was introduced into Greek law in 1834 in Chapter 5 of the Code of Civil Procedure and was considered to be an action for provisional measures and interlocutory relief. It is now governed by the general provisions of the first Chapter of the Code. It is generally agreed that this action is a sui generis action which aims at safeguarding the property of the debtor in the interests of the creditor. A person who brings the action must prove that he is the creditor of a debtor who has neglected to exercise his rights. The latter’s insolvency is not a necessary condition for bringing the action. In a judgment of 6 June 1988 (no. 7892/1988) concerning enforcement proceedings against a debtor, a private individual, who had just lost his action against the T.E.E., the Athens Court of Appeal stated as follows: " ... between the T.E.E. and the engineer there is a ‘quasi’ debtor (the T.E.E.) - creditor (the engineer) relationship, which lasts for as long as the T.E.E. is under a statutory duty to secure the recovery of the fee and to pay it thereafter to the person to whom it is strictly due, the engineer ... It follows from the above-mentioned provisions (Article 72 of the Code of Civil Procedure) that if the T.E.E. fails to institute proceedings for the recovery of fees or to bring an enforcement action for their payment, ... the engineer, as the payee, has a legitimate interest in doing so provided that he stipulates in his application that the amount in question is to be paid to the T.E.E. ... " | 1 |
train | 001-78471 | ENG | SVK | ADMISSIBILITY | 2,006 | BALAZ AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicants are relatives. They are all Slovakian nationals and live in Leopoldov. Their particulars appear in the appendix. 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. Mr Vincent Baláž is the father of Mr Vincent Baláž Jr, Ms Jana Konečníková and Ms Helena Balážová. He is the husband of Ms Antónia Balážová. He operates a small entertainment park. It consists of merrygorounds and other attractions which are attached to movable trailers. The trailers have no number plates. On 8 September 2001 around noon, Mr Vincent Baláž Jr, accompanied by Ms Jana Konečníková, drove a tractor from the village of Ratkovce towing one trailer. They stopped in front of a school in Leopoldov. Ms Konečníková got off the tractor and went to connect a second trailer to the convoy. A police car stopped nearby and an officer of the Leopoldov County Police Department (Obvodné oddelenie Policajného zboru), Mr P., checked Mr Baláž Jr’s identity card and driving licence. He inquired as to why the trailers had no number plates and then left. According to the applicants Officer P. shouted that he would impose a fine on Mr Baláž Jr because “he had an impudent [sister]” and instructed them using harsh words to move on. The Government disagree on that point. On 10 September 2001 at around 8 p.m., Mr Baláž Jr, accompanied by Ms Konečníková, again drove the tractor from Ratkovce towing a trailer. As they were entering the street where they lived, they noticed that a police car was behind them. They drove into the yard and stopped. The trailer protruded into the street. While Mr Baláž Jr was parking the tractor, a police officer from the Leopoldov County Police Department, Mr S., entered the property without being invited, inquired of Mr Baláž Jr as to why the trailer had no number plates and asked him to produce his identity and driving documentation. Mr Baláž Jr refused, arguing that he was on his private property. According to the applicants Officer S. shouted at Mr Baláž Jr, shone an electric torch in his face and slapped him on his hand. The Government contest that suggestion. Mr Baláž Jr then shouted to Mr Baláž for help. Officer S. subsequently left. During the entire incident the police car had been parked away from the scene. Officer P., who was also present, remained close to the car. On 10 September 2001, after 8 p.m., Mr Baláž called the police emergency service to report that his children had been attacked by Officers S. and P. Later that evening the aforementioned officers also called the police emergency service to report the incident. They subsequently filed a report regarding the incident, which resulted in proceedings for roadtraffic offences being brought against Mr Baláž Jr (see below). Mr Baláž lodged numerous complaints with various public institutions about the incidents of 8 and 10 September 2001. He complained in particular that the police interventions had been unwarranted and arbitrary, that they constituted a discriminatory persecution of his family and that the subsequent investigation in respect of them was biased and ineffective. The investigation case file had been tampered with, the bodies which had examined his complaints had not been independent and impartial and the complaints were dismissed solely on the basis of the onesided information and reports submitted by the officers against whom the complaints had been directed. The applicants had not been given an opportunity to comment on the information and reports and in general had been treated in a discriminatory manner on account of their Roma origin. Lastly, Mr Baláž argued that his trailers were exempt from the obligation to have number plates. The above complaints were interpreted as administrative complaints (sťažnosť) under the Complaints’ Act (Law no. 152/1998 Coll.). They were examined and dismissed by the Trnava Regional Police Directorate (Krajské riaditeľstvo policajného zboru) and, on repeated appeals, by the Directorate General of the Police (Prezídium Policajného zboru) and the Inspection Service of the Ministry of the Interior (Sekcia kontroly a inšpekčnej služby ministerstva vnútra). Mr Baláž was informed of the dismissals by letters of 16 October and 20 November 2001 and 30 January 2002, respectively. The authorities examined documentary evidence and statements from Mr Baláž Jr, Ms Konečníková, Mr Baláž, Officers S. and P. and several other police officers. The applicant’s allegations were found not to be established. Their complaints were thus unfounded. The procedure and its outcome were then examined and upheld as correct by the Trnava District Office of Public Prosecution, the Trnava Regional Office of Public Prosecution and the Office of the Prosecutor General on 12 December 2001, 28 January and 27 May 2002 respectively. In the meantime, on 31 January 2002, the Inspection Service of the Ministry of the Interior acknowledged that the trailers of Mr Baláž were exempt from the duty to have number plates. It was further found that no records were missing from the case file of the investigation. Further complaints of Mr Baláž were dismissed by the Inspection Service of the Ministry of the Interior on 11 March, 7 May and 11 December 2002 and by the Directorate General of the Police on 12 June 2002 respectively. The applicants’ allegations were found not to be substantiated. On 23 May 2002 the Inspection Service of the Ministry of the Interior decided under the Code of Criminal Procedure not to bring charges of abuse of official power against the officers involved in the incidents of 8 and 10 September 2001 and the alleged disappearance of documents from the case file. The examination of the files and evidence from the applicants and the officers revealed that there was no case to answer. The decision could have been, but was not, appealed. On 8 April 2002 the Trnava District Traffic Police (Dopravný inšpektorát) found that Mr Baláž Jr had committed a traffic offence on 10 September 2001, having driven his tractor recklessly such that he could not be overtaken by a police car. The rear lights on his trailer were not functioning either. A fine of approximately 25 euros was imposed on him. On 23 May 2002 the Trnava Region Traffic Police upheld the decision on appeal by Mr Baláž Jr. The decision could have been, but was not, challenged by an administrative-law action under Article 83 of the Minor Offences Code (Law no. 372/1990 Coll., as amended) in conjunction with Articles 244 et seq. of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended). On 5 February 2002 Mr Baláž Jr was charged with insulting a public official, Officer S., on 10 September 2001, by using grossly abusive language towards him. On 14 January 2003 the Trnava District Court (Okresný súd) found Mr Baláž Jr guilty as charged and sentenced him to 4 months’ imprisonment, suspended for a period of one year. The District Court examined documentary evidence and heard the accused, Ms Konečníková and Officers S. and P. It “found no reasons not to believe” the testimonies of the latter, notwithstanding that officer P. had not been directly involved in the incident, his recollection of the incident was vague and his testimony at the trial had differed from his pretrial deposition. On 27 March 2003 the Trnava Regional Court (Krajský súd) dismissed the appeal by Mr Baláž Jr. No further appeal was available. On 3 February and 4 March 2002 Ms Konečníková Jr reported to the police that, on those days, she had received from an unknown person threatening, racially motivated phone calls and text messages. The matter was investigated by the Leopoldov and Hlohovec County Police Departments which interviewed Ms Konečníková, Ms Konečníková Jr, Mr Baláž and 13 other persons as witnesses. The police also obtained and examined 3 reports from the telephone network operators. They established that the perpetrator of the threats was a classmate of Ms Konečníková Jr. The matter was considered to be a minor offence and the case was transmitted to the Piešťany District Office for the initiation of proceedings under the Minor Offences Code. On 27 November 2002 the District Office found the classmate guilty of a minor offence and sentenced him to a reprimand (pokarhanie). It was observed that the wrongdoer was a minor and that he had not meant his threats to be taken seriously. | 0 |
train | 001-57715 | ENG | FRA | CHAMBER | 1,991 | CASE OF CARDOT v. FRANCE | 2 | Lack of jurisdiction (complaint inadmissible) | C. Russo | 10. Mr Jean-Claude Cardot is a French national and works as a road haulier. On 2 August 1979 the public prosecutor at Valence (Drôme) applied to a local investigating judge for an investigation to be opened into, inter alia, the importing, exporting and transporting of drugs by a person or persons unknown. The police had just discovered an international organisation specialising in drug trafficking between the Middle East and Europe. The organisation had been active since 1978 and was made up of Iranian suppliers and French carriers, masterminded by Dutch nationals. 11. In August 1979 the investigating judge charged Mr Cardot and fourteen others with drug offences. 12. On 27 November 1979 the Italian police arrested Mr Cardot in Verona while he was carrying 455 kg of hashish in his lorry; the investigating judge at Valence was informed of the arrest on 30 November. On 21 June 1980 the Verona District Court sentenced the applicant to five years and one month’s imprisonment, but on appeal the Venice Court of Appeal reduced the sentence to three years and seven months. 13. On 21 December 1981 Mr Cardot was pardoned. He was not released, however, as an international warrant for his arrest had been issued by the investigating judge at Valence on 26 June 1980, and on 3 July the French Government had applied to the Italian authorities for his extradition. On 14 August 1980 Mr Cardot had been served with a further warrant for his arrest, issued by the same judge, on suspicion of inciting an attempt to import 1,080 kg of hashish and attempting to import 650 kg; the commission of the first offence had been frustrated only by a circumstance beyond his control (the arrest of the principal offender in Tehran), while commission of the second had been prevented by the applicant’s arrest in Verona. On 24 March 1981 the Venice Court of Appeal ruled in favour of extradition for the purposes of proceedings relating to participation in transporting drugs on three occasions in 1978. On 23 February 1982 the Ministry of Justice decided to extradite Mr Cardot, who was handed over to the French authorities on 23 March. 14. In an order of 5 February 1981 the investigating judge committed Mr Cardot, who was still in Italy, and his co-defendants for trial at the Valence Criminal Court. The applicant was charged, firstly, with having, in concert with his co-defendants, organised an association or a conspiracy to import and export drugs and of having imported and transported drugs and, secondly, of having aided and abetted the offences with which the other defendants were charged and of having attempted to import, export and transport hashish on two specific occasions. 15. The court gave judgment on 7 May 1981. It decided to sever the proceedings against Mr Cardot on account of his being in custody in Italy (see paragraphs 12-13 above). One of the defendants (Mrs Cuvillier) was acquitted on the ground that there was insufficient evidence, and six others were given either immediate custodial sentences (Mr Millo sixteen years, Mr Jacques Montaner sixteen years, and Mr Humbert eight years) or suspended sentences (Mr Kabayan three years, Mr Jean Montaner five years, and Mrs Sabatier five years). As to the seven co-defendants who had not appeared, the court sentenced them in absentia to periods of imprisonment ranging from five to twenty years. The judgment contained the following passages concerning Mr Cardot: "It appears from the preliminary investigation and the hearing that in late March or early April 1978, on Cardot’s instructions, a convoy of eight lorries driven by, among others, Cardot, Millo, Humbert and a driver from Jacques Montaner’s firm carried chemicals and pharmaceuticals to Afghanistan, returning via Iran. Two days after the arrival of Cardot’s lorry at the Jacques Montaner depot at Charmes (Ardèche), Cardot and Millo dismantled the petrol tank and took out a number of metal boxes ... containing 300-400 kg of hashish ... At all events, before the petrol tank was dismantled, Cardot had indicated to Millo that it contained hashish, whereas Montaner was confronted with a fait accompli. ... Cardot subsequently asked Jacques Montaner and Millo, who agreed, to bring back a quantity of hashish when carrying car-wheel rims from Yugoslavia ... When Cardot had arranged the rendez-vous, Millo and Jacques Montaner set off together during June 1978 ... ... Cardot gave Jacques Montaner FRF 6,000, which did not even cover his expenses, while Millo received FRF 50,000 only after another journey to Iran. ... For the petrol tanks fitted by the Dutchmen, Cardot went to two different boilermakers so as not to arouse suspicion ... According to Millo and Montaner, the tanks measured 2.3m-2.5m x 0.8m x 0.8m and their components were charged to the Société Transpyrénées [Transpyrenean Company], in other words paid by Cardot (record of the hearing). ... On returning from a trip to Afghanistan, Cardot suggested to Jean-Paul Humbert that he should engage in smuggling ... At the end of July 1978 ... Humbert saw Cardot again, who told him that a petrol tank was ready. ... Cardot, who went to Iran before Humbert, had arranged to meet him in the car park of Tehran Customs. After his vehicle had been immobilised ..., Humbert, acting on Cardot’s instructions, got in touch again with an Iranian, who escorted him to a warehouse in the centre of the working-class district of Tehran, where, at night, he watched two other Iranians load forty rectangular metal boxes into the tank ... ... On Cardot’s instructions and accompanied by him, he took an empty lorry to Holland, where Cardot made a telephone call from the Novotel car park on the outskirts of Amsterdam. Guided by André Bronkhorst in the car which Cardot had got into ..., Humbert left his trailer at the Dutchman’s disposal outside a warehouse ... ... On his return to Charmes, still accompanied by Cardot, he was given FRF 120,000 by Cardot for transporting 700 kg of hashish. ... At about the same time, likewise on Cardot’s instructions, Jacques Montaner went to Iran in his lorry in order to bring back a quantity of hashish ... According to Montaner’s disclosures at the hearing, Cardot, Millo and Humbert also went to Iran, each with specially adapted petrol tanks, whereas his own was not adapted until he reached Iran. ... Montaner travelled via France to Amsterdam, where he rang a telephone number he had been given by Cardot in order to contact Antonius Vriens, known as ‘Tony’, who took delivery from him. After the petrol tank had been cut out with a chain-saw in a warehouse, Montaner unloaded the tins containing the hashish, came back to France and subsequently received from Cardot payments of FRF 20,000, FRF 50,000 and FRF 10,000 on account, i.e. FRF 80,000 in all for the two journeys, this one and the one that had been made to Yugoslavia in June. ... At Cardot’s instigation, Millo returned to Tehran by air on 30 September 1978 in order to collect his lorry, which he had left in Iran on 26 August and which Cardot had said was now ‘ready’ ... ... From the statements of the various defendants and persons charged and inquiries made in Holland it appears that Van Dam Gybertus financed the operation and was the person for whom the consignments of drugs carried by the hauliers were ultimately intended. ... André Bronkhorst, an important member of the organisation, took delivery in Amsterdam in August 1978 of the drugs brought from Iran by Humbert and Cardot. ... Esser got Cardot involved in smuggling hashish ... ... Gérardus Waterloo went to Valence several times in June 1978 to make specially adapted petrol tanks together with Van Vemde and Cardot. ... In sum, as regards the transport of drugs, it has been established that: 1. In March 1978 Cardot and Millo took part in importing 400 kg of hashish from Afghanistan and exporting it. 2. In June 1978 Cardot, Jacques Montaner and Millo took part in importing 1,500 kg of hashish from Yugoslavia and exporting it to Holland. 3. In July 1978 Cardot and Humbert took part in importing 700 kg of hashish from Iran and exporting it to Holland. 4. In August 1978 Cardot and Jacques Montaner took part in importing 600 kg of hashish from Iran and exporting it to Holland. 5. In late September or early October 1978 Cardot incited an attempt to import 1,080 kg of hashish from Iran. ... 8. In November 1979 Cardot attempted to import and export 650 kg of hashish. ... The offence of importing prohibited goods - in this instance 10 kg of morphine, 7 kg of heroin and more than 3,500 kg of hashish, with a total value of 47 million francs -, which is punishable under Articles 38, 215, 373, 414, 417, 419 and 435 of the Customs Code, has been made out. The foregoing offence is imputable to Jacques Montaner, Millo, Humbert, Jean Montaner, Kabayan, Sabatier, Cardot, Sarrafinehad, Van Dam, Bronkhorst, Van Vemde, Vriens, Esser and Waterloo severally, the proceedings against Cardot having, however, been severed. ..." 16. Five of those convicted appealed and on 18 February 1982 the Grenoble Court of Appeal gave judgment. It acquitted two of them (Mr Jean Montaner and Mrs Sabatier) on the grounds that there was insufficient evidence, and reduced the prison sentences of the three others (Mr Humbert, Mr Millo and Mr Jacques Montaner) by a quarter. In its judgment the court indicated that they had all claimed to have received their instructions from Mr Cardot, who was repeatedly named in the text. The judgment included the following references: "... It is apparent from the case file and the oral proceedings that in March 1978 Gérard Roucaries put Jean-Claude Cardot in touch with the Dutchman Esser Stanley, known as Carlos, who proposed to Jean-Claude Cardot - who was then in the business of road haulage to the Middle East - that he should carry hashish against payment of 100,000 French francs per tonne. Jean-Claude Cardot accepted this proposal, and in late March or early April 1978, on Cardot’s instructions, a convoy of eight lorries driven by, among others, Cardot, Millo, Humbert and a driver from Jacques Montaner’s firm carried chemicals and pharmaceuticals to Afghanistan, returning via Iran. Two days after the arrival of Cardot’s lorry at the Jacques Montaner depot at Charmes (Ardèche), Cardot and Millo dismantled the petrol tank ... ... Cardot subsequently asked Jacques Montaner and Millo, who agreed, to bring back a quantity of hashish when carrying car-wheel rims from Yugoslavia. When Cardot had arranged the rendez-vous, Millo and Jacques Montaner set off together ... ... On returning from a trip to Afghanistan, Cardot suggested to Jean-Paul Humbert that he should engage in smuggling. ... After his vehicle had been immobilised ..., Humbert, acting on Cardot’s instructions, got in touch again with an Iranian ... ... On Cardot’s instructions and accompanied by him, he took an empty lorry to Holland ... ... At about the same time, likewise on Cardot’s instructions, Jacques Montaner went to Iran in his lorry in order to bring back a quantity of hashish. ... Francis Millo admitted at the hearing that ... he had driven a consignment of hashish from Valence to Holland that had just been brought from Iran by Jean-Claude Cardot. ... At Cardot’s instigation, he returned to Tehran by air on 30 September 1978 in order to collect his lorry, which Cardot had said was now ‘ready’. ..." 17. Mr Cardot was summoned to appear before the Valence Criminal Court on 2 April 1982. On the same day, on an application by the prosecution, the court ordered that further inquiries should be made into the facts and that the defendant should remain in custody. On an appeal against the latter decision, the Grenoble Court of Appeal upheld the lower court’s decision on 19 May 1982. 18. On 17 June the Valence Criminal Court appointed an investigating judge to carry out the further inquiries. 19. The judge questioned Mr Cardot on 28 June and 30 July 1982. 20. He also confronted Mr Cardot with the four main witnesses: Mr Humbert, Mr Millo, Mr Jean Montaner and Mr Jacques Montaner on 12, 13, 16 and 26 July respectively (see paragraphs 15 and 16 above). On each occasion, in the presence of Mr Cardot and his lawyer, the investigating judge read out the statements that the witnesses had made to the police on 21 and 23 October 1979 and 19 February 1980. Mr Humbert, Mr Millo and Mr Jacques Montaner confirmed them. The applicant disputed certain points in Mr Millo’s and Mr Jean Montaner’s statements; Mr Montaner had retracted certain things he had said to the police and to the courts. Mr Cardot also questioned the witnesses through his lawyer. He applied successfully for the record of his confrontation with Mr Jean Montaner to be amended and had further questions put to him. 21. The trial at the Valence Criminal Court opened on 1 September 1982. The prosecution did not deem it necessary to call as witnesses the four people with whom Mr Cardot had been confronted, and the accused himself did not make any written application for evidence to be heard from them. The court adjourned the case to 17 September so that the national head office of the Customs investigations branch could be represented as a civil party. 22. During the hearing on 17 September Mr Cardot gave an account of himself in relation to the charges against him. He again challenged the statements that his former co-defendants had made to the police, pointing out that they had varied, but he did not apply for the persons concerned to be called. 23. On the same day the court sentenced him to six years’ imprisonment. He was found guilty as charged; the court did not take into account the offences of which he had been convicted by the Venice Court of Appeal (see paragraph 12 above). The judgment referred to the statements of the former co-defendants: "... ... Millo stated that Cardot had used the time to have his trailer equipped with a specially adapted petrol tank made in Iran. It appeared from Humbert’s statements that Cardot had had contacts concerning the transport of smuggled goods - Cardot did not deny this but claimed that the goods in question were carpets -, that when he (Humbert) drove his lorry with its specially adapted petrol tanks to Tehran, Cardot had told him that he could be paid FRF 120,000 per journey, that he had indeed heard conversations between Cardot and a Dutchman on the subject of drugs ... For his part, Millo said that during his stay in Tehran, at that time, Cardot suggested to him that he should have his lorry loaded with hashish to take back to France, and Montaner stated that on returning from Afghanistan Cardot brought round 400-500 kilos of drugs, which had been collected by another lorry. ... Millo said that the four petrol tanks had been made for Cardot by Van Vemde ... ... While returning to France on or about 8 or 10 August 1978 Cardot met Millo in Turkey; the latter said during the further inquiries into the facts that Cardot had told him on that occasion that his lorry was carrying hashish; he even told Montaner that he had brought back hashish on this journey. Millo stated categorically that on his return to France 400 kilos of hashish remained from Cardot’s consignment; ... ... Montaner and Millo stated categorically that Cardot was behind the transporting of hashish from Yugoslavia; Montaner and Millo said that Cardot had organised the journey and given all the necessary instructions; ... ... But in his original statements Humbert had said that ten or twelve days after this journey to Holland Cardot had paid him FRF 120,000 in cash in France ... ... Cardot denied any involvement in the journey allegedly made to Lille by Montaner and himself together with Millo ...; Montaner and Millo, however, had said that all three of them had stopped at the Novotel in Lille before Millo continued his journey to Holland; the Dutchman Tony Vriens had joined them; Montaner had said that this Dutchman had given Cardot a bag containing money; Cardot had given him two bundles each containing FRF 50,000 in 500-franc notes and he had given one of these bundles of notes to Millo. ..." 24. Mr Cardot, the civil party and the prosecution appealed, and the Grenoble Court of Appeal gave judgment on 17 March 1983. It upheld the lower court’s judgment as regards Mr Cardot’s guilt and increased the sentence to seven years’ imprisonment. The part of its judgment headed "The facts" contained the following: "It appears from the police inquiries, from the judicial investigation and from the partly confirming judgment of this Court on 18 February 1982 [(see paragraph 16 above)] that the facts are established as follows: ... ... The judicial investigation established that [the traffickers] were divided into three groups: ... and, lastly, the carriers, consisting of Francis Millo, Jacques Montaner and Jean-Paul Humbert, who subsequently formally implicated Jean-Claude Cardot, whom they described as the intermediary between the Dutch and themselves. ... For his part, Jean-Paul Humbert stated that on this occasion Cardot introduced him to two Dutchmen, ‘Tony’ and ‘Carlos’ ... ... Jacques Montaner and Francis Millo ... stated that they made this journey at Cardot’s request in order to bring back a consignment of hashish. ... Millo stated that Cardot helped to load the lorry ... ... According to [Cardot’s mistress], who confirmed Humbert’s and Jacques Montaner’s statements, Cardot helped Van Vemde and Waterloo to make specially adapted petrol tanks, but Cardot denied this. ... ... Furthermore, during the trial in this Court on 18 February 1982 Millo stated ... that on that journey he had driven a consignment of hashish from Valence to Holland that had just been brought from Iran by Jean-Claude Cardot. He also stated that after meeting Cardot in Ankara he took his vehicle to Tehran and came back to France, subsequently returning to Tehran by air at Cardot’s instigation on 30 September 1978 in order to collect his lorry, which Cardot had told him was ‘ready’. ... ... The various French lorry drivers involved in this trafficking, in particular Jacques Montaner, Francis Millo and Jean-Paul Humbert, who were convicted by this Court on 18 February 1982, all stated that they had received their instructions from Jean-Claude Cardot. ..." 25. At the hearing of the appeal the prosecution had considered "the facts ... completely established by the evidence in the file and in the concordant statements made by Jacques Montaner, Jean-Paul Humbert and Francis Millo during the judicial investigation and at the hearing in the Court of Appeal which led to their conviction". Mr Cardot had challenged all the prosecution evidence. In particular, he had asserted that "Montaner’s and Millo’s statements [were] untrue and malicious and ha[d] no other purpose than to minimise their own responsibility" and that "the Grenoble Court of Appeal’s judgment of 18 February 1982 [could not] be used in evidence against him". He had not, however, made any application for witnesses to be called. 26. Mr Cardot appealed on points of law. One of his three grounds of appeal was based on failure to comply with Articles 485 and 593 of the Code of Criminal Procedure, lack of reasons, absence of any legal basis and a breach of the rights of the defence. He criticised the Grenoble Court of Appeal for having "found [him] guilty of the charges against him by reference to the terms of a judgment delivered on 18 February 1982 by the Grenoble Court of Appeal in a case brought by the public prosecutor’s office against other defendants, and to the hearing which [had] preceded that judgment. He ended this ground of appeal as follows: "It follows in reality that the appellant was tried on the basis not of the evidence uncovered by the investigation or by the hearing which preceded his conviction but of evidence from an earlier decision, to which he was not a party, and of a hearing during which he had not been able to put forward his defence. The reference thus made in the judgment of the Court of Appeal to the contents of an earlier decision and, above all, to the hearing which preceded that decision to which the appellant was not a party manifestly amounts to a violation of the rights of the defence. ..." 27. The Criminal Division of the Court of Cassation dismissed the appeal on 13 February 1984. As regards the ground of appeal in question, it said: "It appears from the impugned judgment of the Court of Appeal and from the lower court’s judgment, whose reasoning the Court of Appeal adopted to the extent that it was not inconsistent, and from the case file that Cardot, a road haulier, took part in substantial smuggling of hashish between Iran and the Netherlands, in particular by organising, preparing and carrying out the transport of the drug as well as the manufacture and fitting in France of hidden compartments on lorries. In order to found its belief as to the importance of Cardot’s role in organising the smuggling, the Grenoble Court of Appeal referred to the findings of another judgment it had given on 18 February 1982, in relation to proceedings against all the other members of the criminal organisation and from which Cardot’s case had been severed, on the direction of the court of first instance, because he was in custody in Italy for separate offences. As copies of that judgment of the Court of Appeal and of the judgment it upheld have been added to the case file, the Court of Cassation is able to satisfy itself that, in holding as it did, the Court of Appeal in no way infringed the rights of the defence. The courts have unfettered discretion to assess the weight of the various pieces of evidence, provided that, as in the instant case, this evidence was adduced in adversarial proceedings; it is accordingly wholly permissible to file documents from other proceedings. It follows that this ground of appeal must be rejected." 28. Before the Convention institutions the Government and the applicant mentioned or relied on several provisions of the Code of Criminal Procedure. The main ones were the following: "Unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge, and the court shall reach its decision on the basis of being satisfied beyond reasonable doubt (intime conviction). The court may only base its decision on evidence which has been adduced during the trial and discussed before it inter partes." "Anyone called to be heard as a witness shall be required to appear, to take the oath and to give evidence." "A witness who fails to appear or who refuses either to take the oath or to give evidence may, on an application by the public prosecutor, be punished by the court as provided for in Article 109." "If a witness fails to appear and has not put forward any excuse recognised as being valid and legitimate, the court may, on an application by the public prosecutor or of its own motion, order the witness to be brought before it immediately by the police in order to be examined or adjourn the case." "With the court’s leave, evidence may also be given by persons suggested by the parties and who are present at the beginning of the trial but have not been formally summoned." "Witnesses shall be heard only if the court [of appeal] so orders." "Pleadings shall contain the grounds of appeal to the Court of Cassation and shall refer to the statutory provisions which it is claimed have been disregarded." | 0 |
train | 001-98645 | ENG | GBR | ADMISSIBILITY | 2,010 | MIAH v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 1. The applicant, Mr Jahed Tofur Miah, is a Bangladeshi national who was born in 1979 and now lives in Bangladesh. 2. The applicant was born in Bangladesh. Soon after his birth, his parents divorced and his father moved to the United Kingdom and remarried. His mother remained in Bangladesh. The applicant moved to the United Kingdom in 1991, when he was eleven years of age, to join his father, stepmother and two brothers. His father died there in 1994. 3. When he was sixteen years of age, the applicant began abusing drugs. In 1999, he was convicted of burglary and theft and sentenced to two years' detention in a Young Offender Institution. Between 2001 and 2003 he was convicted of two counts of theft, failing to surrender to custody, another count of theft, a further two counts of failing to surrender to custody, failing to surrender to bail and possession of a controlled class A drug. He was given a fine on each occasion. On 23 December 2005 he was convicted of burglary and theft and failing to surrender to custody and sentenced to a community order of twelve months. On 24 June 2006, he was convicted of theft and sentenced to twelve months' imprisonment. The trial judge described him as a “persistent thief and burglar”. 4. On 16 October 2006, the Secretary of State gave the applicant notice of intention to make a deportation order. On 28 November 2006, after considering representations from the applicant, the Secretary of State decided to make a deportation order. In the Secretary of State's opinion the applicant had not provided any details of legitimate employment he had held in the United Kingdom. He had spent his youth and formative years in Bangladesh and so it would not be unreasonable to expect him to readjust to life there. The deportation would therefore be compatible with Article 8 of the Convention. 5. The applicant appealed to the then Asylum and Immigration Tribunal. His appeal was dismissed on 22 May 2007. The Tribunal accepted that the applicant had indefinite leave to remain in the United Kingdom and that he had lived for a substantial period of time in the country and had family there. However, these factors were outweighed by other factors. The applicant had no employment record. He had a substantial number of convictions and had already been given a number of opportunities to mend his ways. He had stolen to fund a substantial drug habit (he had been using GBP 50 worth of heroin and crack cocaine per day) but was now in good health. He had given evidence in Bengali and therefore, as a relatively young man, in good health and speaking the language, there was no reason why he could not return to Bangladesh and take up work there. His mother had remained there and it was likely that there were other members of his extended family to whom he could turn for support. The Tribunal doubted that the applicant, as an adult, could be said enjoy family life in the United Kingdom with his stepmother or his brother, with whom he intended to live upon release from prison. It had no doubt that he had established private life in the United Kingdom but did not consider that, given that the applicant had been in and out of prison and abusing drugs for eleven years, the deportation would have consequences of such gravity as to engage Article 8. The Tribunal concluded that, even if it were wrong in respect of a lack of an interference with the applicant's private or family life, any interference would be proportionate to the legitimate aim of the prevention of disorder or crime. 6. The applicant sought reconsideration of the Tribunal's determination. This application was refused by a Senior Immigration Judge on 11 June 2007. A further such application was refused by the High Court on 8 October 2007. In each case, it was found that the application amounted to no more than a disagreement with the Tribunal's findings. 7. On 10 December 2007, the applicant lodged an application with this Court and sought interim measures under Rule 39 of the Rules of Court to prevent his removal to Bangladesh. The following day, he was informed that this request fell outside the scope of Rule 39. He was duly deported to Bangladesh on 12 December 2007. He has since indicated that he wishes to continue his application from Bangladesh. 8. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(b) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 9. The version of paragraph 364 of the Immigration Rules, which was in force prior to 20 July 2006, provided as follows: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf.” The amended version of paragraph 364, in force since 20 July 2006, provides as follows: “Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects...” Paragraph 380 of the Immigration Rules, referred to in both versions of paragraph 364, provides as follows: “A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].” 10. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate's Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking. | 0 |
train | 001-61138 | ENG | FRA | CHAMBER | 2,003 | CASE OF GUTFREUND v. FRANCE | 1 | No violation of Art. 6-1 | Georg Ress | 8. By a penal order of 8 October 1997, the applicant was fined 1,000 French francs (FRF) for an assault on his wife that did not incapacitate her from work. On 8 December 1997 he applied to the Saverne Police Court to have that order set aside. 9. On 3 July 1998 the applicant was served by a court bailiff with a summons requiring him to attend the Police Court on 15 September 1998 to answer a charge of “intentional assault entailing no unfitness for work” on 24 July 1997. The offence was classified as a “Class 4 minor offence” and carried a maximum fine of FRF 5,000 under Article 131-13 of the Criminal Code. 10. On 11 August 1998 the applicant lodged a legal-aid application with the legal-aid office of the Saverne tribunal de grande instance, in accordance with the provisions of the Legal Aid Act of 10 July 1991 and its implementing decree of 19 December 1991. 11. He furnished evidence, which the legal-aid office accepted, that his monthly income was FRF 2,423. In accordance with section 4 of the 1991 Act, he claimed to be entitled to full legal aid. 12. A committee of the legal-aid office presided over by R. (as attested by a letter of November 2000 from the registry of the Saverne tribunal de grande instance) dismissed the application on 27 October 1998 as being “manifestly inadmissible, since it concern[ed] a Class 4 minor offence”. 13. On 13 November 1998 the applicant appealed against that decision to the President of the Saverne tribunal de grande instance. He said that in a similar case the Strasbourg tribunal de grande instance had construed the decree differently and granted legal aid. In an order of 16 September 1998, the Strasbourg tribunal de grande instance had noted a conflict between the decree and the Act and stated that to resolve it the decree had to be construed in the light of the purpose of the Act. 14. The appeal was heard by R., now sitting in his capacity as the President of the Saverne tribunal de grande instance. He upheld the impugned decision in an order of 27 November 1998, against which French law afforded no right of appeal (section 23, sub-paragraph 2, of the Act of 10 July 1991). He gave a number of reasons for dismissing the applicant’s appeal: “... although section 10 of the aforementioned Act [of 10 July 1991] provides that ‘legal aid shall be granted ... before all courts’ ..., it does not require it to be granted in all types of proceedings. ... the table appended to Article 90 of the decree and to which the decree refers for the calculation of counsel’s remuneration only contemplates an accused receiving assistance in the police court for Class 5 minor offences. ... that restriction cannot be due to an oversight on the part of the public authorities. ... it is not for either the legal-aid office or the president of the court concerned unilaterally to extend the scope of rules in respect of which no appeal has been made to the Conseil d’Etat. ... it is perfectly clear that the relevant table is restrictive in scope.” 15. On 15 December 1998 the applicant, assisted by a lawyer, attended the hearing at the Saverne Police Court. In a judgment delivered that same day, the court found him guilty of assault entailing no unfitness for work, but decided not to impose a penalty. 16. The Legal Aid Act (Law no. 91-647 of 10 July 1991) provides: “Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid. ...” “In order to qualify for full legal aid, applicants must show that their monthly resources are less than 4,400 francs.” “Legal aid shall be granted for both contentious and uncontentious proceedings, to bring or to defend a claim before all courts or in connection with the hearing of a minor in accordance with Article 388-1 of the Civil Code. ...” “Each legal-aid office or department thereof referred to in section 13 shall be presided over by a judge from the seat of the tribunal de grande instance or court of appeal, as the case may be. ...” “The decisions of a legal-aid office, a department thereof or the president of the office or department may be referred to the president of the tribunal de grande instance, court of appeal or Court of Cassation, as the case may be, ... or his or her delegate. No appeal shall lie against the decisions of these authorities. ...” 17. Decree no. 91-1266 of 19 December 1991 implementing Law no. 91-647 of 10 July 1991 provides, inter alia: “Decisions of offices established at the seat of a tribunal de grande instance ... shall be referred to the president of the tribunal de grande instance where the office was set up. ...” 18. Article 90 of the decree stipulates that the State’s contribution to the remuneration of lawyers acting for recipients of full legal aid shall be determined by reference to a series of criteria set out in a table appended to the decree. The sole reference in the table to the category of “proceedings for minor offences” is “assistance to the accused in the police court (Class 5)”. 19. A bill on access to the law and justice, intended to reform, inter alia, the legal-aid system, is currently before Parliament. 20. There have been no decisions of the Court of Cassation on the grant of legal aid to persons prosecuted for minor offences not falling into Class 5 (and which therefore are not included in the table appended to the aforementioned decree of 19 December 1991). 21. At the material time, the table was construed differently by different courts. Thus, as the parties have noted, the order made on 27 November 1998 by the President of the Saverne tribunal de grande instance contradicted an order made a few months earlier (on 16 September 1998) by the President of the Strasbourg tribunal de grande instance. 22. In an order of 22 September 2000, the President of the Béthune tribunal de grande instance ruled that legal aid could not be refused to a person charged with a Class 4 minor offence simply because the table appended to Article 90 of Decree no. 91-1266 of 19 December 1991 only provided for assistance to be given to the accused in the police court in connection with Class 5 minor offences. | 0 |
train | 001-71747 | ENG | POL | CHAMBER | 2,005 | CASE OF JASIŃSKI v. POLAND | 3 | Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant was born in 1958 and lives in Zabrze, Poland. 9. On 8 January 1994 the applicant was arrested by the police on suspicion of having committed burglary. On 10 January 1994 he was brought before J.K., a district prosecutor from the Pszczyna District Prosecutor’s Office (Prokuratora Rejonowa), charged with six counts of burglary and detained on remand. The prosecutor considered that there was a reasonable suspicion that the applicant had committed the offences in question because he had been arrested in flagrante delicto. He also relied on the serious nature of the offences in question. 10. On 12 February 1994 the Pszczyna District Prosecutor prolonged the applicant’s detention until 8 March 1994 on the ground that it was necessary to secure the proper conduct of the proceedings. The prosecutor stressed that in the light of evidence gathered during the investigation it was likely that the applicant had also committed other, similar offences and that, in turn, justified a risk that he might obstruct the process of obtaining evidence from witnesses. 11. On 25 February 1994 the District Prosecutor prolonged the applicant’s detention until 8 April 1994, considering that it was necessary to secure the conduct of the investigation, especially as fresh evidence needed to be obtained. 12. On 30 March 1994, on an application made by the Pszczyna District Prosecutor, the Pszczyna District Court (Sąd Rejonowy) prolonged the applicant’s detention until 8 June 1994 in view of the reasonable suspicion that he had committed the offences with which he had been charged and the fact that the investigation could not be completed because evidence from a fingerprint expert and yet another forensic expert needed to be obtained. 13. On 30 May 1994, on the subsequent application by the District Prosecutor, the Pszczyna District Court prolonged the applicant’s detention until 8 August 1994. It found that such further prolongation was necessary to secure the process of obtaining fresh evidence, especially as several new charges of burglary had in the meantime been laid against the applicant. Moreover, evidence from an expert-valuer needed to be obtained to determine the damage caused by the offences. 14. On 4 August 1994, on a further, similar application by the District Prosecutor, Z.R., a single judge sitting as the Pszczyna District Court, prolonged the applicant’s detention until 8 September 1994. The reasons for that decision read, in so far as relevant: “[The applicant] was charged with the offence defined in Article 208 read in conjunction with Article 60 § 1 of the Criminal Code. In the light of the material gathered in the case, that charge has a sufficient degree of verisimilitude (zarzut ten został w wystarczającym stopniu uprawdopodobniony). As it emerges from the case-file, new circumstances have arisen which might indicate that it would be necessary to obtain evidence from psychiatrists in order to establish the suspect’s criminal responsibility. That being so and since in this court’s opinion the grounds given for [the applicant’s] detention have not ceased to exist but new circumstances have appeared that make it impossible [for the prosecution] to terminate the investigation, it has been held as in the operative part of the decision.” 15. On 29 August 1994 the Pszczyna District Prosecutor lodged a bill of indictment with the Pszczyna District Court. The applicant was indicted on 22 charges of burglary. 16. On 19 September 1994 the applicant made an application for release to the Pszczyna District Court. On 20 September 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the application. The reasons for this decision read, in so far as relevant: “The accused, asking [the court] for the preventive measure [imposed on him] to be varied, submitted that the mother of his minor son was not providing the child with the proper care. This court dismisses his application since the actus reus of the accused is characterised by a high degree of danger to society (“zarzucany czyn oskarżonego charakteryzuje się wysokim stopniem społecznego niebezpieczeńtwa”) – the accused is amenable to the law under the rules governing relapse into crime defined in Article 60 § 1 of the Criminal Code. The likelihood of the facts adduced by the accused [in his application] has by no means been shown by him. The court could not, therefore, verify those facts. ...” 17. The applicant appealed. He maintained that he should be released in view of the difficult situation of his family. On 21 October 1994 the Katowice Regional Court (Sąd Wojewódzki) dismissed his appeal. It found that there were no valid reasons to release the applicant because his child had already been placed under the care of the grandparents. 18. The applicant’s trial was to begin on 7 December 1994 but it was postponed because the applicant, having found out that Z.R. had been appointed to sit as the presiding judge, challenged his impartiality. In the applicant’s submission, the judge – who had dealt with his applications for release at the investigation stage – had actively participated in the investigation, and had consequently become a party to the proceedings. In particular, the applicant stressed that Z.R. had made the decision of 4 August 1994 prolonging his detention. On 20 September 1994 he had also dealt with, and dismissed, his application for release. On these occasions the judge had evaluated the charges against him and concluded that they had been justified. He had also referred to such aggravating circumstances as the serious nature of the offences in question and the applicant’s criminal record. All those findings were closely related to the assessment of his guilt, criminal liability and to the anticipated sentence. In view of that, the applicant considered that it was clear that the judge had already formed a preconceived opinion on his guilt. 19. On 9 December 1994 a panel of three judges, sitting as the Pszczyna District Court, dismissed the applicant’s challenge as being groundless. The court stressed that the taking decisions on prolongation of detention made at a prosecutor’s application was not tantamount to the taking part in an investigation. 20. Subsequently, the applicant again asked the Pszczyna District Court to release him under police supervision in view of the difficult situation of his family. He also complained that Z.R. lacked impartiality. On 12 December 1994 Z.R., sitting as the Pszczyna District Court, dismissed the application. The reason for that decision read, in so far as relevant: “The arguments presented by the accused in relation to his family situation are identical to those adduced in his application of 19 September 1994. They were already examined by the courts at first and second instance. The Regional Court, in its decision of 21 October 1994, indicated to the applicant the way in which care over his child could be secured. Since in this court’s opinion there are no circumstances listed in Article 218 of the Code of Criminal Procedure and the arguments relating to the disqualification of the presiding judge were already dealt with in the [District] Court’s decision of 9 December 1994 - it should be held as in the operative part of the decision.” 21. On 21 December 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the applicant’s fresh application for release on bail. The reasons for the decision read, in so far as relevant: “The accused has been charged with numerous counts of burglary committed in the circumstances of relapse into crime specified in Article 60 § 1 of the Criminal Code. The offence with which he was charged is characterised by a high degree of danger to society. Bail proposed by the accused cannot, in this court’s opinion, secure the proper conduct of the trial. It should be pointed out that both the fact that an offence has been committed in the circumstances of relapse into crime and the serious danger to society [represented by the offence] are autonomous prerequisites for imposing detention on remand (cf. Article 217 § 1 (3) and (4) of the Code of Criminal Procedure) - in respect of the accused those prerequisites exist cumulatively. ...” 22. On 13 January 1995, on the applicant’s appeal, the Katowice Regional Court upheld the above decision, finding that his detention was justified under Article 217 § 1 (3) and (4) of the Code of Criminal Procedure and that no special circumstances militated in favour of his release. 23. On 25 January 1995 the applicant asked the Pszczyna District Court to quash the detention order. In his view, his detention had become unlawful as the statutory-time limit of one year for detention on remand laid down in the Code of Criminal Procedure had expired. 24. On 31 January 1995 judge Z.R. dismissed the application as groundless and informed the applicant that the time-limits for detention on remand applied only to the investigative stage of criminal proceedings but there were no such statutory terms for detention pending trial. That decision was upheld on appeal on 1 March 1995. 25. On an unspecified date, the applicant again challenged the presiding judge. He repeated his previous arguments. The challenge was dismissed by the Pszczyna District Court on 13 February 1995. In the court’s opinion, the arguments adduced by the applicant did not justify disqualifying the presiding judge from dealing with the case. 26. Later, the applicant asked the District Court to quash the detention order made by the Pszczyna District Prosecutor on 10 January 1994. He argued that that decision was valid only for a period of one year. He also submitted that he should be released on account of the difficult situation of his family. 27. On 6 March 1995 judge Z.R. dismissed the application and upheld the impugned detention order. Referring to the applicant’s family situation, the judge observed that such arguments as the fact that the applicant’s son was not – allegedly – being provided with the proper care had to be rejected because the child was under the care of his grandmother. Finally, Z.R. stressed that the reasons previously given to justify the applicant’s detention were still valid. 28. On 15 March 1995 a panel consisting of Z.R., the presiding judge, and two lay judges, sitting as the Pszczyna District Court, opened a trial in the applicant’s case 29. On 14 April 1995 the final hearing was held. The prosecution was represented by J.K., who had detained the applicant on remand on 10 January 1994. After hearing the parties’ final submissions, the court gave judgment. It convicted the applicant of 23 counts of burglary and sentenced him to 4 years’ imprisonment and a fine of 2,000 Polish zlotys, convertible into 20 days’ imprisonment. 30. On 13 July 1995 the applicant’s lawyer appealed against that judgment. The appeal was directed against the sentence imposed and the conviction was not as such contested. 31. On 18 July 1995 the applicant appealed. In his appeal, he alleged, among other things, that the trial court had violated the principles of the presumption of innocence and in dubio pro reo because the presiding judge Z.R. had considered him guilty and had had a preconceived view on his criminal liability long before the end of the trial, i.e. already on 4 August 1994, when he had prolonged his detention at the District Prosecutor’s request. 32. The appeals were heard on 3 October 1995 before the Katowice Regional Court. On the same day the Regional Court upheld the firstinstance judgment. 33. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 Code of Criminal Procedure (“the Code”) (Kodeks postępowania karnego) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 34. Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor. 35. Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated: “1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor. 2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect. Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.” 36. Under Article 212 § 2 of the Code a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal. 37. Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General. 38. Article 217 § 1 defined grounds for detention on remand. The relevant part of that provision, in the version applicable at the material time, provided: “1. Detention on remand may be imposed if: ... (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society. ...” 39. Article 218 stated: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would have serious repercussions for the accused or his family.” 40. At the material time Chapter VIII of the Criminal Code of 1969 (which was repealed on the same date as the 1969 Code of Criminal Procedure referred to above), entitled “Relapse into crime” (Powrót do przestępstwa), contained special rules relating to sentencing repeat offenders (in Poland, they are more commonly referred to as “recidivists”, i.e. “recydywiści”). The finding that a person “relapsed into crime” within the meaning of Articles 60 and 61 of the Criminal Code (provisions which constituted, for all practical purposes, sentencing guidelines in respect of recidivists), inevitably resulted in the sentence of imprisonment to which the accused was liable being increased. 41. Article 60 § 1 of the Criminal Code, in the version applicable at the material time, provided: “1. If an offender, who has already been convicted of an intentional offence and, as a result, has served a sentence of at least six months’ imprisonment, commits another similar offence within five years following [the date on which] he has ended the service of the whole or part of his previous sentence of imprisonment, the court shall impose on him a sentence of imprisonment of between twice the minimum and oneand-a-half times the maximum sentence applicable.” 42. The term was (and still is) related to the assessment of the gravity of criminal offences. If the “danger to society” represented by a given offence was considered by the court to have been “serious” or “of a high degree”, the court had to take that factor into account as an aggravating circumstance when imposing a sentence under the general rules of sentencing set out in Article 50 of the Criminal Code. That provision, in its relevant part, read: “1. The court shall impose the punishment at its discretion, within the limits set out by the law, assessing the degree of danger to society [represented by] an offence and taking into account the purposes of the punishment in the sphere of retribution as well as the preventive and reformative purposes it is to achieve in respect to the convicted person. 2. Following the guidelines mentioned in paragraph 1, the court shall particularly take into account the kind and amount of damage caused by an offence, the intentions and the manner of acting of an offender, his personal qualifications and situation, as well as the way he lived before, and the behaviour after, the commission of an offence and [as the case may be], complicity with a minor person in the commission of an offence. ...” | 1 |
train | 001-98688 | ENG | TUR | CHAMBER | 2,010 | CASE OF PETRAKIDOU v. TURKEY | 4 | No violation of Art. 8;No violation of Art. 14;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+5;No violation of Art. 14+6;No violation of Art. 14+7 | David Thór Björgvinsson;Giovanni Bonello;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 7. The applicant was born in 1964 and lives in Nicosia. 8. The applicant claimed that her home had been in Exo Metochi in northern Cyprus. The house concerned had belonged to the applicant’s mother and was located on a large site with trees (covering an area of 711 square metres); it was registered under plot no. 151, sheet/plan 22/20. On 17 April 2002 the applicant’s mother had transferred it to Mr Georgios Sotiri Petrakides (the applicant’s brother) by way of gift. 9. Since the 1974 Turkish intervention the applicant had been deprived of her home, which was located in the area under the occupation and control of the Turkish military authorities, who had prevented her from having access to and using the property. 10. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey (see below) and Loizidou v. Turkey ((merits), 18 December 1996, Reports 1996-VI) cases also took part. 11. According to the applicant, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus in support of the missing persons and to protest against human-rights violations. In the course of the demonstration the applicant was seized by the hair and violently beaten on the head, back and bottom and assaulted by Turkish military personnel and/or other personnel acting under Turkish control. They continually grabbed hold of her breasts. She was dragged to a bus through a crowd that spat and swore at her and then taken to the so-called “Pavlides Garage” with other women. On her arrival there the applicant was searched and forced to sit on the floor. The toilet facilities were filthy and she was refused water. Two UN soldiers were present, but were not allowed to note down the names of the detainees. The crowd outside the garage was swearing, and shouting abuse and threats as well as throwing stones at the garage, some of which came through the roof. 12. On 20 July 1989 the applicant was interrogated in the garage for more than an hour. She refused to sign a statement, which was written in Turkish. The applicant and the other detainees were provided with food and at the same time were photographed and filmed by a television crew. 13. On the same day, the applicant was taken to court and remanded in custody for two days. She was transferred to Ortakeuy Prison, where she was kept in a cell with another woman. The conditions of detention were appalling and there were not enough beds for all the women detainees; during the night she and the other detainees were harassed by the guards. 14. On 21 July 1989 the applicant was taken to court to stand trial. She had no legal representation or proper interpretation; she had not previously seen the exhibits which were produced at the trial. Outside the court a crowd had gathered and was constantly shouting. 15. On the 22 July 1989 the court sentenced the applicant to three days’ imprisonment and a fine of 50 Cyprus pounds (CYP – approximately 85 euros (EUR)), with five additional days in prison in default of payment within 24 hours. After the trial she was taken back to the prison. 16. In the course of her detention, the guards constantly made a lot of noise both during the day and at night, repeatedly entered the cells and turned on the lights. On two occasions the applicant had to sign documents written in Turkish in order to get her personal effects back. After an incident between the detainees and some Turkish photographers, the applicant was hit by one of her guards and put in an isolation cell, which was filthy, dark, and very hot and had no ventilation. While in the cell, the applicant was attacked and beaten by one of the guards, receiving severe blows to the face, head and arms. Her arm was badly injured and she lost consciousness. She was visited by a person claiming to be a doctor who said that she needed treatment, but none was given. The applicant remained in the isolation cell until her release on 24 July 1989. She was examined by a UN officer, who bandaged her arm; she was then taken by bus to southern Cyprus. 17. In support of her claim of ill-treatment, the applicant produced two medical certificates. The first was issued by Doctor Andreas Hadjiloizou, a pathologist practising in Ayios Dhometios, on 20 December 2002. It reads as follows: “Mrs Petrakidou visited me at my clinic on 25.7.1989 after she was released by the Turks and complained of headaches, difficulty in moving her head and pain in the right lower part of the arm following violent twisting. From the examination it was established that she had mild concussion, difficulty in moving her head and pain in the right lower part of the arm due to violent twisting. She was advised to remain in bed for one week. She has since visited me several times complaining of dizziness and headaches. ” 18. The second certificate was a “medical opinion” issued on an unspecified date by Doctor Simos Nissiotis, a specialist orthopaedic surgeon practising in Nicosia. It reads as follows: “The patient Alkiviadous Petrakidou Marianna has been followed by me from 26/7/1989 for various problems that have been troubling her since the ill-treatment she was subjected to in the prisons of the Turkish-Cypriot pseudo-state in Nicosia. The patient participated in an anti-occupation demonstration on 19 July 1989, and was arrested by the authorities of the pseudo-state. During her arrest as well as during her detention she was beaten and ill-treated by the above authorities. She was released on 27/7/1989 and was immediately taken to Nicosia General Hospital to be examined by doctors and to be administered medical treatment. On 26 July 1989 she visited me in my clinic for further examination and treatment. She presented the following picture: 1. Injury to the head, concussion. The patient had diffuse haematomas to the head and mainly in her hair and was complaining of headache and dizziness. The patient seemed to be in a very bad shape and had a lot of phobias. 2. Contusion of the nape. The patient complained of pain and stiffness in the nape and the muscles of the nape were contracted. The movements of the head (bending, extension and rotation) were painful and limited and caused an aggravation of the headache and dizziness. 3. Contusion of the right forearm. The patient wore an elastic bandage on her right forearm and was complaining mainly of pain with movements in the extensor and flexor. I removed the bandage and she had a haematoma in the area of the round extensor. For the orthopaedic problems of the patient I recommended anti-inflammatory, muscle relaxant and analgesic medicines. I put her forearm in a special sock and recommended that after the acute phase (approximately 10 days) she start doing exercise and swimming. For her concussion I recommended that she avoid gazing fixedly and exposure to the sun. The patient then returned to work on 7 August 1989, though still having problems resulting both from her contusions and her concussion, which however decreased in frequency with the passage of time. Ever since then and until today the patient has been suffering mainly from pain in the neck, particularly in the cold months. During these attacks she takes her medicines and the problems disappear. This is due to the weakness of the muscles of the nape caused to her old injury. As regards the problems resulting from her concussion, her phobias and her psychological problems, she is being treated by a specialist colleague. From an orthopaedic point of view, I recommend that she takes her medicines during attacks and that she swims in the summer in order to strengthen her muscular system. This will help her to have rarer and milder attacks of neck pain.” 19. The applicant produced a photograph of herself with a bandage on her right arm. This photograph was allegedly taken on her return home after her release by the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”). 20. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences. 21. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council. 22. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. She pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. She was asked if she required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek. 23. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia: “A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows: (a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women; (b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May; (c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees; (d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council’s deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.” 24. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10, members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the women demonstrators. 25. The English translation of the “TRNC” Nicosia District Court judgment of 22 July 1989 indicates that the applicant, together with 24 other women, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law no. 5/72 – see paragraph 32 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 33 below). 26. The judgment was given in the presence of the accused and of an interpreter, who was reminded of his oath. The trial judge noted the following: (i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”; (ii) the public prosecutor called seven witnesses, whose statements were translated into Greek for the accused’s benefit; (iii) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally entered the “TRNC” buffer zone, shouted abuse at the Turkish-Cypriot forces, resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested; (vi) the accused had been told that they could cross-examine witnesses in turn and, if they wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; however, they did not do so; some of the accused, including the applicant, put questions to the prosecution witnesses; most of the accused women did not make use of their right of cross-examination; (v) the applicant made the following statement: “I consider our arrest as illegal, because we were arrested while we were on a territory which, however you look at it, is Hellenic, by troops we do not recognise. We had come in peace, but were faced by violence, not by the Turkish army, but by the Turkish Cypriots, who until then we had considered as brothers”; (vi) some of the other women accused gave statements, declaring that the demonstration was peaceful, that they had not carried weapons and that they did not recognise the “TRNC” as a valid State; (vii) relying on the statements of the prosecution witnesses, the “TRNC” District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them; the statements made by some of the accused were mainly of a political nature and did not undermine the statements of the prosecution witnesses; (viii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts; (ix) in deciding on the sentence, the “TRNC” District Court had taken into account the seriousness of the offence and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”. 27. Section 70 of the Cypriot Criminal Code reads as follows: “Where five or more persons assembled with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly. It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid. When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.” 28. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year. 29. Section 80 of the Criminal Code provides: “Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arm or weapons shall be forfeited.” 30. According to Section 82 of the Criminal Code, it is an offence to carry a knife outside the home. 31. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states: “(1) Any officer may, without warrant, arrest any person - ... (b) who commits in his presence any offence punishable with imprisonment; (c) who obstructs a police officer, while in the execution of his duty...” 32. Section 9 of Law No. 5/72 states: “... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished.” 33. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows: “1. No person shall enter or leave the Colony except through an approved port. ... 5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and such a fine.” | 0 |
train | 001-77420 | ENG | HRV | CHAMBER | 2,006 | CASE OF DEBELIC v. CROATIA | 4 | Preliminary objections dismissed (ratione materiae, victim);Violation of Art. 6-1;Remainder inadmissible | Christos Rozakis | 4. The applicant, Mr Nedeljko Debelić, is a Croatian national who was born in 1948 and lives in Rab. 5. On 21 December 1998 three individuals, P.M., J.B. and M.C., the owners of a plot of land on the island of Rab, neighbouring another plot of land, allegedly owned by R.Š., instituted proceedings for the determination of land borders (uređenje međa) before the Rab Municipal Court (Općinski sud u Rabu) against R.Š. because there was no agreement among them on the matter. 6. On 31 March 2000 the applicant filed submissions with the court claiming that he should also be a party to these proceedings because already in 1983 he had bought the plot of land in question from R.Š., although he was not immediately entered as the owner in the land registry. However, he had been in possession of that plot of land ever since. By the Rab Municipal Court judgment of 27 December 1991 the applicant was established as the owner and on 6 March 1998 he applied to the same court to enforce that judgment. The enforcement order to register the applicant as the owner of the plot of land in question into the land registry was issued on 12 March 1998. 7. It appears that the Rab Municipal Court did not answer the applicant's request to participate in the proceedings for the determination of the land borders by any formal decision. 8. From the transcript of the hearing held on 11 April 2000 it transpires that Ivan Debelić was present at the hearing as the applicant's legal representative and he repeated his previous request that the land borders be determined. 9. On 1 June 2000 the court carried out an on the spot inquiry. The applicant was present in person and it was stated that the applicant was the successor of R.Š. 10. From the transcript of the inquiry it transpires that the parties could not agree on the determination of the land borders. 11. There was also an expert present at the inquiry who gave his report and on the same date the court adopted a decision determining the land borders. The text of the decision states that the land border among the parties was in dispute. That decision was served on the applicant on 24 December 2002. 12. In 2002 the applicant filed a constitutional complaint concerning the length of the proceedings. On 13 February 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his complaint inadmissible for lack of capacity to conduct legal proceedings, establishing that the applicant had not been a party to the proceedings complained of. The relevant parts of the Constitutional Court's decision no. U-IIIA-668/2002 of 13 February 2004 read as follows: “2. The present proceedings, conducted before the Rab Municipal Court under the case file no. R.I.25/98, concern determination of the land borders. ... 4. Pursuant to section 69 paragraph 1(2) of the Constitutional Act, the Constitutional Court invited the Rab Municipal Court to file their observations in respect of the constitutional complaint. In their observations the Rab Municipal Court stated: “Ivan Debelić is not the legal representative of Nedjeljko Debelić in the proceedings concerning determination of land borders which had been instituted before that court under case file no. R.I. 25/98. Nedjeljko Debelić has not filed an application for determination of land borders in these proceedings. Furthermore, Nedjeljko Debelić has not been named the respondent party in these proceedings ...” 13. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request | 1 |
train | 001-75264 | ENG | SVN | CHAMBER | 2,006 | CASE OF KOCEVAR v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1971 and lives in Žalec. 6. On 6 December 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 11 November 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 3,312,900 tolars (approximately 13,800 euros) for the injuries sustained. Between 21 May 1999 and 4 March 2003 the applicant lodged four preliminary written submissions and/or adduced evidence. Between 2 April 1998 and 21 May 1999 he made five requests that a date be set for a hearing. On 5 November 2001 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new first-instance court judge. Of the five hearings held between 11 October 1999 and 18 April 2003 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. The court also sought an additional opinion from one of the appointed experts. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 17 June 2003. 8. On 24 June 2003 the applicant appealed to the Celje Higher Court. ZT cross-appealed. On 2 February 2005 the court allowed the appeals in part, lowered the damages awarded, and remitted the case, in the part concerning the costs and expenses of the proceedings, to the first-instance court for re-examination. The judgment was served on the applicant on 9 March 2005. 9. On 4 April 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). The proceedings are still pending. | 1 |
train | 001-105564 | ENG | NOR | ADMISSIBILITY | 2,011 | OBIORA v. NORWAY | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | The applicant, Mr Nzimirro Adam Obiora, is a Norwegian national who was born in 1994. He lives in Oslo with his mother, Mrs E. S. Obiora, who has acted on behalf of her under-age son in the national proceedings and in lodging an application under the Convention. The applicant was represented before the Court by Ms A.H. Aarø, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mrs F. Platou Amble, Attorney, Attorney-General’s Office (Civil Matters), as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 September 2006 the applicant’s father, Mr Eugene Ejike Obiora (born in 1958), died in connection with his being arrested by police officers at the Østbyen Social Services Office (servicekontor) in Trondheim. Mr Obiora had been visiting the Social Services Office to complain about the refusal of a social security allowance. The police were called as employees of the Office had found his behaviour disturbing and threatening. Upon arrival at around 1.30 p.m. the officers had observed Mr Obiora inside the public area of the premises. He had approached them and asked whether he had been responsible for their presence. After the employees in the presence of the police had given Mr Obiora an explanation for the refusal of the allowance and had informed him of the possibility to lodge an appeal, the police officers had ordered him to leave the premises and warned him that should he fail to do so he would be arrested. The decision of 4 May 2007, referred to below, described the events which followed. Since Mr Obiora had refused to comply with the police officers repeated orders to leave the premises, the police decided to arrest him. Police officers V. and M. had taken hold of Mr Obiora’s arms in order to escort him from the building. Mr Obiora had immediately and vigorously resisted. Officer V. explained that when he tried to grab Mr Obiora’s left hand, the latter had struck V. very hard in the chest with his elbow. After having tried in vain to grab Mr Obiora’s left hand in order to avoid further blows, Officer V. jumped on Mr Obiora’s back, gripped Mr Obiora by the throat using his right hand and remained in that position. The police officers felt that the situation was out of control and that they needed to pacify Mr Obiora, or else they or other persons in the Services Office might possibly get hurt. After Mr Obiora had circled a few times with Officer V. on his back and with Officer M. gripping his right arm, all three had fallen to the ground in the public area of the office premises. When falling, Officer V. had kept his grip around Mr Obiora’s throat, and continued to do so until he and M. handcuffed Mr Obiora. Finding it undesirable and wrong to let Mr Obiora remain on the floor of where they were hindering access and movement of the many people around them, Officers V. and M. decided to take Mr Obiora outside. They had pulled him by his arms to the landing outside the front door. On the landing Officers V. and M. had used considerable force to keep Mr Obiora down as he was struggling hard to free himself. V. had used his own body weight while bending Mr Obiora’s wrist in order to keep him down. Officer M., standing to the right of Mr Obioera, had pushed him to the ground. When Officer B. had arrived at the scene, he had noted that Mr Obiora had tried to free himself from V. and M. and was kicking out. Since Mr Obiora risked kicking passers-by, Officer B. had tried to immobilise his feet by applying a so-called leglock (benlås). He had been prevented by Mr Obiora from doing so since the latter was trying to get up and was kicking Officer B. While on the landing, Mr Obiora had screamed loudly and repeatedly. After struggling for a while he had calmed down completely. He had fainted and had been placed in a lateral position. The officers had ensured that he could breath. At 2.12 p.m. Officer B reported that Mr Obiora’s resistance had been so vigorous that he had fainted and that he had had to call an ambulance. At 2.16 p.m. the officers reported that they would bring Mr Obiora by police van to St. Olavs Hospital. In view of the location of the nearest ambulance, it was felt that the police vehicle (of which Officer H. was the driver) could transport Mr Obiora to the hospital as fast, or even faster, than an ambulance. Mr Obiora was placed on the floor of the police cell at the rear end of the vehicle. Because of its restricted space, 1.35 metres in length, his knees were bent upwards. The journey took approximately seven minutes. Upon arrival at the hospital, a nurse and a doctor detected a weak pulse in Mr Obiora’s throat. Medical appliances were connected to Mr Obiora’s body and it was established that his heart had stopped. The Special Unit for Investigation of Police Matters (Spesialenheten for politisaker – hereinafter referred to as the Special Unit) carried out an investigation of the four police officers of Sør-Trøndelag Police District who had taken part in Mr Obiora’s arrest. The investigation was based on suspicion of offences having been committed under Article 228 (1) and (2), second alternative, (bodily infringement resulting in death) of the Penal Code, Article 229, third alternative (bodily injury resulting in death), Article 239 (manslaughter committed by negligence) and Article 325 (1) (aggravated neglect in the performance of official duties). None of the officers was indicted. On 4 May 2007 the Special Unit decided to discontinue (henlegge) the proceedings. As regards the three officers who had been in contact with Mr Obiora, the decision was based on the state of the evidence; regarding the fourth officer, the decision to discontinue had been taken on the ground that no criminal offence had been proved. The deceased’s next-of-kin, including the applicant, complained about the above decision to the Director of Public Prosecutions (Riksadvokaten). They disputed that it had been necessary for the police to restrain Mr Obiora and to do so in the manner they did, notably by means of a strangulation grip around his throat, placing him on his stomach while exerting considerable pressure on his back, holding his head and legs and handcuffing him. They further complained of the officers’ omission to carry out life-saving measures when they realised that he was unconscious. The plaintiffs moreover complained about the procedure, namely that the first three police officers had been represented by the same lawyer and had been interrogated at intervals, enabling them to coordinate their versions of events. They also requested that further evidence be obtained on officer V.’s previous use of strangulation grips. They asserted that on two previous occasions officer V. had used a strangulation grip when arresting a coloured person, once in the so-called “Baidoo case”, and on another occasion when arresting an Iraqi, which had led to police misconduct complaints being filed against him. On at least three occasions he had used strangulation grips “in a dramatic way”. The Director of Public Prosecutions requested the Special Unit to take further investigative measures with a view to clarifying certain matters that could be of importance for the assessment of whether a criminal offence had been committed by the police “in a situation that had ended tragically in Mr Obiora’s death”. On 24 September 2007 the Special Unit, after having taken the measures requested, reported back to the Director of Public Prosecutions. In this connection the Unit provided particulars of the two police misconduct complaints referred to above and stated that it could not be concluded that V. had previously used strangulation grips “in a dramatic manner”. In the Baidoo case the Director of Public Prosecutions had not found proof of unlawful or excessive use of force. In the other case, the arrestee had allegedly experienced breathing problems due to pressure being applied to his chest after being placed on the ground. V. had conceded that he had gripped him around his neck. The Director of Public Prosecutions had in that case upheld the decision to drop the complaint against V., finding that no more force had been used than had been required by the situation. The Special Unit also provided details of a third complaint where the case had been dropped as no criminal offence had been proved. The Special Unit concluded that no weight could be attached to earlier complaints against V., including those instances where he might have gripped an arrestee around the throat or neck, in the assessment of whether V. could be held criminally liable in the present case. The information did not appear to have any significance for the assessment of the facts in the present case and in the Special Unit’s view no clear behavioural pattern on V.s part emerged from this information regarding the use of force against persons from a minority background. The use of force appeared on the whole to have been situational. The number of complaints had to be seen against the background of the fact that over a long period he had been assigned to operational service. It should also be emphasised that the complaints against V. seemed to have been dealt with sufficiently thoroughly and had been dropped. The Special Unit also considered previous complaints against officer M. but found none of these to be relevant. It informed the Director of Public Prosecutions that no previous police misconduct complaints had been made against officers B. and H. In his final comments of 25 October 2007 on the supplementary investigative measures taken by the Special Unit, the applicant did not specifically address the latter’s findings regarding previous police misconduct cases. On 21 December 2007, the Director of Public Prosecutions rejected the appeal against the Special Unit’s decision of 4 May 2007. By way of a preliminary observation he endorsed the Special Unit’s findings that the information obtained about previous police misconduct complaints was not capable of shedding light on the sequence of events and the question of guilt in the present case. He found inter alia as follows. A combination of factors had caused Mr Obiora’s death. To all appearances his death had occurred as a result of asphyxia and his reactions to this. The asphyxia had been caused by Mr Obiora’s own efforts when resisting arrest, combined with breathing problems when pressure had been exerted on his throat and, not least, with his having been placed by the police on his stomach for a certain period of time and being subjected to the use of force by the police while in this position. Forensic experts had documented the fact that restraining agitated persons by placing them on their stomach entailed a risk of positional asphyxia (leiebetinget kvelning). This position could hinder movements in the chest and could over time lead to a dramatic reduction in lung capacity, heart palpitation frequency, blood pressure and blood volume, and could lead to death if the person’s craving for oxygen or oxygen deficit was not compensated in time. There had been reason to believe that the factors described had played a significant role in Mr Obiora’s death. The circumstances surrounding the arrest were obviously not such as would have justified the use of methods that could have put Mr Obiora’s life in danger. A central question was whether the officers could or ought to have been aware of the possibility that placing him on his stomach together with the other means of restraint used could lead to Mr Obiora’s death. The Director of Public Prosecutions found it beyond doubt that neither the police officers involved nor the Sør-Trøndelag Police District had known of the dangers of restraining persons by placing them on their stomach on the ground. Nor had employees of the Norwegian Police Academy or of the Police Directorate possessed such knowledge prior to the present case. Awareness of the risk had not been particularly widespread among health personnel either. The Norwegian Police Academy had reported that the type of restraint at issue had been standard procedure for the arrest of obstructive persons. Academy students had been taught that every person arrested, if placed on the ground, should end up flat on the stomach and that the person was to be immobilised by inter alia bending his arms and shoulders from this position. Accordingly, the officers who had put Mr Obiora on his stomach in this position had applied the method which they had been taught to use in such situations. Even though the Norwegian Police Academy’s and the Directorate of Police’s practices had been deficient with regard to the collection of information about the risks involved in using the impugned restraining method, the Director of Public Prosecutions found no ground for qualifying the omissions as gross neglectNorwegian Police Academy and the Directorate of Police liable pursuant to Article 325 of the Penal Code. In making this assessment, regard had been had to the submission by medical experts that knowledge about the dangers of asphyxiation connected with the relevant restraint measures had not been particularly widespread among health personnel. The Director of Public Prosecutions emphasised that he presumed that the Special Unit would quickly place all relevant material at the disposal of the Norwegian Police Academy and the Directorate of Police so as to promote education, training and the dissemination of information as well as the introduction of central directives and control measures for preventing asphyxiation caused by the position of the arrestee during arrest. The Directorate would presumably review Circular 2007/011 of 26 June 2007 in light of the experience gained from the present case and consider whether it sufficiently fulfilled the need to have directives on situations in which restraining a person by placing him on the stomach could be justified, the length of time a person could be kept in such a position and, not least, checking the situation of the arrestee during and after his being kept in such a position. Of central importance was the further elaboration of guidelines on the manner in which continuous checking of the arrestee’s situation was to be carried out and on how to move rapidly to other less dangerous methods while maintaining the necessary control. In the course of the autumn of 2008 and winter of 2009 several attempts were made on behalf of the deceased’s children to obtain compensation from the State but to no avail. On 7 September 2009 the applicant and another son of the deceased, Mr Prince Wallace Obiora, born in 1988 and resident in Lagos, Nigeria, instituted civil compensation proceedings against the State before the Oslo City Court. They claimed compensation for loss of their father’s financial support and for non-pecuniary damage under, respectively, sections 3-4(1) and 3-5(2) of the Damage Compensation Act 1969. On 16 February 2010 the Parliamentary Ombudsperson (Civil Matters) gave of his own motion an opinion (case 2007/2439) on Mr Obiora’s death and on the issue of responsibility for police practices in respect of techniques of use of force on arrest, in particular restraining a person by placing him on the stomach. The Ombudsperson endorsed the Director of Public Prosecutions and the Special Unit’s findings mentioned above. After carrying out a detailed review of the Court’s case-law in relation to Article 2 of the Convention, he observed that the question whether at the time of Mr Obiora’s death the Norwegian authorities ought to have been aware of the risk of death as a result of placing an arrestee on the stomach, depended on a concrete assessment of the circumstances. Among other factors, regard ought to be had to whether the police officer had done all that could reasonably be expected to reduce the risk, bearing in mind the seriousness of the risk, its probability and immediacy, whether it was for the State to assess the risk and the vulnerability of the victim. Considering the matter as a whole, the Ombudsperson found that Norway had not sufficiently complied with its obligations under the Convention in respect of the use of restraint by placing the arrestee on the stomach upon arrest. The State ought to have been aware of the health hazards involved in the use of this technique. Such knowledge would have provided the requisite basis for regulating its use and ensuring adequate training of the police with a view to avoiding loss of life or serious injury. Against the background of the information available regarding the dangers of restraining a person by placing him on the stomach, it would not have entailed an excessive burden for the Norwegian authorities to acquire by the time of Mr Obiora’s death the necessary knowledge about the health hazards of the technique. The necessary knowledge could have been acquired without considerable expense. The Norwegian authorities’ lack of knowledge appeared to have been caused by deficient practices for updating medical and police knowledge about techniques of arrest. The risks accompanying restraint of an arrestee by placing him on the stomach could clearly have been reduced if the State had been aware of such risks, and death resulting from using this technique could have been avoided. The responsibility for violation of the obligations to protect human rights lay with the State. This followed directly from public international law and was stated expressly in Article 1 of the Convention. In this connection it was unnecessary to consider further where to place the responsibility for the violation of Article 2 of the Convention. In light of the information provided by the Ministry it seemed that the principal responsibility for the lack of regulation of the use of the impugned restraint method lay primarily with the Directorate of Police. However, this case also showed that the Police Academy had failed in its role by not developing and updating techniques of arrest for the purposes of training. On the same date – 16 February 2010 - that the Ombudsperson issued his opinion, the State concluded a friendly-settlement agreement with the applicant and his brother. By virtue of this agreement, the applicant was to be paid NOK 400,000 (and his brother NOK 100,000) in respect of their above-mentioned compensation claims and payment of these amounts was to constitute “full and final settlement of any claim against the State in connection with Mr Eugene Obiora’s death”. The proceedings before the City Court were discontinued. On 19 April 2010 the Registry invited the applicant to clarify whether in light of the above friendly-settlement agreement he wished to maintain his application to the Court. On 24 April 2010 his lawyer replied in the affirmative, pointing out that the agreement had settled the financial aspects of the case but did not imply that the State accepted criticism or acknowledged responsibility for Mr Obiora’s death or a human rights violation in this respect. On 26 May 2010, the President of the Section to which the case had been allocated decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government of Norway and that the Government should be invited to submit written observations on the admissibility and merits of the case. On 6 October 2010 the Government’s observations of 21 September 2010 were transmitted to the applicant’s representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 17 November 2010. The applicant did not respond. By a letter dated 13 January 2011, sent by registered post, the applicant’s representative was notified that the period allowed for submission of the applicant’s observations had expired on 17 November 2010 and that no extension of time had been requested. The applicant’s representative’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. On 30 January 2011 the applicant’s representative replied enclosing a letter to the Court dated 14 September 2010 (which had not been received). It stated that the applicant had “no further comments to the application”, that he agreed with the respondent State that the parties had settled the financial dispute, that there was no financial loss in the case and that “due to the amicable settlement of the case the State did not admit [to] any responsibility for the death of Mr Obiora.” The settlement agreement had not covered his legal costs incurred in the Convention proceedings. He would therefore maintain his application. The applicant submitted large quantities of documents relating to a number of previous complaints of police misconduct, involving allegations of excessive use of force, filed with a former police complaints authority – SEFO (Det særskilte etterforsknngsorgan) - notably against officers M. and V. This included the so-called “Baidoo case” where Officer V. had been charged for swearing (“svarte faen” – normally meaning “bloody hell”, literally “black devil”) in the presence of a coloured woman, perceived by her as a racist attack, but had been acquitted by Trondheim City Court in 2001 finding that it had been a spontaneous reaction to his having been bitten by the woman. V. had been expressing his frustration and his remark had not been specifically aimed at the woman or linked to the colour of her skin. The investigation into the woman’s complaints of excessive use of force was apparently dropped on the ground of the state of the evidence. | 0 |
train | 001-79541 | ENG | NOR | ADMISSIBILITY | 2,007 | STORBRATEN v. NORWAY | 2 | Inadmissible | Christos Rozakis | The applicant, Mr Yngvar Storbråten, is a Norwegian national who was born in 1955 and lives in Lillestrøm. He is represented before the Court by Mr S. Næss, a lawyer practising in the same town. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney at the Attorney General's Office (Civil Affairs). The facts of the case, as submitted by the parties, may be summarised as follows. In July 1998 the applicant opened a restaurant at Eidsvoll, in southern Norway. The restaurant was shut down in March 1999 and the applicant was declared bankrupt in August 1999. This was the fifth time a business run by him had ended in this way. In the course of the year 1999 the tax authorities reassessed the applicant's liability to pay value-added tax, investment tax and income tax for certain parts of the taxation years 1998 and 1999. In this connection, on an unknown date during 1999 or 2000, the said authorities imposed 30% tax surcharges on him. In the relevant bankruptcy report, the Administrator of the estate recommended that the applicant be disqualified from further business (konkurskarantene). In the Administrator's view, both grounds for imposing a disqualification order under section 142(1) of the Bankruptcy Act 1984 (konkursloven) had been fulfilled, namely, the existence of a reasonable suspicion against the applicant that criminal conduct had led to the bankruptcy and that he had displayed carelessness in his business practices making him unfit to establish a new company or to serve as a board member or as day-to-day manager of such a company. On 17 January 2000 the Eidsvoll Probate and Bankruptcy Court (skifterett) disqualified the applicant under section 142(1), points 1 and 2, and 142(2) for a period of two years. The decision contained the following reasons: “The criminal offences referred to here are listed in Chapter VIII, items 1-5, of the preliminary report, and are as follows: failure to submit a self-employed income declaration to the tax authorities, failure to keep accounting records, failure to register employees in the register of employees, failure to submit value-added tax returns, and contravention of Article 286 § 2, see Article 288, of the Penal Code, relating to the essential disregard of provisions governing accounting, annual reports and accounts, and the keeping of accounting records. [The applicant] was notified of the proposal to disqualify him by the court's letter of 3 January 2000. [He] was given until 14 January 2000 to submit any objections in this matter. The court has not received any objections from the debtor. The police (Romerike Police District) have been advised of the proposal to impose a disqualification order and of the fact that they are entitled to act as a party to the proceedings. No reply has been received indicating that they wish to exercise this right. Under section 142 of the Bankruptcy Act, a disqualification order may be imposed on a debtor if there are reasonable grounds for suspecting him or her of having committed offences in connection with the activities that led to insolvency, or if he or she is unfit, on grounds of unsound business conduct, to serve as a director etc. in a new company. The court finds that there are reasonable grounds for suspecting [the applicant] of having committed criminal offences in connection with the establishment of Yngvars Bistro og Biffbar. The matters listed in the trustee's report may, in addition to constituting criminal offences, also be characterised as unsound business conduct. [The applicant] has entirely disregarded his duties to keep accounting records and submit returns to the authorities, including annual reports and accounts, VAT returns and reports to the register of employees. These transgressions have made subsequent control of his business operations impossible. The court finds that a person who disregards his duties to the public authorities to such an extent cannot be considered fit to manage a business or to serve on the board or the management of a company. The court finds that there is no doubt that the conditions for imposing a period of disqualification under section 142(1), points 1 and 2, of the Bankruptcy Act are fulfilled. In so far as the court is aware, [the applicant] does not currently hold any managerial responsibilities in other companies, and there are no other circumstances that would make it unreasonable to disqualify him. The court therefore finds, after an assessment, that a disqualification order should be imposed as proposed by the trustee. Since in this case it is more than four months since the commencement of bankruptcy proceedings, the court finds that the disqualification period is to run from the date of this ruling, cf. Konkursråd no. 5, page 49.” The disqualification order became final as the applicant did not lodge an appeal. Subsequently, on 18 December 2001, the Eidsvoll District Court (herredsrett) convicted the applicant on three counts, all of which were connected to the bankruptcy, namely, failure to comply with the book-keeping requirement in breach of Article 286 of the Penal Code and of the relevant provisions of the Accounting Act 1977 (regnskapsloven 1977); failure to declare business turnover in violation of section 72(2) of the Value Added Tax (VAT) Act 1969 (merverdiavgiftsloven); and failure to submit tax declarations in breach of section 12-1(1)D of the Tax Assessment Act 1980 (ligningsloven). He was sentenced to thirty-five days' imprisonment and tax surcharges were imposed on him. In those proceedings the applicant unsuccessfully relied on Article 4 § 1 of Protocol No. 7 to the Convention. On an appeal by the applicant to the Eidsivating High Court (lagmannsrett), the latter, referring to more recent Supreme Court case-law under Article 4 § 1 of Protocol No. 7, quashed the District Court's judgment on 11 September 2002 in so far as it concerned the conviction and tax surcharges in respect of the tax and VAT offences (apparently not a subject of complaint in his application under the Convention). Moreover, the applicant was partly acquitted and partly convicted of the book-keeping offences. On the other hand, the High Court agreed with the lower court that the imposition of a disqualification order did not preclude subsequent prosecution. In the light of the foregoing, it reduced the sentence to fifteen days' imprisonment. The applicant appealed to the Supreme Court on the ground that the criminal case against him entailed double jeopardy in violation of Article 4 of Protocol No. 7 and for this reason should have been dismissed. On 23 September 2003 the Supreme Court unanimously rejected the applicant's appeal. In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Oftedal Broch, stated: “(20) In the current proceedings, it is of key importance that a disqualification order may be imposed if either of the two conditions specified in the first sub-section is met. Pursuant to point 1, there must be reasonable grounds for suspecting that a criminal act has been committed in connection with the bankruptcy or the activities that led to insolvency. Pursuant to point 2, an assessment of suitability is to be made. The effects of a disqualification order are the same in both cases, with the exception that sub-section 4 also authorises disqualification from the debtor's existing offices in other companies. This applies only to a disqualification order imposed pursuant to point 1 of the first sub-section. (21) Disqualification after bankruptcy was first introduced into the 1976 Limited Liability Companies Act. Sections 13-19(1) introduced an automatic two-year disqualification period for board members and managing directors of limited liability companies and also for all personal debtors in bankruptcy. During this period, a disqualified person was not permitted to form a new limited liability company, take up any new office on a board or become a managing director in any other limited liability company. (22) Although the general rule was that a two-year disqualification period was mandatory, section 13-19(2) authorised the probate and bankruptcy court, on an application, to decide that all or part of the disqualification period was to be remitted. Such a decision was to be made if there was no suspicion that the debtor had contravened any penal clause in connection with the bankruptcy or the company's activities, and there was no doubt about the soundness of the debtor's conduct as a manager or in another position he or she held in the company. The probate and bankruptcy court could also decide that a disqualification period was to be remitted if it found that no reasonable or public interest militated against this. (23) On the other hand, the effect of disqualification pursuant to sections 13-20 could be made more severe. If there were reasonable grounds for suspecting the debtor of having committed offences in connection with the bankruptcy or the company's activities, the probate and bankruptcy court could decide that he or she was also to be removed from any position on a board or as a managing director of another company during the disqualification period, in other words the provision that we also find in section 142(4) of the Bankrupcty Act. (24) The preparatory works for the Act (Proposal No. 19 (1974-1975) to the Odelsting [the larger division of Parliament], p. 98) explain the purpose of introducing provisions relating to disqualification as follows: 'There are several arguments for preventing a person who is involved in a bankruptcy from holding managerial responsibilities. If the bankruptcy is the result of dishonesty or other errors on the part of the company's management, it will be desirable to ensure that the same people are not involved in the management of other limited liability companies. In other cases too, there can be reasons for introducing a certain disqualification period pending investigation of the circumstances of the bankruptcy with a view to revealing any irregularities or other inappropriate conduct. Even if the question of possible irregularities is disregarded, two other important considerations are society's interest in ensuring that resources are soundly managed and the interests of the creditors. Moreover, it is not in the interests of the company's shareholders or helpful to its reputation for it to be managed by persons whose fitness for the position or solvency can be questioned.' (25) The Standing Committee on Justice commented on the need for rules on disqualification in Recommendation O. No. 50 (1975-1976), p. 20: 'In the committee's opinion, there is particular reason to withdraw the right to form new companies or take up new positions. It is particularly in this connection that we find the typical cases that disqualification is intended to deal with. The position with regard to offices that a person already holds is somewhat different. Disqualification from these can easily have unintended and negative effects both for the individuals targeted and for companies that lose a board member or managing director. The committee has therefore concluded that disqualification from already existing positions should be treated separately and made dependent on an individual evaluation, with a view to dealing with the cases where the need for disqualification is most obvious, that is, those where the circumstances suggest that offences have been committed in connection with the bankruptcy or the company's activities.' (26) The provisions on disqualification were later transferred from the Limited Liability Companies Act to the 1984 Bankruptcy Act, and later amendments have resulted in the current wording. Proposal No. 50 (1980-1981) to the Odelsting, p. 50, describes the purpose of these provisions as follows: 'The purpose of these provisions is to ensure that certain persons who have been involved in an earlier bankruptcy (either personally or as part of the management of an insolvent limited liability company) are not involved in forming or managing other limited liability companies for a certain period (two years). ... The enactment of the provisions relating to disqualification periods in the new Limited Liability Companies Act will make it easier to stop serial bankrupts who, after being involved in one or more bankruptcies, start up new companies and continue in business until these also fail, and who are suspected of irregularities in connection with their business activities. The imposition of a disqualification order pursuant to the provisions of the Limited Liability Companies Act is additional to other possible measures based for example on criminal liability, liability for damages, or the voidability of transactions. There is particular reason to note that the provisions of Article 29 of the Penal Code relating to the stripping of rights are not made superfluous by the disqualification provisions. In practice, Article 29 is seldom used, but in cases where it is, it can be an advantage that the debtor is already subject to a disqualification order from the time of the bankruptcy and thus cannot take up the types of positions to which the provisions of the new Limited Liability Companies Act apply, since it will generally take some time before a case can be tried pursuant to Article 29 of the Penal Code.' (27) Proposal no. 50 (1980-1981) to the Odelsting was not debated by the Storting (Parliament), and the bill was put forward again, see Proposal no. 39 (1982-1983) to the Odelsting. This time, the Government proposed that disqualification should not be automatic, see section 142 of the current Bankruptcy Act. The reason for this was partly to improve security under the law. The original wording of sections 13-19 of the Limited Liability Companies Act concerning exemptions from disqualification was characterised by the fact that the person in question was expected to prove his or her own innocence. It was also partly for practical reasons: as disqualification applied automatically, it was difficult to find qualified people who were willing to become board members or managing directors, particularly in cases where the goal was to save a company that was in difficulties. (28) It was also proposed that the trustee's first report to the probate and bankruptcy court, which must be submitted no later than three months after his or her appointment, should include an evaluation of whether any circumstances in the case come under the rules on disqualification, see section 120, point 7, of the Bankruptcy Act. The Ministry of Justice submitted the following comments on this provision: 'The Ministry of Justice is of the opinion that this provision will help to make the rules on disqualification after a bankruptcy more effective. Such reports will provide probate and bankruptcy courts with material that will enable them to evaluate whether disqualification orders should be imposed at an early stage of the proceedings. A ruling can of course also be made before a report is received. It is important that a ruling on disqualification is made as promptly as possible if this provision is to stop serial bankrupts who are suspected of irregularities in connection with their business activities.' (29) Under the Act of 30 March 1990 No. 8, a central Disqualified Directors Register was established as part of the Brønnøysund Register Centre, see section 144(2) of the current Bankruptcy Act. This was done as a means of ensuring compliance with disqualification orders. In the preparatory works, Proposal no. 7 (1989-1990) to the Odelsting, p. 7, the Ministry commented that although consideration for the right to privacy of the person disqualified was an argument against an 'open' register, this was less important than ensuring a real possibility for enforcing disqualification orders. (30) Thus, on the basis of the preparatory works, it can be established that the purpose of the provisions relating to disqualification orders is to prevent a debtor in bankruptcy or the company managers from forming or managing new limited liability companies. The underlying consideration is that there are risks involved in the operation of a limited liability company, and that others must be protected against misuse of this form of business organisation by dishonest or irresponsible people. Two considerations are particularly emphasised, namely, sound management of resources and the interests of creditors and shareholders. The preparatory works emphasise that a decision to impose a disqualification order must be taken as soon as possible in order to prevent continued irregularities. Disqualification is not considered to be a penal measure; on the contrary, it is emphasised that disqualification and penal sanctions supplement each other. (31) Such interactions between disqualification and criminal prosecution are also laid down in the provisions of the Act. By virtue of section 143(2), the prosecuting authority is entitled to act as a party in cases concerning disqualification in the probate and bankruptcy court, and may apply for the disqualification period to be extended until there is a legally enforceable judgment in a criminal case in which the prosecuting authority has proposed, or is contemplating proposing, that the bankrupt be stripped of his or her rights under Article 29 of the Penal Code. It is not possible to strip the bankrupt of his or her rights under the Penal Code at an earlier stage than this. On the other hand, in Norwegian Supreme Court Reports 2002, p. 789, the Appeals Board of the Supreme Court established that if the police withdraw a charge for the offences that formed the basis for imposing disqualification, it is not possible to maintain the disqualification order under section 142 (1), point 1, of the Bankruptcy Act. (32) Article 4 § 1 of Protocol No. 7 to the Convention in relation to section 142(1), point 2, of the Bankruptcy Act (33) I shall now return to the question of how the disqualification provisions are to be evaluated in relation to the Convention and the prohibition against double jeopardy in Article 4 § 1 and will first consider a disqualification order pursuant to the provision of section 142 (1) item 2 – on the grounds that unsound business conduct makes the person in question unfit to form or manage a company. With one minor reservation, which I shall discuss later, the parties in our cases agree that disqualification imposed under the first sub-section, point 2, is not a penalty and does not entail double jeopardy. Here, there is case-law from the European Court of Human Rights dealing with the British provisions on disqualification. These are very similar to the Norwegian provisions in section 142(1), point 2. The British provisions are set out in the Company Directors Disqualification Act 1986. They stipulate, among other things, that a person who has been a director of an insolvent company and whose conduct is found to make him or her unfit to manage a company is to be disqualified (the court issues a disqualification order) from setting up or managing a company for a period of two to fifteen years. The court can make exemptions from disqualification. The public authorities must institute legal proceedings within two years after the company is declared insolvent, and the decision is made by the ordinary courts. (34) The European Court has examined the British rules on disqualification under the Convention in two cases. In Davies v. the United Kingdom (no. 42007/98, judgment of 16 July 2002) the parties agreed, and the Court was of the same opinion, that proceedings concerning a decision on disqualification determined 'civil rights' pursuant to Article 6 of the Convention. The case concerned whether the legal proceedings had taken an unreasonably long time, and the Court found that there had been a violation of the Convention. I note here that the Supreme Court (see Norwegian Supreme Court Reports (Norsk Retstidende) 2003, p. 409) has also found that decisions on disqualification in connection with a bankruptcy concern a 'civil right' pursuant to Article 6 of the Convention. (35) In the case D.C., H.S. and A.D. v. the United Kingdom (dec.) no. 39031/97, decided on 14 September 1999, the applicants claimed that the decision to disqualify them determined a criminal charge. The Court replied: 'The criteria for ascertaining whether a 'criminal charge' has been determined are the domestic classification of the 'offence', the nature of the 'offence', and the nature and degree of severity of the potential and actual penalty (see, for example, the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328, p. 13, § 27 with further references). In the present case, the proceedings were classified as civil in domestic law, the disqualification of directors is a matter which is regulatory rather than criminal, and the 'penalty' is neither a fine nor a prison sentence, but rather a prohibition on acting as a company director without the leave of the court. Whilst a great deal was undoubtedly at stake for the applicants, it cannot be said that what is inherently a regulatory matter can thereby become a 'criminal charge' within the meaning of Article 6 §1 of the Convention. Thus, none of these criteria indicates that the applicant was charged with a 'criminal offence', and the Court considers that the proceedings in the present case did not determine a criminal charge within the meaning of Article 6 §1 of the Convention (see also No. 36791/97, Comm. Dec. 21.5.98).' (36) On the basis of this decision, I presume that the same applies to a Norwegian decision to impose a disqualification order under section 142(1), point 2, that is, it is not to be construed as a criminal charge within the meaning of Article 6. This means that Article 4 § 1 of the Protocol will not bar subsequent criminal prosecution. (37) I would like to mention that in case no. 2003/203, the defence counsel claimed that disqualification imposed under the first sub-section, point 2, must also be considered to determine a criminal charge if the grounds for considering a person unfit are suspicion that specific offences have been committed. I do not agree with this distinction. The basis for disqualification under section 142(1), point 2, is that the court has found the person in question to be unfit to form a new company or take part in the management of a new company. This is the case regardless of the further grounds cited by the court for judging the person unfit to take up such functions. (38) Article 4 § 1 of Protocol No. 7 to the Convention in relation to section 142(1), point 1, of the Bankruptcy Act (39) I shall now consider whether a disqualification order imposed under section 142(1), point 1 (reasonable ground for suspecting the person concerned of offences in connection with the bankruptcy), precludes subsequent criminal prosecution. (40) For Article 4 § 1 to preclude subsequent criminal prosecution, the person charged must already have been 'finally acquitted or convicted'. The first question here is whether it is the decision to impose a disqualification order that must be 'final', which it clearly is, or whether the requirement for a final decision refers to the offences that are the grounds for issuing the order. The real question in the present case is whether the imposition of a disqualification order precludes subsequent criminal prosecution of these underlying offences. In my opinion, it follows directly from the wording of Article 4 § 1 that the final decision relates to the offences that are the grounds for disqualification; see the text of the Protocol, 'tried or punished again ... for an offence for which he has been finally acquitted or convicted'. (41) There is no doubt that by issuing a disqualification order the adjudicating court expresses a view on whether the person in question may have committed the offences that constitute the grounds for imposing disqualification. But does it make sense to claim that when the court has decided whether or not to impose a disqualification order, the person has been finally acquitted or convicted of these offences? In my opinion, it does not. (42) Firstly, I refer to the requirement of guilt for the criminal offences in question here. A finding that there is reasonable ground for suspicion is not a final conviction, either literally or according to Norwegian legal tradition. The concept of just cause for suspicion is associated particularly with the conditions in which coercive measures – arrest, custody, search, and so on – may be used pursuant to the Code of Criminal Procedure, and a decision to use such measures clearly does not constitute a final decision on guilt. These are of course temporary measures directly related to the criminal investigation. Coercive measures are used for the purpose of the investigation, and must be construed as ceasing to apply if the investigation is discontinued. However, as I have described above, the imposition of a disqualification order is also linked to the investigation of the case. The Appeal Committee of the Supreme Court has established that if the prosecuting authority withdraws a charge in respect of the offences that were the basis for issuing a disqualification order, the disqualification order must also be withdrawn (see Norwegian Supreme Court Reports 2002, p. 789). The same must apply in the event of an acquittal. (43) Furthermore, the purpose of disqualification is an argument against the interpretation that a disqualification order constitutes a final decision regarding the underlying offences. In the preparatory works it is stated several times that the purpose of imposing a disqualification order is to prevent the person in question from continuing to misuse the company form through irregularities or other misconduct, and that disqualification orders must be issued swiftly. Use of the criterion 'reasonable ground for suspicion' is related to the need for a rapid response, which is expected before investigation of the case is completed. This is not in keeping with the interpretation that disqualification constitutes a final decision on guilt. The preparatory works point to the fact that the completion of the investigation of a criminal case will take longer, and is thus something that will be considered later. (44) Finally, the procedural rules militate against regarding a decision to impose a disqualification order as a 'final conviction'. The 1984 amendments reversed the provisions on disqualification, so that instead of disqualification being automatic, it required a ruling by the probate and bankruptcy court, and at the same time a provision was introduced requiring the trustee to evaluate whether there were any circumstances in the case that came under the rules on disqualification, see section 120 item 7 of the Bankruptcy Act, in the first report to the probate and bankruptcy court, which must be submitted no later than three months after appointment. In the report, the trustee gives a survey of possible criminal offences, but is unlikely to be able to assess the strength of the suspicion in relation to each offence. In general, the district court too has only limited opportunities for making a closer assessment of guilt as regards each offence. Since disqualification requires only that there is a reasonable ground for suspecting the person in question of one offence, there is little reason for a debtor in bankruptcy to object to a single count, unless he or she claims not to have committed any offences at all. This means that there is little focus on specific offences. Thus, a ruling from the district court is not a suitable basis for determining which specific offences can be construed as having been finally adjudicated. (45) In my opinion, these three elements – the form of guilt, the purpose of disqualification and the rules of procedure – considered together lead to the conclusion that the imposition of a disqualification order cannot be interpreted as a final conviction for the offences on which the decision is based. (46) It is of course the case that the phrase 'finally .... convicted' is to be interpreted as an autonomous concept within the framework of the Convention. However, in my view, the raw material for the analysis must be the domestic legal system. On this basis, it seems to be reasonably clear that a debtor in bankruptcy has not been 'finally acquitted or convicted' of the offences that form the basis of a decision to impose a disqualification order, and that Article 4 § 1 therefore does not apply. (47) However, I would like to point out that in the limited case-law from the European Court relating to Article 4 § 1, I have not found any material from the Convention's own legal system that can clarify the meaning of the term 'finally acquitted or convicted'. (48) In the decision of inadmissibility in the case of Mulot v. France on 14 December 1999 (application no.37211/97), the question was whether the temporary withdrawal of a driving licence for six months for driving under the influence of alcohol and causing injury precluded subsequent criminal prosecution for the same offence. The withdrawal was a temporary measure involving no assessment of guilt. It could apply for a maximum of six months and would cease to have effect if the person was convicted. The Court established that Article 4 § 1 did not preclude subsequent criminal prosecution, but reasoned that the withdrawal of the driving licence was a traffic safety measure and thus was not a 'criminal charge'. The Court also referred to a Grand Chamber judgment two months earlier, on 28 October 1999, relating to Article 6 (Escoubet v. Belgium [GC], no. 26780/95, ECHR 1999VII), which concerned the immediate withdrawal of a driving licence for fourteen days, without any finding of guilt. In this case too, it was found that the withdrawal of the driving licence ought to be regarded as a preventive measure for the safety of road-users. (49) On this basis, there is reason to consider whether, in the alternative, a disqualification pursuant to section 142(1) item 1 of the Bankruptcy Act can be construed as a criminal punishment under the Convention. A similar question has been of central importance in several of the Supreme Court's decisions relating to Article 4 § 1. I refer for example to Norwegian Supreme Court Reports 2002, p. 1216 and 2002, p. 1271, both of which include a thorough discussion of the term 'punishment' in this connection. (50) There are strong indications that an evaluation of the legal institution of disqualification under the Convention must lead to the same conclusion for both the conditions laid down in section 142 (1) of the Bankruptcy Act, which in practice are often invoked together. In the preparatory works, the purpose of disqualification is described in the same terms for both conditions. The primary purpose is to satisfy a non-penal need for protection in cases where bankruptcy is related to criminal or unsound business conduct on the part of a manager or board member, indicating that he or she is unfit to engage in such business activities. The person in question should therefore, for a period of time, be excluded from holding managerial responsibilities in limited liability companies. The condition set out in item 1 – reasonable ground for suspicion of a criminal offence – can be regarded as a special case of the general criterion of fitness set out in item 2. Even if section 142(1) item 1, is viewed separately, an evaluation relative to the Convention must be based on the common purpose of these two provisions. (51) In the above-cited D.C., H.S. and A.D. v. the United Kingdom, the key sentence in the reasoning is as follows, 'In the present case, the proceedings were classified as civil in domestic law, the disqualification of directors is a matter which is regulatory rather than criminal, and the 'penalty' is neither a fine nor a prison sentence, but rather a prohibition on acting as a company director without the leave of the court.' (52) In my opinion, these three criteria are applicable in exactly the same way to a Norwegian disqualification order pursuant to section 142(1) item 1 of the Bankruptcy Act. Thus, there is no doubt that disqualification is classified as a civil matter in Norwegian domestic law. The next criterion is often described as the nature and purpose of the measure. Here, the European Court emphasises that disqualification is a matter that is regulatory rather than criminal. It is presumably of key importance here that the provisions relating to the disqualification of directors in Britain – and also in Norway – govern a very narrow field of business activities, namely, forming and managing limited liability companies. The nature of the measure cannot be said to be significantly influenced by the fact that it is grounded on suspicion of offences rather than an assessment of unfitness. In any event, the fact that the main reason for disqualification is to protect others, not to punish, is a factor that weighs more heavily here. I would also like to mention one particular feature of the Norwegian provisions, which is that an assessment of whether disqualification is reasonable in the circumstances is always required before a decision is made, see section 142(2). This also tends to strengthen the conclusion that disqualification is a means of regulating business activities rather than a punishment. (53) Finally, as regards the severity of the measure, disqualification entails a prohibition against forming or managing new limited liability companies for a period of two years. It does not entail a general prohibition against engaging in business activities. As the High Court stated in its judgment in the present case, 'A person who is subject to a disqualification order is not prevented from running a general partnership, but is merely – for a relatively short period of time – prevented from using a form of business organisation in which personal liability is limited, and where there may therefore be less incentive to operate according to sound business principles.' (54) As regards the severity of the measure, particular attention has been paid to the provisions of section 142(4). In cases where this provision applies, disqualification may also apply to current positions and offices held in other companies. It is quite clear that this form of disqualification has a greater effect, see the comments in Recommendation O. No. 50 (1975-1976), at the time when the provision was incorporated into the Limited Liability Companies Act. The question is whether its effects are so severe that a different conclusion must be drawn with respect to the term 'punishment' as used in the Convention. In my opinion, this is out of the question. As I understand the British rules, a disqualification order always applies to current positions held in other companies. Despite this – and the fact that the disqualification period is longer than in Norway – the European Court did not consider that the disqualification determined a 'criminal charge'. (55) Further, it has been claimed that recording disqualifications in an open register is particularly defamatory and thus increases the severity of the measure. As I have shown earlier, the purpose of establishing a register was to enforce disqualification orders more effectively. The Ministry considered that the need for effective enforcement overrode the interests of protection of privacy. In my view, no particular importance can be attached to such registration when evaluating the severity of disqualification as a measure. (56) In accordance with the above, I am of the opinion that given the nature of disqualification orders, their purpose, and the fact that this is not a particularly severe encroachment on a person's rights, a disqualification order cannot be construed as a punishment within the meaning of the Convention. Therefore, and also because disqualification does not entail a criminal charge, Article 4 § 1 of Protocol No. is not applicable. (57) In the light of these conclusions, I will not discuss the third question in this case, namely, whether the offences that were the basis for the disqualification order pursuant to section 142 (1) item 1, are identical to the offences for which Mr Storbråten has been prosecuted and convicted.” On the same date the Supreme Court pronounced judgment in a similar case, which also became the subject of an application (no. 11143/04) lodged under the Convention by Mr Per Harald Mjelde against Norway and which is being dealt with simultaneously with the present case. In so far as relevant, section 142 of the Debt Reorganisation and Bankruptcy Act of 8 June 1984 No. 58 (the Bankruptcy Act) read: Section 142 -Conditions for imposing a disqualification order “If a debtor's estate is the subject of bankruptcy proceedings, the district court may impose a disqualification order on the debtor if 1) there are reasonable grounds for suspecting the person concerned of a criminal act [straffbar handling] in connection with the bankruptcy or the activities that led to insolvency, or 2) if it must be presumed that, for reasons of unsound business conduct, the person in question is unfit to establish a new company or to serve as a director or general manager (managing director) of such a company. In taking a decision on this matter, importance shall be attached to whether, having regard to the debtor's conduct and the circumstances as a whole, it appears reasonable to impose a disqualification order. The imposition of a disqualification order means that, for a period of two years from the opening of bankruptcy proceedings, the debtor may not establish such a company as mentioned in the fifth sub-section, or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company. The district court may decide that the two-year period shall start from the date when the court takes its decision. In the cases mentioned in the first sub-section, item 1, the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub-section held in such companies as mentioned in the fifth sub-section. The term company in sub-sections 3 and 4 means a limited liability company, a public limited liability company, a branch office of a foreign company, a business foundation, a housing construction cooperative, a housing co-operative, a company aimed at promoting its members' consumer interests (consumer co-operative), a mutual insurance company or a State company.” For a summary of the legislative history of the provisions on disqualification under Norwegian law, reference is made to paragraphs 21 to 31 of the Supreme Court's judgment quoted under Part A, sub-title 3, above. In the parallel case of Mr Mjelde, in which the Court delivered a decision on the same date as the present decision, the Probate and Bankruptcy Court stated that in the assessment of reasonableness, emphasis should be placed on whether the conditions in both item 1 and item 2 were fulfilled. The Government provided certain additional information, some of which is summarised below. In the individual assessment of reasonableness to be carried out under section 142(2), account was to be had to such factors as the cause of the bankruptcy, the debtor's conduct during the bankruptcy proceedings and the time element. In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order, the court might conclude that it would be unreasonable to impose a disqualification order. In the preparatory works to the Bankruptcy Act 1984, the Ministry of Justice had stressed that the rules would make it possible to put a stop to the activities of persons who were repeatedly involved in limited liability companies which became insolvent, and where there was reason to suspect improper business conduct. It had also been emphasised that disqualification orders should function as a supplement to stripping the offender of his or her rights (rettighetstap), which was a punitive measure imposed under Article 29 of the Penal Code. In this context, the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings, whilst it would normally take longer to investigate and prosecute possible criminal offences. The possibility of swift action was necessary to achieve the preventive purpose of the measure. The duration of the disqualification period – usually two years – could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to strip the person in question of their rights under Article 29 of the Penal Code. The disqualification period could then be extended until the court had decided the criminal case. The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information. If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for the disqualification order, or further investigation showed that no such criminal offence had been committed, the public prosecutor was to request that the disqualification order be lifted (Norsk Retstidende 2002-789, Appeal Committee of the Supreme Court). A disqualification order could be imposed by a court of first instance (tingretten) or by the probate and bankruptcy courts (skifteretten). Such a measure was usually taken on the basis of written proceedings. However, the parties had the right to request an oral hearing. In his or her report to the probate and bankruptcy court, the liquidator was to provide information on whether, in his or her opinion, there were circumstances suggesting that a disqualification order should be imposed. Both the bankrupt's estate (represented by the liquidator) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order. The opposing party would be the debtor, board member or other person against whom the order would apply. It was rare that the prosecution or the bankrupt's estate intervened as a party to the proceedings. The court's decision would, accordingly, normally be taken only on the basis of the information and recommendation in the liquidator's report, and the information and objections provided by the defendant. Under section 143A of the Bankruptcy Act, a failure to comply with a disqualification order was a criminal offence punishable by up to four months' imprisonment and/or fines. | 0 |
train | 001-22009 | ENG | POL | ADMISSIBILITY | 2,001 | FIECEK v. POLAND | 4 | Inadmissible | Georg Ress | The applicant, Mieczysław Fiecek, is a Polish national, born in 1964 and living in Gliwice, Poland. In the proceedings before the Court, the applicant is represented by Mrs K. Wisłocka-Sieprawska, a lawyer practising in Cracow, Poland. The respondent Government are represented by their Agent Mr K. Drzewicki, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 March 1987 the Gliwice District Court (Sąd Rejonowy) sentenced the applicant to five years and six months’ imprisonment. It deducted the period spent by the applicant in detention on remand from his sentence. In consequence, the applicant served that sentence during the following periods: from 23 April 1986 to 6 September 1988; from 2 to 16 November 1988; from 4 February 1993 to 8 October 1993 and from 26 November 1993 to 22 April 1996. On 5 October 1993 the Bielsko-Biała Regional Court (Sąd Wojewódzki) released the applicant on probation for one month. Shortly afterwards, the applicant asked the court to prolong his release for a further, unspecified term. On 24 November 1993 the applicant was arrested by the police on suspicion of having committed robbery. On 26 November 1993 he was brought before the Gliwice District Prosecutor (Prokurator Rejonowy), charged with robbery and detained on remand in view of the reasonable suspicion that he had committed the offence with which he had been charged. On the same day the Bielsko-Biała Regional Court rejected his application for the prolongation of his release, on the ground that he had been remanded in custody on suspicion of having committed a new, serious offence. On 6 December 1993 the Katowice Regional Court, on an appeal by the applicant, upheld the detention order of 26 November 1993 and the reasons therefor. On 13 December 1993 the applicant made an application for release, submitting that his detention lacked any basis because the investigating prosecutor had not admitted evidence proposed by him. That application was dismissed by the Gliwice District Prosecutor on 22 December 1993 and, on appeal, by the Katowice Regional Prosecutor (Prokurator Wojewódzki) on 8 January 1994. The authorities held that there was a reasonable suspicion that the applicant had committed the offence in question and that his detention was necessary in order to ensure the proper conduct of the proceedings. On 20 January 1994 the applicant filed a subsequent application for release. It was dismissed on 9 March 1994 by the Gliwice District Prosecutor and, on appeal, by the Katowice Regional Prosecutor on 30 March 1994. The prosecutors at both instances considered that the grounds originally given for his detention were still valid. On 16 February 1994 the Katowice Regional Court prolonged the applicant’s pre-trial detention until 23 March 1994. On 21 March 1994 the court extended his detention until 23 April 1994. Those decisions, on an appeal by the applicant, were upheld by the Katowice Court of Appeal on 27 April 1994. On 4 March 1994 the applicant complained to the investigating prosecutor that correspondence he received from the European Commission of Human Rights was being opened and censored. On 22 June 1994 the Gliwice District Prosecutor lodged a bill of indictment with the Katowice Regional Court. In the meantime, on an unspecified date, the applicant filed two further applications for release. They were dismissed on 24 October and 14 November 1994 by the Katowice Regional Court and on 30 November 1994 by the Katowice Court of Appeal (Sąd Apelacyjny). The courts held that the serious nature of the offences with which he had been charged justified the continued detention. On a later unknown date, the trial court granted the applicant’s application for an officially-appointed lawyer. On 6 February 1995 the Katowice Regional Court dismissed the applicant’s subsequent application for release. That decision was upheld on appeal on 22 March 1995. The courts reiterated the previous grounds given for the applicant’s detention. On 9 May 1995 the Katowice Regional Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment, a fine and deprivation of his civic rights for four years. In the meantime, on an unspecified date, the applicant again asked the court to release him. The application was dismissed on 27 September 1995 in view of the fact that his detention pending appeal was mandatory under Article 222 of the Code of Criminal Procedure because the first-instance sentence exceeded 3 years’ imprisonment. On 10 October 1995 the Katowice Court of Appeal, on an appeal by the applicant, quashed the first-instance judgment and remitted the case. On 12 February 1996 the applicant’s case was transferred to the Gliwice District Court because, under amendments to the Code of Criminal Procedure, as from 1 January 1996 a district court was competent to deal with such cases. The trial was held on 25 and 26 March 1996. On 27 June 1996 the Gliwice District Court convicted the applicant of robbery and sentenced him to four years and six’ months imprisonment, a fine and deprivation of his civic rights for four years. The court deducted the period of the applicant’s detention on remand from 22 April 1996 and 27 June 1996 from his sentence. The applicant appealed. On 23 July 1996 the applicant asked the Gliwice District Court to quash the order for his detention. The application was dismissed on 31 July 1996. On 3 December 1996 the Katowice Regional Court heard the applicant’s appeal and upheld the first-instance judgment. On 10 December 1996 the applicant lodged a notice of a cassation appeal with the Regional Court. On 12 December 1996 he asked that court to appoint a lawyer for him in order to assist him in cassation proceedings. He submitted that he had no occupation and income, and that he could not bear the costs of his defence. He also stressed that under the relevant provisions of the Code of Criminal Procedure a cassation appeal had to be filed and signed by an advocate. On 2 January 1997 the applicant made yet another application for legal assistance. On 15 January 1997 the court rejected the application, finding that the applicant had not proved that he could not afford legal assistance, namely, that the costs of legal assistance would entail a substantial reduction of his and his family’s standard of living, as defined in Article 69 of the Code of Criminal Procedure. On 23 May 1997 the applicant made a subsequent application for legal assistance. He submitted documentary evidence showing his difficult financial situation. On 25 July 1997 the Regional Court granted the application and, on 6 August 1997, appointed a lawyer for the applicant. On a later unknown date in August or September 1997, the applicant’s officially-appointed lawyer filed a cassation appeal. On 14 January 1999 the Supreme Court (Sąd Najwyższy) heard the appeal and rejected it as obviously lacking any basis. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) (“the Code”) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. Pursuant to Article 210 of the Code (in the version applicable at the material time), the prosecutor was authorised to detain a suspect on remand, provided that such person had previously been charged and heard by that prosecutor. At the relevant time the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention and obtain release: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor during an investigation; and proceedings relating to the detainee’s applications for release. As regards the last of these, Article 214 of the Code provided the following: “An accused may at any time apply to have a preventive measure lifted or varied. Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.” Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might apply to a court and ask to appoint him a defence counsel. Article 71 laid down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provided, in so far as relevant: “An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.” Under Article 75 § 1, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final. However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings. As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. Article 463a § 1 of the Code provided, in so far as relevant: “A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach. No cassation appeal may be directed against the disproportionality of the penalty imposed.” Article 464 of the Code stipulated: “1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal. 2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate. 3. Notice of a cassation appeal must be lodged with the court which has given the [relevant] decision within seven days from the date on which such decision was pronounced. The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.” Under Article 467 § 2, the court which gave the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court. At the relevant time, under Article 89 of the Code on Execution of Criminal Sentences of 19 April 1969 (Kodeks karny wykonawczy), all correspondence of a person detained on remand was censored, unless a prosecutor or a court decided otherwise. No provision of the Code provided for a remedy enabling a detainee to contest the manner or scope of the application of that measure (see, for reference, Niedbała v. Poland, no. 27915/95, § 33, 4 July 2000). | 0 |
train | 001-73266 | ENG | SVN | CHAMBER | 2,006 | CASE OF AVDIC v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1954 and lives in Velenje. 6. On 5 December 1995 the applicant was injured in an accident at work in a mine. The applicant’s employer had taken out insurance with the insurance company ZT. 7. On 3 July 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,177,050 tolars (approximately 38,000 euros) for the injuries sustained. Between 31 July 1997 and 6 September 2000 the applicant lodged six preliminary written submissions and/or adduced evidence. On 31 August 1998 and 3 November 1998 he requested that a date be set for a hearing. Of the three hearings held between 26 March 1999 and 25 September 2000 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 29 November 2000. 8. On 11 December 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 13 December 2000 he amended the appeal. ZT cross-appealed. On 14 March 2002 the court allowed both appeals in part, annulled a part of the first-instance court judgment and remitted the case to the first instance court for re-examination. 9. On 27 June 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). ZT cross-appealed. On 25 March 2004 the court dismissed both appeals. The judgment was served on the applicant on 12 May 2004. 10. On 31 January 2005 the first-instance court held a hearing and decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 3 February 2005. 11. On 4 February 2005 the applicant appealed to the Celje Higher Court against the part of the judgment concerning costs and expenses of the proceedings. On 15 February 2006 the court dismissed the appeal. The decision was served on the applicant on 6 March 2006. | 1 |
train | 001-75126 | ENG | HUN | ADMISSIBILITY | 2,006 | KELLER v. HUNGARY | 2 | Inadmissible | null | The applicant, Mr László Keller, is a Hungarian national, who was born in 1955 and lives in Budaörs. He is represented before the Court by Mr K. Bárd, a lawyer practising in Budapest, and Ms Helen Duffy, Legal Director of the International Centre for the Legal Protection of Human Rights (INTERIGHTS), London. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Member of Parliament and delegate of the Hungarian Socialist Party. The Socialist Party was in opposition between 1998 and 2002. At the material time, the applicant was deputy head of the parliamentary group of his party and member of the Budgetary and Financial Permanent Committee. On 19 December 2000, at a parliamentary session concerning ‘prompt questions and answers’, the applicant addressed a question to the Prime Minister about the existence of any relationship between the incumbent Minister of Agriculture and Regional Development (J.T.) and some foreign extreme right-wing groups. The Prime Minister answered that he was unaware of such a relationship and that he was sceptical about characterising certain groups as extreme right-wing. Being dissatisfied with the answer, the applicant said: “I cannot exclude the possibility that the lack of investigation into the system of connections I was referring to could be affected perhaps by the fact that your Minister’s – your responsible Minister’s – father is a member of the Hungarista movement that I mentioned.” (“Nem tudom azt kizárni, hogy azért, mert nem indult vizsgálat még abban a kapcsolati rendszerben, amire én utaltam, esetleg közrejátszik az, hogy éppen az Ön miniszterének, felelős miniszterének az édesapja annak a hungarista mozgalomnak a tagja, amelyre én utaltam.”) In his reply, the Prime Minister said: “Well, ladies and gentlemen, I am not sure if I have understood everything precisely, if that were the case, may Mr Deputy excuse me, it must be my fault. Although I do not know the family of [J.T.] particularly well, which should perhaps not be a reproach against me, I believe Mr Minister’s father died when Mr Minister was 15. It is therefore quite difficult to establish whether or not he was a Hungarista.” On 20 December 2000 an article under the title The “Hungarists” have been encouraged by foreigners to support [Minister J.T.] was published in the national daily newspaper Magyar Hírlap. In the article it was stated that, “... according to the [applicant], the lack of investigation into a matter of national security could be related to the fact that the father of E.D., the Minister without portfolio supervising the Civilian Secret Services, participated in the Hungarista movement.” The applicant states that E.D.’s father published articles in right-wing Hungarian periodicals affiliated with groups that had personal relations to the Hungarista movement abroad. On 23 December 2000 the applicant gave a detailed interview in the television programme Tények (“Facts”). For the first time, he specified that the “responsible Minister” was indeed E.D. – rather than J.T. – and that the statement quoted above related to him and his father. On 25 January 2001 E.D. and his father brought a civil action against the applicant alleging that the incriminated statement had violated their ‘personality rights’ (személyhez fűződő jogok). E.D. contended that it amounted to accusing him of having abused his administrative authority, conduct potentially susceptible to prosecution. He also asserted that it was capable of influencing, in a negative way, the appraisal of his activity as Minister and that of his personality as a public figure. Therefore, he sought the declaration of a violation of his personality rights, 900,000 Hungarian forints (HUF) in compensation and an injunction obliging the applicant to apologise in public. The Budaörs District Court held hearings on 19 June and 30 October 2001. On the latter date the District Court separated E.D.’s action from that of his father, and found that there had been a violation of E.D.’s personality rights. It held that the applicant had made a statement of fact regarding the absence of an investigation and the underlying reasons, together with a negative appraisal of the Minister’s conduct, both of which could harm the Minister’s reputation. The court referred to the fact that the Minister was a well-known figure in public life, noting that allegations against such a person were bound to come to the public’s knowledge and that therefore his reputation could be seriously affected. It also noted that the statement concerned had undermined the plaintiff’s political credibility and – having special regard to the upcoming 2002 elections – was capable of substantially reducing his reputation in the voters’ eyes. The court found that the burden of proof was on the applicant, in whose interests it was to prove the truth of the alleged facts, namely, the absence of an investigation and the reasons for it. Notwithstanding the court’s reminder to this effect, the applicant did not provide such evidence, since he stated that he ‘was of a different legal opinion’. Relying on sections 78 and 84(1) of the Civil Code, the District Court declared that E.D.’s personality rights had been violated and ordered the applicant to pay HUF 700,000 in compensation for non-pecuniary damage, HUF 42,500 in legal costs and HUF 51,000 in stamp duty. Moreover, the applicant was ordered to have the decision published in the daily newspaper Magyar Hírlap within 15 days, and to make its contents public in the television programme Tények, all at his expense. Finally, the court ordered him to refrain from any further infringement of E.D.’s personality rights. The applicant appealed. He argued, inter alia, that he could not be reproached for having knowingly made untrue statements since the plaintiff himself had declared not to have been under any obligation to initiate the investigation in question. Moreover, the incriminated statement, in so far as it concerned the plaintiff’s father, was in his view not susceptible to proof in the instant proceedings, since that issue had been disjoined and was being dealt with in separate proceedings. After a hearing on 14 February 2002, the Pest County Regional Court partly amended the District Court’s decision on 21 February 2002. It held as follows: “The findings of fact of the first-instance court were correct. Contrary to the defendant’s view, the court was not wrong when it considered the defendant’s liability for the publications in Magyar Hírlap and what had been said in Tények ..., notwithstanding that, either in the article or the television programme, the impugned statements had not been made by the defendant himself. The plaintiff did not base his [claims] on the fact that the defendant had been interviewed in Magyar Hírlap and [Tények] which violated [E.D.’s] reputation, in breach of section 78 of the Civil Code. The [subject matter] of the action was the statement made by the defendant in Parliament, having regard to the fact that it had been published in Magyar Hírlap, and that the defendant had explained in [Tények] that it concerned the plaintiff’s father and that the responsible Minister was the plaintiff. In the Regional Court’s view, the action may not be interpreted narrowly, namely as if it had been aimed at obtaining legal protection only for what had been published in the media. ... The defendant made the impugned statement in Parliament, in his capacity as an MP. He cannot successfully argue that, since he did not agree to its ... publication, he is not liable for the contents of the statement which appeared in the media, because, given the circumstances of the statement and having regard to the obvious role the press plays in informing the general public of the activities of Parliament, he could expect that his statement would appear in the press. The report, broadcast in Tények, as a whole – rather than just what the defendant had said himself – amounted to the reiteration of the impugned statement, since the defendant’s utterance in the programme – ‘When I am speaking of the Office of National Security, I think the Minister responsible for the investigation may be E.D.’ – was aimed at clarifying his reference in Parliament to the ‘responsible Minister’ and identifying the person unambiguously. In these circumstances, the statement ... in Tények was an authentic and more precise reiteration of what the defendant had said in Parliament.” The Regional Court agreed with the District Court in finding that the defendant’s statement was a statement of fact concerning the plaintiff’s work and that such a statement might give rise to a violation of the individual’s personality rights. The court reiterated the Constitutional Court’s jurisprudence, according to which, insofar as views on or criticism of politicians are concerned, freedom of expression is subject to less restriction. However, in the court’s opinion, the sentence in question contained, in an implicit way, a statement of fact, namely, that E.D.’s personal implications might have led to the omission of a national security investigation, that is, the plaintiff substantially breached his official duties for personal reasons. For the court, the applicant’s statement exceeded the freedom of expression guaranteed by the Constitution, which must not be exercised in a manner infringing the personality rights of others, even if the person concerned was a public figure. The court went on to state that, “An examination of the truth of the defendant’s statements about the plaintiff’s father falls outside the scope of the present case – and not only because of the separation of the action brought by the plaintiff’s father. In the instant case the court is called on to examine whether or not the defendant’s statement – namely that it was the personal implication of the plaintiff, the competent Minister, that led to the omission of a national security investigation – is a true statement of fact. The decision on this question is independent of the truth of the defendant’s statement about the plaintiff’s father.” The court concluded that the applicant had failed to prove that E.D. had breached his duties on account of his personal interests. The Regional Court upheld the first-instance court’s decision in its part concerning the award payable by the applicant. It reduced the procedural fees due and exempted the applicant from having to arrange for a rectification to be broadcast on television. “Members of Parliament may ... address an interpellation or a question to the Government, members of the Government and the Attorney General, concerning any subject belonging in their field of competence.” “(3) Members of the Government may participate in, and ask for the floor at, the sessions of Parliament.” “(1) ... members of the Government ... may participate in, and ask for the floor at, the sessions of Parliament.” “(1) Any person, to whom an interpellation or a question may be addressed according to the Constitution, is under a duty to reply thereto in person or exceptionally through his deputy.” “(1) In parliamentary sessions, at least sixty minutes per week shall be secured, at a time designated in the agenda, for asking and answering questions directly (an hour of prompt questions).” “(1) The protection of personality rights shall also include the protection of a good reputation. (2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person – or the presentation, with untrue implications, of a true fact relating to another person – shall constitute defamation.” a) a claim that the court establish that an infringement has taken place; b) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements; c) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and, if necessary, this be made adequately public by, or at the expense of, the perpetrator; d) a claim that the prejudicial situation be terminated, and that the situation prior to the infringement be restored by, or at the expense of, the perpetrator ...; e) a claim for damages under the rules of civil law liability.” “An official person who, with the aim of causing unlawful disadvantages or benefiting from unlawful advantages, breaches his official duty, transgresses his competence or otherwise misuses his official position, commits a felony and shall be punishable with imprisonment of up to three years.” “A statement of fact alone may also qualify as an opinion, since the circumstances of a certain statement themselves may reflect an opinion; in other words, the basic constitutional right to freedom of expression is not restricted to value judgments only.” “...it is a ‘constitutional requirement’ (alkotmányos követelmény) that the deputies’ non-answerability (képviselői felelősségmentesség) covers their utterances of opinions expressing value judgments which concern their fellow deputies, other persons exercising public authority or public political figures, and have been made in the context of discussions of public matters. In proceedings for the suspension of [a deputy’s] immunity, it is also a pre-eminent constitutional requirement that – in cases where a fact capable of harming the reputation of a public political figure was stated or disseminated, or an expression directly referring to such a fact was used [by the deputy] – the deputy’s immunity be suspended exclusively if he knew that the utterance was untrue in essence.” “A political opinion cannot be examined or qualified by a court from the perspective of whether it is correct or wrong. ... A political opinion in itself does not infringe the personality right ... of a public figure in political life even if the person concerned finds it unjust, false and consequently insulting.” “... defamation can be established on the basis of such untrue expressions, adversely affecting the reputation of a person, which contain explicit or implicit statements of fact. ... An expression of opinion, a value judgment concerning the activities of a public figure does not warrant, in itself, the protection of personality rights ... even if it is extreme or exaggerated.” “...the defendant alleged in his speech in Parliament that the plaintiff had committed a criminal offence. This is a statement of an untrue fact which infringed the plaintiff’s reputation. ... ...the defendant cannot be dispensed from the objective and subjective sanctions for the infringement of personality rights by relying on the fact that he made the impugned facts public in Parliament, as a deputy. ... A deputy’s immunity does not cover civil liability, and an infringement cannot be excused by the fact that it has been committed by a deputy acting in that capacity.” According to section 1 of Act no. 56 of 1990 on the Remuneration of Members of Parliament, as amended, the deputies’ remuneration consists of basic (alapdíj) and supplementary (pótdíj) remuneration. In 2002, the basic remuneration was five times the basic salary of civil servants (köztisztviselői illetményalap), which was HUF 33,000 under Act no. 133 of 2000 on the 2001 and 2002 Budget of the Republic of Hungary (section 53). Under section 2 of Act no. 56 of 1990, the deputy head of the parliamentary group of a political party was entitled to a 100% supplement, the member of a permanent parliamentary committee to a 40% supplement, and the member of the Budgetary and Financial Permanent Committee to an additional 40% supplement. According to these rules, the applicant was entitled to a global gross remuneration of HUF 462,000. | 0 |
train | 001-58088 | ENG | ITA | CHAMBER | 1,997 | CASE OF SOLDANI v. ITALY | 4 | Art. 6 inapplicable | C. Russo;N. Valticos;R. Pekkanen | 7. Mrs Maria Teresa Soldani, an assistant psychologist at the coordination bureau of the National Centre for the Prevention of Accidents in Massa Carrara, lives in Marina di Carrara. 8. On 11 February 1983 she applied to the Lazio Regional Administrative Court (“the RAC”) for judicial review of five decisions in which the Treasury had refused to appoint her to a post in a higher category than the one she held, although she had been in second or third place on the reserve lists published each time such posts had fallen vacant. 9. In a judgment of 17 June 1987, the text of which was deposited with the registry on 16 November 1987, the RAC allowed her application. 10. On 7 March 1988 the Treasury appealed to the Consiglio di Stato. In an interlocutory judgment of 26 June 1990 the Consiglio di Stato ordered the Treasury to file certain documents. On 6 October 1990 the applicant filed at the registry of the Consiglio di Stato an application for the case to be set down for an urgent hearing. In a judgment of 30 March 1993, the text of which was deposited with the registry on 12 May 1993, the Consiglio di Stato dismissed the appeal as being ill-founded. 11. On 2 September 1994 the Treasury assigned the applicant to assistant coordinator grade with effect from 28 December 1979. | 0 |
train | 001-59074 | ENG | NLD | CHAMBER | 2,000 | CASE OF ZOON v. THE NETHERLANDS | 1 | No violation of Art. 6-1 and 6-3-b | Georg Ress | 6. The applicant used to work as a general practitioner in Dirksland, the Netherlands. 7. On 9 September 1993 preliminary judicial investigations were initiated into allegations of forgery and fraud perpetrated by the applicant. 8. In the course of these investigations the applicant stated on his own initiative that in March 1993 he had performed euthanasia on, and at the request of, one of his patients. However, he had stated to the municipal coroner (gemeentelijk lijkschouwer) that the patient had died from natural causes. 9. The applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of Rotterdam on the following charges: (1) principally: murder; alternatively: taking another person's life at that person's request; (2) in his capacity of physician, falsifying a death certificate as regards the cause of a person's death; (3) falsifying prescriptions; (4) forging and presenting prescriptions for the acquisition of an opiate. 10. On 30 August 1994 the applicant lodged an objection (bezwaarschrift) against the summons (dagvaarding) with the Regional Court. 11. Following a hearing in camera on 2 December 1994, the Regional Court dismissed the objection. 12. On 27 April 1995 a public hearing took place before the Regional Court, during which the case was considered on the merits. Both the applicant and his defence counsel, two lawyers from the same law firm in Rotterdam, were present. In their pleadings, counsel for the applicant raised the following points: (a) the indictment was invalid (it being argued that certain points were not set out in sufficient detail); (b) the prosecution case was inadmissible (the argument being that the use of far-reaching measures such as a house search and pre-trial detention was excessive and unlawful); (c) the obligation incumbent on physicians to report cases of euthanasia themselves, thus exposing themselves to the risk of criminal punishment, ran counter to Article 6 of the Convention; (d) the evidence had been obtained unlawfully; (e) the prescriptions had only been forged in part, not in their entirety; (f) the applicant had confessed to euthanasia, which precluded a conviction of the more serious crime of murder; (g) there was a defence of force majeure in respect of the charges of euthanasia and forging the death certificate; (h) the applicant had not acted culpably; (i) in the event of a conviction, no sentence should be imposed as the applicant had suffered enough already as a result of the proceedings (which had destroyed his reputation and his practice) and further punishment would serve no legitimate purpose. 13. On 11 May 1995 the Regional Court gave judgment in public and in the presence of the applicant's defence counsel. It is a matter of dispute whether the grounds of the judgment were read out in addition to the operative provisions or only the operative provisions. According to the Government, the President of the Regional Court, in accordance with the usual practice, read out the considerations relating to the validity of the summons, the main considerations underlying the dismissal of the defence plea concerning the admissibility of the prosecution, a summary of considerations relating to the evidence, and considerations as to whether the applicant was criminally liable. The applicant submitted, however, that his lawyers only heard the President state that he was acquitted of the principal charge under (1) and of the charge under (4), that the defence in respect of the alternative charge under (1) was rejected, that the applicant was found guilty of the alternative charge under (1) and the charges under (2) and (3), and that the seriousness of these offences warranted a suspended term of imprisonment of six months and a fine of 50,000 Netherlands guilders (NLG). 14. As to a written copy of the judgment, the Government submitted that they had ascertained that a signed version of the judgment in abridged form (kop-staart vonnis) was available when judgment was pronounced on 11 May 1995 and that it was the policy of the Regional Court of Rotterdam at the relevant time to provide a copy of the judgment in abridged form if this was requested in writing. According to the applicant, however, his lawyers telephoned the Regional Court's registry before the expiry of the period within which an appeal could be filed and were told that no judgment was available. Furthermore, the applicant's lawyers were not aware that the Regional Court had a policy of issuing copies of judgments only upon a request in writing. 15. The applicant did not appeal. The public prosecutor lodged an appeal but withdrew it on 2 June 1995. 16. The judgment in abridged form, a copy of which was submitted by the Government, contains, inter alia, the Regional Court's considerations as to the validity of the summons and as to the admissibility of the prosecution. As regards the latter, the Regional Court rejected the applicant's argument that the prosecution in respect of the charges of murder and euthanasia was inadmissible. It considered that since section 10 of the Act on the Disposal of the Dead (Wet op de Lijkbezorging) had not yet entered into force at the time of the impugned act, there had not existed a legal obligation for the applicant to report the fact that he had committed an offence. 17. The judgment in abridged form further lists those offences of which the Regional Court acquitted the applicant and those of which it found him guilty. In respect of the items of evidence on which the Regional Court based its verdict, the judgment in abridged form only states “P.M.”, for pro memoria, meaning that a detailed enumeration of the items of evidence would be produced at a later date, if necessary. The Regional Court proceeded to deal with, and reject, the applicant's subsidiary pleadings to the effect that if the prosecution was admissible, then the evidence had been obtained unlawfully. Subsequently, the Regional Court examined the criminal liability of the applicant and determined the sentence to be imposed on him, rejecting the applicant's claim that he had acted legitimately in a situation of force majeure. The judgment in abridged form concludes with a sentence stating that the judgment was read out in public on 11 May 1995. 18. According to Article 359 § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”), a judgment must detail the items of evidence on which a conviction is based. However, since – pursuant to Article 345 § 3 CCP – the court has to deliver the judgment within fourteen days following the closure of the trial, it was not unusual at the relevant time that initially a judgment in abridged form would be drafted in cases where the accused was convicted. Such a judgment did not give an account of the items of evidence on which the conviction was based. A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment. In that case the items of evidence were detailed in the judgment and the case file, including the complete judgment, was transmitted to the appellate court. 19. Where a judgment in abridged form was prepared, compliance with Article 365 § 1 CCP, which required that a (full) judgment be signed within forty-eight hours after its delivery by the judges who examined the case, was precluded. However, the judgment in abridged form would be signed in that form and, as soon as this had been done, the accused or his counsel would be able to inspect it, as well as the official records of the hearings, at the registry of the trial court, as was prescribed by Article 365 § 3 CCP for full judgments. 20. It appears that at the relevant time the Regional Court of Rotterdam had a practice of providing the defence with a copy of the judgment in abridged form only if a request was made in writing. 21. According to Article 404 taken in conjunction with Article 408 § 1 (a) CCP, an appeal against a judgment of the regional court had to be lodged with the court of appeal (Gerechtshof) within fourteen days following the day on which the judgment was read out in public. Once lodged, the appeal could be withdrawn by the person who instigated it, at the latest just prior to the start of the hearing on appeal (Article 453 § 1 CCP). 22. The Supreme Court (Hoge Raad) has held that an appeal filed outside the fourteen-day period is inadmissible even if the accused or his counsel have, through no fault of their own, been unable to inspect the judgment of the regional court within the fourteen-day period (judgment of 11 November 1986, Nederlandse Jurisprudentie (NJ) 1987, no. 568). 23. When the court of appeal examines the case, it should have before it a complete version of the judgment of the lower court. If this is not the case, the judgment is null and void and should be quashed (vernietigd) by the court of appeal on formal grounds pursuant to Article 359 §§ 1 and 10 CCP. However, this does not mean that the court of appeal must refer the case back to the regional court: Article 423 § 2 CCP provides that a case should be referred back to a regional court only if the judgment is quashed and the regional court has not decided on the merits of the case. This provision thus embodies the principle of the right to be tried at two levels by courts competent to examine the facts. 24. The proceedings before the court of appeal offer a full new hearing since most of the provisions of the CCP which apply to the proceedings before the lower court also apply on appeal (Article 415 CCP). The accused who has lodged the appeal may at his discretion submit his objections and possible additional objections in writing, both before and during the hearing. He may also submit additional objections orally in the course of the hearing until the formal closure of the appeal court's examination (Articles 416 and 311 §§ 1 and 4 CCP). 25. In a case which led to a judgment of the Supreme Court on 17 September 1990, the accused complained before the court of appeal that the judgment of the first-instance court did not detail the items of evidence. The court of appeal subsequently quashed the judgment because the items of evidence were not detailed but it did not refer the case back to the regional court, since the latter court had already decided on the merits of the case (see paragraph 23 above). In cassation the applicant invoked Article 6 § 3 of the Convention. The Advocate-General (Advocaat-Generaal) at the Supreme Court submitted an advisory opinion (conclusie) to the effect that the fact that the judgment of the first-instance court had not detailed the items of evidence did not prevent the accused from conducting his defence on appeal since, firstly, an accused does not have to defend himself against the judgment by which he was convicted but against the accusation levelled against him by the public prosecution department; and secondly, the court of appeal examines the case independently on the basis of the trial and the summons and not on the basis of the judgment of the first-instance court. The Supreme Court eventually dismissed the appeal and, for its reasoning, referred to the advisory opinion of the Advocate-General (NJ 1991, no. 12). 26. When only the accused has filed an appeal, the court of appeal may impose a sentence heavier than that imposed at first instance if that decision is reached unanimously (Article 424 § 2 CCP). Unanimity is not required if the public prosecutor has also filed an appeal. If it is found that the public prosecutor has filed an appeal with the sole aim of preventing the unanimity requirement in Article 424 § 2 from applying, his appeal may be declared inadmissible (see the judgments of the Supreme Court of 22 June 1982, NJ 1983, no. 73, and 29 March 1983, NJ 1983, no. 482). 27. The practice described in paragraph 18 above was subsequently codified in Articles 138b and 365a CCP, which entered into force on 1 November 1996, after the events complained of. If no appeal is lodged, a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Article 365c §§ 1 and 2 CCP, which also entered into force on 1 November 1996). | 0 |
train | 001-23740 | ENG | ITA | ADMISSIBILITY | 2,004 | RUSSO and OTHERS v. ITALY | 4 | Inadmissible | Peer Lorenzen | The applicants, Mr Alberto Russo, Mrs Carmela Russo, Mr Giancarlo Russo, Mrs Teresa Russo and Mrs Maria Russo are five Italian nationals. They are represented before the Court by Mr G. de Martino, a lawyer and justice of the peace (giudice di pace) practising in Sorrento (Naples). The respondent Government were initrially represented by their Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and then by their co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are the owners of a flat in Sorrento, which they had let to C.S. In a registered letter of 23 June 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date. In a writ served on the tenant on 24 February 1988, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate. By a decision (ordinanza) of 2 March 1988, which was immediately enforceable, the Sorrento Magistrate provisionally ordered that the premises be vacated by 30 June 1989 and adjourned the case to 5 October 1988 in order to examine the objections of the tenant. At the hearing of 5 October 1988, the representative of the applicants requested that a date be set for a hearing so that he could make his submissions. The case was adjourned to 8 March 1989. At the hearing of 8 March 1989, the representatives of the parties both requested that a date should be set for a hearing so that they could make their submissions. The case was adjourned to 24 January 1990. At the hearing of 24 January 1990, the representatives of the parties both asked for time. The case was adjourned to 21 May 1990. At the hearing of 21 May 1990, the representative of the tenant asked for time. The case was adjourned to 5 November 1990. At the hearing of 5 November 1990, the representative of the parties both filed their submissions. The case was adjourned to 7 December 1990. At the hearing of 7 December 1990, the representative of the applicant asked for time. The case was adjourned to 22 February 1991 when the Sorrento Magistrate considered the case to be ready for a decision. By a decision of 30 May 1991, which was made enforceable on 12 December 1995, the Sorrento Magistrate upheld the validity of the notice to quit, declared that the decision (ordinanza) of 2 March 1988 was absorbed and ordered that the premises be vacated 12 months after the publication of the decision. On 6 July 1992, the tenant appealed against this decision to the Torre Annunziata Tribunal. By decision of 6 June 1995, filed with the registry on 12 June 1995, the Torre Annunziata Tribunal declared that it was not competent to examine the matter, following which the tenant resumed the proceedings before the Naples Tribunal. On 13 December 1995, on the basis of the order for possession issued by the Sorrento Magistrate on 2 March 1988, the applicants served notice on the tenant requiring her to vacate the premises. On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 27 February 1996. On 5 February 1996, the tenant opposed the notice of 13 February 1995 before the magistrates’ court of Torre Annunziata on the ground that the decision of the Sorrento Magistrate of 30 May 1991 was not yet enforceable as the appeal against it was still pending. On 31 May 1996, on the basis of the decision issued by the Sorrento Magistrate on 30 May 1991, the bailiff made an attempt to recover possession of the flat which proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. By a decision of 28 April 1997, filed with the registry on 2 May 1997, the Torre Annunziata Magistrate annulled the notice on the ground that the decision of the Sorrento Magistrate was not yet enforceable, since the proceedings were still pending on appeal. Between 21 May 1997 and 30 April 1998, on the basis of the decision issued by the Sorrento Magistrate on 31 May 1991, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. By a decision of 16 February 2000, filed with the registry on 18 February 2000, the Naples Tribunal rejected the appeal of the tenant and confirmed the decision of the Sorrento Magistrate of 30 May 1991. On 28 July 2000, on the basis of the decision issued by the Naples Tribunal on 16 February 2000, the applicants served notice on the tenant requiring her to vacate the premises. On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 19 September 2000. On 15 September 2000, pursuant to section 6 of Law No. 431/98, the tenant asked the Torre Annunziata Tribunal to set a new date for the enforcement of the order for possession. The date was set for 25 January 2001. On 19 September 2000, the bailiff made one attempt to recovered possession of the flat which proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession. On 26 January 2001, the applicants recovered possession of the flat. | 0 |
train | 001-93143 | ENG | HRV | ADMISSIBILITY | 2,009 | MODRIC v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mrs Mara Modrić, is a Croatian national who was born in 1962 and lives in Split. She was represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 June 2003, at around 1 p.m., the applicant went to dispose of rubbish in bins placed in an open parking area in front of the apartment building where she lived in Split when suddenly her neighbour, a certain B.L., approached her, slapped her in the face and allegedly began to strangle her while threatening to kill her. The applicant managed to escape and ran home. Once inside her flat, she telephoned the police and reported the incident. About half an hour later two police officers arrived at the applicant’s flat and interviewed her. It appears that they also interviewed B.L. The police officers instructed the applicant to see a doctor, which she did the same day. The police lodged a complaint against B.L. with the Split Minor Offences Court (Prekršajni sud u Splitu) and proceedings were instituted against B.L. before that court. The applicant was not informed of these proceedings, nor called as a witness. On 29 October 2003 the said court issued a minor offences order against B.L., under section 162 of the Minor Offences Act. It found that B.L. had committed a breach of the peace by attacking the applicant verbally and physically on 10 June 2003, an offence under section 14 of the Public Order (Minor Offences) Act, and sentenced him to pay a fine in the amount of 378 Croatian kunas (HRK) and the costs of the proceedings in the amount of HRK 120. The relevant part of this order reads: “Defendant B.L ... is guilty because on 10 June 2003 at 11,45 a.m. in Split, ... in the parking area in front of a building, he committed a breach of the peace by verbally and then physically attacking Mara Modrić and pushing her and hitting her in the face and neck, after which he went away, He committed a breach of the peace by shouting, uttering insults and fighting and thus committed a minor offence under section 13 of the Public Order (Minor Offences) Act ... “ The applicant was not informed of this decision. On 23 October 2003 the applicant lodged a criminal complaint against B.L. with the Split State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) alleging that on 10 June 2003 B.L. had approached her in a car park in front of the apartment building where she lived, had slapped her and begun to strangle her while threatening to kill her. The applicant enclosed the police report and medical documentation of 10 June 2003 showing that she had visible finger marks on her throat and pain in that area, especially if touched or when swallowing. In a letter of 9 February 2004 the Split State Attorney’s Office informed the applicant that it had decided not to open an official investigation. It informed her that she nevertheless had the right to seek a decision in writing declaring her criminal complaint inadmissible. The applicant sought a decision in writing. Her request was complied with and the applicant’s criminal complaint was declared inadmissible on the grounds that she had failed to comply with the three-month time limit under Article 47 § 1 of the Code of Criminal Procedure since she had lodged her criminal complaint on 23 October 2003 although she had learnt about the incident in question more than three months earlier, namely, on 10 June 2003. The applicant then lodged a request for an investigation with a Split County Court investigating judge. She qualified the acts of violence at issue as criminal offences under Articles 98 (inflicting bodily injury), 129 (making threats), 199(1) (verbal insult), 329(1) (vigilantism) and 331 (violent behaviour) of the Criminal Code. On 14 December 2004 a three-judge panel of the Split County Court dismissed the request. The relevant part of that decision reads as follows: “After the Split State Attorney’s Office had declared the applicant’s criminal complaint against B.L. inadmissible in respect of the criminal offence under Article 331(1) of the Criminal Code, the injured party, Mara Modrić, acting as subsidiary prosecutor, took the place of the prosecutor by lodging a request for an investigation ... The investigating judge did not consent to the [applicant’s] request. As regards the criminal offence of violent behaviour, he stated that B.L.’s actions did not constitute the elements of that criminal offence. The prosecution in respect of all the other charges had become time-barred since the injured party had filed her criminal complaint outside the statutory time-limit. The request of the injured party, acting as subsidiary prosecutor, is unfounded. The investigating judge is right in his statement that B.L’s actions did not satisfy the elements of the criminal offence of violent behaviour. The information in the case file shows that B.L. attacked the applicant because he was irritated with her attitude towards his child. Since the crucial element of the offence of violent behaviour is an unmotivated attack, and [the attack of B.L. against the applicant] was obviously motivated, there was no ground for granting the injured party’s request in respect of the criminal offence of violent behaviour. The other charges against B.L., which are to be the subject of a private prosecution, have become time-barred in view of the fact that the offence was committed on 10 June 2003 and the injured party lodged her criminal complaint on 23 October 2003, that is to say, after the expiry of the three-month time-limit from the day on which she learnt of the offence and of the identity of the perpetrator. The time-limit for making an application for prosecution under Article 47(1) of the Code of Criminal Procedure is three months from the date on which the applicant learnt of the criminal offence and the identity of the perpetrator. The injured party failed to comply with that time-limit, however. Therefore, her request for an investigation against B.L for the criminal offences under Articles 98, 199(1), 329(1) and 129(1) of the Criminal Code is unfounded. ...” An appeal by the applicant on 24 December 2004 was declared inadmissible by the Split County Court investigating judge on 18 January 2005 as not provided for under domestic law. An appeal by the applicant against the latter decision was dismissed by a three-judge panel of the Split County Court on 3 February 2005. On 17 March 2005 the applicant lodged a further appeal, which was declared inadmissible in a decision of the Split County Court investigating judge as not provided for under domestic law. An appeal by the applicant against that decision was dismissed by a three-judge panel of the Split County Court on 26 April 2005. The applicant then lodged a constitutional complaint against the decision of the Split County Court of 26 April 2005. On 24 November 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) declared it inadmissible, relying on section 62 of the Constitutional Court Act, on the ground that it did not concern the merits of the case but was lodged against a procedural decision of the Split County Court of 26 April 2005 and concerned the applicant’s appeals which were inadmissible under domestic law. The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. (2) The law may exceptionally make provision for criminal proceedings in respect of certain criminal offences to be instituted upon a private prosecution or for the State Attorney’s Office to institute criminal proceedings upon [a private] application.” “Whosoever inflicts bodily injury on another person or impairs another person’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.” “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of a private prosecution.” “(1) Whosoever threatens another person with harm in order to intimidate or frighten that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Whosoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” “Whosoever places another person in a degrading position for such purposes as violent abuse, ill-treatment or particularly insolent behaviour in public shall be sentenced to imprisonment for a term of three months to three years.” 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 the criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall bring 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 on which to institute or conduct criminal proceedings, the injured party, acting as subsidiary prosecutor, may take his place under the conditions prescribed by this Act.” Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party, as acting subsidiary prosecutor (oštećeni kao tužitelj), takes over criminal proceedings in respect of criminal offences normally prosecuted by the State where the relevant prosecuting authorities have decided – for whatever reason – not to prosecute. “(1) ... an application for prosecution or a request to prosecute shall be brought within three months from the date on which [the person concerned] learnt of the criminal offence and the identity of the perpetrator. ...” “(1) A request to prosecute shall be lodged with the competent State Attorney’s Office and a private prosecution with the competent court. (2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute. (3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted by means of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...” Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party’s right to take over the proceedings, and to inform that party of the steps to be taken. “(1) Citizens shall report criminal offences subject to public prosecution. ...” “(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally. ...” “Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution, the competent State Attorney shall declare it inadmissible in a reasoned decision ...” Article 205, paragraph 1, allows a private prosecutor and the injured party, acting as subsidiary prosecutor, to lodge a request for prosecution and other submissions with an investigating judge of a competent court. “(1) Subject to any contrary provision in this Code, parties to the proceedings and any other person whose rights have been infringed may lodge an appeal against decisions of an investigating judge and other decisions adopted by the first-instance court. (2) Subject to any contrary provision in this Code, an appeal is not allowed against a decision of a panel adopted before or during the investigation. ... (4) An appeal is never allowed against decisions of the Supreme Court.” | 0 |
train | 001-61928 | ENG | RUS | CHAMBER | 2,004 | CASE OF NIKITIN v. RUSSIA | 1 | No violation of P7-4;No violation of Art. 6-1 | null | 7. The applicant was born in 1952 and lives in St Petersburg. 8. In February 1995 the applicant, a former naval officer, joined an environmental project conducted by Bellona, a Norwegian non-governmental organisation, to work on a report entitled “The Russian Northern Fleet – Sources of Radioactive Contamination” (“the report”). 9. On 5 October 1995 Bellona’s Murmansk office was searched by the Federal Security Service (ФСБ РФ – “the FSB”). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, since the draft report allegedly contained information, classified as officially secret, concerning accidents on Russian nuclear submarines. 10. On 20 October 1998 the applicant’s trial on a charge of treason through espionage and a charge of aggravated disclosure of an official secret began before St Petersburg City Court. After four days of hearings, the case was remitted for further investigation on 29 October 1998. The court considered that the indictment was vague, which impaired the applicant’s defence and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such, and that it did not contain a “proper and complete” expert evaluation of possible public sources of the information in question or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public sources and to take other steps to complete the investigation. 11. On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for determination by a court and that there was no need for further investigation. 12. On 4 February 1999 the order for further investigation was upheld by the Supreme Court of the Russian Federation (“the Supreme Court”). 13. On 23 November 1999 the St Petersburg City Court resumed the applicant’s trial on the same charges. 14. On 29 December 1999 the St Petersburg City Court acquitted the applicant on all the charges, having found that the applicant had been prosecuted on the basis of secret and retroactive decrees. 15. The prosecution appealed. 16. On 17 April 2000 the Supreme Court upheld the acquittal. The court found that the charges were based on secret and retroactive decrees which were incompatible with the Constitution. The acquittal thus became final. 17. On 30 May 2000 the Procurator General filed a request with the Presidium of the Supreme Court to review the case in supervisory proceedings (протест на приговор, вступивший в законную силу). He challenged the judgment on the grounds of wrongful application of the law governing official secrets, the vagueness of the indictment – which had led to procedural prejudice against the applicant – and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed information had originated from public sources. He called for a reassessment of the applicable law and of the facts and evidence in the case file, and for the case’s remittal for fresh investigation. 18. On 13 September 2000 the Presidium of the Supreme Court dismissed the Procurator General’s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and shortcomings, it found that the prosecution could not rely on them in calling for a remittal, as it had been entirely within the prosecution’s control to redress them at an earlier stage in the proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as those relied on in the request to quash the acquittal. It observed that on 29 October 1998 the court had expressly instructed the investigating authority, inter alia, to conduct a study of information in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources. 19. On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant’s challenge to the laws which allowed supervisory review of a final acquittal. 20. In its ruling of the same date, the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings. 21. The Constitutional Court’s judgment stated, inter alia: “... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. It follows ... that, subject to the above requirements, the national legislation may provide for a system by which a case may be reopened and a final judgment be quashed, and may specify where, depending on the case, a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply. Any exemption from the general prohibition on resuming proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances, where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and those of the victims of crime. In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case, an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms. 3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review, given that the judgment concerned is already binding and determinative of the individual’s guilt and sentence. However, the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960] go beyond these limits. When establishing a procedure for the review of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In failing to do so, [the legislature] misapplied the criteria which derive from [the Constitution] and Article 4 of Protocol No. 7 to the Convention for the quashing of final judgments in criminal cases ... Furthermore, [the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court’s jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative. It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of its being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ...” 22. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР) in force at the material time allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90). However, similar rules apply to both procedures (Article 388). 23. Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the time-limit for appeal has expired. “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not taken effect) on appeal] ...” “The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” “Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances. The grounds for reopening a criminal case are as follows: (i) with regard to a judgment which has become effective, the establishment of false witness testimony or false expert opinion; forgery of evidence, investigation records, court records or other documents; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment; (ii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by judges when examining the case; (iii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution; (iv) other circumstances, unknown to the court at the time when the case was examined, which, alone or combined with other previously established facts, prove a convicted person’s innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated.” 24. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review. 25. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the date on which the acquittal took effect. 26. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review. 27. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments. 28. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination. 29. On 1 July 2002 a new Code of Criminal Procedure came into force. Under Article 405, the application of supervisory review is limited to those cases where it does not involve changes that would be detrimental to the convicted person. Acquittals and decisions to discontinue the proceedings may not be the subject of a supervisory review. 30. On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re-examine the case, including the reopening of proceedings, in instances where the Court had found a violation of the Convention. | 0 |
train | 001-98353 | ENG | TUR | CHAMBER | 2,010 | CASE OF BEKTAŞ AND ÖZALP v. TURKEY | 3 | Violations of Art. 2 (substantive aspect);Pecuniary and non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The first applicant was born in 1968 and lives in Adana. The second applicant was born in 1966 and lives in Hatay. The first applicant is the wife of Mr Murat Bektaş and the second applicant is the sister of Mr Erdinç Arslan. Mr Bektaş and Mr Arslan were killed by police officers on 5 October 1999. 6. On 5 October 1999 at around 9.30 p.m. six police officers from the antiterrorist and special forces of Adana police headquarters raided a block of flats where Murat Bektaş, aged 32, and Erdinç Arslan, aged 22, had been living. The following day at 4.00 a.m. a police report (olay-yakalama-ev arama-zapt etme-görgü tespit tutanağı) was drawn up and signed by thirtysix police officers. 7. According to this report, at 9.00 p.m. on 5 October 1999 Adana police headquarters received an anonymous telephone call. The caller stated that several persons had been acting suspiciously and carrying bags and suitcases into one of the flats on the third floor of a building. 8. A total of thirty-six police officers arrived outside the block of flats at around 9.30 p.m. and secured the surrounding area. Seven officers went up to the landing on the third floor, where there were three doors. There was no lighting in the building and it was dark. As the police officers did not know which flat to enter, they decided to raid all of them at the same time. Immediately thereafter, shots were fired from one of the flats but the police officers were unable to determine from which of the three flats the shots were coming. 9. At that moment one of the doors was opened by a man carrying a gun who, upon seeing the police officers, closed the door immediately and locked it. The officers told this person that they were police officers and ordered him to surrender. As he did not reply, the police officers broke the door and, without entering the flat which was also in the dark, started firing towards the ceiling and the upper parts of the walls. 10. At around that time the police officers realised that the gunfire had in fact been coming from the flat on the opposite side of the landing and ordered the persons in that flat to surrender. However, the occupants chanted slogans and continued shooting. The officers then broke down their door, entered the flat – which was also in the dark – and returned fire. The occupants of the flat then retreated to a room and the police officers intensified their fire towards that room. When the officers realised that no more gunfire was coming from the occupants of the room they stopped firing. In this room the police officers captured a certain Mr Mustafa Köprü alive, and found Mr Erdinç Arslan's body. Upon discovering that there were explosives in the flat the police officers left the building for their own safety and notified bomb disposal experts, who subsequently arrived and defused the explosives. 11. Meanwhile, a number of other officers entered the first flat and found the second applicant and her three-year-old son as well as the body of Murat Bektaş. 12. The same evening the Istanbul prosecutor arrived at the scene of the incident. In his presence the police officers searched Erdinç Arslan's flat and found a Kalashnikov machine gun numbered SG29101, a Unique firearm, empty cartridges and bullets. The police officers found a Star firearm numbered 1898622 in Murat Bektaş's flat. They also recovered empty Kalashnikov cartridges and bullets by the entrance to Mr Bektaş's flat. 13. On 6 October 1999 at 12.30 a.m. the Adana prosecutor drew up a report from which it appears that he arrived at the scene of the incident after having received a telephone call from the security forces. The prosecutor first conducted an inspection in Erdinç Arslan's flat and observed the presence of a Kalashnikov machine gun, another firearm, several cartridges, bullets, empty cartridges, explosives and materials for making explosives. In Murat Bektaş's flat the prosecutor noted the presence of the Star firearm and the empty Kalashnikov cartridges and bullets. The prosecutor further observed and recorded in his report the existence of numerous bullet marks on the walls and ceilings in both flats. The prosecutor stated in the report that a doctor from the Forensic Medicine Institute had examined the corpses and had observed that there were bullet entry wounds to Erdinç Arslan's head, abdomen and lumbar regions. As regards Murat Bektaş, the doctor had noted bullet entry wounds on his head and hands. The doctor had concluded that classic autopsies were required in order to establish the cause of death. The corpses were then sent to the morgue of the Forensic Medicine Institute. 14. The same day autopsies were carried out on the bodies of the two deceased men. It appears from the autopsy reports that Murat Bektaş was shot in the head and hands. A bullet entry wound was observed on his left temple. Another bullet entry wound was observed on the back of his right hand. The third bullet had entered his left hand through the third finger. Bullet exit wounds were observed in the occipital region, on the right palm and on the left wrist. The experts were unable to determine the number of bullets which Murat Bektaş had received to his head. They maintained that all the shots had been fired at long range. Murat Bektaş's death was stated to have been caused by a fractured skull, laceration of the brain and a cerebral haemorrhage as a result of firearms injuries. 15. The report concerning Erdinç Arslan revealed that he had been shot in the head and chest. Two bullet entry wounds were observed in the left orbital region. One bullet entry wound was found on the left side of the chest. The bullet exit wounds were found on the left parietal region and the right side of the lumbar region. The forensic experts concluded that the bullets to Erdinç Arslan's head had been fired at long range, but they were unable to determine the distance because the deceased's clothing had been covering his body. 16. Also on 6 October 1999 a police chief informed the Adana prosecutor that the fingerprints taken from “the two dead terrorists” did not match any fingerprints in their archives. 17. On 7 October 1999 Mustafa Köprü, who survived the shooting, made a statement before the Adana prosecutor regarding the incident. He maintained, inter alia, that he and Erdinç Arslan had rented the flat ten days before the incident and had been manufacturing explosives there. On the day of the incident, when he had heard footsteps on the roof, he had approached the entrance to the flat and opened fire on the police officers who were outside the flat. The police officers had then returned fire and shot Erdinç Arslan but he had not seen Erdinç Arslan firing the Kalashnikov machine rifle. 18. On 8 October 1999 the prosecutor questioned the first applicant, who maintained, inter alia, that her husband had not had a firearm and that he had actually been on the telephone when the police officers had suddenly stormed their flat without any prior warning, opened fire and shot her husband. She had then hidden in the flat with her son. After her husband had been hit, the officers had continued firing into the flat. The officers had not informed them that they were police officers. The first applicant also gave a description of the officer who shot her husband. She stated that she had heard the officers unsuccessfully ordering the occupants of the other flat to surrender. She maintained that the shooting had continued for a while and, when it stopped, two uniformed men had entered her flat and taken her and her son outside. Before she left the flat she had looked at her husband's body and she had not seen any weapons next to him. She requested that the persons responsible for killing her husband be punished. 19. On 12 October 1999 the prosecutor questioned the police officers who had participated in the operation. The officers stated, inter alia, that they had been surprised on their arrival on the third floor by the fact that there were three doors, one of which turned out to be the door to a storeroom. While they were reflecting on how to proceed, shooting had come from one of the flats. As they could not establish from which direction the gunfire was coming, they had decided to raid all the flats. At that moment a man with a pistol in his hand had briefly emerged from one of the doors and then gone back inside. The officers had then broken the door to that flat (occupied by Murat Bektaş) and fired their weapons at random in order to warn the occupants. They had then realised that the gunfire had actually come from the flat on the other side of the landing (Erdinç Arslan's flat) and had called for assistance from the Special Forces. 20. Officers Nurettin Bülbül, Eyüp Yalçınkaya and Haydar Erol from the anti-terrorist branch stated that, together with the officers from the special forces, officer Bülbül and officer Yalçınkaya had broken the door to Mr Arslan's flat and opened fire. The occupants of the flat who had been firing at them had then retreated to a room and continued to fire from there. According to officer Bülbül, the armed clash had continued for approximately ten minutes, whereas officer Yalçınkaya was of the opinion that it had lasted for five minutes. After the operation, officers Bülbül and Yalçınkaya had seen a Kalashnikov rifle, a pistol, a cartridge and explosives in the room. Officer Yalçınkaya added that he had used a Kalashnikov rifle in the operation. 21. Officers Fevzi Mustan and Muammer Topaç from the special forces told the prosecutor that when they and their team arrived outside the building they had heard gunfire and had gone up to the third floor where they had met with officers from the anti-terrorist branch. No fire had been opened from Mr Arslan's flat before they stormed the flat. After having entered the flat they had asked the occupants of the flat to surrender but one shot had been fired in response from one of the rooms, followed by an object which had been thrown towards them from the same room and which they had considered at the time to be a bomb. They and another colleague from the anti-terrorist branch had then opened fire towards the room; they had used M16 rifles and the remaining officer had used a Kalashnikov rifle. Officer Mustan stated that he was sure that only a total of three officers – including himself – had opened fire. The firing had continued for approximately five to six seconds. After the firing had ceased, they had seen a pistol in the room but no bombs or any other rifles. 22. On 13 October 1999 Adana Magistrates' Court questioned the police officers. Officers Mustan and Topaç stated that on their arrival on the third floor landing gunfire had been coming from inside Mr Erdinç's flat. The Magistrates' Court rejected the prosecutor's request to order the pre-trial detention of six of the police officers, namely Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya, Ali Erdurucan, Fevzi Mustan and Muammer Topaç. The following day the prosecutor successfully lodged an objection against the Magistrates' Court's decision. 23. On 18 October 1999 the first applicant identified police officer Ali Erdurucan as the person who had shot her husband Murat Bektaş. 24. The same day the six police officers being held in pre-trial detention lodged an objection against their detention. The following day the Adana Assize Court ordered the release of five of them and rejected the objection lodged by Officer Ali Erdurucan. 25. On 21 October 1999 the prosecutor heard evidence from the second applicant, who contended that on the day of the incident at around 9.35 pm. her brother Erdinç Arslan had telephoned her. She had heard him shouting “Let me go! Leave me!”. She maintained that she had heard noises on the telephone but not gunfire. 26. On 25 October 1999 the Adana prosecutor filed a bill of indictment with the Adana Assize Court. In the indictment the prosecutor stated that, prior to the operation, the security forces had failed to conduct an investigation or gather information about the suspected persons and had thus failed to plan the operation in a proper manner. The prosecutor noted that officers Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan had broken down the door to Murat Bektaş's flat and entered there without issuing a warning. The prosecutor considered that, although the officers alleged that they had not directly aimed at Murat Bektaş, the wounds to Murat Bektaş's head could not have been the result of random firing. As for the firearm found next to Mr Bektaş's body, the prosecutor stated that his office had been unable to determine how the firearm had come to be there; no cartridges or bullets belonging to that firearm had been found at the scene of the incident. 27. With regard to the killing of Erdinç Arslan, the prosecutor observed in his indictment that the wound to Mr Arslan's head could not have been the result of warning shots. Noting that the deceased had only fired once, the prosecutor considered that officers Nurettin Bülbül, Fevzi Mustan and Muammer Topaç had exceeded the limits of self-defence by killing him. 28. The prosecutor charged Ali Erdurucan, Haydar Erol and Eyüp Yalçınkaya with the offence of murder. Nurettin Bülbül was charged with murder and with exceeding the limits of legitimate self-defence. Finally, Fevzi Mustan and Muammer Topaç were charged with the offence of causing death by exceeding the limits of legitimate self-defence. 29. On 12 December 1999 the Adana Assize Court (hereinafter “the trial court”) held the first hearing on the merits of the case. On the same day the applicants and the deceased men's other relatives joined the proceedings as interveners. 30. On 2 February 2000 the representative for the interveners requested the trial court to order an investigation into the accused police officers' superiors who had planned and controlled the operation. The trial court dismissed this request, holding that the intervening parties should apply to the prosecutor's office. 31. On 28 March 2000 the trial court had regard to the time spent by Officer Ali Erdurucan in detention and also noted that the collection of the evidence was almost complete. Noting that Mr Erdurucan had a permanent residence, the trial court ordered his release from prison. 32. During the subsequent hearings the trial court heard evidence from the defendants, the applicants, the intervening parties, the police officers who participated in the operation, the deceased persons' neighbours and Mustafa Köprü. Mr Köprü changed his previous statement and maintained that Erdinç Arslan had in fact fired the Kalashnikov. The trial court also conducted an on-site inspection of the two flats and ordered experts to take photographs of the scene of the incident and to draw up a sketch map. 33. During the on-site inspection on 19 February 2001, the trial court ordered an expert to draw up a report in order to determine whether the shots had been fired at random and to establish the accuracy of the police officers' account that they had not been able to establish the source of the firing at the beginning of the operation. 34. On 16 March 2001 the expert submitted his report to the trial court. He concluded that the police officers had fired their guns at random. The expert also considered that it was probable that the police officers had failed to determine the direction of the shots fired from the Kalashnikov because shots from such a powerful weapon would have caused an echo in the building. 35. On 9 May 2001 the trial court rendered its judgment. It held that there was no evidence in the case file to prove that there had been a premeditated plan to kill the two persons or that the firearms found at the scene of the incident had been planted there by the police officers who had participated in the operation. 36. With regard to the killing of Murat Bektaş, the trial court rejected the first applicant's allegation that the lights had been on in the flat at the time of the incident and that her husband had not had a firearm. The trial court considered it probable that Murat Bektaş had had a firearm in his hand as there were armed men in the building. The trial court further noted that the police officers had planned to render Mr Bektaş harmless in order to be able to arrest him. It also observed that Murat Bektaş had not fired his gun. 37. The trial court observed that the police officers had fired a total of eighteen bullets and that Mr Bektaş had been shot in the head, whereas the police officers should have aimed at other parts of his body, such as his legs and feet, in order to avoid the risk to his life. The trial court concluded that Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan had exceeded the limits of their powers in resorting to force and had thus caused Murat Bektaş's death. However, the trial court could not determine which officer had actually killed Murat Bektaş and it thus reduced the four police officers' sentences to eight years, before further reducing them to six months and then suspending them altogether. 38. As to the killing of Erdinç Arslan, the trial court noted at the outset that the security forces had received information that the deceased and Mustafa Köprü had been making explosives in their flat with a view to carrying out bomb attacks on the provincial offices of the three political parties which formed the coalition Government at the time. The trial court observed that, according to the expert report of 7 October 1999, Erdinç Arslan and Mustafa Köprü's hand swabs revealed traces of antimony. It further noted that an exchange of gunfire had begun between the police officers who had secured the area outside the building and Erdinç Arslan and Mustafa Köprü, who had been in the flat. It recorded that twelve bullets had been fired from the Kalashnikov and nine from the Unique firearm; both these weapons had been found in Mr Arslan's flat. The court noted that a bullet had been fired from the room in the direction of the police officers who had been on the other side of the door. 39. The trial court considered that the police officers, who had been facing two persons armed with weapons and bombs in a confined place, could not have been expected to fire at non-life-threatening parts of Mr Arslan's body. It therefore held that Nurettin Bülbül, Fevzi Mustan and Muammer Topaç had remained within the limits of legitimate self-defence. It concluded that there were no grounds for imposing any punishment on those officers for the killing of Erdinç Arslan. 40 41. On 29 May 2002 the Court of Cassation upheld the judgment of the Adana Assize Court. On 31 July 2002 the Court of Cassation's decision was deposited with the registry of the Adana Assize Court. 42. The relevant domestic law and practice are set out in the judgment of Kasa v. Turkey (no. 45902/99, §§ 57-62, 20 May 2008). | 1 |
train | 001-59359 | ENG | GRC | CHAMBER | 2,001 | CASE OF HARALAMBIDIS AND OTHERS v. GREECE | 3 | Preliminary objection allowed (six months period) | András Baka | 8. The first applicant used to be president of the board of directors and managing director of the first applicant company and manager of the second applicant company. The first applicant company, the full title of which is Yeoryios Haralambidis - Liberpa, Greek Corporation of International Transports and General Enterprises S.A. (ανώνυμος εταιρία), was incorporated under Greek law. It was set up in 1973. The second applicant company, the full title of which is Liberpa International Road Transports Ltd (εταιρία περιορισμένης ευθύνης), was also incorporated under Greek law. It was set up in 1974. 9. Between June 1980 and March 1981 the second applicant company transported cloth from outside the European Community into Greece and then to Italy. A few months later the customs authorities, suspecting that criminal offences had been committed in the course of this activity, asked for and were granted leave from the local public prosecutor to start a preliminary inquiry. 10. On 31 August 1982 and 8 August 1983 criminal proceedings were instituted against the first applicant and others for contraband, forgery and fraud against the State. The first applicant was in essence charged with bringing the cloth into Greece as goods in transit for Jordan and then changing its origin by using forged documents in order “to export” it to Italy as Greek and avoid paying customs duties. The first applicant company appeared as the Greek “exporter” of the cloth. 11. On 15 June 1984 and 22 June 1984 the customs authorities of Piraeus, considering that the first applicant in his capacity as representative of the two applicant companies had committed the customs offence of contraband, decided to impose on him fines of a total amount of 59,099,404 drachmas. Fines of a total amount of 11,738,867 drachmas were also imposed on Mr K, an employee of the second applicant company and Mr Tz, a customs broker. The customs authorities also decided that customs duties of a total amount of 21,208,456 drachmas were due for the importation of the cloth in Greece. The first applicant as representative of the two applicant companies was to be jointly and severally liable for the payment of the fines imposed on Messrs K and Tz and of the customs duties (decisions Nos. 3/83/15.6.84 and 1-5/22.6.84). The duties and fines in question were to be recovered in accordance with the Code for the Collection of Public Revenues. 12. The first applicant and the two applicant companies immediately lodged appeals (προσφυγές) in the Administrative Court (Διοικητικό Πρωτοδικείο) of Pireaus. The court requested the competent administrative authorities to compile a case-file, which they did on 15 July 1985. 13. The applicants then tried unsuccessfully to obtain various documents concerning the transport of the cloth in question from the customs authorities. 14. On 17 May 1985 the first applicant addressed himself to the investigating judge of Piraeus asking for his assistance in this matter. The investigating judge asked the customs authorities of Pireaus to provide the documents in question. On 20 May 1985 the authorities replied that some could not be found (VOLET 2 of TIR 0413929) while others did not concern the applicants (application for a reloading permit No 973). However, the applicants had already received a letter dated 15 May 1985 from the customs authorities of Evzones to the effect that the Evzones authorities had sent to the Piraeus authorities some of the documents that the Piraeus authorities could not find. 15. In the meantime the indictments chamber of the first instance criminal court (Συμβούλιο Πλημμελειοδικών) of Piraeus decided that the first applicant should be tried by the three-member Court of Appeal (Τριμελές Εφετείο) of Piraeus, sitting as a first instance court, for forgery and fraud and by the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Piraeus for contraband. Mr K and two others were indicted as well. The applicant and his co-accused appealed. 16. On 25 October 1985 the indictments chamber of the Court of Appeal (Συμβούλιο Εφετών) of Piraeus decided that the applicant and the others could not be tried for contraband because the cloth in question had technically never been imported into or exported from Greece. Greece had never been its destination, it had been brought into Greece in transit and had eventually left Greece for Italy. As a result, no customs duties were due to the Greek authorities and the crime of contraband could not have been committed. Nevertheless, the chamber decided that the applicant and his coaccused should be tried for forgery and fraud. 17. The trial commenced on 7 October 1987. The applicant testified, inter alia, that “he had gone to the customs office in Prato, Italy to ask for the documents but was told that he lacked locus standi and the matter was internal”. On 8 October 1987 the three-member Court of Appeal decided to adjourn the trial in order to obtain expert evidence on the question of forgery. 18. In November 1987 there was a fire on the premises of the first instance Administrative Court of Pireaus, which, as a result, had to be relocated. 19. The applicants' appeals against the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus imposing customs duties and fines were heard on 20 June 1988, 21 November 1988 and 12 April 1989. 20. On 12 September 1988, 18 January 1989 and 31 May 1989 the threemember first instance Administrative Court (Τριμελές Διοικητικό Πρωτοδικείο) of Piraeus quashed the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus. The court considered that the first applicant had not committed the customs offence of contraband because the cloth had entered into Greece in transit and no customs duties were due to the Greek authorities. Moreover, the intention of the applicant was to defraud the Italian authorities and not to deprive the Greek authorities of income due (decisions Nos. 1534/88, 1535/88, 76/89, 77/89, 1360/89 and 1361/89). The customs authorities appealed. 21. On 6 October 1989 the third applicant company closed down its operations. 22. On 30 December 1989 the three-member Court of Appeal of Piraeus acquitted the applicant of the forgery and fraud charges. 23. On 30 September 1991 the five-member Administrative Court of Appeal (Πενταμελές Διοικητικό Εφετείο) of Piraeus, by majority, decided to uphold the customs authorities' appeal. The court considered that the effect of the first applicant's and his collaborators' actions was to change the origin of the cloth into Greek. As a result, the cloth had technically been imported into Greece. However, no customs duties had been paid and, as a result, the customs offence of contraband had been committed. The court, however, reduced the amount of the fines to be paid by the first applicant in his capacity as representative of the two applicant companies to 40,282,648 drachmas and the global fine for which the first applicant was jointly and severally liable to 48,197,414 drachmas. One judge disagreed. He considered that the contraband offence had not been committed and referred to the findings of the criminal court of appeal (decisions Nos. 1833/95, 1834/91, 1835/91, 1836/91, 1837/91 and 1838/91). 24. The first applicant and the two applicant companies appealed in cassation to the Council of State (Συμβούλιο της Επικρατείας). 25. The appeals were set for hearing by the Second Chamber of the Council of State on 26 January 1994. 26. In the meantime, on 24 June 1992, the Council of State issued decision No. 2313/92 on an appeal in cassation by the applicants concerning a fine imposed by the customs authorities on another occasion. Two of the applicants appealed against decision No. 2313/92 before the Special Supreme Court (Ανώτατο Ειδικό Δικαστήριο) on the ground that in another case the Court of Cassation (Αρειος Πάγος) had interpreted the Customs Code in a different manner. 27. On 22 June 1993 the customs authorities ordered that the first applicant should not be allowed to travel out of Greece, because of his debts to the State. 28. On 26 July 1993 the first applicant requested the public prosecutor of Piraeus to order the customs authorities to give him certain documents. The prosecutor transmitted the applicant's request to the customs authorities of Piraeus, which complied. Among the documents provided by the customs authorities were the VOLETS 2 of TIR 438216 and TIR 8630463 that the applicants had requested in 1985. 29. In 1993 the applicant also obtained certain documents concerning the transport of the cloth in question from the Italian authorities. 30. On 16 December 1993 the applicants added to their grounds of appeal in cassation the following: The Greek customs authorities had given the wrong classification to the cloth in question. As a result, the applicants had been asked to pay higher duties and fines. The applicants had been able to establish the wrong classification of the cloth on the basis of documents they had obtained from the Italian authorities. It was the correspondence exchanged between the Greek and the Italian authorities that had made the applicants realise that it was necessary to contact the latter. The applicants had had access to the correspondence in question for the first time in 1993 following the intervention of the public prosecutor of Piraeus. If the applicants had had this information earlier they would have been able to include a relevant ground in their appeal to the first instance Administrative Court of Piraeus. Moreover, the Court of Appeal had not examined the applicants' submission that the goods in question had been given a wrong classification by the customs authorities and that the customs duties had been calculated wrongly. 31. On 30 August 1994, due to a change in the legislation, the applicants' appeals in cassation were transferred from the Second to the Sixth Chamber of the Council of State. A hearing was set for 13 February 1995, when it was adjourned until 19 June 1995. 32. On 31 May 1995 the Special Supreme Court rejected the appeal by two of the applicants against the Council of State's decision No. 2313/92. 33 34. The applicants have claimed that the text of the decisions of the Council of State was “finalised” (καθαρογραφή) on 9 December 1996. However, the Government produced a certificate issued by the Registry of the Council of State on 17 May 2000, whereby it is attested that the relevant judgments were finalised on 25 June 1996, certified (θεώρηση) on 27 June 1996 and signed (υπογραφή) on 1st July 1996. 35. Following the decision of the Council of State the first applicant company paid the sums specified in the decisions of the administrative court of appeal plus interest and default penalties as from the date of these decisions. The applicant company claims that it paid 188,222,039 drachmas in total. The Government claim that the company took advantage of the salutary provisions of law No. 2443/96 and only paid 130,424,579 drachmas. | 0 |
train | 001-106893 | ENG | CHE | CHAMBER | 2,011 | CASE OF ASSOCIATION RHINO AND OTHERS v. SWITZERLAND [Extracts] | 2 | Violation of Art. 11;Pecuniary damage - award | Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 8. The facts of the case, as presented by the parties, can be summarised as follows. 9. The applicant association was set up in Geneva in 1988, under Articles 60 et seq. of the Swiss Civil Code. The name “Rhino” was an acronym for two different French slogans, “Retour des habitants dans les Immeubles Non Occupés” (Return of residents to vacant buildings), and “Restons Habitants dans les Immeubles que Nous Occupons” (“Let’s carry on living in the buildings we occupy”). 10. According to its constitution, the association pursued the following aims: “The aim of the Association shall be to provide its members with affordable and community-based housing, in accordance with the association-based tenancy system devised by the RHINO project. In particular it shall foster management based on economic and ecological solutions. The Association shall endeavour to remove any buildings that it occupies from the real-estate market and from speculation. The Association shall also have the aim of promoting voluntary housing schemes; it shall establish the requisite contacts in order to inform and encourage other association-based projects. The Association shall foster the opening and maintaining on its premises of open areas for social or cultural activities.” 11. In one of the buildings that it occupied, the association also housed an inexpensive restaurant and occasionally organised various cultural events. 12. Between 1978 and 1988 most of the flats in the three buildings subsequently occupied by the members of the association had remained empty, as their then owners were not intending to rent them out again. 13. On 9 November 1988 about fifty individuals occupied 14 flats in those three buildings. 14. Following the occupation of their flats, the owners requested the Principal Public Prosecutor of the Canton of Geneva to order the eviction of the squatters, and three orders to that effect were issued on 10 November 1988. However, the eviction was never carried out, notwithstanding a Federal Court judgment of 8 May 1991, which invited the Conseil d’Etat (cantonal government) to enforce the Principal Public Prosecutor’s orders. The cantonal authorities did not act upon that judgment, invoking a local policy of tolerating the presence of unlawful occupiers (squatters) provided the owners did not have a building or renovation permit. Confronted with a serious housing shortage in the Geneva area, that policy was directed against the practice of owners who left property vacant for speculative gain and police assistance was thus denied when it would result in leaving the property vacant. 15. From 1992 the owners, who had given up seeking the squatters’ eviction, entered into various negotiations with the association with a view to selling it their properties. Attempts in 1996, 1999, 2000 and 2001 to negotiate the sale of one or two buildings, or to agree on a long-term lease, were unsuccessful, as the amount offered by the association was insufficient for the owners. 16. In 2002 the owners applied for building permits with a view to renovating the buildings. The applicant association and some of the squatters challenged the applications, but their various cases were declared inadmissible for lack of locus standi. The building permits were thus granted and entered into force on 27 September 2005. 17. On 19 October 2005 the Principal Public Prosecutor ordered the occupied buildings to be vacated as work was scheduled to begin on 22 November 2005. An appeal was lodged against the eviction order. In a judgment of 17 January 2006, the Administrative Court for the Canton of Geneva took the view, in substance, that the property owners had to bring proceedings as a priority before the civil courts to secure their rights, and that a law-enforcement measure would only be justified if the interests at stake and the seriousness of the damage incurred by them required immediate intervention that was impossible to obtain in a timely manner from the civil courts. The court further took the view that the owners had accepted the situation and had refrained from immediately exercising their right, such that the occupation was no longer causing a breach of public order. 18. In its judgment of 22 June 2006, the Federal Court dismissed the public-law appeals by the owners and confirmed in substance that the unlawful occupation no longer constituted a breach of public order, on account of the time that had elapsed and the negotiations conducted by the parties, and that the owners had to take their claims to the civil courts. 19. On 4 April 2005, in parallel with the eviction proceedings, the owners of the occupied buildings requested the Court of First Instance of the Canton of Geneva to order the dissolution of the applicant association and the assignment of its assets to the State, invoking the fact that it pursued an unlawful aim, in the sense that it prevented them from exercising their rights as property owners. 20. The Court of First Instance, in a judgment of 9 February 2006, ordered the ex nunc dissolution of the association. 21. Following an appeal, the Court of Justice of the Canton of Geneva upheld the dissolution order on 15 December 2006 but gave it an ex tunc effect, and the association was thus deemed never to have existed. It referred the case back to the court below for the appointment of a liquidator and a public body to receive the association’s assets. 22. On 29 January 2007 the association lodged a public-law appeal and an ordinary appeal with the Federal Court, primarily seeking the setting-aside of the Court of Justice’s judgment and the dismissal of the dissolution action. On the same day, the owners of the buildings brought claims for possession before the Court of First Instance. 23. The Federal Court upheld the decision of the court below by two judgments given on 10 May 2007. In the judgment on the ordinary appeal, it took the following position on the complaint under Article 11 of the Convention: “4.2 As regards the aims actually pursued, the applicant association refers to the commentary by Riemer (n. 41 on Articles 76-79 of the Civil Code), which provides that in the event of unlawful acts being committed by the decision-making bodies of an association in the pursuit of its lawful aim, it is under Article 55, paragraphs 2 and 3, of the Civil Code (action for damages) and not under Article 78 thereof (dissolution of the association) that action should in general be taken. The applicant, however, overlooks the fact that the present case precisely does not concern such a situation but rather a situation of compatibility between the acts of the association’s decision-making bodies and its aims (see the above-cited commentary, p. 921). Furthermore, the applicant association claims that the inhabitants have occupied the buildings at issue for a long time as a result of the tolerance of the authorities and the owners and that they should thus be regarded as having a tacitly-granted lease. That argument is, however, contradicted by the observations of the Cantonal Court, which found, in a manner that binds the Federal Court (Article 55 paragraph 1 (c) and Article 63 paragraph 2, of the Federal Judicial Organisation Act), that the members of the applicant association have been occupying the buildings without authorisation and refuse to vacate them, resisting any eviction. 4.3 Similarly, the applicant’s view that the owners should have sought to fulfil their aim by another remedy (action invoking the constitutional guarantee of the right to property, actions to establish property rights) is irrelevant, since the dissolution of the applicant association, that is to say the primary occupier of the buildings according to the decision appealed against (p. 13, point 4.2.3), is in any event a legally admissible means of putting an end to the occupation. The question whether there would be other means apart from that one is unimportant in the present case. 4.4 The applicant association further alleges that, in the present case, there has been no breach of an ‘objective’ right, but possibly of a mere ‘subjective’ right. However, it disregards the fact that property is also protected against an occupation such as that in issue here by rules of objective law (Constitution, Civil Code, Criminal Code, etc.). Moreover, the present case cannot be compared with that cited by the applicant association – premises of a club built in breach of an obligation not to erect – since that had nothing to do with the aim of the association. 4.5 Referring to Anton Heini (Das Schweizerische Vereinsrecht, Basle 1988, p. 39), the applicant association further claims that to order the dissolution of an association whose activity is illegal, the illegality has to be permanent. The question whether this criterion is decisive may remain undecided, as in the case of the applicant association it is, in any event, satisfied. 4.6 In this context, the applicant refers to other aims in its constitution and complains about the failure to apply to its case Article 20 paragraph 2 of the Code of Obligations on partial nullity. The question whether that provision (in combination with Article 7 of the Civil Code) is in fact applicable to situations under Article 78 of the Civil Code is a matter of debate in legal writings (answered in the affirmative by Riemer, RDS 97/1978 I p. 95 n. 81 and Commentaire bernois, n. 40 on Articles 76-79 Civil Code; and in the negative by Heini/Scherrer, Commentaire bâlois, 3rd edition, n. 3 on Article 78 of the Civil Code; Heini/Portmann, SPR II/5, 3rd edition, n. 169; Jean-François Perrin, Droit de l’association, Zurich 2004, p. 208). The Federal Court has settled the matter in the affirmative, at least for other legal entities (Federal Court Judgment 73 II 81 concerning a foundation and Federal Court Judgment 80 II 123 concerning a cooperative entity). The question can, however, remain undecided in the present case. The Cantonal Court examined this question and arrived at the conclusion that the applicant association’s unlawful aim was predominant in comparison with its other constitutional aims, because the association had been set up above all with that aim in mind. The applicant association has not disputed this, but has merely asserted that its other aims are ‘essential’. Moreover, it does not claim that the conditions of Article 20 paragraph 2 of the Code of Obligations are met, in particular that the association would nevertheless have been constituted without the constitutional clause that is null and void; it has simply claimed that it ‘could continue to operate’ even in the absence of the constitutional aim that has been declared unlawful, but that is not decisive for the purposes of Article 20, paragraph 2, of the Code of Obligations. 4.7 In this context, the applicant association further criticises, referring to Riemer (Commentaire bernois, n. 56 on Articles 76-79 Civil Code), the order for its dissolution ex tunc. Since it has, for the past 18 years, interacted with other private persons, entered into contracts, conducted negotiations and acted before the courts, only a dissolution ex nunc would be appropriate. The Cantonal Court quite rightly ordered its dissolution ex tunc, as the association has pursued its unlawful aim since its foundation (see Riemer, loc. cit., n. 57). As to the consequences for the legal relations created in the meantime, it will be for the liquidator to decide. 5. The applicant association has, lastly, invoked a violation of Article 23 of the Constitution (freedom of association), Article 36 of the Constitution (restriction of fundamental rights) and Article 11 of the European Convention on Human Rights (freedom of association). 5.1 Since the applicant complains of an improper application of federal law that, it also alleges, has breached one of its rights under the Constitution or the Convention, the applicant is in fact invoking, as it has itself observed by referring to Fabienne Hohl (Procédure civile, vol. II 2002, p. 298 n. 3237), a violation of federal law. This complaint therefore falls within the context of the ordinary appeal. ... 5.3 Article 11 ECHR secures, in particular, everyone’s right to freedom of assembly and freedom of association (paragraph 1). The exercise of that right is, however, subject to restrictions, which, being prescribed by law, constitute measures that are necessary, in a democratic society, for national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (paragraph 2, first sentence). The Cantonal Court, based on a decisive statutory provision (Article 78 of the Civil Code), ordered the applicant association’s dissolution on account of its unlawful constitutional aim (breaching, among other things, the guarantee of the right to property under Article 26, paragraph 1, of the Constitution) and on account of its unlawful activity (occupation of property belonging to third parties). Those two situations are not covered by the guarantee of the right to freedom of assembly and association (Article 11, paragraph 1, ECHR), but fall within the admissible restrictions to that right (Article 11, paragraph 2, ECHR; see the judgment of the European Court of Human Rights of 13 February 2003 in the case of Refah Partisi (The Welfare Party) and Others against Turkey, concerning the dissolution of a political party and the right to freedom of assembly and association). The fact that in the case of the dissolution of a political party it was necessary, as the applicant alleged, to adopt particular restraint or lay down strict demands is correct (see judgment of 13 February 2003, cited above; Jens Meyer-Ladewig, EMRK, Baden-Baden 2003, n. 22 on Article 11 ECHR with references concerning the relationship with freedom of expression under Article 10 ECHR), but it is not decisive in the present case as the applicant association, in spite of a certain political component in its aim and the implementation thereof, is not a political party and, moreover, there is not a sufficiently close connection with freedom of expression”. 24. On 14 May 2007 the date on which the judgment was served, the Head of the Department of Construction and Information Technology of the Canton of Geneva invited the owners to explain the fact that they had not yet made use of their building permits. The owners replied that the work could not be carried out without evicting the squatters, which they had been trying to do for years without success. 25. On 24 May 2007 the Head of the Department ordered the owners to carry out the necessary work to remedy the state of degradation of the buildings and to ensure that they were sufficiently habitable and maintained. The work was to begin within forty-five days, failing which it would be undertaken by the authorities at the owners’ expense. The owners repeated that the work could not be carried out without the buildings being evicted. 26. In a judgment of 26 June 2007 the Court of First Instance of the Canton of Geneva appointed a liquidator, who took various measures, in particular the freezing of post-office and bank accounts, the termination of the contract of employment of the association’s secretary and a request for the restitution of fees already paid to the lawyers of the applicant association. 27. On 3 July 2007 the eviction proceedings were suspended by the Court of First Instance because the occupiers, acting individually, undertook to recognise the existence of rent-based lease agreements between themselves and the owners. 28. On 23 July 2007 the owners recovered possession of their occupied properties, initiating two simultaneous decisions: one, an on-the-spot police check of the squatters’ identity, and the other, an order to begin the renovation work, addressed to the owners, which enabled them to recover possession with police assistance. 29. A number of occupiers appealed against the eviction decision to the Cantonal Appeals Board for construction-related matters. Its decision to declare the appeals inadmissible was upheld by the Administrative Court and by the Federal Court in a judgment of 12 February 2009. 30. Articles 52-59 of the Civil Code of 10 December 1907 govern legal entities. The relevant provisions for the present case read as follows: Article 55 “The governing bodies express the will of the legal entity. They bind the legal entity by their legal decisions and by other relevant actions. The governing officers are also personally liable for their wrongful acts.” Article 57 (Application of assets) “On dissolution of a legal entity, and unless otherwise provided by law, the constitution, the founding charter or the governing bodies, the assets of a dissolved legal entity pass to the public body (Confederation, Canton, Commune) to which the entity was affiliated according to its object. Such assets must be used as far as possible for their original purpose. Where a legal entity is dissolved on account of having an immoral or unlawful object, the assets pass to the public body even where otherwise provided.” 31. Articles 60 to 79 of the Civil Code lay down rules for associations. Article 60 reads as follows: “1. Associations with a political, religious, scientific, cultural, charitable, social or other non-commercial purpose acquire legal personality as soon as their intention to exist as a corporate body is apparent from their constitution. 2. The constitution is produced in writing, containing the necessary provisions as to the purpose, resources and organisation of the association.” 32. Article 78 of the Civil Code provides for the dissolution of an association by judicial decision. This provision reads as follows: “Dissolution shall be ordered by the court, at the request of the competent authority or an interested party, where the association’s purpose is unlawful or immoral.” | 1 |
train | 001-109577 | ENG | TUR | GRANDCHAMBER | 2,012 | CASE OF AKSU v. TURKEY | 1 | Preliminary objection dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Alvina Gyulumyan;Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Vincent A. De Gaetano | 9. The applicant, who is of Roma origin, was born in 1931 and lives in Ankara. 10. In 2000 the Ministry of Culture published 3,000 copies of a book entitled The Gypsies of Turkey, written by Associate Professor Ali Rafet Özkan. Before its publication, a publications advisory board approved the content of the book. The preface to the book states as follows: “... Gypsies live in peace on Turkish territory today, just as they have throughout history, but now they are left entirely to their own devices, without regulation, supervision or attention. Their unregulated way of life, in which they are abandoned entirely to their own fate, is a failing on Turkey’s part. The Gypsies’ current unordered way of life, and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share, is a further shortcoming. Associated with this is the fact that while Gypsies have indeed lived for many years among us, they have been ostracised by local people and targeted by vilifying remarks which have, for the most part, been unenlightened and prejudiced. The negative response and distressing accusations which they encounter wherever they go have driven Gypsies, who already have a societal structure which is closed off from the outside world, to live in still narrower confines. We felt that there was a need to step into the unknown world of these people who have lived among us for centuries and have now become part of contemporary Turkish culture. My aim was thus to get to know them closely using an empirical approach, and to present the Gypsies of Turkey as they are, in all their aspects, on the basis of the principles of scientific objectivity. This study comprises an introduction and two sections. The introduction provides information about the Gypsy as a concept and the origins of the Gypsies, as well as detailed information about their migration, and considers their history in Turkey in the light of various archive documents and scholarly sources. In the first section, the socio-cultural characteristics of Gypsies are considered in broad terms. This section examines in particular the home life and travels of Gypsies, their music, dance, language, traditions and customs. The second section deals with the beliefs and practices of the Gypsies. This study – which I present without any pretensions, but merely in a bid to fill a significant gap (it being the first study of its kind), and to provide guidance to others working on the Gypsies in the future – was prepared using descriptive, comparative and phenomenological methods, in addition to participant observation and interview techniques. ...” 11. In the introduction, the author went on to state: “... Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere. Apart from the differences in their way of life, the characteristic which most obviously distinguishes Gypsies from others is the colour of their skin, which is darker, swarthier. In typological terms, most Gypsies are of medium height, of agile build, with large dark black (occasionally hazel or blue) eyes and long thick eyelashes; the men have long moustaches. The mouth is slender and elegant, the teeth white and even, with a round jaw. They have a narrow forehead and temples and a small cranium. Their hair is curly, black, long and thick. Beyond middle age, the women are broad and corpulent. The younger people are slim, with firm and powerful muscles (see Carmen by Prosper Mérimée, Gypsy Stories of our own and from around the world by Tahir Alangu and The sieve-making of the Gypsies of Posalar by Esat Uras). ... This research is intended to present the identity of the Gypsies, these people who have lived among us for centuries and have become an integral part of contemporary Turkish culture, but about whom no comprehensive scientific study has as yet been conducted because their cultural identity has been largely ignored as a result of the difficulties in identifying and defining them. This study will give an account of their socio-cultural characteristics, beliefs, mythologies, festivals and celebrations in all their aspects. For the purpose of this study, an initial survey was conducted of information, documentation and materials concerning Gypsies, from Turkey and elsewhere. The information and documents thus identified were then classified on the basis of their scientific reliability, using validity criteria. Next, an empirical study involving observation of the participants was carried out by going among the Gypsy population and living with them. Visits were made to all the areas of Turkey with a Gypsy population – both nomadic and settled – and in this way an effort was made to establish the facts about their way of life, traditions, beliefs, forms of worship and practices, not only by gathering data and documentary and other material, but also by the empirical method of living among them.” 12. In the book, the author devoted a chapter to the “Gypsies of Contemporary Turkey”. In this chapter he stated: “Today’s Gypsies are scattered all over Turkey. They are principally located in the Marmara, Aegean and Mediterranean regions, with a lower concentration in the Black Sea, central Anatolia and south-east Anatolia regions. The distribution of Gypsies in Turkey will be dealt with here. ... So far no general population census has included separate records for Gypsies; hence, the size of the Gypsy population in Turkey is not known with certainty. Rather than using estimated figures, we obtained information from Gypsies themselves, from local people living nearby and from local administrators. We attempted to clarify this information by making a comparison with the overall district population figures which we received from the district chiefs [muhtar]. ... Istanbul ... Gypsies living within the provincial borders of Istanbul generally make their living from music, flower-selling, scrap-metal dealing, rubbish and paper collection, blacksmithing and ironworking, portering, fortune-telling, cleaning, working with a horse and cart, coppersmithing, slug-collecting and door-to-door selling. There are also some, albeit few in number, who make a living from pickpocketing, stealing and selling narcotics. Tekirdağ ... The Roma (Gypsies) of Tekirdağ make their livelihood from playing music, portering and shoe-shining. Women work as domestic cleaners and handle bricks at the brick factory. Those in Çorlu and Lüleburgaz earn their living from music, portering, horse trading (livestock dealing), construction work and running lotteries, and the women earn their living from cleaning. Kırklareli ... The Roma of Kırklareli generally make their living from music, working with a horse and cart, street vending, portering, cleaning and scrap-metal dealing. Edirne ... Those who live in Edirne city centre generally earn their living from working with a horse and cart, scrap-metal dealing and street vending, while the women contribute to the family economy with cleaning work. Nearly all of the inhabitants of the Yukarı Zaferiye district of Keşan earn their livelihood from music. The rest of them work in various sectors such as labouring in the rice fields, concrete-pouring on construction sites, portering, working with a horse and cart, collecting frogs and slugs, scrap-metal dealing, paper collection, house painting and selling simit [a type of bread roll]. Those in Uzunköprü live from scrap-metal dealing, tinsmithing and basket-making. ... Ankara ... The Gypsies of the central district of Ankara earn their living from stealing, begging, door-to-door selling, fortune-telling, zercilik [robbing jewellery stores] and making magical charms. A small number are also involved in tinsmithing, working with leather harnesses, sieve-making and basket-making. There are also many who work as musicians in nightclubs. It is reported that most of those who trade in ironmongery around Altındağ and Hamamönü are Gypsies from Çankırı. ... We attempted to visit every province and district where Gypsies were located. The figures which we have given for each province were obtained by comparing information, noting the exaggerated figures given by the Gypsies and then talking to the district chiefs [muhtar], and where necessary the district police. ...” Similar remarks to the ones quoted above were made in respect of the Roma population living in other parts of Turkey such as İzmir, Manisa, Konya, Adana and Antalya. 13. The closing paragraphs of the conclusion to The Gypsies of Turkey read as follows: “The most important links connecting the Gypsies to each other are their family and social structures as well as their traditions. Despite the fact that they have led a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to the practice of marrying within the group. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the Gypsy way of life. The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “Natia”, one of these social structures, can no longer be sustained in today’s Turkey. The most striking characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune-telling, sorcery and occupations, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos. Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs, which can be partly traced to Hinduism. In our opinion these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are addressed. This simply entails focusing on this issue with patience and determination.” 14. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Roma/Gypsy associations. In his petition he submitted that in the book the author had stated that Gypsies were engaged in illegal activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. The applicant also submitted that the book contained several other remarks that humiliated and debased Gypsies. Claiming that these remarks constituted a criminal offence, he requested that the sale of the book be stopped and all copies seized. 15. On the same day the Head of the publications unit at the Ministry of Culture ordered that the remaining 299 copies of the book be returned to the publications unit. 16. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized. 17. On 17 October 2001 the Head of the publications unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was a piece of scientific research and did not contain any insults or similar remarks. The applicant was also informed that the author of the book would not permit any amendments to the text and that, at the author’s request, the Ministry had transferred copyright of the book to him. 18. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan, repeating his initial request. He received no reply. 19. Subsequently, on 30 April 2002 the applicant brought proceedings in his own name against the Ministry of Culture and the author of the book before the Ankara Civil Court of General Jurisdiction, claiming compensation for the non-pecuniary damage he had sustained on account of the remarks contained in the book. He alleged that these remarks constituted an attack on his identity as a Roma/Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned. 20. The author of the book submitted, in reply, that his reference materials had been the records of the Adana police headquarters and books written by other authors on Gypsies, and that he had not intended to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book. 21. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Roma/Gypsies in Turkey. The first-instance court therefore held that the remarks in question did not insult the applicant. As to the applicant’s case against the Ministry, the Civil Court decided that it lacked jurisdiction and that the administrative courts were competent to decide on the applicant’s claim. 22. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it. 23. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. It noted that the remarks objected to by the applicant were of a general nature. It therefore found no grounds for concluding that they concerned all Roma/Gypsies or that they constituted an attack on the applicant’s identity. 24. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed. 25. Subsequently, on an unspecified date the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Roma/Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication the book in question had been examined by a rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. The applicant did not appeal against this decision. 26. In 1991 and 1998 respectively the Language Association, a non-governmental organisation, published two dictionaries entitled Turkish Dictionary for Pupils (Öğrenciler için Türkçe Sözlük) and Turkish Dictionary (Türkçe Sözlük). Apart from their titles, both dictionaries had exactly the same content. The publication of these dictionaries was part-financed by the Ministry of Culture. 27. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Roma/Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against Roma/Gypsies. 28. On page 279 of both dictionaries, the following entries were made regarding the word “Gypsy” (çingene): “‘Gypsy’ (Çingene): 1. an ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world. 2. (metaphorically) miserly. ‘Gypsy debt’ (Çingene borcu): an unimportant debt which consists of several small debts. ‘Gypsy plays Kurd dances’ (Çingene çalar Kürt oynar): a place where there is a lot of commotion and noise. ‘Gypsy tent’ (Çingene çergesi) (metaphorically): a dirty and poor place. ‘Gypsy wedding’ (Çingene düğünü): a crowded and noisy meeting. ‘Gypsy fight’ (Çingene kavgası): a verbal fight in which vulgar language is used. ‘Gypsy money’ (Çingene parası): coins. ‘Gypsy pink’ (Çingene pembesi): pink. ‘Gypsy language’ (Çingenece): language used by Gypsies. ‘Gypsiness’ (Çingenelik): 1. being a Gypsy 2. (metaphorically) being miserly or greedy. ‘Becoming a Gypsy’ (Çingeneleşmek): displaying miserly behaviour.” 29. In the applicant’s opinion, the entries regarding the Gypsy community had negative, discriminatory and prejudiced connotations. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request, and likewise asked the Language Association to correct the above-mentioned definitions and to remove any discriminatory expressions from the dictionaries. He received no reply to his letter. 30. Subsequently, on 15 July 2002 the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002. 31. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the above-mentioned definitions and expressions be removed from the dictionaries. The applicant also requested compensation for the non-pecuniary damage he had sustained on account of the expressions contained in the dictionaries. In that connection he alleged that the dictionary definitions constituted an attack on his identity as a Roma/Gypsy and an insult to him personally. 32. In its submissions in reply, the Language Association maintained, inter alia, that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks. 33. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias. 34. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003. 35. Article 24 of the Civil Code reads as follows: “Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law.” Furthermore, according to Article 25 of the Civil Code: “A claimant may ask a judge to prevent a threat of infringement, to order the cessation of an ongoing infringement or to establish the unlawfulness of such an infringement even where it has already ceased. In addition to such action the claimant may also request that the rectification or the judgment be published or served on third parties. ...” 36. Article 312 § 2 of the former Criminal Code provided as follows: “Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region shall, on conviction, be liable to between one and three years’ imprisonment and to a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by between one third and one half.” 37. On 1 June 2005 a new Criminal Code (Law no. 5237) came into force. Article 216 of the new Code provides as follows: “1. Any person who publicly provokes hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences, such as to create a clear and close danger to public safety, shall be sentenced to a term of imprisonment of one to three years. 2. Any person who publicly denigrates a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a term of imprisonment of six months to one year. ...” 38. In its fourth report on Turkey (CRI(2011)5), published on 8 February 2011, ECRI welcomed the fact that in order to discourage negative stereotyping, connotations which might have been perceived as discriminatory in the dictionary definition of the term “Gypsy” had been removed. It further encouraged the Turkish authorities to pursue and strengthen their efforts to combat negative stereotyping of the Roma and to build a constructive dialogue with the Roma community. 39. In its General Policy Recommendation No. 10 on combating racism and racial discrimination in and through school education, adopted on 15 December 2006, ECRI also recommended that member States ensure that school education played a key role in the fight against racism and racial discrimination in society “by promoting critical thinking among pupils and equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they [used]”. | 0 |
train | 001-57573 | ENG | CHE | CHAMBER | 1,979 | CASE OF SCHIESSER v. SWITZERLAND | 2 | No violation of Art. 5-3 | null | 7. Mr. Friedrich Schiesser, a Swiss citizen born in 1952, resides in Winterthur (Canton of Zürich). On 5 April 1976, after he had been hiding from the police for some time, he gave himself up. He was at once brought before the Winterthur District Attorney (Bezirksanwalt). The latter heard Mr. Schiesser without his lawyer being present and then, on the same day, made an order directing that Mr. Schiesser be placed in detention on remand (Untersuchungshaft). The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence (Article 49, sub-paragraph a), of the Zürich Code of Criminal Procedure - Strafprozessordnung, hereinafter referred to as StPO). 8. Mr. Schiesser lodged an appeal (Rekurs) against the above-mentioned order but it was dismissed by the Zürich Public Prosecutor (Staatsanwalt) on 13 April 1976. The Public Prosecutor, adopting the grounds relied on by the District Attorney, stated that the investigations had not been completed and that there was reason to believe that the applicant, who had no fixed abode in Switzerland, might abscond. 9. Mr. Schiesser filed a "public-law appeal" with the Federal Court, alleging that the Public Prosecutor’s decision was contrary to Article 4 of the Federal Constitution and to Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an "officer authorised by law to exercise judicial power", within the meaning of Article 5 para. 3 (art. 5-3). By a judgment of 14 July 1976, the Federal Court (Public-Law Chamber) rejected the appeal. It accepted that there were reasons to believe that the applicant might suppress evidence if he were released. It also considered that, since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts, there was no violation of Article 5 para. 1 (c) (art. 5-1-c). As regards Article 5 para. 3 (art. 5-3), the Federal Court, having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision, stated: "The main criterion for classifying a given activity as ‘judicial’ is the independence which the bodies acting in that capacity enjoy vis-à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisations in the public sector ... However, the text of Article 5 para. 3 (art. 5-3) of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers.... The only possible interpretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is act independently when giving decisions in that capacity. Thus, according to Article 5 para. 3 (art. 5-3) ..., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provision does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ..." In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5-3), paragraph 4 of Article 5 (art. 5-4) uses the word "court". A further argument was derived from Article 6 para. 1 (art. 6-1): "There is good reason to suppose that, had the authors of the Convention wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority, they would have utilised in Article 5 para. 3 (art. 5-3) wording identical to that in Article 6 para. 1 (art. 6-1)", namely "an independent and impartial tribunal". Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs- und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and - in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Attorney had acted as an investigating authority in which capacity Article 31 stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded: "It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the State .... At the investigation stage, he in fact fulfils a judicial function and exercises no administrative activity.... Moreover, the rule on the election of District Attorneys by the people ... shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment. This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation) .... What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judicial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings." 10. On 20 April 1976, the President of the Prosecution Chamber (Anklagekammer) of the Canton of Zürich Court of Appeal (Obergericht) decided that Mr. Schiesser should remain in detention until the following 18 May. The applicant appealed without success, firstly to the Prosecution Chamber, which confirmed the President’s order on 10 May, and then to the Federal Court, which dismissed his "public-law appeal" on 25 May 1976. Mr. Schiesser’s detention on remand had in the meantime been prolonged pursuant to Article 51 StPO. He was eventually released on 12 July 1976. 11. In view of the gravity of the charges against the applicant (thefts to a value of more than FS 30,000) the Canton of Zürich Court of Appeal had jurisdiction in the matter; the indictment therefore had to be drawn up by the Public Prosecutor’s Office which represented the prosecuting authorities at the trial (see paragraph 14 below). The investigation, on the other hand, had been conducted by an Ordinary District Attorney. On 11 May 1978, the Court of Appeal imposed on Mr. Schiesser a sentence, suspended for four years, of seventeen months’ imprisonment for professional theft as a member of a gang (Article 137 of the Swiss Criminal Code). 12. The Canton of Zürich is divided into eleven districts, each of which has a Prosecutor’s Office with one or more Attorneys. At the relevant time, the status and powers of District Attorneys were laid down in the Constitution of the Courts Act of 29 January 1911 (Gerichtsverfassungsgesetz, hereinafter referred to as GVG); an Act of 13 June 1976, which entered into force on 1 January 1977, has since replaced, and in substance re-enacted the provisions of, the 1911 Act. 13. Ordinary District Attorneys are elected by universal suffrage for a term of office fixed by the 1911 Act at three years (section 99 GVG) and increased by the 1976 Act to four years. Although any citizen may stand for election, candidates are most often lawyers who have completed university studies and received practical training in the courts, industry, the civil service or the legal profession. If necessary, the Cantonal Government appoints Special District Attorneys for a specified period (sections 100 and 106 GVG). 14. The District Attorney is subordinate to the Public Prosecutor who in turn comes under the authority of the Department of Justice and the Government (Regierungsrat) of the Canton of Zürich. The District Attorney is the prosecuting authority before the single judge in criminal matters and before the District Courts in cases concerning petty offences and misdemeanours; before the higher Cantonal courts (the Court of Appeal and the Assize Court - section 93 GVG), this function is performed by the Public Prosecutor. The District Attorney also has power to issue a punishment order (Strafbefehl) if the accused has admitted his guilt and if a fine (Busse) or a prison sentence of not more than one month is deemed sufficient (Article 317 StPO); however, the person concerned is entitled to enter an objection (Einsprache) to the punishment order, as is the Public Prosecutor (Article 321 StPO). 15. The investigation of criminal cases comes within the competence of the prosecuting authorities (section 94 GVG). The District Attorney conducts the investigation except in those cases where it is entrusted by law to the Public Prosecutor or a judge (Article 25 StPO). The District Attorney may issue a warrant for arrest (Verhaftsbefehl - Article 55 StPO), the grounds for which he must indicate; he has to hear an arrested suspect within twenty-four hours (Article 64 StPO). During this first interrogation, at which the suspect’s lawyer is not normally present, the suspect must be clearly informed of the reasons prompting the suspicions held against him (Article 65 StPO) and of the existence of a right of appeal against the warrant (1956 Circular from the Public Prosecutor’s Office). Directive no. 219 (Collection of Circulars from the Public Prosecutor’s Office to the District Attorneys’s Offices, 1968 - Sammlung der Kreisschreiben der Staatsanwaltschaft an die Bezirksanwaltschaften von 1968) specifies that this interrogation is not to be considered as a pure formality. Under Directive no. 58, the District Attorney is prohibited from delegating his power to interrogate to subordinate officials. 16. Detention on remand ordered by the District Attorney may not exceed fourteen days; this period may be extended by the President of the District Court or, in cases coming within the jurisdiction of the Assize Court, the President of the Prosecution Chamber of the Court of Appeal (Article 51 StPO). 17. The District Attorney remains under the control of the Public Prosecutor as regards both the opening and the conduct of the investigation. The Public Prosecutor is authorised to issue directives to him (Article 27 StPO) and must be kept informed of every serious offence (Directive no. 100). The Department of Justice or the Government of the Canton of Zürich may request the Public Prosecutor to submit a report on the opening and the conduct of criminal proceedings (Strafprozess) and may give him special orders and instructions (besondere Aufträge und Weisungen - Article 28 StPO). A report must be made to the Cantonal Government whenever proceedings having political significance are instituted (Article 29 StPO). In addition, the Chief Public Prosecutor (erster Staatsanwalt) carries out inspections twice every year; their sole purpose is the expedition of proceedings. For more than thirty years now, District Attorneys in practice receive no special orders or instructions from the Public Prosecutor concerning their powers of placing individuals in detention. Once the investigation is closed, any District Attorney contemplating the release of an accused must so inform the Public Prosecutor if the prosecution falls within the latter’s competence (Directive no. 171). 18. Assuming that the prosecution has not been discontinued, the District Attorney, or the Public Prosecutor, becomes a party to the criminal proceedings; when drawing up the indictment, he must however take into account items in the accused’s favour and not confine himself to stressing items that tell against him (Article 178 StPO). | 0 |
train | 001-105536 | ENG | UKR | CHAMBER | 2,011 | CASE OF SERKOV v. UKRAINE | 4 | Violation of P1-1 | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1961 and lives in Kharkiv. He is a private entrepreneur who has registered as a payer of the single (unified) tax in accordance with the Presidential Decree “On a Simplified System of Taxation, Accounting and Reporting for Small Business” no. 727 of 3 July 1998, with further amendments (“the Presidential Decree”). 6. Between March and July 2004, when the applicant imported goods into Ukraine, he was requested by the customs authority to pay value-added tax (“VAT”) in accordance with the Law “On Value-Added Tax” of 3 April 1997 (“the VAT Act”). 7. The total amount of the VAT imposed by the customs authorities was 214,107.19 Ukrainian hryvnias (UAH). The applicant paid the VAT required. 8. On 10 August 2004 the applicant instituted proceedings in the Kharkiv Regional Commercial Court against the customs authority and a local department of the State Treasury, seeking recovery of the VAT, arguing that he was covered by the simplified tax regime, as provided by the Presidential Decree. He specified that according to section 11 of the Law “On State Support for Small Business” (“the Small Business Act”) the simplified system of taxation provided for the replacement of taxes and duties by the single (unified) tax. He further claimed that according to paragraph 6 of the Presidential Decree the single (unified) taxpayer was exempt from paying VAT. Therefore, no VAT obligations could arise in the course of his business activity. 9. On 2 September 2004 the court rejected the applicant’s claim as unfounded, stating that the principles established in section 11 of the Small Business Act were not applicable as regards VAT because the relevant amendments had not been made to the VAT Act as required by section 11.4 of the latter Act. At the same time, the provisions of Sections 2 and 3 of the VAT Act indicated that the applicant’s operations were subject to VAT. The court therefore concluded that the VAT Act did not make any exemptions for private entrepreneurs covered by the simplified taxation regime. Moreover, having regard to paragraph 1 of the Presidential Decree, which laid down the criteria for registering under a simplified system of taxation, the court found that that system provided VAT exemption with respect to sales operations only and did not cover import operations. 10. The applicant appealed, claiming that paragraph 6 of the Presidential Decree did not make any distinctions between import and sales operations. He argued that neither type of operation was subject to VAT if a person was registered under the simplified taxation regime. 11. On 2 November 2004 the Kharkiv Commercial Court of Appeal quashed the judgment of 2 September 2004 and found for the applicant, noting that the Ukrainian legislation provided for general and simplified systems of taxation. The latter provided for the substitution of VAT and other taxes and duties by a single (unified) tax. As the applicant had been registered under the simplified system of taxation, the first-instance court had wrongly referred to the VAT Act in support of the conclusion that the applicant’s import operations were subject to VAT. The court of appeal further noted that paragraph 1 of the Presidential Decree set out only the conditions for applying a simplified taxation regime and did not differentiate between business operations exempt from VAT. At the same time, paragraph 6 of the Presidential Decree provided VAT exemption without any reservation as to the type of business operation. 12. The customs authority appealed on points of law. 13. On 2 February 2005 the Higher Commercial Court quashed the judgment of 2 November 2004 and upheld the judgment of 2 September 2004. It referred to the VAT Act, which provided that both sales and import operations were subject to VAT. The court further referred to paragraph 1 of the Presidential Decree which, in its opinion, had not merely set out criteria for the application of a special taxation regime, but had also indicated that the single (unified) tax was targeting income received from business operations. Accordingly, the court concluded that the VAT exemption established by the Presidential Decree applied only to sales operations, while import operations fell under the general taxation regime. It further referred to the decision of the Supreme Court of 23 December 2003 in which the same approach had been applied in a similar case. 14. The applicant appealed to the Supreme Court on points of law. He reiterated that paragraph 6 of the Presidential Decree made no distinction between business operations and provided for a general exemption of single (unified) tax payers from the VAT obligations. He further referred to the Supreme Court decision of 15 January 2003 in which the VAT exemption provided by the Presidential Decree was interpreted as also covering import operations. He also claimed that under section 4.4.1 of the Law “On the Procedure for Payment of Taxpayers’ Liabilities to Budgets and State Purpose Funds” of 21 December 2000 (“the Taxpayer Liabilities (Payments) Act”) the courts were obliged to accept the interpretation of domestic law which was the more favourable to a taxpayer. 15. On 28 April 2005 a panel of the Supreme Court refused to open appeal proceedings in the applicant’s case. 16. According to paragraph 4 of the Transitional Provisions of the Constitution, for three years after the Constitution came into effect the President of Ukraine was empowered to adopt decrees on economic issues not covered by the laws of the Parliament. 17. At the material time section 2 of the Act provided, inter alia, that any physical person or legal entity importing goods with the purpose of using or consuming such goods on the customs territory of Ukraine should be considered to be a payer of VAT, except for those physical persons who were not registered as VAT payers and who imported goods within the non-taxable limits. On 25 March 2005 this provision was amended, providing, inter alia, that it applied to import operations regardless of which taxation regime had been chosen by the importer. 18. According to sections 3.1.1 and 3.1.2 of the Act VAT was applicable to both sales and import operations. 19. Section 11.4 of the Act provided that changes in the VAT charging regime could be introduced only by amendments to this Act. 20. Section 1 of the Act provides that the subjects of small businesses are, among others, physical persons who have registered as private entrepreneurs. 21. According to section 11 of the Act, the simplified system of taxation, accounting and reporting may be applied to the subjects of small businesses. The system provides for substitution of taxes and duties by a single (unified) tax. 22. Section 4.4.1 of the Act provided that if the norm of the law or another normative legal act issued on the basis of the law, or if the norms of different laws or normative legal acts offered ambiguous or multiple interpretations of the rights and obligations of taxpayers and supervising authorities, the decision taken should be in favour of the taxpayer. 23. Paragraph 1 of the Decree provides that a simplified system of taxation, accounting and reporting may be applied to, among others, a private entrepreneur who has employed during a year a maximum of ten people under labour contracts and whose annual income from the sale of products, works and services does not exceed UAH 500,000. 24. Paragraph 6 of the Decree provides as follows: “Small businesses paying the single (unified) tax shall not be considered payers of the following taxes and duties: value-added tax, except for legal entities which have opted to pay single (unified) tax at the 6% rate; corporate income tax; personal income tax; land tax; duty for special use of natural resources ...” 25. On 15 January 2003 the Supreme Court adopted a decision in a dispute between a single (unified) tax payer and a customs authority concerning the charging of VAT on import operations. The Supreme Court noted that the Ukrainian legislation provided for general and simplified systems of taxation which operated separately. The general system of taxation was regulated by the Law “On the System of Taxation” of 25 June 1991 and by the laws dealing with particular taxes and duties. The simplified system of taxation was regulated by the Presidential Decree and the Small Business Act. The Supreme Court further found that the plaintiff, having been registered under the simplified system of taxation, was not obliged to pay VAT on import operations because the plaintiff’s VAT obligations had been replaced by the obligation to pay single (unified) tax. The Supreme Court therefore overturned the finding of the lower court suggesting that the VAT exemption was not applicable to import operations. According to the information letter of 26 May 2003, the Higher Commercial Court recommended the lower commercial courts to take that decision into account in the course of consideration of tax disputes. The decision was also published in the specialised legal journal on commercial jurisprudence. 26. On 23 December 2003 the Supreme Court adopted another decision in a dispute between a single (unified) tax payer and a customs authority concerning the charging of VAT on import operations. The Supreme Court noted that the VAT Act provided for application of VAT to sales and import operations. At the same time, according to paragraph 1 of the Presidential Decree, the application of the simplified system of taxation depended on the amount of income earned from sales operations. The Supreme Court therefore concluded that the VAT exemption provided by the Presidential Decree applied only to sales operations and not to import operations. By the information letter of 18 June 2004, the Higher Commercial Court, “complementing [its] information letter of 26 May 2003”, notified the lower commercial courts of that decision. The decision was further published in the specialised legal journal on commercial jurisprudence. | 0 |
train | 001-58296 | ENG | ITA | GRANDCHAMBER | 1,999 | CASE OF FERRARI v. ITALY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | András Baka;Paul Mahoney | 9. The applicant, who was born in 1911, lives in Rome. 10. On 31 January 1990 she instituted proceedings in the Rome District Court against a local health clinic in Rome for payment of an adjustment for inflation and of statutory interest in respect of arrears of her widow’s pension which had been paid six years late. 11. At the first hearing, on 9 March 1990, the court noted that the defendant had failed to appear and the judge preparing the case for trial directed that the final submissions be made on 24 March 1990. That hearing was adjourned of the court’s own motion to 24 January 1991 because the judge had been transferred. The trial before the relevant division was held on 14 October 1991. In a judgment of 24 October 1991, the text of which was deposited with the registry on 9 December 1991, the court declined jurisdiction on account of the subject-matter of the case and indicated that the Rome magistrate (pretore), sitting as an employment judge, had jurisdiction to hear it. 12. On 13 February 1992 the applicant resumed the proceedings before the Rome magistrate. At the first hearing, on 25 November 1992, the court noted that the defendant had failed to appear and the magistrate appointed an expert, who took the oath on 15 February 1993. On 23 June 1993 the magistrate withdrew to consider the case. In a judgment of the same date, the text of which was deposited with the registry on 22 July 1993, the magistrate allowed the applicant’s claim in part. 13. On 20 July 1994 the applicant appealed to the Rome District Court. On 18 October 1994 the first hearing was set down for 4 December 1996. It was subsequently brought forward, at the applicant’s request, to 1 December 1995. It was then adjourned to 13 December 1995 because the judge preparing the case for trial was unable to attend, and then to 2 February 1996 because the registry had not sent the file relating to the first-instance proceedings. On 2 February 1996 the court appointed an expert and directed that he take the oath on 19 April 1996. That hearing was adjourned to 12 July 1996 because it had not been possible to summon the expert. On that date the court appointed a new expert because the first one had moved house and it had not been possible to summon him. The expert took the oath on 4 October 1996 and the case was adjourned to 11 June 1997. On that date the court listed the deliberations in the case for 17 September 1997. In an order of 17 September 1997 the court re-opened the investigation and ordered the expert to appear at a hearing on 12 November 1997 in order to clarify certain points in his report. 14. The court deliberated on 13 March 1998 and in a judgment of the same date, the text of which was deposited with the registry on 6 August 1998, allowed the applicant’s appeal in part. | 1 |
train | 001-80361 | ENG | FIN | ADMISSIBILITY | 2,007 | BJORKLUND v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Mr Otto Björklund and Ms Harriet Enholm, are Finnish nationals who were born in 1941 and 1946 respectively. The first applicant lives in Brussels, Belgium and the second applicant in Ekerö, Sweden. The third applicant is the estate (kuolinpesä, dödsbo) of the late Mrs Vivan Björklund, represented by the first applicant. The applicants are represented before the Court by Mr Harry Hedman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1944 Mrs Vivan Björklund inherited property – Hagen RN:o 1:21 – (“Hagen property”) at Hemtans in the municipality of Espoo (which, since 1972 is the “city of Espoo”). Since her death on 16 July 2000, the property has been part of her estate and has belonged to her beneficiaries, the first and second applicants. The property has a surface area of 5,854 hectares and is undeveloped. It is situated near the central park of Espoo. In 1958 the Espoo Municipal Council (kauppalanvaltuusto, köpingsfullmäktige, now the City Council (kaupunginvaltuusto, stadsfullmäktige)), adopted a municipal building plan (rakennussuunnitelma, byggnadsplan; called as rakennuskaava under the Building Act (rakennuslaki, byggnadslagen; Act no. 370/1958)) for the locality, including the Hagen property. The plan was approved by the Uusimaa County Administrative Board (lääninhallitus, länsstyrelsen) on 12 March 1959. The plan assigned potential floor space of 9,105 square metres on the Hagen property. On 26 January 1961 the County Administrative Board ordered that no new building could be constructed in that area without its permission until adequate water, sewerage and traffic facilities had been provided (ban on building (rakennuskielto, byggnadsförbud)). The Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) upheld that decision on 7 November 1961. On 29 January 1963 the Municipal Council decided that a wider area should be incorporated within a town plan (asemakaava, stadsplan) and renewed the ban on building. On 3 March 1964 the Municipal Council decided that a town plan would be prepared for the Hemtans and surrounding areas and imposed a new ban on building. On 15 December 1964 the Municipal Council annulled the municipal building plan, because a more extensive town plan was to be drawn up. A ban on building was imposed pursuant to section 42(2) of the Building Act. The decision was approved by the Ministry of the Interior on 26 February 1965. The ban on building was renewed sixteen times, so that it remained in force for over 33 years, until 1 November 1994. It would appear that in 1985 and possibly in other years the applicants (or their relatives) unsuccessfully appealed to the Supreme Administrative Court against the renewals of the ban on building. In 1968 a programme to draw up a master plan (yleiskaava, generalplan) was adopted. A regional development plan (seutukaava, regionplan) was adopted in 1977 under the terms of which, according to the Government, the Hagen property became part of a larger recreation zone. The applicants maintained that the Hagen property was marked with a symbol denoting an area of dense population. In January 1990 a proposal for a component master plan (osayleiskaava, delgeneralplan) was made in respect of a northern section of Espoo. Under this proposal the southern part of the applicants’ property would have been used for detached housing. During 1985-1986 the applicants negotiated with the city of Espoo for a possible land-exchange contract. A letter of intent was signed in 1988 and was stated to be valid for five years. As no town plan was adopted, the letter of intent lapsed in 1992. On 10 December 1991 the City Board (kaupunginhallitus, stadssyrelsen) prolonged the ban on building on the Hagen property for the fifteenth time on the ground that a town plan was due to be drawn up for the area. The applicants appealed to the Ministry of the Environment (ympäristöministeriö, miljöministeriet; Ministry). They submitted that the ban on building, which had applied to the Hagen property for 30 years, could not be regarded as temporary within the meaning of the existing legislation and was unconstitutional. They also asked the Ministry to request the competent municipal authority to draw up a master plan and a town plan for the area in question. At the request of the building board (rakennuslautakunta, byggnadsnämnden), the City Council decided to remove the detached housing zone from the proposal for a component master plan in a decision of 11 August 1992. On 11 May 1993 the Ministry partially lifted the ban on building in the area. However, in spite of the applicants’ appeal the ban on building in respect of the Hagen property remained in force. The Ministry stated that, as the town plan concerning the area was included in the planning programme of the city of Espoo and the Hagen property was located near the central park, the planning arrangements in respect of that area of land had to be decided in a town plan. By a separate decision of 22 July 1994, it rejected an application by the applicants for the city of Espoo to be required to adopt a detailed plan. The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against these two decisions. Meanwhile, the ban on building was extended (for the sixteenth time) until the end of 1995 by a decision of the City Council on 7 December 1993. In the autumn of 1993 a planning programme for the years 1994-1998 was adopted. The planning area “Hemtansåker Nr 331600”, covering the Hagen property, was included in the programme, but without any detailed time-table specifying when it would be subject to a further plan. On 19 January 1994 the City Council adopted part I of the master plan (yleiskaavan osa I, generalplan del I) for the north of Espoo. The Hagen property was now designated for recreational use. The Ministry dismissed the appeals and approved the plan on 27 June 1996. The Supreme Administrative Court rejected the applicants’ appeal on 23 December 1997. Meanwhile, on 1 November 1994 the Supreme Administrative Court gave its decision on the (fifteenth) ban on building that had been issued by the City Board on 10 December 1991 and approved by the Ministry on 11 May 1993. The court ruled, inter alia, that the city had not started to draw up a town plan, and that, taking into account the planned use of the land and the length of the ban on building, there had been no special reasons to renew it. However, as the ban had expired at the end of 1993, it did not rule further on the case. The decision became a precedent (KHO 1994 A 28). On 9 March 1995 the Supreme Administrative Court dismissed the applicants’ appeal concerning the obligation to adopt a detailed plan. It found that there were no legal grounds under which the Ministry could oblige the city to draw up such a plan. The City Council approved the Central Park I component master plan for a northern section of Espoo on 1 April 1996. The decision was approved by the Ministry on 3 October 1997 and upheld by the Supreme Administrative Court on 1 July 1999. This plan covered a small southern part of the applicants’ property, which was assigned partly to a neighbourhood recreational zone and partly to a conservation zone (the Vassholmsberget hazel grove). In December 1999, basing their application on the Supreme Administrative Court’s decision of 1 November 1994, the applicants applied for an exemption permit in order to build 38 terraced houses and 13 detached houses, comprising of 9,105 square metres in total, despite the lack of any town plan. Their application was rejected on 26 January 2001 by the Ministry, which found as follows: “In the regional development plan of 1977 the [Hagen] property was assigned to a recreational zone. Since then two master plans covering the area in question have been adopted, namely part I of the master plan for the north of Espoo and the Central Park I master plan. These plans designate the bulk of the property for recreational use, outdoor activities and sports. The property is crossed by important recreational routes leading from the central park to the north. The Vassberget area is situated in the south-east section of the property, which is reserved for use as a conservation zone in part I of the master plan for the north of Espoo, and in the southern part of the property there is the Lillträskmossen area, which is reserved for conservation in the Central Park I master plan. Before a decision can be taken on whether the applicants’ property can be built on ... both a master plan and a town plan have to be drawn up for the area, and this involves also an examination of the need for recreational zones, the connections to the central park, and the suitability of the property for building purposes. A building project on this scale cannot be based on an exemption permit.” The applicants appealed to the Supreme Administrative Court, claiming, inter alia, that the refusal to grant them an exemption allowing them to build and the lack of a detailed plan had de facto denied them the right to peacefully enjoy their property for over 30 years without compensation. On 14 May 2002 the Supreme Administrative Court dismissed their appeal. On 8 October 2004, upon the applicants’ application, the Assessment Adjustment Board (oikaisulautakunta, rättelsenämnden) of the Espoo Tax Office (verotoimisto, skattebyrå) changed the rateable value of their property for the years 1998–2004 to correspond to the planning situation (use of the land for recreational and outdoor activities) and the liability to rates on the value of the building was cancelled. The 1919 Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), which was in force until 1995, provided that the right of Finnish citizens to their possessions was to be secured by law (section 6(1)). Since 1995 property has been protected by section 12 of the Constitution Act (Act no. 969/1995). This provision is equivalent to section 15 of the present Constitution (perustuslaki, grundlagen; Act no. 731/1999). Section 5(1) of the Building Act, as worded at the relevant time, provided that urban development (taaja-asutus, tätbebyggelse) was permitted only in areas with a ratified town plan, municipal building plan or shore plan (rantakaava, strandplan). According to subsection 2, exemptions could be granted in individual cases or in certain areas. Section 26(2) of the Building Act required the authorities to ensure that planning measures would not hinder the implementation of the regional development plan. Under section 27 the authorities had to ensure that new construction would not hinder the use of land as contemplated in the regional development plan (a building restriction (rakentamisrajoitus, byggnadsinkränkning)). Section 42 prohibited the construction of new buildings if it contravened a town plan (a building restriction). Subsection 2(3) imposed a ban on building in areas for which a town plan was scheduled to be drawn up. By virtue of section 42, subsection 3 the ban on building was valid for a maximum of two years. However, if special reasons so warranted, it could be extended for a maximum of two years at a time. The legislation in force at the relevant time did not include any specific provisions on the maximum duration of bans on building. Section 143(1) provided, however, that the competent ministry could set a time-limit by which the municipal authorities had to make a decision on a town plan. Under section 53 (1), of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglag; Act no. 132/1999), which repealed the Building Act with effect from 1 January 2000, a ban on building is valid for a maximum of two years. While the plan remains incomplete, the municipality may extend the term for a maximum of two years at a time. However, under the new legislation, a ban on building may not exceed eight years in all. According to section 132 of the Building Act, as worded at the relevant time, the Ministry had power to grant exemptions from provisions, orders, prohibitions or other restrictions concerning construction (such as prohibitions against urban development) laid down in the Building Act or adopted by virtue of it, if an exemption would not substantially impede the implementation of planning or other housing arrangements or the achievement of nature conservation objectives. Section 56(1) of the Building Act provided that if a town plan or a ratified local master plan designated land for a purpose other than private construction and the landowner was thereby prevented from using the land in a manner generating a reasonable return, the municipality concerned or, if the land was designated in the plan as being required for State needs, the State, was obliged to expropriate the land. Section 58(1) specified that the duty of the municipality or the State to expropriate the land took effect only after the landowner’s application for an exemption from the restriction had been refused and the decision had become effective. Section 64(1) allowed the landowner to demand expropriation if the municipality or State failed to comply with its obligation voluntarily. | 0 |
train | 001-60775 | ENG | BEL | CHAMBER | 2,002 | CASE OF BOCA v. BELGIUM | 1 | No violation of Art. 6-1 as regards the proceedings on the merits;Violation of Art. 6-1 as regards the urgent proceedings | Christos Rozakis | 8. The application relates to two sets of proceedings. The first concerns the divorce proceedings proper before the court of first instance and the second concerns the interim measures in respect of which Article 1280 of the Judicial Code gives the summary applications court special power and jurisdiction to hear applications for interim measures during the divorce proceedings. 9. On 17 March 1998 the applicant's husband filed a divorce petition against her on a specified ground. 10. After a hearing on 20 October 1998 judgment was reserved until 4 November 1998, when the Brussels Court of First Instance granted a divorce against the applicant and ordered each party to pay its own costs. 11. On 22 December 1998 the applicant's husband appealed against the costs order. 12. At a preliminary hearing on 26 January 1999 the parties declared that the case was ready for trial. It was immediately set down for hearing in the relevant ordinary division. On 7 May 1999, in reply to a letter from the applicant's lawyer, the registry of the Brussels Court of Appeal informed her that it would take eight months for the appeal to be heard. On 25 November 1999 the registry listed the case for hearing on 24 February 2000. At the hearing the applicant's husband stated that he was withdrawing his appeal. The court gave judgment on 16 March 2000 acknowledging that the appeal had been withdrawn. 13. The divorce decree was registered on 24 October 2000. 14. On 17 March 1998 the applicant was summoned before the Brussels Court of First Instance, as the court hearing summary applications, to deal with interim measures relating to the divorce petition and, more particularly, to the two children, born in 1984 and 1988, of whom the father had had custody since the couple had separated in 1995. The parties filed their main pleadings before the hearing of 17 June 1998. The applicant then filed further pleadings at the hearing. In an order of 26 June 1998 the President of the Brussels Court of First Instance provisionally granted the mother renewed contact with the children and determined the maintenance payable to the applicant by the father per child and per month. 15. On 31 July 1998 the applicant's husband appealed against that order. Neither party appeared at a preliminary hearing on 11 August 1998 and the appeal was re-listed for hearing. On 21 October 1998 the appellant asked for the hearing date to be fixed by judicial recorded delivery. At the hearing listed for 24 November 1998 the appeal was adjourned until 12 January 1999 for the court to check that it was ready for hearing. At the hearing the parties filed their grounds of appeal and a timetable for subsequent pleadings. On 21 January 1999 the applicant filed further pleadings and a list of documents. Her ex-husband filed further pleadings on 27 January 1999. On 28 January 1999 the case, which was now ready for hearing, was set down for hearing in an ordinary division. 16. On 6 May 1999, in reply to a letter from the applicant's lawyer, the registry of the Brussels Court of Appeal stated that the case had been set down for hearing and would take approximately eight months to come to a hearing. On 14 December 1999 the registry informed the parties that the case would be heard on 24 March 2000 but did not specify how the hearing would be conducted. 17. On 16 May 2000 the parties filed joint pleadings with the registry of the Court of Appeal stating that they intended to withdraw from the proceedings. After a hearing on 23 June 2000 the Court of Appeal gave judgment on 27 June 2000 acknowledging their decision. In its judgment it noted that counsel for the parties had stated at the hearing that the parties would continue to comply with the interim measures set out in the order of 26 June 1998. | 1 |
train | 001-114158 | ENG | HRV | ADMISSIBILITY | 2,012 | GUDELJ v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Mr Antun Gudelj, is a Croatian national, who was born in 1947 and lives in Sidney, Australia. Currently he is serving a prison term in Croatia. He was represented before the Court by Mr P. Sabolić, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. On 9 July 1991 an investigation was opened in respect of the applicant before the Osijek County Court (Županijski sud u Osijeku) in connection with a suspicion that he had committed three murders and one attempted murder. 3. The investigating judge ordered the applicant’s pre-trial detention on 12 August 1991 on the ground that he might abscond, collude or reoffend. However, during the investigation the applicant remained at large and his whereabouts were unknown to the prosecuting authorities. 4. On 25 March 1992 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) indicted the applicant in the Osijek County Court on charges of triple murder and one attempted murder. 5. On 27 May 1992 the Osijek County Court ordered that the trial be held in the applicant’s absence, since his whereabouts had remained unknown. On 27 June 1994 the court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment. On the same day the court issued a new order on his detention. 6. On 29 February 1996 the applicant was extradited from Australia to Croatia, where he was immediately detained, pursuant to the Osijek County Court’s order. 7. On 7 March 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) ordered the applicant’s retrial, during which he was remanded in custody. 8. On 22 May 1997 the Supreme Court found that the General Amnesty Act (Zakon o općem oprostu) was applicable to the applicant’s case, terminated the proceedings against him and ordered his release. 9. On 3 June 1997 the applicant was released from detention. 10. On 14 March 2001 the Constitutional Court (Ustavni sud Republike Hrvatske), acting on a constitutional complaint lodged by one of the victims’ relatives, quashed the Supreme Court’s decision of 22 May 1997 and ordered a new trial. 11. On 18 June 2001 a three-judge panel of the Osijek County Court again ordered the applicant’s detention. However, the applicant remained at large because his whereabouts were unknown. 12. On 15 July 2007 the applicant was again extradited from Australia to Croatia, where he was immediately detained pursuant to the Osijek County Court’s order. 13. On 9 October 2007 a new trial commenced in the Osijek County Court in which the applicant was accused of triple murder and one attempted murder. During the trial the applicant was remanded in custody. 14. On 7 July 2008 the Osijek County Court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment. On the same day the trial court ordered his detention pending completion of the firstinstance judgment. 15. On 20 October 2008 the applicant lodged an appeal against the firstinstance judgment of the Osijek County Court but on 9 April 2009 the Supreme Court dismissed the appeal. 16. On 11 April 2009 a three-judge panel of the Osijek County Court extended the applicant’s detention for a further nine months under Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads: “The accused, Antun Gudelj, was detained ... between 29 February 1996 and 3 June 1997 and has been detained again... since 15 July 2007. ... given that a non-final judgment had been adopted in this case, this panel has established that, under Article 109 § 2 of the Code of Criminal Procedure, the overall duration of detention, which until the adoption of the first-instance judgment could have lasted up to three years (Article 109 § 1 of the Code of Criminal Procedure), may be extended for one-quarter [of the maximum prescribed statutory limit] until the judgment becomes final. Thus the overall detention may last for three years and nine months. The overall duration of detention could be extended on condition that the three-year limit had not expired. In the present case, on 11 April 2009 the three-year limit had not yet expired, so the accused’s detention was lawfully extended.” 17. On 14 April 2009 the applicant lodged an appeal with the Supreme Court, arguing that the maximum period of his detention had in fact expired on 9 April 2009. This meant that the impugned decision by the Osijek County Court had been adopted with two days’ delay and that therefore the extension of his detention had been unlawful. 18. On 29 April 2009 the Supreme Court dismissed the applicant’s appeal against the Osijek County Court’s decision to extend the applicant’s detention for a further nine months. 19. On 21 May 2009 the applicant lodged a further appeal with the Supreme Court against the second-instance judgment. 20. On 27 May 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision of 29 April 2009 to uphold the Osijek County Court’s decision extending his detention, reiterating that his continued detention had been unlawful. 21. On 9 December 2009 the Supreme Court, acting as the final court of appeal, dismissed the applicant’s appeal against the second-instance judgment, and the applicant’s conviction thus became final. 22. On 22 December 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the meantime, on 18 October 2010, the applicant had been sent to prison. 23. On 17 September 2010 the applicant lodged a further constitutional complaint against the Supreme Court’s judgment of 9 December 2009, challenging his conviction. 24. The proceedings before the Constitutional Court appear to be still pending. 25. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: ‘constitutional right’) ...” 26. The relevant provisions of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, 38/1993, 28/1996, 30/1996) are worded as follows: “(1) Whoever deprives another person of his life shall be punished by imprisonment of at least five years. (2) imprisonment of at least ten years or twenty years : 4) deprives another person of his life ... out of ruthless revenge ...; 5) deprives of his life an official in the course of performing his duties of prevention and discovery of offences, apprehension of perpetrators of the offences, securing public peace and order, or who deprives of his life an official who is guarding a person deprived of liberty or who deprives of life another person who is performing some of those duties in the function of civil protection.” 27. 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) are worded as follows: “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: (1) six months for offences carrying a statutory maximum sentence of three years’ imprisonment; (2) one year for offences carrying a statutory maximum sentence of five years’ imprisonment; (3) eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; (4) two years for offences carrying a sentence of more than eight years’ imprisonment; (5) three years for offences carrying a sentence of long-term imprisonment. (2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one-sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for a quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision. (3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year. (4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months. (5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.” | 0 |
train | 001-79713 | ENG | POL | CHAMBER | 2,007 | CASE OF GĘBURA v. POLAND | 3 | Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - financial award | Nicolas Bratza | 5. The applicant was born in 1954 and lives in Starachowice. 6. The applicant was serving a prison sentence in Tarnów Mościce Prison following three separate convictions. The overall term of his imprisonment was due to come to an end on 6 January 2002. 7. Pursuant to the provisions of the Criminal Code applicable to re-offenders, the applicant became eligible for conditional release after having served three-quarters of the overall term of his imprisonment, namely on 6 January 1999. After that date, the applicant requested a court on several occasions to grant him conditional release. However, his requests were denied on grounds of insufficient progress in his rehabilitation. On 20 March 2000 the prison governor requested the Tarnów Regional Court (Sąd Okręgowy) to order the applicant's release (warunkowe przedterminowe zwolnienie) in view of his satisfactory rehabilitation. The Tarnów Regional Prosecutor objected to that request. 8. On 22 March 2000 the Tarnów Regional Court gave a decision ordering the applicant's conditional release for a three-year probationary period. It placed the applicant under the court officer's supervision and imposed certain other obligations on him. 9. The Tarnów Regional Prosecutor appealed against that decision. The Regional Court did not amend its decision and transmitted the prosecutor's appeal to the Cracow Court of Appeal (Sąd Apelacyjny). 10. The hearing before the Court of Appeal was scheduled for 12 April 2000 at 8.45 a.m. On that day the Cracow Court of Appeal upheld the decision of the Regional Court. No further appeal lay against the decision of the Court of Appeal. In the applicant's submission, the Court of Appeal's decision was delivered at 9 a.m. 11. Later on 12 April 2000, a certified copy of the Court of Appeal's decision was sent to the Tarnów Regional Court, which received it on 13 April 2000. On the same day the Tarnów Regional Court ordered the governor of the Tarnów Mościce Prison to release the applicant and served him with a copy of the Court of Appeal's decision. The governor received these documents on 14 April 2000. 12. According to the official release certificate, the applicant was released on 14 April 2000. The applicant submitted that he had been released on that date at 4 p.m. 13. Article 41 § 1 of the Polish Constitution provides as follows: “Inviolability and liberty of the person shall be afforded to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with the principles and procedures laid down by statute.” 14. Article 77 § 1 of the 1997 Criminal Code reads as follows: “The court may conditionally release a person serving a prison sentence from serving the remainder of that sentence only when his/her behaviour, characteristics, personal circumstances and way of life prior to the commission of the offence, the circumstances in which the offence was committed and his/her behaviour following the commission of the offence and while serving a sentence, would justify a conclusion that, following [conditional] release, the person would abide by the law and, in particular, would not re-offend.” Article 78 §§ 1-3 of the Criminal Code prescribes the minimum prison term, depending on the type of sentence and offender, which must be served before a convicted person may apply for conditional release. However, the decision to grant conditional release is left to the discretion of the court, which must be satisfied that the conditions laid down in Article 77 § 1 of the Criminal Code are met. 15. When conditional release is granted, a convicted person should be released on completion of the necessary administrative formalities as specified in the Ordinance (Zarządzenie) of the Minister of Justice of 27 August 1998 on Administrative Acts concerning Execution of Pre-Trial Detention and Sentences and Coercive Measures resulting in Deprivation of Liberty. Paragraph 3 of that Ordinance states, in so far as relevant: “All administrative formalities shall be carried out without delay (niezwłocznie) ... This concern in particular (...) transmission of information and official notifications ... and releasing.” Paragraph 104.2 of the Ordinance provides that the convicted person should be released upon receipt of a copy of the enforceable decision granting him or her the conditional release. The release should be effected on the day of the receipt of the relevant documents by the prison (§ 104.3 of the Ordinance). The Ordinance does not prescribe any specific time-frame for the execution of the decisions granting conditional release. 16. The relevant domestic law and practice concerning the State's liability for torts committed by its officials are set out in paragraphs 34-37 of the Court's judgment in the case of Krasuski v. Poland, no. 61444/00, ECHR 2005–V (extracts). | 1 |
train | 001-57502 | ENG | FRA | CHAMBER | 1,989 | CASE OF H. v. FRANCE | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | J.A. Carrillo Salcedo;N. Valticos | 7. Mr H., a French citizen born in 1937, lives at Vandoeuvre (Meurthe-et-Moselle). In 1957 he entered the teaching profession as a primary-school supply teacher and worked continuously until 1961. 8. In May 1961 Mr H. went to Strasbourg Hospital, taking with him a letter of introduction from his general practitioner to Professor Thiébaut, the head of the neurological clinic. As Professor Thiébaut did not hold a surgery on the day in question, Mr H. was examined in the neurological clinic by Dr Ebtinger, the doctor in charge of "Department 58" of the psychiatric clinic. Dr Ebtinger allegedly assured him that his problems were "not very serious" but apparently advised him to enter hospital for "a fortnight at most" in order for the doctor to get to know him better. The general practitioner’s letter and the report of this first examination are said to have disappeared from Mr H.’s hospital file. 9. On 25 May 1961, on Dr Ebtinger’s recommendation but without having been ordered by him to stop work, Mr H., who was unaccompanied, reported to the neurological clinic at Strasbourg Hospital for observation, thinking that he would be in hospital for a fortnight and of his own free will. He allegedly waited for a house physician for two or three hours and was then placed in "Department 58". The admission notes read as follows: "Presented himself alone at 8 p.m. Being treated by Dr Zarenski ofSarralbe and seen by Dr Ebtinger. ‘I don’t feel right, I don’t know what’s wrong with me. I’m depressed.’ has been for five years. asthenia, difficulties with work. no interest in anything. (Limited answers, difficulties expressing himself.) Has worked withouta break until today. unmarried. lives with his parents at Holving. Referred to 58B." The applicant claims that the comments on an interview of 27 May have been antedated and that the pages of his file covering the period from 11 August to 15 September 1961 have vanished. 10. On 12 June 1961 Professor Kammerer, the head of the psychiatric clinic, diagnosed the applicant as suffering from schizophrenia with developing symptoms of catatonia (a state of motor and mental inertia) and prescribed narcoanalysis, i.e. an investigation of the subject’s unconscious after he has been put into a sleeplike state. This was allegedly the only occasion on which he examined Mr H. - for ten minutes before a large group of students, at a time when Mr H. was already being treated with neuroleptic drugs. 11. On 13 June 1961 a house physician, Dr Schneider, instead of carrying out the narcoanalysis prescribed the previous day, gave Mr H. an intravenous injection of an unspecified dose of "Maxiton" dexamphetamine, which caused "amphetamine shock". In so doing, he acted, so the applicant alleges, without either a prior examination or Mr H.’s consent, on a purely experimental basis, in public and without the knowledge even of the two persons primarily responsible for "Department 58", Drs Kammerer and Ebtinger. The injection allegedly brought about something akin to a myocardial infarction together with violent muscular contractions and hysterical fits, of which the applicant immediately complained, as appears from the medical file. 12. Mr H. further claims that Dr Ebtinger, who was on leave at the time, had promised him that no treatment would be given him without his (Mr H.’s) consent; the doctor is said not to have learned what had happened until he returned. In an article entitled "Methods of inducing shock (other than ECT and Sakel’s method)", published in May 1965 in the Encyclopédie médico-chirurgicale, Drs Ebtinger and Fétique wrote, under the heading "Amphetamine shock": "... This treatment should not be given to patients with weak cardiovascular systems or to those suffering from hypertension, coronary disease or atheroma. ... Catatonic symptoms are generally worsened in certain schizophrenics, and may even make their first appearance after amphetamine shock. ... There is lasting therapeutic benefit in comparatively few cases. ..." 13. After spending more than three and a half months in "Department 58", Mr H. left hospital on 15 September 1961. He claims to have resumed work as a primary-school teacher the very next day - although it was only with the greatest difficulty that he managed to remain up - in order that the holidays should not be counted as sick leave and for fear of being transferred to "another institution". 14. On 16 November 1961 he received a letter from a school doctor requesting him to undergo a medical examination on the 23rd. The doctor decided that Mr H.’s condition made it necessary for him to go on sick leave, and this began the next day. On 28 January 1963 a Ministry of Education medical board studied his file and took a "decision to remove", which was upheld on appeal on 23 March 1963. Mr H.’s name was subsequently taken off the list of supply teachers in the département, with effect from 28 January 1963. 15. On 8 August 1964 the Regional Social Security Office of the départements of Haut-Rhin, Bas-Rhin and Moselle informed the applicant that he had been registered with effect from 25 May 1964 as a Category 1 disabled person ("capable of performing paid work" - 66% disablement). After a further medical examination on 15 September 1965, he was registered as a Category 2 disabled person ("wholly unable to perform any work" - 100% disablement), and remained in that category until 1969, his registration being renewed in 1967. From 1 June 1969 until 1971 he did not receive his pension, as a medical examination on 5 March 1969 had shown that the extent of his disablement had dropped to below 50%. Since 1972 he has again been receiving a Category 2 pension. 16. Mr H. allegedly learned from a letter of 4 November 1970 written by Professor Kammerer that the drug injected by the house physician in 1961 was not a "powerful tonic", as he had been told at the time, but an amphetamine. He claims that in 1970 he asked Strasbourg Hospital to disclose his medical file and that his request was refused. 17. On 29 May 1973 he applied to the appropriate office of the Strasbourg Administrative Court for legal aid. He was granted this on 16 October 1973, on the grounds that legal representation was compulsory in the Administrative Court and that that court would probably order investigative measures. The sum ordered to be paid out of public funds for the expenses and fees of the lawyer appointed was 600 FF. 18. On 9 May 1974, at the request of his lawyer, Mr F., Mr H. obtained a medical certificate from Dr Rayel, the general practitioner who had been treating him since 1970. It read as follows: "I, the undersigned, certify that Mr H..., aged 36, a graduate in Natural Sciences (Radio Geology), has been treated by me for several years for the following complaints: Extreme liability to physical and mental fatigue with major dystonic consequences, feelings of loss of concentration and of speech disturbances associated with feelings of paralysis on the left side of the body. These complaints are reflected objectively in electroencephalographic disturbances, which were clearly shown up in 1971: ‘Irregular electrical activity combining a moderate number of unstable alpha waves with numerous irregular theta-delta potentials and with anterior and posterior bilateral spikes, aspects increased by hyperpn÷a with strong photic stimulation.’ Dr Hay, Nancy. At times, complete physical prostration with depressive ideas, weariness of life, painful sensations of mental blankness with pressing need to be alone and even to take to his bed. These various complaints currently make any gainful activity impossible. Mr H...’s extreme tendency to physical and mental fatigue makes it impossible for him to work to any regular pattern or to be at all productive, he very quickly feels rejected by any working teams he tries to be part of, and he feels such rejection very keenly. The problems reportedly go back to about 1955, but Mr H... claims that they grew markedly worse in 1961 while he was in Strasbourg University psychiatric clinic and Mr H. attributes this worsening to the pernicious effect of an intravenous amphetamine injection he received during his stay in that clinic. This certificate has been given to [Mr H.] in person and at his request, for the appropriate legal purposes. This certificate may not be used in court proceedings." Although intended solely for the lawyer, this document was nonetheless given by the latter to the Administrative Court. 19. On 14 June 1974 Mr F. took out a writ against the hospital, returnable at the Strasbourg Administrative Court, with a view to having the hospital declared liable for the harmful consequences of the intravenous amphetamine injection. He asked the court: "Before giving judgment: [to] appoint a specialist doctor [as] an expert with instructions to examine the plaintiff, obtain all documents, interview all persons able to give information, give an opinion on the physical damage sustained by the plaintiff and generally carry out the instructions given him by the court." On 19 June the court served the writ and statement of claim on the hospital. 20. The hospital instructed a lawyer on 17 July and filed two pages of defence pleadings on 8 August. It conceded that Mr H. had indeed been given an amphetamine injection in 1961 but resisted the claim on the ground that it was time-barred under the special statutory limitation period of four years for actions against public bodies and further argued that "the complaints regarding the treatment received [were] quite absurd and manifestly due to an insufficiently stable mental state". The court served the pleadings on Mr F. on 9 August 1974. 21. After two reminders from the court - dated 29 January and 14 March 1975 -, Mr F. produced his pleadings in reply on 8 April 1975. He sought a determination of "the hospital’s negligence", "the disablement suffered by the plaintiff" and "the causal link between the hospital’s negligence and this disablement", and to that end he earnestly requested that the court should appoint an expert. 22. Mr H. moved house in December 1974 and again in April 1975, after obtaining a council flat. On each occasion he informed his lawyer. 23. On 17 May 1975 the court asked Mr F. to advise it of Mr H.’s social-security number and of the office with which he was registered. Mr F. replied two months later, on 23 July, after a reminder dated 16 July. He had notified Mr H. of the request on 10 July and again on the 17th, and Mr H. had given him the requisite information. On 8 September 1976 the court asked Mr F. for this information again. According to the Government, this was a mistake on the part of the registry, which had probably lost or misfiled the letter of 23 July 1975; moreover, when telephoned by the court, Mr F. had allegedly said that he did not have the information in question and was not able to provide it straightaway because his client was refusing to give it to him. It is not clear from the evidence at what juncture the court registry realised that it was pointless to persist in asking for information it already had. 24. On 5 August 1975 the Nancy Health Insurance Office informed the Administrative Court that it did not intend to intervene in the case. 25. On 13 April 1978 the court summoned the parties to a hearing on 25 April. 26. Five days before the hearing, on 20 April, the hospital submitted their final pleadings. They were not served either on Mr F. or on Mr H. As Mr F. considered that his presence was unnecessary since the proceedings were in written form, he did not appear and was therefore unable to reply to these pleadings, whereas Mr L. appeared for the defendant. 27. On the actual day of the hearing, the Nancy Health Insurance Office asked the court for Mr H.’s address, notwithstanding that according to Mr H. - it had been paying him his disablement pension since 1973 and that he had not changed address since 1975. 28. The Administrative Court dismissed the action on 9 May 1978, for the following reasons: "Even supposing that a worsening of Mr H...’s condition was observed in 1969, the evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961; consequently, in the absence of any causal link between the injection complained of and the alleged damage, and seeing that such a link cannot in this instance be presumed, Mr H... has no grounds for seeking to establish the hospital’s liability; ... it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed." 29. On 23 May 1978 the court served the judgment on the applicant by registered letter with recorded delivery, but the Post Office returned the letter marked "not known at this address". On 31 May the court asked Mr F. to give it Mr H.’s new address. The lawyer replied on 8 June that he did not know it. On 13 June, the court attempted to serve the judgment on the applicant through a court bailiff. 30. Concerned at the length of the proceedings, Mr H. telephoned the Administrative Court registry on 18 August 1978. He learned that the court had given judgment on 9 May and he immediately gave his address; he received a copy of the judgment on 18 September 1978. 31. On 22 September 1978 Mr H. wrote to the leader of the Strasbourg Bar, to complain of the shortcomings on the part of the lawyer who had been assigned to him by the Legal Aid Office. In particular, he blamed Mr F. for always losing his address, for not having informed him of the date of the hearing and for not having appeared in court on 25 April 1978. After interviewing Mr F., the leader of the Bar disposed of the complaint in a letter dated 9 October, in which he endorsed Mr F.’s explanation, namely that he had seen no point in appearing at the hearing because the proceedings were essentially in written form and were designed, in the first instance, to secure the appointment of an expert on the basis of "medical certificates which [had] been submitted to the court". 32. Mr H. appealed to the Conseil d’État on 10 November 1978 by lodging pleadings and a file. He asked whether he could argue his own case and, if not, what he should do to secure the assistance of a lawyer and the appointment of a medical expert, which he maintained was essential. 33. On 20 November 1978 the Secretary of the Judicial Division of the Conseil d’État acknowledged receipt of the appeal, which had been registered in the registry on 10 November. On 12 December he again wrote to Mr H., to tell him that an application such as his was not exempt from the requirement that he should be represented by a lawyer, and that he had a month in which to apply for legal aid. On 26 December Mr H. made an application for legal aid, requesting the assignment of a lawyer who was genuinely willing to represent him; this was so that he could be sure that his interests would be defended conscientiously. 34. By a decision of 21 February 1979, notified on 13 March, the Legal Aid Office at the Conseil d’État granted Mr H. legal aid, setting the amount to be paid to the lawyer at 1,080 FF. The lawyer, Mr G., was appointed by the leader of the Bar on 16 March and contacted Mr H. on the 20th. 35. The applicant forwarded to the Conseil d’État a certificate issued by Dr Rayel on 7 November 1978, which read as follows: "I, the undersigned Dr Louis Rayel, hereby certify that I have been treating Mr H... for many years and that on 9.5.74 I gave him a medical certificate for his lawyer, purely for information purposes and in confidence. This certificate bore the words: ‘THIS CERTIFICATE MAY NOT BE USED IN COURT PROCEEDINGS’, followed by my signature Despite being formally so marked, the certificate was made use of by the Strasbourg Administrative Court, and moreover as evidence against Mr H... The use made of the certificate is clearly indicated in the report of the judgment, which states: ‘The evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961’ ... ... ‘it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed’ ... Accordingly, it seems to me that Mr H... is fully entitled to appeal against a judgment based largely on a medical certificate which was not officially admissible. I, the undersigned, hereby certify that on 9.5.74, a medical opinion was indeed essential, as it still is today, in order to study the course of Mr H...’s illness before and after the treatment given him by Strasbourg Hospital. In support of my certificate, I would cite a letter sent to Mr H... on 4.XI.70 by Professor Kammerer, the doctor in charge of the department in which Mr H... was treated. In that letter Professor Kammerer wrote: ‘The hospital’s regulations do not allow me to send you your medical file. But if a doctor or an expert wishes to inspect it, we will make it available to him in its entirety.’ Mr H... has shown me this letter and is willing to make it available to the Conseil d’État. Lastly, I, the undersigned, hereby certify that the reason why in 1974 I did not give Mr H... a certificate which could be used in legal proceedings was that I thought that under the legal-aid scheme and without a judgment of the court it was possible for Mr H...’s lawyer to request an expert medical opinion on his own initiative which would be paid for direct by the legal-aid fund, in view of his client’s financial difficulties at the time. It appears that this was not possible, but I, the undersigned, hereby certify that I was not informed of this before the Strasbourg court’s judgment. Otherwise I would obviously have advised Mr H... to try to finance for himself an authoritative expert medical opinion which he could have submitted to the Strasbourg court with his file. Steps must therefore be taken to ensure that a similar situation does not arise again and I have therefore advised Mr H. to ask the Conseil d’État for the list of medical experts from which he could choose an expert who might agree to draw up an opinion in defence of Mr H...’s medical interests before the Conseil d’État, provided that the fees of these experts remain within limits compatible with Mr H...’s current resources if he is required to pay these fees himself. I shall be able to give this expert all the medical information known to me in connection with this case, medical information which it is impossible for me to set out and discuss here, even in summary form, as part of this certificate. Lastly, I certify that Mr H...’s current position is much the same as in 1974 as regards both his state of health and his financial resources, and that consequently it will be only with the greatest difficulty that he will be able to take the measures necessary for the preparation of the file for his appeal to the Conseil d’État. Nancy, 7.XI.78 This certificate has been given to [Mr H.] for the appropriate legal purposes. THIS CERTIFICATE MAY BE USED IN COURT PROCEEDINGS." 36. After unsuccessfully asking several doctors to go through his medical file at Strasbourg Hospital, Mr H. approached Dr Roujansky, a radiologist in Schiltigheim, who agreed and was appointed for the purpose on 11 May 1979. Professor Kammerer consented to the inspection, stating that the file would be made available between 11 a.m. and noon and from 3 p.m. to 6 p.m. The applicant claims that on 25 May 1979 Dr Roujansky was given access only to a "falsified and truncated" file (see paragraphs 8 and 9 in fine above) and was allowed to photocopy only 21 pages of it. On 16 October 1979 Dr Roujansky drew up a ten-page report with several appendices. In it he concluded inter alia: "It can be stated that had Mr H... been treated less drastically, without the use of this highly dangerous drug, which destroys the physiology of the brain, he would have stood a good chance of leading a normal life, of being able to work and to earn his living instead of leading the life of an invalid. Strasbourg Hospital should therefore be required to compensate him." Mr H. produced this report to the Conseil d’État. He states that it did not have the status of a medical opinion by a court expert as Dr Roujansky had not personally examined him and had only been able to study the file made available by the hospital. 37. On 26 July 1979 Mr G. filed supplementary pleadings seeking the appointment of an expert who would assess the extent of the damage suffered and, if necessary, would establish the causal link between the injection complained of and the state of Mr H.’s health. On 25 September 1979 the presiding judge of the Fifth Section of the Judicial Division ordered that these pleadings should be served on the hospital and the Strasbourg Regional Health Insurance Office. On 4 April 1980 the hospital produced its defence pleadings, in which it relied in particular on the special four-year limitation period for actions against public bodies. The Directorate-General of Administration of Staff and Budget of the Ministry of Health filed pleadings on 5 September in which it expressed the following opinion: "As is pointed out in Strasbourg Hospital’s defence pleadings of 4 April 1980, the decisions on the presumption of imputability associated with a presumption of negligence constitute an exception and they all relate to cases in which the consequences of a given treatment are so incommensurate with what would normally be foreseeable that they suggest professional negligence. This is not so in the instant case. The treatment given in 1961 was carried out in accordance with proper practice and it is difficult to suppose that an injection administered in 1961 could have had consequences that did not become apparent until 1969, seeing that the patient had had problems as far back as 1955, even though in 1963 he did have to be struck off the list of supply teachers in the département after an opinion had been given by a medical board. As the Strasbourg Administrative Court rightly recognised, the causal link between the injection and the damage relied on is wholly unsubstantiated. ..." Mr G. replied in writing on 5 December 1980, asking the Conseil d’État to "order an expert to be appointed to assess the extent of the damage suffered and possibly establish the causal link between the intravenous injection administered in 1961 and the state of Mr H...’s health". 38. The applicant asserts that in 1980 he again (see paragraph 16 above) asked the hospital for access to his medical file, and that this was refused. 39. At the Conseil d’État hearing on 2 November 1981, Mr Dutheillet de Lamothe, a Government Commissioner (commissaire du Gouvernement), made the following submissions: "Mr H..., who was born in 1937 and at the material time was a primary-school teacher, was admitted on 25 May 1961 to the psychiatric clinic of Strasbourg Hospital suffering from depression. On 13 June 1961 ‘amphetamine shock’ treatment was administered. This consists in an injection of amphetamine - in this instance ‘Maxiton’ [dexamphetamine] - designed to overcome the patient’s emotional and affective inhibitions, thereby facilitating analysis of his psychological problems. In Mr H...’s case this procedure caused what the doctors described as an ‘aggressive and anxious’ reaction, and Mr H... complained of various problems. He left hospital on 13 September 1961, however, and apparently went back to work. He was again placed on sick leave from the end of 1961 onwards and then on 28 January 1963 his name was removed from the list of primary-school teachers for the département. In 1974 - 13 years after his stay in hospital - Mr H... asked Strasbourg Hospital to compensate him for the harmful consequences of the amphetamine injection he had been given in 1961, consequences which he alleged had not become apparent until 1969. When the hospital refused, [Mr H.] brought an action in the Strasbourg Administrative Court to have the hospital declared liable and an expert appointed in order to assess the extent of the damage caused. In a judgment of [9] May 1978 the court dismissed the action, [pointing out] that there was no causal link between the amphetamine injection complained of and the alleged deterioration in Mr H...’s health in 1969. Mr H... is appealing against that judgment. 1. I consider that the Administrative Court was right in finding that a causal link had not been established. Admittedly, the very scanty evidence on which its decision was based has been supplemented, on appeal, by the medical file opened by the hospital in 1961 and by a very well researched report. But it does not enable a real causal link to be established. The evidence shows that: (a) the appellant’s psychological problems date back to before his admission to hospital in 1961; (b) while he complained of real problems after the injection administered on 13 June 1961, the hospital carried out the necessary tests (electrocardiogram, biological tests); (c) when he left hospital on 13 September 1961, his state of health had improved, since he wished to return to work; (d) his state of health seems to have worsened more particularly in 1963, as he was removed from the list of primary-school teachers and again admitted to hospital; (e) in 1969, however, the Strasbourg Regional Health Insurance Office found him less than 50% incapacitated for work and discontinued payment of his disablement pension, which was restored in 1972. Dr Olievenstein, who was consulted by the applicant’s medical adviser, wrote: ‘A single dose of amphetamine, however large, can only decompensate but not cause psychological disturbance. No one can say whether in any case your patient’s psychosis [would] not [have] been decompensated at a later date.’ In these circumstances, I do not consider that a causal link has been established or that the presumptions relied on are sufficient to justify ordering the expert opinion applied for. 2. Contrary to the appellant’s submission, a causal link cannot be presumed. Admittedly, in our case-law negligence in the organisation or functioning of a hospital is presumed where a common, mild form of treatment - in particular an injection - has caused particularly serious health problems (23 February 1962, Maïer, page 122, and a great many decisions: 19 March 1969, Assistance Publique de Paris v. Bey, page 165; 19 May 1976, CHR de Poitiers, page 266; 22 December 1976, Assistance Publique de Paris v. Dame Derridj, page 576; 13 May 1977, Rémy-Waris, T., page 961; 9 January 1980, Mortins, page 4). But in all these decisions it was noted at the outset that there was a direct relation of cause and effect between the treatment complained of and the damage relied on: it is the negligence which is presumed and not the imputability of the damage. 3. I believe that accordingly you cannot but dismiss Mr H...’s appeal and affirm the Administrative Court’s judgment, without needing, it seems to me, to express a view either on the negligence alleged against the hospital or on the four-year limitation period on which the hospital relies. (1) As regards the first of those points, I do not think it possible to say that the use of the ‘amphetamine shock’ technique amounted, in 1961, to gross negligence, even though that technique has apparently now been superseded. Nor would it seem that special tests should have been carried out before it was used. On the other hand, I think that such a technique could not be used, even in the case of psychiatric treatment, without the patient’s consent (J., 7 February 1979, M. Barek, page 87; 9 January 1970, Carteron, page 17). The appellant, however, states - and it was not denied - that he was not told about the treatment. (2) As to the four-year limitation period, the hospital could in any event only rely on it in respect of part of Mr H...’s claim, since the alleged damage is continuing damage and the date on which it stabilised has not been determined (J., 10 November 1967, Auguste, page 422). For these reasons I submit that Mr H...’s appeal must be dismissed." 40. On 18 November 1981 the Conseil d’État gave the following judgment: "The Conseil d’État, sitting in its judicial capacity, (Judicial Division, 3rd and 5th sections combined), ... It is unnecessary to express a view on the hospital’s objection that the action is time-barred under the four-year limitation period. Mr H... was admitted to the psychiatric clinic of Strasbourg Hospital in 1961; he claims that treatment received on that occasion - and, in particular, an intravenous amphetamine injection administered on 13 June 1961 - caused a deterioration in the state of his health and led to a permanent disruption of his life. It appears from the preliminary examination of the case and the evidence before us that there is no direct relation of cause and effect between the alleged deterioration in the appellant’s health and the treatment he underwent at Strasbourg Hospital in 1961. The court below was accordingly right in dismissing the appellant’s action against the hospital and his application for an expert to be appointed both to establish the links between the treatment and the alleged damage and to assess the latter’s extent. DECIDES AS FOLLOWS: 1. Mr H...’s appeal is dismissed. 2. This decision shall be served on Mr H..., Strasbourg Hospital and the Ministry of Health." The judgment was served on 19 January 1982. 41. On 29 November 1981 Mr H. wrote to the leader of the Bar of avocats practising at the Conseil d’État and the Court of Cassation to complain that he had been badly represented. In particular, he criticised Mr G. for having never allowed him to speak to him directly before the hearing, for having avoided any dialogue "because he [was] legally aided and it would be detrimental to [his] case", and for having refused to tell him of the date of the hearing and to send him the file, thereby preventing him from adding to it. In a letter of 2 December the leader of the Bar replied that he did not intend taking up each of his complaints, as they mostly showed his "ignorance of administrative procedure and its characteristic features". | 1 |
train | 001-72818 | ENG | GBR | ADMISSIBILITY | 2,006 | WILKINSON v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza;Simon Brown | The applicant, Mr John Wilkinson, is a United Kingdom national, who was born in 1932 and is a resident of Broadmoor Hospital in Berkshire. He was represented before the Court by Ms Scott-Moncrieff, a solicitor practising in London. The applicant is subject to hospital and restriction orders under the Mental Health Act 1983 (“the 1983 Act”) following his conviction for rape of a minor in October 1967. He is therefore detained in a psychiatric hospital. In April 1998 the applicant suffered a mild heart attack (when he was awaiting surgery for another condition) and thereafter was diagnosed as suffering from minor coronary disease. Throughout his period of confinement, there has been considerable debate as to whether he was mentally ill. There was a consensus that he suffered from a “psychopathic personality disorder”, a condition not classed as a mental illness. However, there was disagreement as to whether he also suffered from a mental illness. On 11 October 1988, for example, the Mental Health Review Tribunal found that he was suffering from a mental illness. Following that decision, Dr O, the applicant’s responsible medical officer at the time, proposed treating the applicant with anti-psychotic medication. She sought a second opinion from Dr L, a second opinion appointed doctor (“SOAD”) appointed by the Mental Health Act Commission. Dr L did not give the necessary authority. He considered that there was sufficient evidence to suggest that the applicant might be suffering from a psychosis to justify treatment in the event of his agreeing to it, but not sufficient evidence to justify treatment against his wishes. In July 1999 another responsible medical officer (“the RMO”) took over the applicant’s care. The RMO formed the view that the applicant’s pronounced paranoid beliefs and attitudes were due, not only to his personality disorder, but also to an underlying psychotic mental illness. In any event, the RMO considered anti-psychotic medication necessary to relieve the applicant of his “paranoid ideation”. These views were reflected in the RMO’s report of December 1999. In 1999 (it is not clear precisely when), the RMO proposed the new medication to the applicant and the applicant refused it: from the outset, he made it clear that he would physically resist it. Since he was not consenting, the treatment had to be certified by a SOAD (see section 58(3)(b) of the 1983 Act below). On 31 January 2000 the RMO requested the appointment of a SOAD. Dr H (“the SOAD”), a highly experienced consultant psychiatrist, was appointed. On 17 February 2000 the SOAD examined the applicant (it was disputed during the domestic proceedings how long this examination took: 5 minutes according to the applicant; 30-40 according to the SOAD). The SOAD issued a certificate of second opinion on that date certifying that the applicant was not capable of understanding the nature, purpose and likely effects of the proposed medication, “but that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, it should be given”. The certificate authorised a plan of treatment whereby the specific drugs would be administered on a number of occasions. The SOAD also signed a Form 39 confirming that the statutory criteria had been fulfilled. The RMO was concerned that, when faced with a threatening situation, the applicant was apt to become extremely anxious and agitated and that he had acted violently on many occasions (for example by starting fires). As a result, he and the other members of his clinical team arranged that the applicant would have no notice of the SOAD’s arrival to the hospital and that the medication would be administered immediately after the certification had been obtained. Accordingly, on the same day that the SOAD’s certificate was signed (17 February 2000), the applicant was given anti-psychotic medication by the RMO against his will. On 2 March 2000 he was again injected with the same medication. On each occasion, the applicant physically resisted and had to be restrained by members of staff. On the first occasion, he suffered an angina attack and had to be taken to a seclusion room. The applicant claimed that he subsequently suffered significant side-effects from the treatment, including low blood pressure and chest pain. Since a further injection was due to be administered on 16 March 2000, the applicant consulted his solicitors on 8 March 2000. The applicant sought judicial review of the decision to administer the treatment. The only relief he sought was a declaration that the proposed future treatment would be unlawful. He did not seek any relief in relation to the past treatment. On 15 March 2000 the High Court gave him leave to apply for judicial review and granted an injunction preventing further treatment pending the hearing of his substantive challenge. His solicitors obtained a report from a consultant psychiatrist (Dr G) and the RMO and the SOAD (two of the respondents in the applicant’s proceedings) prepared witness statements. In his first witness statement, dated 10 April 2000, the RMO said the following: “The conclusion of my opinion is that I believe medication holds out a real prospect of giving benefit to the applicant. I wish to emphasise that what I am proposing is a trial of medication only in order to see what benefit the patient derives from it. If there is no benefit then the trial will be stopped. I believe the patient is suffering from mental illness. The essential point in my view is that whether one favours a diagnosis of mental illness or one of personality disorder a trial mediation [sic] can and should be given for the paranoia which all doctors agree is both present and considerable... Although other psychiatrists think otherwise I think it would be unsafe to move [the applicant] to conditions of medium security without giving him a trial of medication. [The applicant] has been attempting to get the Mental Health Review Tribunal to support his moving to conditions of medium security and the Tribunal adjourned in July 1999 in order, among other things, for a report to be obtained from Dr [S]... Dr [S] reassessed him and in a report dated 25 August 1999 Dr [S] said... “I do not believe that a treatment with antipsychotic medication at the present time would be indicated”... I wrote a letter to Dr [S] dated 3 February 2000...saying that I intended to give [the applicant] a trial of medication. Dr [S] replied in his letter of 11 February 2000 saying that he would be very happy to await the outcome. He wrote ... “I am a strong believer in a “trial of mediation”[sic] in patients such as [the applicant] who have spent many years in hospital and have been unsuccessful moving on. I can think of several patients who have successfully moved from Broadmoor to Ravenswood House where previously undiagnosed mental illness was treated with successful results. I would therefore be very interested in the outcome of any trial of antipsychotic medication”... For the reasons above the patient’s best interests are served by trial medication. The potential benefit could be considerable enabling the patient to move on to a less secure and restrictive hospital and possible eventual return to the community. If the trial does not work the patient will be no worse off than he is at present...” As to capacity to consent the RMO said: “[The applicant]’s paranoid attitudes and beliefs render him incapable upon the subject of treatment with medication...In my view he lacks capacity because of his mental illness but if we take the view expressed in Dr [G]’s report of 17.5.98...that [the applicant] only has a personality disorder and that the paranoia is due to that, then [the applicant] still, I would emphasise, does not have capacity. Whichever way we look at it, he does not believe that he shows paranoia and he therefore does not believe that he needs medication to treat it. He further believes that Broadmoor hospital and I and other doctors before me acting as agents, have sought to obstruct his discharge from the hospital. He is not able to see that medication could be of benefit to him.” As to the applicant’s heart condition, he said: “Many patients suffer [angina] attacks from time to time and come to no harm and I have spoken with Dr [X] about this. He told me there is always a chance when [the applicant] suffers an attack of angina it will develop into a heart attack, but that chance is very small.” The SOAD, in his first witness statement, described a 30 to 40 minute interview with the applicant. He said that he looked at the applicant’s reports, which substantiated his claim that he suffered from a personality disorder but also raised the question of his paranoid thoughts. There was no clear consensus, in his opinion, as to whether these thoughts were a part of his personality disorder or if they related to an underlying illness. As to the treatment plan, he said: “I felt that the treatment plan proposed by the RMO was both reasonable and addressed an issue that was preventing the further rehabilitation of the patient. That the patient was experiencing paranoid ideation was apparent both from records made in his clinical notes and from his personal presentation upon examination by myself. Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis, it was reasonable in my view to attempt to relieve [the applicant] of this symptom and would be in [the applicant]’s best interests. It is accepted clinical practice to treat persons with paranoid ideation with antipsychotic medication.” In his report, dated 12 April 2000, Dr G said the following in relation to diagnosis: “The prevailing view of psychiatrists who have assessed [the applicant] over the years is that he suffers from a personality disorder, and not from a psychotic mental illness. [The RMO]’s opinion that [the applicant] has a paranoid psychotic illness does not appear to arise from evidence of new symptoms that have recently emerged, but is based on a further careful review of [the applicant]’s history and presentation. [The RMO]’s conclusion that treatment with antipsychotic medication would help [the applicant] progress after many years in Broadmoor was reached in good faith and with concern for [the applicant]’s welfare. In my view the basis for arguing that [the applicant] suffers from a paranoid psychotic illness, or schizophrenic illness is weak and there is inadequate clinical evidence to justify such a diagnosis. There is not a good history of positive psychotic symptoms such as delusional beliefs, abnormal perceptions (e.g. hallucinations) or characteristic abnormalities of thinking and affect. There has not been a gross decline in his level of social functioning indicative of chronic psychosis. The past observations noted by [the RMO] in his tribunal report (10/12/99) of thought disorder and emotional incongruity have not been sustained and are certainly not present in [the applicant]’s current presentation. The persistent characteristics of irascibility, explosive anger, poor judgment and suspiciousness are typical of a personality disorder of a paranoid type. There should be particular caution about inferring that [the applicant]’s beliefs about Broadmoor Hospital amount to delusions. They do not have the fixed, incorrigible form of delusions. The content of some of his ideas, namely about the motivation of hospital staff, is in my view misguided and wrong, but it is psychologically understandable, given his experience, personality and the context of long term detention, and it is not wholly irrational...” As to medication, he said; “In my view it was not appropriate under all the circumstances to administer antipsychotic medication forcibly to [the applicant]. In particular, I believe that there were significant medical risks associated with forcible medication under restraint in his case. Antipsychotic medication is generally appropriate and beneficial in the treatment of psychotic illness but generally not in the treatment of personality disorder. The likelihood that antipsychotic medication would modify [the applicant]’s personality characteristics and help him become more relaxed and amenable was low in my opinion... The risks and adverse effects of antipsychotic medication in [the applicant]’s case included his medical history and his psychological reactions to the treatment. He was an elderly man with ischaemic heart disease. He had consistently been opposed to taking anti-psychotic medication... It was foreseen that antipsychotic medication would probably have to be given forcibly under restraint. [The applicant] had indicated that he would physically resist. It is known that sudden cardiac death can occasionally occur when patients are given medication under restraint. This is recognised as a special risk associated with restraint that does not apply when antipsychotic mediation is given in a normal way. The position is summarised in a Report for the Royal College of Psychiatrists ‘The Association between Antipsychotic Drugs and Sudden Death’, published in 1997 [“the College Report”]. In weighing up the reasonableness of the decision to forcibly medicate [the applicant] under restraint the two principal concerns are his adverse medical history and the equivocal evidence of medical illness...I do not think that forcible administration of antipsychotic medication under restraint was appropriate or justified.” On 18 May 2000 the High Court refused an application, by the applicant, for an order that the RMO, the SOAD and Dr G attend the substantive judicial review hearing for cross-examination on their witness statements. On 2 October 2000, the date of the coming into force of the Human Rights Act 1998 (“the 1998 Act”), the applicant was granted permission to appeal this refusal to the Court of Appeal. In the meantime, the SOAD withdrew his authorisation for the treatment. However, the RMO remained of the view that the applicant required anti-psychotic medication and intended to seek a further SOAD certificate to that end unless precluded from doing so by the courts. On 18 October 2001 the Court of Appeal allowed the applicant’s appeal and held that cross-examination would be appropriate in this case. Lord Justice Simon Brown found, referring to paragraphs 82-83 of the Herczegfalvy v. Austria judgment (of 24 September 1992, Series A no. 244), that a court must inevitably reach its own view both as to whether the applicant was indeed incapable of consenting (or refusing consent) to the treatment and, depending upon the conclusion on that issue, as to whether the proposed forcible administration of such treatment would threaten his life and so be impermissible under Article 2 of the Convention, would be degrading and so impermissible under Article 3 and would not be justifiable as both necessary and proportionate under Article 8, given the extent to which it would invade the appellant’s right to privacy. He noted that the “super-Wednesbury test” which had been applied in judicial review cases involving Article 8 rights had been found by the European Court of Human Rights to be inadequate (Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 129-139, ECHR 1999VI) and he could see no basis upon which an approach disapproved of in the context of homosexuality in the armed forces could be acceptable in the context of forcibly treating mental patients particularly as the case raised a “real question under Article 3”. He went on to point out that if the applicant was considered to have the capacity to refuse consent to the treatment, it was difficult to suppose that he should nevertheless be forcibly subjected to it despite the RMO’s views: the impact on the applicant’s rights to autonomy and bodily inviolability was immense and its prospective benefits (not least given his extreme opposition) appeared “decidedly speculative”. Moreover, even if he was not capable of consenting, the court would need to be satisfied (in the language of the Herczegfalvy judgment) that the medical necessity had been “convincingly shown to exist ... according to the psychiatric principles generally accepted at the time.” Accordingly, Lord Justice Simon Brown concluded that what would be required on a substantive challenge to future treatment would be a “full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists.” Finally, he did not think that Article 14 added anything to the debate. As to Article 6 of the Convention, he stated: “If I am correct in having concluded that the [applicant] on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of Article 6 are satisfied: the Administrative Court [on an application for judicial review] will conduct a merits review on the evidence.” Lord Justice Brooke and Lady Justice Hale also allowed the appeal. On the question of the level of review, Lady Justice Hale had regard to Articles 3 and 8 of the Convention and found that: “Whatever the position before the [1998 Act], the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The [applicant] is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent ‘having regard to the likelihood of its alleviating or preventing a deterioration of his condition’. If they are, in other words if [the RMO] rather than [Dr G] is right, then I would hold that this treatment could be given to him. This is not the same as saying that every patient is entitled to such a hearing in advance. Once again the analogy with arrest holds good. The RMO and SOAD are not determining his civil rights and liabilities. They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist. They do not have to go to court for advance authorisation (although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one). But once a situation exists in which the treatment can be scrutinised, whether before or after the event, then that scrutiny should take place.” Dr G prepared a supplementary report dated 27 October 2000 as to the applicant’s capacity to consent. Dr G analysed the applicant’s ability to use information and weigh it in the balance in making his decision. He considered that there were four aspects to the applicant’s opposition to the treatment, two of which were rational, one of which was partially rational and partly based on lack of insight, and the last of which was manifestly wrong and based on paranoid suspicion about the motivation of his RMO. Taking this into account Dr G reached the ‘overall judgment’ that the applicant had capacity to consent. The RMO prepared a second witness statement, dated 23 November 2000 in response to Dr G’s original and supplementary reports. He pointed out that the conclusion of the College Report, referred to by Dr G was that: “There are insufficient epidemiological data to prove that sudden death is more likely among people being treated with antipsychotic medication than it is among the general population. However, there are no data to prove that there is no causal connection between the use of this group of drugs and sudden death.” He also stressed that he had given the applicant depot medication rather than a preparation which would have acted immediately. As a result, during the short period where the applicant was being given the injection and was suffering the angina attack the amount of antipsychotic drugs in his blood stream would have been negligible. There was no question of the drugs causing the angina attack. That was caused by the over-exertion. He obtained evidence from Prof B, the convenor of the group which wrote the College Report, and from Dr D, who sat on the review panel for the said report, both of whom supported his interpretation of the report. Dr D in his letter of reply apparently stated that the risk of sudden death was very small. As to capacity the RMO said: “[It] is clear that [the applicant] is not able to believe treatment information which I give him because he is very suspicious about my motives, he sees me as part of a corrupt system in which individuals, including doctors, have no compunction about telling lies in order to support the system and protect themselves... I believe that this is a considerable impairment of [the applicant]’s ability to “weigh” information and balance risks and needs in order to come to a reasonable decision, in addition to his difficulty in believing information about his mental condition and treatment needs. This is caused by his suspiciousness and anxiety which derive directly from his mental condition. I am entirely satisfied that [the applicant] does not have capacity with respect to decisions about the treatment of his mental condition.” The SOAD also prepared a second witness statement, dated 15 November 2000, in which he said that he had been aware of the applicant’s heart condition from the records but that he had considered that the potential benefits of the treatment outweighed the risks. Since the Court of Appeal hearing there have been no further attempts to impose compulsory treatment and the applicant has not attempted to progress the judicial review proceedings to a substantive hearing. Detention in a psychiatric institution pursuant to the 1983 Act does not, of itself, authorise treatment. The individual’s consent must be obtained or, if that consent is not forthcoming, Part IV of the 1983 Act applies. Section 63 provides that the treatment shall be given for the mental disorder from which the individual suffers: without compliance with this condition, the treatment is unlawful. Sections 57 and 58 of the 1983 Act then go on to provide a range of additional safeguards graded to reflect the severity of the various treatments which may be contemplated. Section 58, the relevant section for the present case, applies to two different forms of treatment (electronic convulsive therapy and “long-term medication”). Both can only be applied on the basis of conditions set out in section 58. In the case of long-term medication, the conditions are set out in section 58 (3) and (4): “(3) Subject to section 62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless (a) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being [the RMO]) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (4) Before giving a certificate under subsection 3(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner ...” The “registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State” referred to in section 58 (3) above is commonly referred to as an SOAD. The Mental Health Act Code of Practice (“the Code”) provides guidance as to his role. Paragraphs 16.20 -22 of the Code state that: “The role of the SOAD is to provide an additional safeguards to protect that patient’s rights...The SOAD acts as an individual and must reach his or her own decision as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition....The SOAD should seek professional opinion about the nature of the patient’s disorder and problems, the appropriateness of various forms of treatment including that proposed, and the patient’s likely response to different types of treatment. The SOAD should take into account any previous experience of comparable treatment of a similar episode or disorder. The SOAD should give due weight to the opinion, knowledge and skill of those consulted.” Paragraph 16.26 of the Code describes the SOAD’s obligations during a visit: “During the visit the SOAD should a. in the case of a treatment under section 58, satisfy him or herself that the patient’s detention papers are in order; b. interview the patient in private if possible. Others may attend if the patient and SOAD agree, or if it is thought that the doctor would be at significant risk of physical harm from the patient. c. discuss the case with the patient’s RMO face to face, or on the telephone in exceptional circumstances; d. consult with two other persons professionally concerned with the patient’s care as statutorily required...The SOAD should be prepared, where appropriate, to consult a wider range of persons professionally concerned with the patient’s case than those required by the Act, and, with the patient’s consent, the patient’s Nearest Relative, family, carer or advocates.” Section 139 of the 1983 Act provides, in so far as relevant, as follows: “(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act ... unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.” The Court of Appeal reconsidered its judgment in this case in the subsequent case of R (N) v M and others [2002] EWCA Civ 1789. The claimant in that case was also a restricted mental patient detained in hospital, who refused to consent to a treatment plan which included the administration of anti-psychotic medication by injection for her psychotic illness. The claimant obtained a report from a psychiatrist who concluded that she was unlikely to be psychotic and therefore should not be given anti-psychotic medication. An SOAD issued a certificate under section 58(3)(b) of the 1983 Act stating that the claimant was suffering from either paranoid psychosis or severe personality disorder and required regular anti-psychotic treatment. He considered that the claimant did not have the capacity to consent. The claimant’s application for judicial review was dismissed. The High Court concluded in the light of the medical evidence that the claimant did not have capacity to consent and that the treatment was necessary in her best interests. It considered that the medical necessity for treatment had been convincingly shown in accordance with the test in the Herczegfalvy case. The Court of Appeal dismissed the appeal. It approved the High Court’s application of the Herczegfalvy test. In addition, it stated that cross-examination should not always be necessary because, in many cases, it would be clear whether medical necessity has been convincingly shown without having to hear oral evidence. It stressed that the Court of Appeal’s decision in the present case should not be used as a charter for routine applications for cross-examination in human rights cases. It pointed out that the court’s role was “essentially one of review”. On 3 January 2000 the Working Party of the Steering Committee on Bioethics of the Council of Europe (“the Working Party”) published a consultation paper on the protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment (“the White Paper”). As to the procedures for taking a decision of involuntary placement or treatment, the White Paper said the following (at § 4.2-4.3): “[T]he decision confirming involuntary placement or treatment should be taken by a relevant independent authority, which should base its decision on valid and reliable standards of medical expertise. The Working Party had considered at length the notion of “relevant independent authority”...In the opinion of the Working Party, the relevant question was the independence of the body or authority which takes the decisions of placement, the independence of which could be verified by the fact that it was a different authority than the one which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever. It was thus noted that, in some countries, the relevant authority may be a doctor authorised to take such a decision with a psychiatric establishment, for example, who should be independent in relation to the doctor who proposed the placement measure...” As to involuntary treatment it said (at § 6.3-4) “The representative of a person should be consulted but where he/she refuses consent to treatment for the person concerned, it should be possible to approach a court or court-like body with the power to respect or overturn the decision of the representative. The Working Party was also of the opinion that a written scheme of involuntary treatment must be drawn up, if possible, in consultation with the patient, his or her representative or, where there was no representative, submitted to an independent authority for decision. The scheme should be reviewed regularly and open to modification at all times in consultation with the patient, his or her representative or an independent authority, as appropriate. Should the patient not consent to the said scheme, he or she should be able to appeal to a court or court-like body.” This White Paper led to Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with a mental disorder (“the Recommendation”), adopted by the Committee of Ministers on 22 September 2004. When adopting the decision the Permanent Representative of the United Kingdom indicated that he reserved the right of his Government not to comply with the Recommendation as a whole. Article 16 of the Recommendation, provides as follows: “Article 16 – Scope of chapter III The provisions of this chapter apply to persons with a mental disorder: i. who have the capacity to consent and are refusing the placement or treatment concerned; or ii. who do not have the capacity to consent and are objecting to the placement or treatment concerned.” Articles 18 to 20 (which are all within chapter III) provide as follows: “Article 18 – Criteria for involuntary treatment A person may be subject to involuntary treatment only if all the following conditions are met: i. the person has a mental disorder; ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii. no less intrusive means of providing appropriate care are available; iv. the opinion of the person concerned has been taken into consideration. Article 19 – Principles concerning involuntary treatment 1. Involuntary treatment should: i. address specific clinical signs and symptoms; ii. be proportionate to the person’s state of health; iii. form part of a written treatment plan; iv. be documented; v. where appropriate, aim to enable the use of treatment acceptable to the person as soon as possible. 2. In addition to the requirements of Article 12.1 above, the treatment plan should: i. whenever possible be prepared in consultation with the person concerned and the person’s personal advocate or representative, if any; ii. be reviewed at appropriate intervals and, if necessary, revised, whenever possible in consultation with the person concerned and his or her personal advocate or representative, if any. 3. Member states should ensure that involuntary treatment only takes place in an appropriate environment. Article 20 – Procedures for taking decisions on involuntary placement and/or involuntary treatment Decision ... 2. The decision to subject a person to involuntary treatment should be taken by a court or another competent body. The court or other competent body should: i. take into account the opinion of the person concerned; ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted. However, the law may provide that when a person is subject to involuntary placement the decision to subject that person to involuntary treatment may be taken by a doctor having the requisite competence and experience, after examination of the person concerned and taking into account his or her opinion. 3. Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25. Procedures prior to the decision 4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards. 5. That doctor or the competent body should consult those close to the person concerned, unless the person objects, it is impractical to do so, or it is inappropriate for other reasons. 6. Any representative of the person should be informed and consulted.” ‘Competent body’ is defined by Article 2.3 of the Recommendation to mean: “an authority, or a person or body provided for by law which is distinct from the person or body proposing an involuntary measure, and that can make an independent decision.” Article 25 of the Recommendation, which is also within chapter III, provides as follows: “Article 25 – Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment 1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i. to appeal against a decision; ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii. to be heard in person or through a personal advocate or representative at such reviews or appeals. 2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. 3. Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court. 4. If the person has a representative, the representative should have access to all the materials, and have the right to challenge the evidence, before the court. 5. The person concerned should have access to all the materials before the court subject to the protection of the confidentiality and safety of others according to national law. If the person has no representative, he or she should have access to assistance from a personal advocate in all procedures before a court. 6. The court should deliver its decision promptly. If it identifies any violations of the relevant national legislation it should send these to the relevant body.” 7. A procedure to appeal the court’s decision should be provided.” Article 28 (which is in chapter V) provides, in so far as relevant: “1. Treatment for mental disorder that is not aimed at producing irreversible physical effects but may be particularly intrusive should be used only if no less intrusive means of providing appropriate care is available. Member states should ensure that the use of such treatment is: i. subject to appropriate ethical scrutiny; ii. in accordance with appropriate clinical protocols reflecting international standards and safeguards; iii. except in emergency situations as referred to in Article 12, with the person’s informed, written consent or, in the case of a person who does not have the capacity to consent, the authorisation of a court or competent body; iv. fully documented and recorded in a register.” | 0 |
train | 001-23868 | ENG | TUR | ADMISSIBILITY | 2,004 | EVCIL v. TURKEY | 3 | Inadmissible | Nicolas Bratza | The applicant, Hatice Evcil, is a Turkish national who was born in 1944 and lives in Tunceli. She is represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ. On 6 September 1998, at around 10.00 a.m., Mehmet Evcil, the applicant's husband, was taking his animals out to graze on pastures that were 4 to 5 kilometres outside of the village of Mercümek, when he saw an unidentified object. He bent down and picked it up but when he realised that it could contain explosives he threw it away. At that moment there was a large explosion and Mr Evcil was wounded by shrapnel. His six sheep died on the spot. Mr Düzgün Duran, a shepherd, who was accompanying him, ran towards the village for help. Road workers, who were working on a construction site at approximately 200 metres away from the scene of the incident, also heard the explosion. Mr Haydar Ber, the construction site manager, immediately informed the security forces, who were stationed about 500 metres away. At around 11.00 a.m., the applicant and her children arrived in a minibus, from Pertek which was approximately 15 kilometres away from the scene of the incident. They first took Mr Evcil to the Pertek Health Clinic. Following an initial medical treatment in the Pertek Health Clinic, he died during his transfer to the Elazığ State Hospital. On the same day the Elazığ Public Prosecutor initiated an investigation into the incident. Upon the public prosecutor's request an autopsy was carried out on Mr Evcil in the Elazığ State Hospital. The autopsy report contained a brief summary of the incident. There it was noted that the incident took place around 10.00 a.m. Moreover according to this report, it was established that Mr Evcil had died as a result of a haemorrhage, between 11.30 am and 13.30 am. The applicant's son identified the body in the morgue. Meanwhile the gendarmes drafted an incident report and made a sketch map of the scene of the incident. According to this report the incident occurred at around 11.00 a.m. They also took statements from two eyewitnesses. In his statement taken by the gendarmes Mr Haydar Ber submitted that his colleagues had informed him of the explosion while he was working on the construction site. He reported the incident to the security forces who told him that they had not opened fire. Moreover they told him that a “special team” would arrive shortly. Subsequently, Mr Haydar Ber went to the scene of the incident with the security forces and talked with the applicant's husband about what had happened. After Mr Evcil had been taken to the Pertek Health Clinic, Mr Haydar Ber called the Gendarmerie Command in order to inform them of the incident. In his statement Kenan Polat, a road worker, said that at around 11.00 a.m. he had heard a large explosion and saw smoke. He had also heard someone shouting in Kurdish for help. He stated that he had immediately informed Mr Haydar Ber. On 9 September 1998 the Elazığ Public Prosecutor gave a decision of non-jurisdiction ratione loci and transferred the case file to the Office of the Pertek Public Prosecutor. On 15 September 1998 the Pertek Public Prosecutor took the applicant's statements. She stated that the incident occurred around 9.30 a.m. She expressed the view that the security forces were responsible for the death of her husband because they had not provided him with any help despite having the means of doing so. The applicant claimed that if her husband had been taken to a hospital earlier, his life could have been saved. She believed that the explosive material that caused her husband's death had not been left by terrorists, but by the security forces. On 28 September 1998 the Criminal Laboratory of the Police in Diyarbakır carried out a ballistic examination of the shrapnel collected at the scene of the incident. According to the Criminal Laboratory's report dated 2 October 1998, the pieces gathered from the scene of the incident contained nitro-glycerine and nitrite, both explosive materials. On 16 October 1998 the Pertek Public Prosecutor sent the pieces of shrapnel collected from the scene of the incident to the Tunceli Police Headquarters for further examination. On 4 November 1998 the Tunceli Police Headquarters submitted the results of the ballistic examination to the Pertek Public Prosecutor. In the ballistic report it was stated that the 11 pieces of shrapnel sent for examination bore resemblance to the outer layer of a tracer bullet which could be fired from a 66 mm diameter M-72 A2/A3 type of LAVA missile launcher. It was further stated that the Institute for Machinery and Chemicals (Makina ve Kimya Enstitüsü – hereinafter “MKE”) produced these tracer bullets for military purposes and that their commercial sale was prohibited. In a letter dated 4 December 1998 and addressed to the Pertek Gendarmerie Command, the Pertek Public Prosecutor inquired whether the security forces at the Gendarmerie Command had been using the type of tracer bullet mentioned in the ballistic report. On 22 December 1998 the Pertek Gendarmerie Command replied that they had not been using the type of tracer bullet which was referred to in the ballistic report, however it was probable that other security forces in the district had been using this type of bullet. In a letter dated 4 May 1999 and addressed to the 51. Army Brigade Command in Hozat, the Pertek Public Prosecutor inquired whether the security forces in the entire district of Pertek had been using this type of tracer bullet. On 17 May 1999 the 51. Army Brigade Command in Hozat informed the Pertek Public Prosecutor that it was highly probable that the tracer bullet recovered from the scene of the incident had been left by terrorists. They submitted that it was a well-known fact that terrorists illegally obtain and use the weapons and the bullets produced by MKE. Furthermore, they maintained that, as the incident had taken place outside the area where the security forces practice shooting, there could be no responsibility attributable to the security forces in relation to the death of the applicant's husband. On 18 November 1999 the Pertek Public Prosecutor gave a decision of non-prosecution, as no crime could be attributable to the security forces and those responsible for the incident could not be identified. In 2000 the Public Prosecutor reinitiated the investigation. On 20 February 2001 the Public Prosecutor issued a permanent search warrant valid for 5 years from the date of the incident. According to this warrant the security forces have to carry out a rigorous investigation into the identification of the perpetrator(s) until the search warrant expires. In a letter dated 21 February 2001 the Pertek Public Prosecutor requested information from the Pertek Gendarmerie Command in order to establish if the military forces in the area had used the type of tracer bullet in question at any time and if the residents of the area had been warned about the explosive materials that could be found in the vicinity. Furthermore he asked to be kept informed of any development in the investigation into the death of the applicant's husband until the statutory time limit expired. On 26 February 2001 the Public Prosecutor took statements from the village headman of Mercimek village at the time of the incident; the present village headman; the shepherd who was grazing his sheep with Mr Evcil and the driver of the minibus who took Mr Evcil to the hospital. They all confirmed the facts of the incident, without mentioning the exact time of the incident. On 14 March 2001 the Pertek Gendarmerie Command informed the Public Prosecutor that the Turkish military forces had not used the type of tracer bullet responsible for the death of Mr Evcil since 1993, because it was expensive. However these bullets were still being produced by some NATO allies and it was observed that terrorists had been using them. Moreover they submitted that the villagers had been warned through the local press that any ammunition found in the area could be explosive and therefore they should immediately inform the security forces without handling them personally. On 1 April 2001 the Pertek Gendarmerie Command informed the Pertek Public Prosecutor that the inquiries in relation to the identification of those responsible for the incident conducted so far had remained unsuccessful and that they were still actively being searched for. On 1 May 2001 the Pertek Gendarmerie Command issued a report similar to the previous one and submitted it to the Pertek Public Prosecutor. The last report of similar kind was issued on 19 May 2003. A description of the relevant domestic law can be found in Tepe v. Turkey, no. 27244/95, §§ 115-122, 9 May 2003. | 0 |
train | 001-4662 | ENG | GBR | ADMISSIBILITY | 1,999 | BOYD AND McCOLM v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | A. On 9 July 1989 the applicants’ father, James McColm, was knocked down by a taxi. He died in hospital on 11 July 1989, without having regained consciousness. On 2 August 1989 the applicants met with the Procurator Fiscal who was investigating their father’s death. On 11 September 1989 the Procurator Fiscal wrote to the applicants informing them that he was entering a verdict of “no proceedings”. On 17 November 1989 the applicants obtained from the police the “Abstract of Road Occurrence Report”, containing the names and addresses of two witnesses to the accident, namely the taxi-driver and a fourteen-year-old boy, and three police officers who attended the scene after the accident. The applicants’ solicitor took statements from the first two witnesses, but the applicants were unable to understand how the accident had taken place. On 13 December 1989 the Lord Advocate wrote to the first applicant’s Member of Parliament as follows: “I have carefully considered the report and statements which were submitted by the Procurator Fiscal in relation to the death of James McColm and I do not consider it appropriate to instruct a Fatal Accident Inquiry in this particular case. The matter has been fully investigated by the police and the Procurator Fiscal and all eye witnesses have been precognosced by the Procurator Fiscal. I understand that the Procurator Fiscal spent some considerable time with your constituent’s brother, Mr John McColm, and his wife, outlining to them the evidence of the various witnesses. The Procurator Fiscal also provided Mr John McColm with a list of the names and addresses of those witnesses to enable him to interview them personally if he wished to do so. Mr McColm was also permitted to read the autopsy report. As you will appreciate the police report to the Procurator Fiscal and the Procurator Fiscal’s report to the Crown Office are confidential and, accordingly, your constituent cannot be provided with copies of these documents. ...” On 19 January 1990 the applicants again met with the Procurator Fiscal, who refused the applicants’ request for a Fatal Accident Inquiry, and also refused to grant the applicants access to all the documentation relating to their father’s death. On 21 February 1990 the applicants obtained the post-mortem report relating to their father’s death. On 2 March 1990 the Lord Advocate again wrote to the first applicant’s Member of Parliament: “I understand that you telephoned ... enquiring as to the reasons for confidentiality attaching to the reports which your constituent, Mr Edward McColm, has requested copies of. There is a long and unbroken line of judicial authority that reports by the police to the Procurator Fiscal and communications between the Procurator Fiscal and the Crown Office are very highly confidential and the Scottish Courts would only order their production to a third party where it is necessary for the ends of justice in view of some great and overwhelming necessity. In the circumstances of this case I cannot see that there is any great necessity. Indeed ... nothing material has been withheld.” On 28 June 1990 the applicants were informed by their solicitor that “in view of all the facts, lack of witnesses and the policy of the authorities”, it would not be possible for them to proceed with a civil action or force a Fatal Accident Inquiry. On 16 June 1992 an adjournment debate about the issues surrounding the applicants’ father’s death was held in the House of Commons. On behalf of the Government, the Parliamentary Under-Secretary of State for Scotland explained that: “In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.” He continued: “No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal’s report. The police report was simply a summary of the evidence, the details of which had already been provided to the family. The fiscal’s report was accompanied by the statements of the witnesses but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. ...” On 4 November 1996 the second applicant wrote to the Procurator Fiscal requesting the official police sketch of the scene of the accident and photographs taken by the police. The Procurator Fiscal replied on 20 November 1996, enclosing a copy of the sketch plan and advising the applicant to contact the police directly in respect of the photographs. On 13 January 1997 Strathclyde Police informed the applicant that the photographs had been disposed of. On 3 July 1997 the first applicant wrote to the newly-appointed Lord Advocate again requesting an inquiry into his father’s death. The Lord Advocate replied on 27 August 1997 stating that he had read the papers in the case and agreed with the decision not to carry out a Fatal Accident Inquiry. B. Relevant domestic law and practice The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the 1976 Act”) places an obligation on the Lord Advocate to hold an inquiry into any death in custody or following an accident at work, unless the circumstances of the death have been established in the course of criminal proceedings. As regards other deaths, it is at the discretion of the Lord Advocate to decide whether it is expedient in the public interest to hold an inquiry into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or occurred in circumstances such as to give rise to serious public concern. In practice, the Procurator Fiscal investigates all sudden, suspicious, accidental and unexplained deaths, and informs the Crown Office where there are suspicious circumstances, where it appears that a crime has been committed and there is a possibility that proceedings might be instituted, where the circumstances point to suicide, or where there has been a request by an interested person that a Fatal Accident Inquiry be held. Crown Counsel then decides on behalf of the Lord Advocate whether the circumstances of the death give rise to serious public concern such as to justify the holding of an inquiry. | 0 |
train | 001-67626 | ENG | SVK | ADMISSIBILITY | 2,004 | GROF v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jozef Gróf, is a Slovakian national, who was born in 1957 and lives in Trnava. On 16 September 1997 the applicant claimed that he and his children had the exclusive right to lease a flat in Trnava. On 25 February 1998 the Trnava District Court dismissed the action. On 31 March 2000 the Trnava Regional Court quashed the first instance judgment. Since then the proceedings have been pending at first instance. In these proceedings the applicant has been represented by an advocate practising in Trnava. On 17 October 2002 the applicant complained about the length of the above proceedings to the Constitutional Court. On 11 December 2002 the Constitutional Court rejected the complaint as falling short of the formal requirements. The decision states that the applicant failed, despite a warning of 11 November 2002, to eliminate formal shortcomings in his submission and to appoint a lawyer representing him before the Constitutional Court. On 14 January 2003 the applicant again filed a constitutional complaint about the length of the proceedings before the Trnava District Court. In a separate letter dated 14 January 2003 he requested that the Constitutional Court should appoint a lawyer to represent him in the proceedings before it. The applicant explained that his only income was an invalidity pension which sufficed just to cover his most urgent needs. In a letter of 19 March 2004 a constitutional judge informed the applicant that his new submission was not in conformity with the statutory requirements. The judge noted that the applicant's information about his income was not certified by the competent authority. Furthermore, in the proceedings before the District Court the applicant was represented by an advocate. The constitutional judge's letter stated that that advocate could also represent the applicant before the Constitutional Court and that the applicant would have the lawyer's fees reimbursed in the event that he succeeded in his constitutional complaint. The letter concluded that the applicant's submission would not be dealt with. Article 12(1) and (2) of the Constitution guarantees to everyone the equality of rights. Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. Article 127 of the Constitution, in effect from 1 January 2002, entitles individuals and legal persons to complain about a violation of their fundamental rights and freedoms. Under this provision the Constitutional Court has the power, in the event that it finds a violation of a person's fundamental rights, to quash the relevant decision or, where appropriate, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated. Under Section 20(2) of the Constitutional Court Act, plaintiffs in proceedings before the Constitutional Court have to be represented by an advocate. Section 31a of the Constitutional Court Act provides that the Constitutional Court can, unless otherwise provided by law, apply in an appropriate manner the provisions of the Code of Civil Procedure and of the Code of Criminal Procedure. Under this provision and the relevant provisions of the Code of Civil Procedure, it has been the practice of the Constitutional Court to accede to a plaintiff's request for an advocate to be appointed to represent him or her where the Constitutional Court is satisfied that it is justified by the situation of the plaintiff and where the complaint is not clearly devoid of any prospect of success. | 0 |
train | 001-113280 | ENG | POL | COMMITTEE | 2,012 | CASE OF POTOCKA v. POLAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time) | Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 4. The applicant was born in 1925 and lives in Montresor. 5. The applicant’s predecessor owned property comprising also a park and a manor situated in Przecław. By virtue of the Decree of 6 September 1944 on Agrarian Reform (“the 1944 Decree”) ownership of private agricultural properties exceeding 50 hectares was transferred ex lege to the State. In 1974 the State transferred ownership of the property to a State-owned company Delta-Mielec. In the same year an entry confirming that company’s right of perpetual use in respect of the property was made in the land register. After the collapse of the communist regime the applicant and other legal successors of the former owners instituted proceedings seeking to have the ownership restored to them. 6. On 23 November 2000 the applicant instituted administrative proceedings. She requested the Podkarpackie Governor (Wojewoda Podkarpacki) to give a decision declaring the expropriation null and void. She argued that the expropriation decision was unlawful in that the property concerned had not fallen within the scope of the criteria for nationalisation stipulated by the 1944 Decree. 7. On 3 April 2003 the Podkarpacki Governor held that the property was covered by the Decree and therefore the expropriation decision had been lawful. The applicant appealed. 8. On 19 December 2003 the Minister of Agriculture quashed the first-instance decision and remitted the case. 9. By a decision of 3 August 2004 the Governor held that the park and manor were covered by the 1944 Decree. The applicant appealed. 10. On 8 June 2005 the applicant submitted a complaint under Article 37 of the Code of Administrative Procedure about the Minister’s failure to give a decision in the case within a reasonable time. She reiterated her complaint on 10 January 2007. There was no reply to these complaints. 11. On 5 November 2007 the Minister upheld the first-instance decision. The applicant appealed. On 18 September 2008 the Warsaw Regional Administrative Court quashed both the first- and second-instance decisions, finding that the first-instance authority had failed to inform the parties, including the applicant, about an administrative hearing it had held. 12. On 28 May 2010 the Podkarpacki Governor discontinued the proceedings. It had regard to a decision given by the Constitutional Court on 1 March 2010 (see paragraph 26 below). It held that in the light of that decision the administrative authorities had no jurisdiction to examine issues concerning the lawfulness of expropriation decisions given on the basis of the 1944 Decree. 13. The applicant appealed, referring to the resolution given by the Supreme Administrative Court on 5 June 2006 (I OPS 2/06; see paragraph 25 below). She argued that the authority had failed to provide the legal basis for the proceedings to be discontinued. 14. On 28 December 2010 the Minister upheld the contested decision. The applicant appealed. On 28 January 2011 the Minister noted that he was competent to quash his own decision if he found it to be unlawful. He accordingly quashed the decision of 28 December 2011, having regard to the judgment of the Supreme Administrative Court of 10 January 2011 (see paragraph 27 below). He held that the first-instance administrative authority had jurisdiction to deal with the applicant’s case. 15. On 11 April 2011 the applicant again complained about the Governor’s failure to give a decision. On 20 September 2011 the Minister found that the applicant’s complaint was ill-founded. 16. On 29 July 2011 the Podkarpacki Governor held that the provisions of the 1944 Decree were not applicable to the park and manor and that therefore there were no legal grounds on which the property concerned could be expropriated. 17. On 28 March 2012 the Minister upheld this decision. 18. In 2006 the applicant, having regard to discrepancies in the case-law regarding the procedural situation of former owners and their legal successors, instituted civil proceedings with a view to having the ownership restored to her. She instituted proceedings against the State Treasury and against the Mielec-Delta public company before the Mielec District Court, seeking rectification of the land register so as to make it reflect the actual legal status of the land (powództwo o uzgodnienie księgi wieczystej z rzeczywistym stanem prawnym). 19. On 5 March 2009 the Mielec District Court dismissed her action. It noted, firstly, that under the 1944 Decree properties consisting of parks and manors (zespół parkowo-pałacowy) were not subject to expropriation. However, the applicant had failed to show that the property concerned had ever been formally separated from the agrarian property as a whole so as to constitute a separate subject of ownership. In any event, the applicant had failed to show that she had obtained a final administrative decision declaring the expropriation decision null and void. Such a decision was a necessary prerequisite for a civil court to hold that the ownership of the property had not been transferred to the State and to determine all consequences in the sphere of civil law resulting from such a decision. 20. The applicant appealed. She submitted that the court had erred in refusing to stay the proceedings until an administrative decision was given, because such a decision was a necessary prerequisite for the civil court to rule on the merits of the case. She further submitted that the court had thereby breached the Constitution by encroaching on the exclusive competences of the administrative authorities. 21. On 2 July 2009 the Tarnobrzeg Regional Court dismissed her appeal. It observed that it was obvious that a decision on whether the 1944 Decree was applicable to the property could only be given by the administrative authorities. It referred to a judgment of the Supreme Court of 30 January 2007 (see paragraph 25 below). It emphasised that the case-law of the administrative courts also indicated that only the administrative authorities were competent to determine this issue. In the applicant’s case, as no such decision had ever been given, no other course of action was open to the civil court than to hold that the claim to have the entries in the land register rectified had to fail. 22. By a decision of 30 April 2010, served on the applicant’s representative on 1 June 2010, the Supreme Court refused to entertain her cassation appeal. It noted that the applicant had instituted civil proceedings in the absence of an administrative decision declaring the expropriation unlawful and therefore null and void. In such situation the courts had no choice but to dismiss her claim. 23. Article 1 of the Decree on Agrarian Reform of 6 September 1944 provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”. Article 2 § 1 of the Decree, in so far as relevant, reads: “The following agricultural estates shall be designated for the purposes of the agrarian reform: ... e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ... All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State.” 24. In 2001 the Constitutional Court discontinued proceedings instituted by an individual constitutional complaint concerning the alleged incompatibility of Article 2 of the 1944 Decree with the Constitution. It held that it could only examine the compatibility of binding legal provisions with the Constitution. Article 2 of the 1944 Decree had never been formally abrogated and it was referred to by courts and administrative authorities in their decisions. However, it was not a decisive factor in assessing whether this provision was still in force. The decisive factor was that it could no longer provide the basis for any substantive changes in ownership. The courts, when referring to this provision, did not apply it in the strict sense of that term; the reference to this provision was merely of a secondary nature and was used to decide whether that provision had been applied, during the expropriation proceedings conducted in the past, in a manner which had flagrantly violated the law (in which case an expropriation decision had to be declared null and void). The Constitutional Court concluded that this provision had therefore ceased to have legally binding force (SK 5/01, decision of 28th November 2001). 25. On 30 January 2007 the Supreme Court held that only administrative authorities could examine restitution cases (IV CSK 350/06). An identical resolution was adopted on 5 June 2006 the Supreme Administrative Court (I OPS 2/06). 26. On 1 March 2010 the Constitutional Court discontinued proceedings instituted as a result of a legal question (pytanie prawne) put to it by the Warsaw Regional Administrative Court (P 107/08). It reiterated, referring to its decision given in 2001) that the provisions of the 1944 Decree could not be resorted to any more in order to confer substantive rights on individuals and that it had ceased to be binding law. It further noted discrepancies in judicial and administrative practice as to the jurisdiction to examine restitution cases. It further held that only civil courts had jurisdiction to examine such cases, despite the fact that in practice these cases were dealt with by the administrative authorities and, upon appeal, by the regional administrative courts and, in the last, resort, by the Supreme Administrative Court. 27. On 10 January 2011 the Supreme Administrative Court held in a resolution that that decision of the Constitutional Court was not universally binding, essentially because it was only of a procedural character. The court held that the administrative authorities had jurisdiction to examine restitution cases (I OPS 3/10). 28. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005. | 1 |
train | 001-60174 | ENG | HRV | CHAMBER | 2,002 | CASE OF KUTIC v. CROATIA | 1 | Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to length of proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 8. On 26 December 1991 the applicants' house in the village of Martinec (Croatia) was destroyed by an explosion. 9. On 29 November 1994 the applicants brought an action for damages against the Republic of Croatia in the Zagreb Municipal Court (Općinski sud u Zagrebu). A hearing was held on 2 May 1995. 10. On 12 May 1995 the applicants asked the court to request the Bjelovar Police Department (Policijska uprava Bjelovarska) to submit their report concerning the events that had led to the destruction of the applicants' property. On 19 May 1995 the court requested the report. 11. On 17 January 1996 the Croatian parliament introduced an amendment to the Civil Obligations Act which provided that all proceedings concerning actions in respect of damage resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts could not be sought. So far, the Croatian authorities have not enacted any new legislation regulating the matter. 12. It appears that several constitutional claims were lodged, though not by the applicants in the present case, challenging the above legislation. The Constitutional Court has not yet reached any decision. 13. On 24 April 1998 the Zagreb Municipal Court stayed the proceedings in accordance with the above legislation. No appeal was lodged against that decision. 14. On 13 November 1994 the applicants' garage and the adjacent storage room and a meat-curing shed in Bjelovar were destroyed, also as a result of an explosion. 15. On 14 December 1994 the applicants brought an action for damages against the Republic of Croatia in the Zagreb Municipal Court. 16. A hearing was held on 8 May 1995. The court requested the Bjelovar Police Department to submit their report concerning the events that had led to the destruction of the applicants' property. 17. On 19 July 2000 the court stayed the proceedings. No appeal was lodged against that decision. 18. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima) reads as follows: “Responsibility for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 19. The relevant parts of the Act amending the Civil Obligations Act (Zakon o izmjenama i dopunama Zakona o obveznim odnosima – Official Gazette no. 7/1996) read as follows: “Section 180 of the Civil Obligations Act (Official Gazette nos. 53/91, 73/91 and 3/94) is repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in the first paragraph of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.” 20. The relevant part of the Civil Procedure Act provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” | 1 |
train | 001-97603 | ENG | SVK | ADMISSIBILITY | 2,010 | OBCIANSKE ZDRUZENIE ZI A NECHAJ ZIT v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | The applicant, Občianske združenie Ži a nechaj žiť (Civic Association Live and Let Live), is an association with its seat in Bratislava. The application on its behalf was submitted by its President, Ms D. Šteffelová. The applicant association was represented by Mr P. Kotvan, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant association organised a cycle-ride event in the course of which a road crossing was blocked in Bratislava with a view to pointing out the difficulties encountered by cyclists in the streets of the capital. On 17 August 2001 the Mayor of Bratislava imposed on the applicant association a fine of 30,000 Slovakian korunas (SKK), which was then the equivalent of approximately 750 euros (EUR), for using roads in an unauthorised manner. The applicant association appealed. On 8 October 2001 the Bratislava I District Office upheld the Mayor's decision. On 27 June 2002 the Regional Court in Bratislava dismissed the applicant association's motion against the above administrative decisions. On 27 December 2002 the applicant association lodged a complaint with the Constitutional Court alleging a violation of Article 11 of the Convention and of its constitutional equivalent. The applicant association claimed, inter alia, SKK 10,000 as just satisfaction for non-pecuniary damage. Its representative stated that the fine imposed exceeded the financial means of the association, that its representatives had been exposed to considerable pressure and that enforcement proceedings had been brought, the costs of which exceeded SKK 50,000. As a result, the association had difficulties in obtaining grants and had been restricted in carrying out its activities. At the request of the Mayor of Bratislava of 15 April 2003 the Bratislava II District Court discontinued the enforcement proceedings on 5 February 2004. It held that no fees were payable to the enforcement officer. On 30 March 2004 the Constitutional Court concluded that the applicant association's right under Article 11 of the Convention had been violated. It quashed the Regional Court's judgment and returned the case to the Regional Court. It ordered the latter to reimburse the applicant association's costs incurred in the constitutional proceedings and held that the above finding of a breach of the applicant association' On 12 May 2005 the Regional Court quashed the Bratislava I District Office's decision as being unlawful with reference to the finding of the Constitutional Court. It ordered the administrative authority to reimburse the costs which the applicant had incurred. On 3 October 2005 the District Office reimbursed the relevant sum to the applicant association. On 21 November 2005 it returned the file to the Mayor of Bratislava. By a decision of 17 January 2007 the Mayor of Bratislava discontinued the proceedings in which the above fine had been imposed on the applicant association. Until 1 July 2004 the sphere of State liability for damage caused by wrong decisions and official misconduct was regulated by the State Liability Act of 1969 (Law no. 58/1969 Coll.). In accordance with the courts' practice, the State Liability Act of 1969 did not allow for compensation to be awarded for damage of a nonpecuniary nature. The only exception to this rule was compensation for damage to health. With effect from 1 July 2004 Law no. 514/2003 Coll. was enacted, replacing the State Liability Act of 1969. Under section 3(1)(a), the State is liable for damage caused by an unlawful decision. Section 17 of the Act provides for compensation for pecuniary damage including loss of profit and, where appropriate, compensation for damage of a non-pecuniary nature. Pursuant to section 27, the provisions of Law no. 514/2003 apply only to damage caused by decisions which were given after its entry into force. | 0 |
train | 001-107888 | ENG | LVA | CHAMBER | 2,011 | CASE OF X v. LATVIA | 3 | Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant is a Latvian national who was born in 1974 and resides in Australia. In 2007 the applicant obtained Australian citizenship. 6. In early 2004 she met T. and they developed a relationship. The applicant moved into T.’s apartment at the end of 2004 when she was in a late stage of her pregnancy. 7. In February 2005 the applicant gave birth to a daughter. The birth certificate of the child does not state the name of her father and no paternity test had been carried out at the time the application was lodged with the Court. Since the birth of the child the applicant has been entitled to benefits under a single-parent support scheme. 8. It appears that the applicant’s relationship with T. deteriorated and they decided to separate. The applicant continued to share the apartment with T. as a tenant. 9. On 17 July 2008 the applicant left Australia with the child and went back to Latvia. 10. On 19 August 2008, after the applicant arrived in Latvia, T. submitted an application to the Family Court of Australia to establish his parental rights in respect of the child. To support the claim T. testified in an affidavit before the Australian Family Court that he had been in a relationship with the applicant since 2004 and that the latter had always told him that he was the father of the child, even if he was not legally recognised as such. T. also stated that the mutual rent agreement was false and that he had submitted false declarations to the social security services in order to allow the applicant to receive a single-parent benefit. He asserted that the applicant had fled Australia with the child without his consent, thereby violating Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). T. alleged that the location of the applicant in Latvia was unknown to him. In support of his claims T. attached to his application e-mail correspondence between the applicant and his family members. 11. On 6 November 2008 the Australian Family Court, in the absence of the applicant, decided (1) that both T. and the applicant had had joint parental responsibility for their child since the day of her birth, and (2) that the case would be reviewed after the return of the applicant and the child to Australia. 12. It appears that the applicant was invited to attend the hearing or follow it by telephone via an e-mail and a text message. The decision of 6 November 2008 was not appealed against by the applicant. 13. On 22 September 2008 the Ministry of Children and Family Affairs of the Republic of Latvia, which was the Central Authority responsible for implementing the Hague Convention, received from the Australian Central Authority a request from T. concerning the return of the child to Australia under the Hague Convention. 14. On 19 November 2008 the Rīga City Zemgale District Court examined the request in the presence of both the applicant and T. In the hearing the applicant contested the applicability of the Hague Convention alleging that she did not know who the father of her daughter was. She assumed that T. had initiated the proceedings so that they would serve as a mitigating element in criminal proceedings allegedly pending against him in Australia. 15. A representative of the Orphans’ Court (Bāriņtiesa) argued that the claim should be dismissed because at the time of the child’s removal from Australia the applicant had been a single mother, and that the child had developed ties with Latvia. 16. The lower court granted T.’s request, stating that pursuant to Articles 1 and 14 of the Hague Convention the decision by which the Australian Central Authorities had established T.’s parental responsibility for the child was not subject to review by the Latvian courts, as they could decide only whether there had been a wrongful removal and whether the child should be returned. When applying Article 13 of the Hague Convention the court relied on photos and transcripts of e-mails between the applicant and T.’s relatives. It concluded that even if the applicant and T. had communication and financial problems, the latter had taken care of the child prior to her removal to Latvia. The court dismissed as ill-founded the applicant’s arguments that the return of the child to Australia might lead to her psychological detriment, stating that these were only assumptions. 17. As a result, the applicant was ordered to return the child to Australia immediately and in any event not later than six weeks from adoption of the decision. The decision also stated that if the applicant failed to respect the time-limit set by the court, then T. was authorised to return the child himself. 18. The applicant submitted an ancillary complaint in which she argued that she had been the sole guardian in law and in practice of the child at the time they had left Australia. 19. She also indicated that returning the child would expose her to psychological harm. She relied on the conclusions of a psychologist who examined the child on 16 December 2008: “[...] Although the results of the examination show that the child has developed an adequate level of knowledge and language, the girl cannot, due to her minor age, define her opinion about her place of residence [...]. Having regard to the child’s age and close emotional ties with her mother, which is normal at this age, the emotional well-being of the child primarily depends on and is closely linked with the psychological balance of [the applicant]. [...] the child needs the daily presence of the mother and a permanent place of residence with [the applicant]. Having regard to the age of the child – three years and ten months – immediate termination of contact between the mother and the child should be ruled out, otherwise psychological trauma might be caused to the child in that the child’s sense of security and personal confidence could be impaired”. 20. The applicant also brought the appellate court’s attention to the fact that Latvian was the native language of the child; that she attended pre-school activities in Latvia and that T. had ill-treated the applicant and the child. In addition, the applicant complained that the lower court had refused to request from the Australian authorities information of T.’s previous convictions and the criminal charges of corruption brought against him. She also contended that in Australia she would be unemployed and would not have resources to ensure the legal protection of herself and the child, and that the lower court had not assessed the child’s social guarantees and safety if returned to Australia. 21. On 26 January 2009 the Rīga Regional Court (Rīgas Apgabaltiesa) upheld the decision of the lower court. It also dismissed the argument of possible psychological harm to the child: “[The court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was facing a prison sentence concerning [criminal charges brought against him] as no evidence has been submitted which could, at least by implication, support the allegations. Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against the return of the child to the requesting state. Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this court does not concern custody rights... . Pursuant to Article 19 of the Hague Convention, a decision under this convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue. [The court] considers that...[the child]...has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia. 22. During the hearing the representative of the Orphans’ Court, inter alia, noted that there was no information as to the child’s situation if she was returned to Australia. The appellate court noted in this respect: [The court] considers that there are no grounds to undermine the social protection and security of the child in Australia as, according to the [affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”. 23. On 5 February 2009 a bailiff requested the applicant to comply with the return order by 19 February 2009, which she failed to do. 24. On 24 February 2009, in response to a request by the applicant, the prosecutor’s office refused to reverse the decision adopted by the Rīga Regional Court. 25. On an unspecified date a bailiff lodged an application with the Rīga City Zemgale District Court for enforcement of the order to return the child. At the same time the applicant filed an application asking for suspension of the return order for a period of six to twelve months. The court scheduled a hearing of both applications on 16 April 2009. 26. On 6 March 2009 at T.’s request the Central Authority asked the Orphans’ Court to verify the child’s living conditions and inform the applicant of T.’s request to see the child. 27. On 14 March 2009 T. met the applicant and the child by chance near a shopping centre, from where T. took the child and drove to Tallinn, Estonia, in order to commence a trip back to Australia. Following a request from the Central Authority of Estonia concerning T.’s right to return the child to Australia, on 16 March 2009 the Central Authority of Latvia supplied the requested information. 28. On 15 March 2009, at the applicant’s request, the State Police instituted criminal proceedings for abduction of the child, without bringing charges against any particular suspect. The Central Authority was informed thereof. 29. On 6 April 2009, referring to the problems of execution of the court order in the applicant’s case, the Ministry of Justice set up a working group with the aim of proposing the necessary amendments to the laws concerning execution of court orders in similar cases. 30. In this connection the Ombudsman noted that in the absence of specific legal regulation concerning the execution of return orders, the execution should not take place in an arbitrary and violent manner, or in the absence of representatives of the Orphans’ Court. 31. On 20 April 2009 Rīga City Zemgale District Court dismissed the applications of the bailiff and the applicant concerning the delay in the execution of the return order. 32. On 30 April 2009 following a request submitted by the applicant’s representative, the Prime Minister of the Republic of Latvia ordered a disciplinary investigation into the legality of the actions of the Central Authority of Latvia. 33. On 27 May 2009 the investigation reached the conclusion that the Central Authority of Latvia had acted within its competence. However, it noted that in Latvia there was not sufficient regulation in order to be able to avoid the violent and traumatic execution of court orders in similar cases. The investigation therefore proposed that a number of related issues be examined by the Ministry of Justice. 34. In September 2009 the Family Court of Australia discharged all prior orders relating to the parents’ rights and, inter alia, ruled that T. was the person with sole parental responsibility for the child, and that the applicant was restrained from discussing publicly any information referring to the child or T. It also ruled that the applicant could visit the child under supervision of a social worker, and that until the child reached the age of eleven the applicant was restrained from attending or communicating by any means with any child-care facility, pre-school or school attended by the child or with a parent of any other child attending the same institution. She was also prohibited from speaking to the child in Latvian. 35. Section 644.19 regulates matters regarding the unlawful movement of children across borders to Latvia. It provides the following procedural safeguards for abduction proceedings. 36. A court shall adjudicate an application in a court hearing in which the parties shall participate. The court shall invite a representative of the Orphans’ Court, as well as ascertain the point of view of the child if he or she can formulate it. 37. In adjudicating the application, the court shall request evidence of its own motion. The court shall use the most appropriate procedural means, as well as the quickest ways of acquiring evidence, in order for a decision to be taken within a period of six weeks after the submission of the application. 38. If the court determines that the child has been unlawfully moved to Latvia or detained in Latvia, it shall take a decision regarding the return of the child to the State which is his or her place of residence, if one of the following cases applies: 41. By virtue of section 17, the Orphans’ Court defends the personal and property interests and rights of children and other persons lacking capacity to act. 42. The Hague Convention on the Civil Aspects of International Child Abduction: 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. The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Where a child has been wrongfully removed or retained in terms of Article 3 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. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. 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. In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. 43. Section 61B defines parental responsibility as “all the duties, power, responsibilities and authority which, by law, parents have in relation to children”. 44. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. It has effect subject to court orders. 45. Section 111B incorporates the provision of the Hague Convention and provides that for the purposes of the Convention: (a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and (b) subject to any order of a court for the time being in force, a person: (i) with whom a child is to live under a parenting order; or (ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and (c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and (d) subject to any order of a court for the time being in force, a person: (i) with whom a child is to spend time under a parenting order; or (ii) with whom a child is to communicate under a parenting order; should be regarded as giving a right of access to the child. | 1 |
train | 001-58051 | ENG | SWE | CHAMBER | 1,997 | CASE OF ROLF GUSTAFSON v. SWEDEN | 3 | No violation of Art. 6-1 | C. Russo | 8. The applicant is a Swedish citizen resident in Stockholm. Since 1973 he has spent a total of eight years in prison for the commission of serious economic offences. Most recently, in October 1996 he was sentenced to a one-year term of imprisonment for a serious forgery offence. 9. The applicant claims that on two occasions, in April-June and JuneJuly 1991, he was the victim of kidnapping and extortion perpetrated by three persons. According to the applicant, one of the alleged perpetrators, a certain Mr L., had wanted to be paid for the part he played with him in the commission of certain economic crimes. 10. On 25 March 1993 the public prosecutor charged L. with one count of kidnapping on 17 April 1991, one count of aggravated extortion committed between 17 April 1991 and June 1991 and one count of kidnapping and aggravated extortion committed between 27 June and 3 July 1991. No proceedings were instituted against the other two persons, one of whom had been named by the applicant as a certain Mr P. (see paragraph 17 below). 11. In the criminal proceedings instituted against L. before the Stockholm District Court (tingsrätt), the applicant requested the court, pursuant to the provisions of chapter 22 of the Code of Judicial Procedure (Rättegångsbalken: see paragraph 20 below), to order L. to pay him a total of 169,350 Swedish kronor (SEK) in compensation in respect of the following items: (a) SEK 9,350 in material damages to his clothes; (b) SEK 10,000 in non-pecuniary damages for injury caused to his head; (c) SEK 50,000 for suffering resulting from an eye injury; (d) SEK 100,000 in non-pecuniary damages for the mental suffering caused by the two alleged kidnappings (see paragraph 9 above). The applicant reserved his right to present further claims in respect of any such damage as he might suffer in the future. 12. On 15 April 1993 the applicant applied for compensation to the Criminal Damage Compensation Board (Brottsskadenämnden - hereinafter "the Board") under the Criminal Damage Act 1978 (brottsskadelagen 1978:413 - hereinafter "the 1978 Act"; see paragraphs 20-29 below). In his application he stated that he had sought compensation for personal injury in the amount of SEK 160,000 in the proceedings against L. and that he had reserved his right to make any further claims with regard to future damage. In view of the rules on prescription of compensation claims, he submitted to the Board at that stage a claim for compensation of SEK 160,000 along the lines stated above. He enclosed a copy of the indictment against L. 13. On 28 April 1993 the Stockholm District Court convicted L., sentenced him to six years’ imprisonment and ordered him to pay SEK 144,350 in damages to the applicant. The District Court found, inter alia, that, on the whole, the applicant could not be considered a particularly trustworthy person in view of the fact that he had been convicted of several economic offences (see paragraph 8 above). It stated, however, that this fact did not in itself mean that his allegations concerning his kidnapping and extortion were untrue and it found the evidence to be such that the prosecution’s case against L. had been partially proven. 14. On 2 July 1993 the Svea Court of Appeal (Svea hovrätt) reversed the District Court’s decision on the ground that the charges against L. had not been proven, acquitted L. and rejected the applicant’s claim for compensation. The Court of Appeal found that the applicant, in view of his criminal background, could not be deemed a trustworthy person. It followed that the information he had provided on the events which had given rise to the charges against L. (åtalade händelserna) could not, in the absence of strong supporting evidence, ground L.’s conviction, even though the applicant’s evidence had been corroborated by others whom he had told about the incidents. The applicant did not seek leave to appeal to the Supreme Court (Högsta domstolen) against the decision. 15. On 12 August 1993 the applicant, referring to his application for compensation of 15 April 1993 (see paragraph 12 above), asked the Board to proceed with its examination of his claim, stating that he had no insurance which would cover the damage in question. He supplied the Board with copies of the judgments of the District Court and the Court of Appeal. 16. On 26 August 1993 the Board rejected the applicant’s compensation claim, stating as follows: "A condition for a grant of compensation is that damage has in fact been caused by crime. The Board ... cannot find it established that [the applicant] has suffered damage as a result of crime. Consequently, compensation for damage caused by crime cannot be awarded." 17. On 11 November 1993 the applicant requested the Board to reconsider its decision. He argued that it was clear from the judgments of the District Court and the Court of Appeal that he had been the victim of a crime and that he had suffered the damage for which he requested compensation. He had identified two of the three persons who were allegedly involved in the offences; the fact that the Court of Appeal had not found it proven that the only one to be charged, L., was guilty was not a reason to doubt that he had been the victim of crime. In support of his request for reconsideration of the decision the applicant submitted a copy of the investigation report concerning the alleged kidnappings and extortions, including a medical report drawn up on 25 February 1993 by Dr Lennart Berglin, a Deputy Senior Physician. According to this report, on 4 July 1991 the applicant had sought emergency care for his right eye, which he stated had been punched. He had been operated on by Dr Berglin on 5 July 1991 and had remained hospitalised until 15 July 1991. On 26 February 1992 he underwent a further operation. Dr Berglin concluded in his report that the applicant’s eye injury could have been caused by a punch. The applicant also submitted a transcript of the testimony given by Crime Inspector S. at the District Court’s oral hearing in the criminal proceedings against L. Inspector S. had been the principal investigator into the economic offences of which the applicant had previously been convicted. He had interrogated both the applicant and L. on a number of occasions. Inspector S. had told the District Court, inter alia: "I was, probably on 4 July 1991, informed [about the alleged kidnapping of the applicant]. A colleague ... telephoned me to say that he had been informed that [the applicant] had been kidnapped ..., that the kidnapping had been staged by [L.] with the help of two ‘gorillas’, ... and that the kidnapping had been combined with an extortion threat against [the applicant] in the amount of SEK 5 million. ... I then ... telephoned [the applicant], who ... denied that he had been kidnapped ... ... I saw [the applicant] in August [1991] in connection with ... criminal proceedings brought against him ... and noted that he had a bruise at [one of] his eye[s]. I asked him what had happened and he stated that he had been the victim of a robbery committed by some persons ... ... Probably in May 1992 [the applicant] mentioned the kidnappings when he was being interrogated as a suspect in another case ... He stated that [they had been carried out] by two black men and a third one, whom he did not wish to name ... He repeated several times that one kidnapping had taken place in April [1991] and [the other] towards the end of June [1991], lasting until the beginning of July [1991] ... We took [the applicant’s statements] seriously ... I have come to know [the applicant] so well that I can somehow see when he is lying or when he is telling the truth ... Having been asked on a number of occasions to name the perpetrators, [the applicant] stated that he would do so, but not right away ... In the autumn [of 1991] he named one of the assistants [during the kidnappings], [P.] ... [The applicant’s description of the environment and premises where he had been kept during the kidnappings] was very accurate as regards many details ..." 18. Both Dr Berglin’s report and Crime Inspector S.’s testimony had in essence been reproduced in the District Court’s judgment. Inspector S. had also been heard orally before the Court of Appeal, where he had more or less repeated the same evidence he gave to the District Court. 19. On 1 June 1994 the Board rejected the applicant’s request, for the following reasons: "The submissions in this case in support of the request for reconsideration are not such as to be a reason for the Board to change its previous decision. Nor is there any other reason for changing the decision." 20. Under chapter 22, section 1, of the Code of Judicial Procedure, a private claim arising from a crime may be lodged against the suspect or a third party in connection with the prosecution of the offence. If it concerns an offence forming the object of public charges, the prosecutor is under an obligation to prepare and present any such claim as the victim may wish to make, provided that it is not seriously inconvenient to do so and that the claim is not manifestly unfounded (section 2). In that event, the trial court will in principle determine the claim for compensation as well as the questions of guilt and sentencing. This is the most frequently used course of action for obtaining compensation for criminal damages. A private claim against the suspect may in the alternative be made by way of a civil action under the general rules on tort liability contained in the Tort Liability Act 1972. Otherwise, and at the relevant time, compensation could have been sought from the State under the rules of the 1978 Act, which was amended as of 1 July 1994. The 1978 Act was enacted in order to afford crime victims a means of obtaining reparation where the identity of the offender was unknown or where the latter had insufficient means to compensate the victim or where insurance coverage was inadequate. 21. Section 1 of the 1978 Act read, in so far as is relevant: "This Act regulates compensation to be paid by the State for damage caused by crime. The Act is applicable if the crime has been committed in Sweden ..." 22. Section 2 of the Ordinance on Damage Caused by Crime (brottsskadeförordningen 1978:653) read, at the time in question and in so far as is relevant: "... The claim [for compensation for damage caused by crime] shall be lodged with the Criminal Damage Compensation Board. The claim shall be supported by a police record, a medical statement and other documents of relevance to the [Board’s] examination. If someone has been convicted of the crime referred to in the request or if someone has been ordered to pay damages, a copy of the judgment [to this effect] shall also be enclosed. If no police investigation has been carried out, other material concerning the cause of the damage shall be submitted." 23. Section 14 of the 1978 Act provided: "A claim for compensation for damage caused by crime shall be filed within two years from the date of the offence. If there are special reasons, a claim may be examined even if it has been lodged out of time. A claim will only be examined if the offence has been reported to the public prosecutor or the police or if the applicant shows a valid reason why such a report has not been made." 24. Although it was not a condition for compensation under the 1978 Act that the offender had been convicted, it was a condition that the damage had been caused by criminal conduct and that both the subjective and objective conditions for the offence in question had been fulfilled. The Board decided independently whether the conditions for compensation under the 1978 Act had been fulfilled, including whether a crime had been committed. Thus, in some cases the Board had been satisfied that the conditions for compensation had been met, despite a decision by the public prosecutor not to bring charges on the ground of lack of evidence. In rare instances, the Board had granted compensation even though the trial court, because of insufficient evidence, had acquitted the accused or had dismissed the compensation claim. Generally speaking, the standard of proof applied by the Board was less strict than that applied by a trial court. 25. Compensation could be granted under the 1978 Act for physical injury suffered by the victim but could, on certain conditions, also cover damage to property. Other damage could be compensated to a limited extent (sections 2-5 of the 1978 Act). 26. No appeal lay against a decision of the Board (section 12 of the 1978 Act). Nor was it possible to request judicial review of the decision pursuant to the 1988 Act on Judicial Review of Certain Administrative Decisions (Rättsprövningslagen 1988:205). 27. The Board set up under the 1978 Act was composed of a chairperson, two vice-chairpersons and three other members, all of whom were appointed by the Government for a limited period (section 15 of the Ordinance with Instructions for the Board (Förordningen 1988:984 med instruktion för brottsskadenämnden)). It was a requirement that the chairperson, the vice-chairpersons and their substitutes be lawyers ("vara lagfarna") and have experience as judges (section 13 of the 1978 Act). The remaining three members did not need to be lawyers, but one of them had to be a representative of the insurance business. The Board’s independence was guaranteed by chapter 11, Article 7, of the Instrument of Government (Regeringsformen), which provision implies that neither the Government nor Parliament could intervene or influence the manner in which the Board dealt with an individual case. 28. The rules governing the procedure before the Board were similar to those found in the Code of Judicial Procedure (Rättegångsbalken) and the Administrative Procedure Act 1971 (Förvaltningsprocesslagen 1971:291). Thus, for instance, the rules on disqualification of members of the Board from dealing with a case (sections 11-12 of the Administrative Act 1986 (Förvaltningslagen 1986:223) were similar to those applying to members of the ordinary courts (chapter 4, section 13, of the Code of Judicial Procedure) and the administrative courts (section 41 of the Administrative Procedure Act). Although the Board in principle determined cases on the basis of the case file, a party to the proceedings had the possibility to make oral arguments before the Board, if the latter considered it expedient (Section 14 of the Administrative Act 1986). A party was entitled to have access to all written documents in a case, unless non-disclosure was required by a strong public or private interest under the Secrecy Act 1980 (Sekretesslagen 1980:100). In such a case the party concerned should be informed of the contents of such facts in order to enable him to protect his rights, provided this could be done without serious harm to those interests which are protected by secrecy. No case could be decided on before the parties had been informed of all the evidence adduced and had been given an opportunity to submit observations in reply. Subject to the provisions in the Secrecy Act 1980, all documents submitted to the Board were accessible to the public. 29. Under the new legislation adopted on 1 July 1994 (see paragraph 20 above), a new public body has been established for the examination of compensation requests, i.e. the Authority for Victims of Crime (Brottsoffermyndigheten). Within that authority a board examines cases of particular interest or cases that are otherwise of particular importance. | 0 |
train | 001-99996 | ENG | MDA | CHAMBER | 2,010 | CASE OF CIORAP v. MOLDOVA (No. 2) | 3 | Preliminary objection joined to merits and dismissed (victim);Reminder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1965 and lives in Chişinău. He works for “Social Amnesty”, an organisation which provides legal help to persons in detention. 6. On 11 October 2000 the applicant underwent an operation to drain fluid from his liver. He was released from hospital on 21 October 2000. 7. On 23 October 2000 he was arrested by the Department for Fighting Organised Crime and Corruption on suspicion of fraud and was placed in detention at the Hînceşti police station. He alleged that he was suspended from an iron bar and beaten with machine guns and rubber truncheons and that the beating re-opened his surgical wound. He was placed in a small cell in the police station, without a bed, mattress or blankets and without access to a toilet or washing facilities, where he had to sleep on the concrete floor. He was seen by a doctor on 29 October 2000, who observed that the applicant's surgical wound had reopened and recommended that he be admitted to hospital immediately. However, police officer Ş. refused a transfer to the hospital. 8. On 6 November 2000 the applicant was transferred to prison no. 13, where he was placed into the medical treatment unit with the diagnosis “post-surgery state” (see further Ciorap v. Moldova, no. 12066/02, 19 June 2007). According to medical reports, on 7 November 2000 the applicant swallowed a nail and was hospitalised in order to extract it. According to medical evidence, during 2000-2001 the applicant underwent 10 operations made necessary by acts of self-harm, such as swallowing sharp objects and cutting himself (see Ciorap v. Moldova (dec.), no. 12066/02, 11 October 2005). 9. The applicant made a number of complaints in respect of his alleged ill-treatment by the police, the failure to give him medical treatment and the inhuman conditions of detention. The prosecutor opened a criminal investigation and interviewed the applicant, the police officers involved and their colleagues, as well as the medical personnel who had examined the applicant during his arrest. The doctors confirmed that they had been called twice to attend the applicant on the night of his arrest but that this had been in connection with a post-surgery problem. The prosecutor found that the applicant had made no complaint of ill-treatment when examined by the doctors or by the superior police officers (see Ciorap v. Moldova (dec.), no. 12066/02, 11 October 2005). All the applicant's complaints were dismissed as unfounded. This decision was confirmed by the investigating judge on 21 June 2006 and 30 October 2006. 10. In a final judgment of 7 November 2006 the Supreme Court of Justice found that on 7 October 2002 and 29 April 2003 the applicant had been informed of the prosecutor's decision to reject his request for the initiation of a criminal investigation into his alleged torture in October 2000. He was also informed of his right to challenge that decision in court within ten days of the date on which he was informed of it. However, the applicant did not challenge that decision until three years later, without having asked for an extension of the time-limit. The court therefore rejected his complaint for failure to challenge the prosecutor's decision within the time-limit provided for by law. 11. On an unspecified date, the applicant initiated new court proceedings against the Hînceşti police station, the Prosecutor's Office and the Ministry of Finance, claiming compensation for the damage caused to him through his ill-treatment upon his arrest on 23 October 2000, the failure to give him medical treatment while in detention and the inhuman conditions of detention. 12. On 15 March 2007 the Hînceşti District Court rejected his claims as unfounded. On 7 June 2007 the Chişinău Court of Appeal quashed that judgment and partly accepted the applicant's claims. The court found that the documents in the file established that police officer Ş. had refused to allow the applicant to be treated in hospital even though an urgent examination by a surgeon had been recommended by the doctor who saw the applicant on 29 October 2000. The court also found that the applicant had been detained at Hînceşti police station in conditions that breached the requirements of domestic law. In particular, the Law on preventive arrest (no. 1226-XIII, 27 June 1997) required that individuals detained pre-trial had a minimum of two square metres of cell space, access to daylight and fresh air, access to a toilet in sanitary conditions not degrading human dignity, access to a shower once every ten days and access to a bed with bed linen. The court referred to a letter from the Ministry of Interior which acknowledged that at the time of the applicant's detention Hînceşti police station had been insufficiently equipped to offer appropriate conditions of detention, including proper ventilation. The court awarded the applicant 100 Moldovan lei (MDL) (6 euros (EUR) at the time) for non-pecuniary damage caused. The applicant appealed. 13. On 21 November 2007 the Supreme Court of Justice accepted the applicant's appeal in cassation and partly quashed the lower court's judgment. The court confirmed the findings of the Chişinău Court of Appeal concerning the failure to give the applicant required medical treatment and to provide the applicant with adequate conditions of detention. In reaching this conclusion, the court referred to Article 3 of the Convention and the Court's judgments such as Kudła v. Poland [GC] (no. 30210/96, ECHR 2000XI), Sarban v. Moldova (no. 3456/05, 4 October 2005) and Ostrovar v. Moldova (no. 35207/03, 13 September 2005). The court added that while there was no domestic legislation giving the applicant a right to compensation, the Convention should be applied directly as it was part of the domestic legal system and had precedence over domestic legislation by virtue of the express provisions of Article 4 of the Constitution. The same conclusion had been reached by the Constitutional Court in a judgment of 14 October 1999. The court also relied on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment made during its visits in 1998, 2001 and 2004 concerning the substandard conditions of detention in the Hînceşti police station. The court held that the denial of medical treatment combined with the conditions of detention, which had aggravated the applicant's medical condition, had amounted to inhuman treatment in breach of Article 3 of the Convention. The court increased the award made to the applicant in compensation for non-pecuniary damage to MDL 10,000 (EUR 600 at the time) and awarded him MDL 210 (EUR 12.6) in compensation for pecuniary damage. 14. The applicant again requested the Hînceşti Prosecutor's Office to open a criminal investigation into his alleged ill-treatment by the police, but the prosecutor rejected the request. The applicant challenged this decision before the Hînceşti investigating judge and subsequently the Supreme Court, which dismissed his appeal on 1 October 2008. | 1 |
train | 001-71642 | ENG | LTU | ADMISSIBILITY | 2,005 | BATALOV v. LITHUANIA | 4 | Inadmissible | null | The applicant, Mr Bislan Batalov, is a Russian national of the Chechen ethnic origin, born in 1979. He is represented before the Court by Mr L. Biekša, a lawyer practising in Vilnius. 1. Proceedings determining the applicant’s status in Lithuania The applicant entered Lithuania illegally on an unspecified date in 2001. He immediately claimed asylum on the ground that he had allegedly taken part in various hostilities against the Russian military forces and that he feared persecution if returned to Russia. He alleged that he had been previously detained by Russian military officers, that he had been beaten and tortured during that detention, and that he had only been released after his relatives had “paid a ransom”. On 14 May 2004 the immigration authorities refused asylum and applied to a court for the applicant’s deportation to Russia. In reaching their conclusion, the immigration authorities referred to the “danger to national security” which the applicant represented. No factual elements were specified to support that statement, the immigration authorities having reached the conclusion on the basis of a letter sent to them by the State Security Department. The decision of 14 May 2004 mentioned that the applicant had the right of appeal to a court within seven days of the notification of the decision, pursuant to Article 138 of the Aliens Act. The decision of 14 May 2004 was translated into Russian and given to the applicant on 14 June 2004, as confirmed by his signature on a copy of the decision submitted to the Court. On 10 June 2004 the Vilnius Regional Administrative Court accepted the immigration authorities’ request to deport the applicant to Russia on the basis of his presenting a danger to national security. On 16 June 2004 the applicant was accommodated at the Aliens Registration Centre (ARC) pending the final determination of his legal status in Lithuania. On 23 June 2004 the applicant applied to a court, claiming asylum and alleging persecution in Russia. On 30 June 2004 the Vilnius Regional Administrative Court dismissed the application on the ground that the applicant had missed the seven day time-limit for the submission of an appeal, laid down in Article 138 of the Aliens Act. In this regard it was noted that the applicant had sent his application by post only on 23 June 2004. The court also noted that the applicant had not specified whether his application was an appeal against the immigration authorities’ decision of 14 May 2004, or against the court decision of 10 June 2004. In either event, the applicant had submitted his appeal out of time. It was further noted that he had not requested an extension of the time-limit for appeal. On 7 July 2004 the applicant received the court decision of 30 June 2004. On 8 July 2004 he consulted a lawyer, who helped him to draft a further appeal against the immigration authorities’ decision of 14 May 2004. In that appeal, dated 9 July 2004, the applicant stated that he had only taken cognisance of the impugned decision on 14 June 2004, and that he had appealed against it on 23 June 2004. Since he did not have a lawyer until 8 July 2004, the applicant requested the reinstatement of the time-limit for appealing against the decision of 14 May 2004. In his appeal, the applicant argued that the authorities’ conclusions on his alleged “danger to national security” were not supported by any evidence. He claimed that he would be subjected to persecution if returned to Russia. On 14 July 2004 the Vilnius Regional Administrative Court dismissed the applicant’s request to reinstate the time-limit. The court held that the time-limit mentioned in Article 138 of the Aliens Act could only be reinstated in cases where it had been missed as a result of circumstances independent of the applicant’s will. However, the court observed that the applicant had not invoked any circumstances which could show that he was not in a position to submit his appeal before 23 June 2004. On 27 July 2004 the applicant filed an appeal against the decision of 14 July 2004. The applicant stated that from 14 June 2004, after having taken cognisance of the decision of 14 May 2004, he had been unable to submit his appeal within the seven-day period since he did not know the Lithuanian language or legislation and, moreover, had no postage stamps or envelopes to send an appeal. According to the applicant, on 22 June 2004 he had given his appeal, which had been written in Russian, to a representative of the United Nations High Commissioner for Refugees (UNHCR), who in turn sent the appeal to the court. The applicant also stated that the UNHCR representative had promised the applicant that he would inform certain immigration lawyers about his situation. As a result, the applicant had been able to meet a lawyer for the first time on 8 July 2004, and to draft a properly motivated appeal on 9 July 2004. On 9 September 2004 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 14 July 2004. The court reiterated that the applicant’s first appeal against the decision of 14 May 2004 had only been sent on 23 June 2004, i.e. more than seven days after the applicant had familiarised himself with the decision (of 14 June 2004). The court observed that the fact that the applicant had access to a lawyer for the first time only on 8 July 2004 did not constitute a circumstance absolving him from the obligation to comply with the time-limit. The court also stated that the other allegations relied on by the applicant (i.e. ignorance of language and laws, and no stationery) could not be reviewed on appeal as these facts had not been alleged before the first-instance court on 14 July 2004. That decision was final. On 22 November 2004 the European Court of Human Rights communicated the applicant’s complaints about his imminent expulsion from Lithuania to Russia under Article 3 of the Convention. On 17 December 2004 the Vilnius Regional Administrative Court suspended the execution of the expulsion order of 10 June 2004. On 14 January 2005 the immigration authorities authorised the applicant’s stay in Lithuania on humanitarian grounds. On 25 March 2005 the President of the Supreme Administrative Court petitioned the Supreme Administrative Court to resume the proceedings concerning the applicant’s expulsion. On 29 March 2005 the Supreme Administrative Court accepted the President’s petition. The case was transmitted for a fresh examination by the Vilnius Regional Administrative Court. On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia. On 5 July 2005 the immigration authorities issued the applicant with a temporary residence permit on humanitarian grounds. In his letter of 19 July 2005, the applicant stated that, in view of the regularisation of his stay in Lithuania, he no longer wished to pursue his complaints under Article 3 of the Convention. 2. The applicant’s detention The applicant had not been arrested or detained upon his entry into Lithuania in 2001 or immediately thereafter. In early 2004 he lived at an address in Kaunas. On 28 May 2004 the immigration authorities informed the Vilnius Regional Administrative Court that the applicant had not been found at his permanent place of residence, and that as a result he not been acquainted with the decision of 14 May 2004 refusing asylum. On 13 June 2004 the applicant was arrested by the Kaunas police in view of the expulsion order of 10 June 2004. On 14 June 2004 the applicant’s detention (sulaikymas) and placement (apgyvendinimas) at the ARC were authorised by the Kaunas City District Court to ensure the applicant’s eventual expulsion from Lithuania on the basis of Article 113 of the Aliens Act (see the “Relevant domestic law and practice” part below). Detention was authorised until 14 September 2004. On the same date the applicant escaped from the police. A search for him was launched. On 16 June 2004 he was again arrested, brought to and accommodated at the ARC. On 14 September, 14 October 2004 and 13 December 2004, the Švenčionys District Court extended the term of the applicant’s detention, by the latter decision until 15 March 2005. On 3 January 2005 the Švenčionys District Court refused to order the applicant’s release. On 31 January 2005 the Supreme Administrative Court dismissed his appeal against the decision of 3 January 2005. In this connection the appeal court noted that the decision on the applicant’s expulsion had not been quashed, although its execution had been suspended by the Vilnius Regional Administrative Court on 17 December 2004. It held that the applicant’s continuing detention was compatible with Article 113 §§ 5 and 7 of the Aliens Act (see the “Relevant domestic law and practice” part below). On 14 February 2005 the Švenčionys District Court refused to order the applicant’s release. On 14 March 2005 the Švenčionys District Court further authorised the applicant’s detention at the ARC until 15 June 2005. The court noted that on 14 January 2005 the immigration authorities had decided to authorise the applicant’s stay in the country on humanitarian grounds, and that, as a result, the ground specified in Article 113 § 2 of the Aliens Act, namely the unlawfulness of his stay in the country, could no longer justify his detention. However, the court observed that the continuing validity of the expulsion order of 10 June 2004 warranted his detention in accordance with Article 113 §§ 5 and 7 of the Aliens Act. On 18 March 2005 the Supreme Administrative Court rejected the applicant’s appeal against the decision of 14 February 2005. On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia. In view of this decision, on 6 May 2005 the Supreme Administrative Court decided that there were no longer any grounds for the applicant’s detention under Article 113 of the Aliens Act. The decision of 14 March 2005 was accordingly quashed. On 9 May 2005, upon the applicant’s request, his further stay at the ARC was authorised by the immigration authorities under a different regime, namely without any restrictions on his liberty of movement. Following the decision of 5 July 2005 to issue the applicant with a temporary residence permit, he left his accommodation at the ARC on an unspecified date in July 2005. It appears that he now lives in a place of his own choice in Lithuania. According to Article 267 of the Code of Administrative Offences and Article 114 of the Aliens Act of 30 April 2004, an alien can be arrested (sulaikytas) by the police and held for up to 48 hours, in order to determine the legality of his stay in the country. The alien can thereafter be deprived of his liberty only on the basis of a court order. Pursuant to Article 113 of the Aliens Act, an alien may be detained (sulaikytas) if his stay in the country is illegal (Article 113 § 2 of the Act), where a decision has been taken to expel him (Article 113 § 5), or when he presents a danger to public safety and national security (Article 113 § 7). According to Article 116 of the Act, the immigration authorities shall apply to a court for a detention order if one of the grounds specified in Article 113 exists. | 0 |
train | 001-58290 | ENG | NLD | GRANDCHAMBER | 1,999 | CASE OF DOUIYEB v. THE NETHERLANDS | 3 | No violation of Art. 5-1;No violation of Art. 5-4 | Elisabeth Palm | 8. The applicant is a Moroccan national and was born in 1960. He lives in Amsterdam. 9. On 26 February 1996, in the course of an investigation into offences against public decency following complaints filed with the police, the assistant public prosecutor (hulpofficier van justitie), in accordance with Articles 54 and 55 of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter “CCP”), issued a warrant for the applicant’s arrest on suspicion of contravening Article 250 ter of the Netherlands Criminal Code (Wetboek van Strafrecht, hereinafter referred to as “CC”), which provision prohibits trafficking in persons (mensenhandel). 10. On the basis of this warrant the police arrested the applicant in his home on the same day at 1.05 p.m. and brought him to the police station. According to the formal police report on this arrest (proces-verbaal van aanhouding) of 26 February 1996, the police officers identified themselves and, upon request of the member of the applicant’s family who answered the door, showed the warrant for the applicant’s arrest when they entered the applicant’s home and arrested him in relation to an offence under Article 250 ter CC. This police report further states that the applicant was provided with a copy of the arrest warrant. The formal police report does not mention at what time the applicant was provided with this copy. 11. On 26 February 1996, at approximately 3 p.m., the applicant was questioned by two police officers. In so far as relevant, the formal police report on this questioning (proces-verbaal van verhoor) states as follows: (Translation) “After we had informed the suspect that he was not obliged to answer and also informed him what he was to be questioned about, he stated to us as follows: ‘I understand what I am suspected of. I understand you well. I do not understand for what I have been arrested. I have no statement to make, I want to speak to my lawyer first. I will not sign anything.’ After his statement had been read out to him, he agreed with it, but refused to sign it.” 12. At 3.05 p.m. on 26 February 1996, after the applicant had been brought before the assistant public prosecutor, the latter ordered the applicant’s detention in police custody (inverzekeringstelling) for a maximum of three days. 13. According to the wording of the custody order, the applicant’s custody had been ordered at 3.05 p.m. on suspicion of having contravened Article 250 CC. The relevant legal qualification was stated to be “living off immoral earnings” (koppelarij). The custody order further stated that the applicant and his lawyer had been provided with a copy of the custody order without delay (onverwijld). The custody order does not contain an indication as to the exact time the applicant and his lawyer were provided with a copy of this order. 14. On the cover page of the police investigation file and in the formal police report on the investigation in the present case, both dated 26 February 1996, it is recorded that the applicant, together with another person, was suspected of contravening Article 250 ter CC. 15. On 27 February 1996 the applicant was brought before the investigating judge (rechter-commissaris) in order to be heard and on the prosecution’s request to order the applicant’s detention on remand (inbewaringstelling), which written request was based on Article 250 ter CC and referred to the offence set out therein. During this hearing, the applicant was assisted by his lawyer. 16. The applicant denied the suspicions against him, explaining: (Translation) “I only run errands for the girls. I know girls from the Czech Republic, Lithuania, Russia and the Netherlands. I pick them up with the car and bring them home. I do so at their own request. I earn about 50 guilders per day with that [activity].” In response to the public prosecutor’s demand, the applicant stated: (Translation) “Everything is falling apart on me, my marriage and my children. If my family becomes aware that I am involved in trafficking in women, they will kill me.” 17. The applicant’s lawyer submitted that the applicant had been placed in police custody on suspicion of contravening Article 250 CC, for which offence police custody cannot be ordered. He demanded the applicant’s immediate release. 18. According to the minutes of this hearing, the investigating judge ordered the applicant’s detention on remand, holding: (Translation) “I, investigating judge, inform the suspect, as I do not find the police custody unlawful, that as to the submissions – however well-founded in fact they may be – regard must be had to the nature of the infringed rule(s), the interest protected by such rule(s), the degree to which this interest may be considered as having been harmed and the relevant interests of society.” 19. The written order for the applicant’s detention on remand (bevel tot bewaring) issued by the investigating judge, in so far as relevant, reads: (Translation) “… as it is plausible that the suspect is to a considerable extent involved in trafficking in persons; that the pre-trial detention is in all reasonability necessary to … reveal the truth as [the] suspect denies [the offence] and (a) further witness(es) need(s) to be heard; NOTING the contents of … Article(s) 250 ter Criminal Code/1/2; ISSUES an order for detention on remand against [the] suspect for a period of ten days…” 20. Following the prosecution’s request for the applicant’s further detention on remand (gevangenhouding), the Regional Court (Arrondissementsrechtbank) of Amsterdam, after having heard the applicant and after having noted the grounds on which the applicant’s detention on remand had been ordered and having found these grounds still to be pertinent, on 5 March 1996 ordered the applicant’s further detention on remand for a period of thirty days. On 6 March 1996, the applicant was released for lack of space for further detainees in any remand centre. 21. By a judgment of 30 August 1996, the Regional Court of Amsterdam acquitted the applicant of the charges brought against him under Article 250 ter CC. On the same day, in a different set of proceedings concerning unrelated facts, the Regional Court of Amsterdam convicted him of unlawful possession of a firearm and sentenced him to six weeks’ imprisonment. 22. On 14 November 1996, the applicant filed a request under Article 89 CCP for compensation in respect of damage sustained on account of the time spent in pre-trial detention on suspicion of committing the offences of which he had been acquitted. Instead of seeking pecuniary compensation, the applicant requested the Regional Court to order the deduction of the time he had spent in pre-trial detention from the six weeks’ imprisonment to which he had been sentenced in the other set of criminal proceedings. 23. In its decision of 25 April 1997, the Regional Court noted that the applicant had been taken into police custody on 26 February 1996 on suspicion of committing an offence under Article 250 ter CC, that on 27 February 1996 the investigating judge had ordered the applicant’s detention on remand and that he had been released for lack of space on 6 March 1996. Pursuant to Article 27 § 2 CC and Article 90 § 4 CCP, the Regional Court ordered that ten days be deducted from the six weeks’ imprisonment imposed for the other offence (see paragraph 21 above). As to the remaining 32 days, the applicant has successfully sought a royal pardon, these 32 days having been commuted to 69 hours’ community work. 24. According to Article 54 CCP, a public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence in respect of which pre-trial detention (voorlopige hechtenis) may be ordered. 25. Pursuant to Article 57 CCP, a public prosecutor or assistant public prosecutor is competent to order a person’s detention in police custody, after having seen and heard that person, who is entitled to be assisted by a lawyer. 26. According to Article 58 CCP, a custody order can only be issued in respect of punishable offences for which pre-trial detention may be ordered. A custody order is only valid for a maximum of three days and may be prolonged once for a maximum period of three days. No appeal lies against a custody order. 27. Article 59a CCP requires that no later than three days and fifteen hours after being arrested, a suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge, in accordance with Article 59a § 4 CCP, to order his or her release. Where the investigating judge finds the order for detention in police custody (inverzekeringstelling) unlawful, the suspect’s immediate release must be ordered (Article 59a § 5 CCP). 28. In order to prolong the detention of a suspect, the public prosecutor can request the investigation judge for a remand order (inbewaringstelling) under Article 63 CCP. Pursuant to Article 64 § 1 CCP this remand order is valid for a period of maximum ten days. 29. Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 CCP, apply to the Regional Court for an order lifting the pre-trial detention (opheffing voorlopige hechtenis). Under Article 87 § 2 CCP, an appeal against a rejection by the Regional Court of a first request to lift pre-trial detention may be lodged with the Court of Appeal (Gerechtshof). 30. In order to prolong the detention of a suspect whose remand has been ordered by the investigation judge, the public prosecutor can request the Regional Court for an order for further detention on remand (gevangenhouding). Pursuant to Article 66 CCP this order is valid for a period of maximum thirty days. Under Article 71 CCP, an appeal against an order for further detention on remand lies with the Court of Appeal. 31. According to the established case-law of the Supreme Court (Hoge Raad), procedural defects occurring in respect of previous orders for pre-trial detention do not constitute independent grounds for dismissing an application for a subsequent category of pre-trial detention. A judge must examine for each category separately whether all conditions are fulfilled (see HR (Hoge Raad), 4 March 1975, NJ (Nederlandse Jurisprudentie), 1975, no. 241; HR, 10 November 1981, NJ 1982, no. 45; and HR, 7 October 1988, NJ 1989, no. 510). However, in deciding requests under Article 69 CCP, a judge may take procedural defects into consideration as a relevant factor (see HR, 16 March 1990, NJ 1990, no. 500). 32. Article 67 CCP reads as follows: “1. An order for pre-trial detention can be issued in case of suspicion of: (a) an offence which, according to the law, carries a punishment of imprisonment of four years or more; (b) one of the offences defined in Articles 132, 250 bis, 285 § 1, 318, 321, 326, 326a, 326c, 395 and 417 bis of the Criminal Code; (c) the misdemeanour described in Article 432, under 3°, of the Criminal Code; (d) one of the offences defined in: – Article 175 § 2 of the Road Traffic Act 1994; – Article 27 § 2 of the Act on Extraordinary Competences of Civilian Authorities; – Articles 52, 53 § 1 and 54 of the Act on Conscientious Objections to Military Service; – Article 31 of the Act on Games of Chance; – Article 11 § 2 of the Opium Act; – Article 46 of the Stockbroking Control Act; – Article 31 §§ 1 and 2 of the Act on Arms and Ammunition. 2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the courts and which, according to the law, is punishable by imprisonment. 3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.” (“1. Een bevel tot voorlopige hechtenis kan worden gegeven in geval van verdenking van: a. een misdrijf waarop naar de wettelijke omschrijving een gevangenisstraf van vier jaren of meer is gesteld; b. een der misdrijven omschreven in de artikelen 132, 250 bis, 285, eerste lid, 318, 321, 326, 326a, 326c, 395 en 417 bis van het Wetboek van Strafrecht; c. de overtreding omschreven in artikel 432, onder 3°, van het Wetboek van Strafvordering; d. een der misdrijven omschreven in: – artikel 175, tweede lid, van de Wegenverkeerswet 1994; – artikel 27, tweede lid, van de Wet buitengewone bevoegdheden burgerlijk gezag; – de artikelen 52, 53, eerste lid, en 54 van de Wet gewetensbezwaren militaire dienst; – artikel 31 van de Wet op de kansspelen; – artikel 11, tweede lid, van de Opiumwet; – artikel 46 van de Wet toezicht effectenverkeer 1995; – artikel 31, eerste en tweede lid, van de Wet wapens en munitie. 2. Het bevel kan voorts worden gegeven indien geen vaste woon- of verblijfplaats in Nederland van de verdachte kan worden vastgesteld en hij verdacht wordt van een misdrijf waarvan de rechtbanken kennis nemen en waarop, naar de wettelijke omschrijving, gevangenisstraf is gesteld. 3. De voorgaande leden van dit artikel vinden alleen toepassing wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte.”) 33. Article 250 CC provides as follows: “1. The following persons shall be punished: 1° any person who intentionally causes or encourages his minor child, foster child or adopted child, his ward, a minor entrusted to him for care, education or supervision, or a servant or subordinate who is a minor, to commit an indecent act with another person, shall be liable to a term of imprisonment not exceeding four years or a fourth-category fine. 2° any person who intentionally causes or encourages a minor who he knows to be or may reasonably be expected to know to be a minor to commit an indecent act with another person, other than in the cases defined under 1°, shall be liable to a term of imprisonment not exceeding three years or a fourth-category fine. 2. If the offender has made a profession or habit of committing the indictable offence, the terms of imprisonment may be increased by one third.” (“1. Wordt gestraft: 1° met gevangenisstraf van ten hoogste vier jaren of geldboete van de vierde categorie, hij die het plegen van ontucht door zijn minderjarig kind, stiefkind of pleegkind, zijn pupil, een aan zorg, opleiding of waakzaamheid toevertrouwde minderjarige or zijn minderjarige bediende of ondergeschikte met een derde opzettelijk teweegbrengt of bevordert. 2° met gevangenisstraf van ten hoogste drie jaren of een geldboete van de vierde categorie, hij die, buiten de gevallen genoemd onder 1°, het plegen van ontucht door een minderjarige wiens minderjarigheid hij kent of redelijkerwijs moet vermoeden, met een derde opzettelijk teweeg brengt of bevordert. 2. Indien de schuldige van het plegen van het misdrijf een gewoonte maakt, kunnen de gevangenisstraffen met een derde worden verhoogd.”) 34. Article 250 ter CC states as follows: “1. The following persons commit be the offence of trafficking in persons and are liable to a punishment of six years’ imprisonment or a fifth-category fine: 1° any person who induces another person to engage in prostitution by means of violence or any other physical action or by means of threats of violence or of any other physical action or by misusing authority or influence derived from the actual state of affairs, or by means of deception, or who under any of these circumstances undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution; 2° any person who recruits, takes with him or abducts any person with a view to inducing the latter to engage in prostitution in another country; 3° any person who induces another person to engage in prostitution, or who, as regards this other person, undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution, if the other person is a minor. 2. The penalty for the following offences shall be eight years’ imprisonment or a fifth-category fine: 1° trafficking in persons, committed by two or more persons acting in concert; 2° trafficking in persons, where the victim is aged less than sixteen years; 3° trafficking in persons, if violence or any other physical action referred to in paragraph 1 results in serious bodily harm. 3. Trafficking in persons, committed by two or more persons acting in concert, under circumstances set out in paragraph 2 under 2° or 3°, shall be punishable by ten years’ imprisonment or a fifth-category fine.” (“1. Als schuldig aan mensenhandel wordt gestraft met gevangenisstraf van zes jaren of geldboete van de vijfde categorie: 1° degene die een ander door geweld of een andere feitelijkheid of door bedreiging met geweld of een andere feitelijkheid dan wel door misbruik van uit feitelijke verhoudingen voortvloeiend overwicht of door misleiding tot prostitutie brengt, dan wel onder voornoemde omstandigheden enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt; 2° degene die een persoon aanwerft, medeneemt of ontvoert met het oogmerk die persoon in een ander land in de prostitutie te brengen; 3° degene die een ander tot prostitutie brengt, dan wel ten aanzien van een ander enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt, indien die ander minderjarig is. 2. Met gevangenisstraf van acht jaren of een geldboete van de vijfde categorie wordt gestraft: 1° mensenhandel door twee of meer verenigde personen; 2° mensenhandel ten aanzien van een persoon die de leeftijd van zestien jaren nog niet heeft bereikt; 3° mensenhandel, indien geweld of een andere feitelijkheid als bedoeld in het eerste lid, zwaar lichamelijk letsel ten gevolge heeft. 3. Mensenhandel door twee of meer verenigde personen onder de omstandigheden, bedoeld in het tweede lid onder 2° or 3°, wordt gestraft met gevangenisstraf van tien jaren of geldboete van de vijfde categorie.”) | 0 |
train | 001-61654 | ENG | ITA | CHAMBER | 2,004 | CASE OF FOSSI AND MIGNOLLI v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Peer Lorenzen | 4. The applicants were born respectively in 1949, 1934, 1953 and live in Altopascio (Lucca), Lastra a Signa and Florence. 5. They are the owners of four flats in Florence. 6. On 10 January 2001, the whole property was transferred to the first applicant, Mr Enrico Fossi. 7. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date. 8. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 9. By a decision of 14 July 1987, which was made enforceable on 4 January 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1990. 10. On 19 October 1993, the applicants served notice on the tenant requiring her to vacate the premises. 11. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993. 12. Between 9 December 1993 and 16 November 1998, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 13. At the end of 1998, the applicants recovered possession of the flat. 14. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date. 15. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 16. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992. 17. On 19 October 1993, the applicants served notice on the tenant requiring him to vacate the premises. 18. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993. 19. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 20. On 1 August 2000, the applicants entered into a new lease with the tenant's wife. 21. On an unspecified date at the end of 2001, Mr Enrico Fossi recovered possession of the flat. 22. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date. 23. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 24. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992. 25. On 19 October 1993, the applicants served notice on the tenant requiring her to vacate the premises. 26. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993. 27. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 28. On 13 July 2003, Mr Enrico Fossi recovered possession of the flat. 29. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date. 30. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 31. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992. 32. On 19 October 1993, the applicants served notice on the tenant requiring him to vacate the premises. 33. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993. 34. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 35. On an unspecified date of 1999, the applicants recovered possession of the flat. 36. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. 37. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 38. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 39. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 40. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 41. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 42. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 43. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 44. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. | 1 |
train | 001-83985 | ENG | UKR | CHAMBER | 2,007 | CASE OF KOLNOOCHENKO AND OTHERS v. UKRAINE | 4 | Violation of P1-1 | Peer Lorenzen | 4. The applicants were born in 1939, 1940, 1940, 1937 and 1972 respectively. On 30 January 2007 the second applicant died. By letter of 12 April 2007, Mrs Svetlana Ivanovna Shashkova, the second applicant's widow, informed the Court that she wished to pursue the application. 5. The first applicant was employed by a subsidiary of the Statecontrolled “Pivdenelekromash” OJSC (“the Company,” ВАТ “Південелектромаш”) until her dismissal on redundancy in 2005. The other applicants were employed by the Company itself. 6. Between January 2001 and May 2004 (see appendix for details) each applicant obtained one or more final judgments from the Nova Kakhovka Court (Новокаховський міський суд Херсонської області), awarding him or her salary arrears or other payments against his or her employer. 7. The writs of enforcement in respect of these judgments were transferred to the Nova Kakhovka City Bailiffs' Service (Відділ Державної виконавчої служби Новокаховського міського управління юстиції), which initiated the enforcement proceedings. On different occasions the bailiffs informed the applicants that the collection of the debts was impeded by pending bankruptcy proceedings against the Company. 8. In March 2006 the judgment given in favour of the first applicant and two of the three judgments given in favour of the second applicant were enforced in full. Other judgments remain fully or partially unenforced. 9. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005). | 0 |
train | 001-93119 | ENG | UKR | CHAMBER | 2,009 | CASE OF BUBLYK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1972 and lives in Munich, Germany. 5. In 1996 the applicant entered into an agreement with a private company, Skorpion, under which the latter was obliged to construct an apartment in a block house. Following insolvency proceedings instituted against this company, the applicant entered into a debt transfer agreement (“the agreement”) with a private company, KGD, (“the company”), under which the latter accepted responsibility for the obligations of the Skorpion company. 6. On 17 June 1999 the applicant instituted proceedings against the company in the Ivano-Frankivsk Court. She requested the court to declare a part of the agreement null and void and sought a ruling to oblige the company to fulfil the remainder of the agreement. 7. On 6 September 1999 the Ivano-Frankivsk City Court (“the City Court”) allowed the applicant’s claim. 8. On 16 November 1999 the Ivano-Frankivsk Regional Court quashed this decision and remitted the case for fresh consideration. 9. On 3 February 2000 the company lodged a counterclaim seeking termination of the agreement on the ground that the applicant had failed to comply with the agreement. 10. On 6 December 2001 the City Court rejected the applicant’s claim and allowed the counterclaim. 11. On 13 March 2002 the Ivano-Frankivsk Regional Court of Appeal (“the Court of Appeal”) upheld this judgment. 12. On 11 March 2004 the Supreme Court, following a cassation appeal by the applicant, quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh consideration. 13. In the course of the proceedings, the applicant modified her claims on several occasions. Finally she amended her claims on 22 August 2005. She claimed property rights over the apartment in the house constructed by the company which was occupied by Mr and Mrs K and sought their removal. She also challenged the title documents on this apartment which had been issued to Mr and Mrs K. 14. On 8 August 2005 the City Court, following a request by the applicant, attached Mr and Mrs K.’s apartment. On 3 November 2005 the Court of Appeal upheld this ruling. 15. On 6 March 2006 the company withdrew its counterclaim. 16. On 7 March 2006 the City Court found against the applicant. 17. On 12 July 2006 the Court of Appeal upheld this judgment. 18. On 15 September 2006 the Supreme Court dismissed the applicant’s cassation appeal as unsubstantiated. 19. The applicant tried to appeal against the decisions given in her case under extraordinary proceedings. However her efforts were to no avail. 20. According to the records provided by the Government, in the course of the proceedings, of forty-five listed hearings, four hearings were adjourned due to the company’s representative’s failure to appear and six due to his requests for adjournment. The domestic courts took no steps to ensure his presence in court. Three hearings were adjourned because the judge sitting in the case was involved in other proceedings. Two hearings were adjourned at the applicant’s request and five because the applicant’s representative or lawyer failed to appear or at their request. | 1 |
train | 001-98907 | ENG | BGR | CHAMBER | 2,010 | CASE OF GEORGI GEORGIEV v. BULGARIA | 4 | Violation of Art. 6-1 | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1945 and lives in Varna. 5. The applicant worked as a stoker at the Varna port. In 1999 he was dismissed as new requirements he did not meet were introduced for his position. 6. On an unspecified date in October 1999 the applicant brought an action for unfair dismissal alleging that: 1) the dismissal order had not been reasoned; 2) it had been indicated in it that it had been effective as of a date preceding the date when it had been issued; and 3) it had not been necessary to change the requirements for his position. 7. In a judgment of the Varna District Court of 8 June 2000, upheld by the Varna Regional Court on 12 January 2001, the applicant's dismissal was found to be unlawful. 8. Upon appeal by the applicant's former employer, in a judgment of 8 May 2002 the Supreme Court of Cassation quashed the Regional Court's judgment, finding that the latter had misapplied the law. 9. Following a fresh examination of the case, on 1 August 2002 the Varna Regional Court delivered a new judgment whereby it dismissed the applicant's claim. 10. On 3 September 2002 the applicant appealed in cassation. 11. The Supreme Court of Cassation held a hearing to examine the applicant's appeal on 14 October 2004. In a final judgment of 19 November 2004 it upheld the Regional Court's judgment and dismissed the applicant's arguments in respect of the alleged unlawfulness of the dismissal order, finding that: 1) the order indicated the legal ground for the applicant's dismissal, namely that he did not meet the relevant requirements; this represented sufficient reasoning in the case; 2) the order had entered into force on the date it had been served on him, any other date indicated in it as a date of entry into force was irrelevant; and 3) the applicant's former employer had enjoyed discretion, which could not be subject to judicial review, to set the requirements for the applicant's position. 12. In December 2004 and February 2005 the applicant requested the Varna District Court, where the case file was to be archived, for copies of all court judgments in the case. According to him, the District Court refused to provide him with a copy of the judgment of the Varna Regional Court of 12 January 2001 (see paragraph 7 above). Nevertheless, the applicant has enclosed a copy of the said judgment with his application. 13. Article 344 § 1 of the Labour Code of 1986 provides that where an employee considers that he had been unfairly dismissed, he can bring an action to challenge the lawfulness of the dismissal. By Article 344 § 4, such an action is to be filed with the respective district court, who must examine it within three months. Where the district court's decision has been appealed against, the respective regional court must examine the appeal within one month of its lodging. | 1 |
train | 001-61381 | ENG | CZE | CHAMBER | 2,003 | CASE OF CREDIT AND INDUSTRIAL BANK v. THE CZECH REPUBLIC | 1 | Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant is a bank, a joint stock company with its registered office in Prague. 9. On 27 September 1993 the Czech National Bank (Česká národní banka) (“the CNB”), pursuant to section 26(1)(a) of the Banks Act (no. 21/1992) (zákon o bankách) (“the Act”), placed the applicant bank in compulsory administration with effect from 30 September 1993 to 31 March 1994, on the grounds that the financial situation and liquidity of the applicant bank had repeatedly been unsatisfactory and that the previous measures had not remedied the situation. A compulsory administrator (nucený správce) was appointed to replace the applicant bank's statutory body. The decision (rozhodnutí) contained a notice to the effect that the provisions of administrative procedure did not apply to it and that no appeal lay against it. 10. On 29 September 1993 the compulsory administration decision was published in the Commercial Bulletin (obchodní vĕstník). 11. In a ruling (usnesení) of 30 September 1993 the Prague 1 District Court (obvodní soud) (“the District Court”), upon the CNB's proposal, decided to allow an entry concerning the compulsory administration and the appointment of the compulsory administrator to be made in the Companies Register (obchodní rejstřík). The ruling fixed the date of 30 September 1993 as the date of the entry in the Companies Register and stated that the compulsory administrator represented the applicant bank. The ruling was not served on the applicant bank. On the same date, the compulsory administrator and a representative of the CNB came to the bank and informed all employees that the applicant bank had been placed in compulsory administration. The representative of the CNB served the CNB's decision of 27 September 1993 on Mr Moravec, the chairman of the bank's Board of Directors and its majority shareholder. On 4 October 1993 the District Court confirmed its ruling of 30 September 1993 by issuing a certificate of legal validity (právní moc). 12. On 18 March 1994 the CNB extended the compulsory administration until 30 June 1994. 13. On 22 March 1994 the applicant bank's legal representative, Mr Choděra, sent his power of attorney to the District Court, and requested that the proposal for an entry concerning the compulsory administration and the District Court's decision delivered in this regard be sent to his office. He noted that under Article 200(a) of the Code of Civil Procedure, the applicant bank was a party to the proceedings. 14. On 30 March 1994 notice of the extension was published in the Commercial Bulletin. In a ruling of 30 March 1994 the District Court, upon a proposal of the CNB, approved an entry concerning the extension in the Companies Register. The court did not hold a public hearing. On the same day it confirmed the ruling by a certificate of legal validity. The ruling was not served on the applicant bank. 15. On 1 and 6 April 1994 respectively, the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, its legal representative, having become aware of the existence of the rulings of 30 September 1993 and 30 March 1994, appealed against them to the Prague Municipal Court (městský soud) (“the Municipal Court”). It claimed that it should have been treated as a party to the proceedings in which the court had approved the entries concerning the compulsory administration and its extension in the Companies Register, and contended that the rulings had not been served on it. The applicant bank also claimed that the CNB's decision of 27 September 1993 had not been sufficiently reasoned and that it was therefore not able to say whether the compulsory administration had been imposed in accordance with the law or not, and that the decision contained an incorrect notice to the effect that no appeal lay against it. It added that when the rulings of the District Court were served on it, it would make more complete submissions. 16. In a ruling of 17 May 1994, rejecting the appeals against the rulings of 30 September 1993 and 30 March 1994 without holding a public hearing, the Municipal Court stated, inter alia: “... the decisions of the [CNB] concerning the imposition of compulsory administration and its extension were fully within its competence under section 25 of [the Act]. ... In the light of the decision of 27 September 1993, compulsory administration was imposed because of the repeatedly unsatisfactory financial situation ... of the bank. Section 26(4) of [the Act] expressly states that administrative law applies to the procedure concerning the imposition of penalties ... Administrative law does not, therefore, apply to other decisions taken under section 26 of this Act ... It is true that the court of first instance acted incorrectly when it did not notify both rulings to the appellant. However, it is apparent from the appeals which the appellate court considered to have been lodged in time that [the appellant] has become familiar with both of them ... [Moreover], the entries in the Companies Register were made [by the court of first instance] in accordance with section 29 [of the Act].” 17. On 21 June 1994 the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, filed an appeal on points of law (dovolání) with the Prague High Court (Vrchní soud) against the Municipal Court's ruling of 17 May 1994, pursuant to Articles 237(f) and 241 § 2(d) of the Code of Civil Procedure. 18. On 22 June 1994 the bank lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the District Court's rulings of 30 September 1993 and 30 March 1994 and the Municipal Court's ruling of 17 May 1994, with a proposal to repeal sections 26(4) and 41(2) of the Act. 19. On 23 June 1994 the CNB extended the compulsory administration until 31 December 1994. On 29 June 1994 notice of the extension was published in the Commercial Bulletin. In a ruling of 30 June 1994 the District Court, upon a proposal by the CNB, approved an entry concerning the extension in the Companies Register. The court did not hold a public hearing. On the same day, it approved the ruling by issuing a certificate of legal validity. The ruling was sent to the office of Mr Choděra. On 21 July and 15 August 1994 the applicant bank, represented by Mr Choděra, appealed against the ruling to the Municipal Court. 20. In the meantime, on 29 June 1994, the Constitutional Court had declared the applicant bank's constitutional appeal inadmissible, finding, inter alia, that the ruling of 17 May 1994 had not been served on the parties to the proceedings and, therefore, had not become final. 21. On 29 July 1994 Act No. 156/1994, which amended the Act as regards, inter alia, the procedure on compulsory administration, came into force. Section IV provided that the Act was applicable in all cases where compulsory administration had been imposed before that date. 22. On 30 August 1994 the ruling of the Municipal Court of 17 May 1994 was served on the applicant bank and thereby became final. 23. On 31 August 1994 the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, renewed its appeal on points of law against the Municipal Court's ruling of 17 May 1994. The appeal contained the same arguments as in the previous appeal, which appeal had, however, been lodged before the notification of the ruling. 24. On the same day the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, lodged a second constitutional appeal against the Municipal Court's ruling of 17 May 1994. It pointed out that the ruling had become final by its notification and that, therefore, an appeal lay against it to the Constitutional Court. It submitted that it should have been a party to the proceedings on entries in the Companies Register and that all decisions relating to these proceedings should have been served on it. It further challenged an allegedly wrong interpretation of section 26(4) of the Act by the Municipal Court and suggested that this provision, together with section 41(2) of the Act, should be repealed. 25. On 13 October 1994 the Municipal Court dismissed the applicant bank's appeal against the District Court's ruling of 30 June 1994 as being lodged by an unauthorised person. The court found that the applicant bank's statutory body had, pursuant to section 29(2) of the Act as amended, been replaced by the compulsory administrator, who alone could represent the bank or authorise a legal representative, but who had not granted such authorisation to Mr Choděra. 26. On 1 December 1994 the CNB decided that the compulsory administration would not finish on 31 December 1994, but would be terminated for one of the reasons indicated in section 33 of the Act as amended. On 7 December 1994 that decision was entered in the Companies Register. 27. In the meantime, on 6 December 1994, the applicant bank, represented by the chairman of its Board of Directors and by Mr Choděra, had lodged a third constitutional appeal, this time against the Municipal Court's ruling of 13 October 1994. It complained, in particular, that the Municipal Court had violated the applicant bank's right to be protected by a court considering that its appeal had been lodged by an unauthorised person. It further suggested that section IV(3) of Act No. 156/1994 should be repealed. 28. On 13 December 1994 the Constitutional Court declared inadmissible the applicant bank's second constitutional appeal against the Municipal Court's ruling of 17 May 1994, holding in particular that when the constitutional appeal had been lodged, the Municipal Court had been dealing with the applicant bank's appeal and the appeal on points of law filed in the meantime had still been pending. Accordingly, no final decision had been given at that stage. 29. On 31 January 1995 the Constitutional Court dismissed the applicant bank's third constitutional appeal as being unsubstantiated and as being lodged by an unauthorised person. The court stated, in particular: “... the Prague Municipal Court founded its decision expressly on section 29(2) of [the Act] ... according to which a compulsory administrator replaces the statutory body of a bank during compulsory administration. ... [The applicant bank's legal representative] was not authorised by the compulsory administrator of the bank to make an appeal or lodge a constitutional appeal. ... The Constitutional Court found from the case file of the Prague 1 District Court that the decision imposing compulsory administration ... was ordered by the [CNB] on 27 September 1993 ... The compulsory administration became effective, in accordance with section 29(1) of [the Act], by its registration in the Companies Register, pursuant to the Prague 1 District Court's ruling of 30 September 1993 which became final on 4 October 1993. ... Moreover, according to [the Act], administrative law was not applicable to proceedings concerning compulsory administration, with the exception of cases explicitly referred to in this Act (sections 26(4) and 41). Administrative law became applicable only after the entry into force of Act No. 156/1994 (section 26(4)). To that end, an administrative complaint could be lodged against a decision given by the [CNB] (section 26(8)). An administrative complaint could also be made under section 41(1) of [the Act]. However, only by section 26(7) of the [Act] as amended did the [CNB] become obliged to notify its decision on compulsory administration to [the bank]. In addition the administrative complaint does not have suspensive effect (section 8) ...” 30. On 15 June 1995, pursuant to section 33(1) of the Act as amended, the CNB withdrew the applicant bank's banking licence (povolení působit jako banka) and on 15 August 1995, on an appeal of the applicant bank, it confirmed that decision. 31. On 2 October 1995 the Commercial Court instituted bankruptcy proceedings against the applicant bank. 32. On 6 January 1997 the District Court stayed the proceedings instituted on 6 October 1995 by the applicant bank, represented by Mr Choděra, against the CNB and the compulsory administrator, requesting the latter to fulfil his obligation (o splnění povinnosti nuceného správce). It stated that the applicant bank had not submitted a power of attorney. 33. On 7 January 1997 the Commercial Court, to which the appeal on points of law against the Municipal Court's ruling of 17 May 1994 had been referred, stayed the proceedings on the ground that Mr Moravec had not paid the court fees despite having been ordered to do so by the court's ruling of 22 May 1995, which was modified on 10 July 1996 and served on him on 12 August 1996. 34. On 2 April 1998 the Municipal Court quashed the District Court's ruling of 6 January 1997, stating, inter alia: “There is no doubt that the claim was made on 6 October 1995 and that a power of attorney issued by the applicant bank's statutory body was attached to it. There is also no doubt that on 2 October 1995 bankruptcy proceedings were instituted against the bank ... (By that date) the company that had been declared bankrupt had not lost its capacity to act in legal proceedings but only the right to dispose of property forming part of the estate of the company. By section 14(1)(h) of Bankruptcy and Equalisation Act No. 328/1991 [(zákon o konkurzu a vyrovnání)], powers of attorney relating to the property forming part of the estate of a company declared bankrupt lose their validity. However, that was not so in the present case ...”. 35. On 30 November 2000 the Supreme Court declared inadmissible the applicant bank's appeal on points of law against the Municipal Court's ruling of 17 May 1994. It held that pursuant to Article 237(f) of the Code of Civil Procedure, an appeal on points of law was admissible if a party to the proceedings could not act as a result of a procedural step taken by the court. According to the law then in force, compulsory administration became effective on the date on which the relevant entry was made in the Companies Register; the applicant bank's own statutory body was therefore empowered to act on its behalf until that date and to appeal against the ruling of the District Court on the registration of the compulsory administration in the Companies Register. The District Court had then to notify its ruling to the applicant bank. However, in the present case the applicant bank had validly appealed against the ruling concerned to the Municipal Court, which had considered it on the merits. Seeing that the ruling was not reasoned, notification of it could not improve the procedural position of the applicant bank. The Supreme Court added that the fact that the applicant bank had not received the text of the CNB's proposal for the entry concerning the compulsory administration in the Companies Register did not remove the applicant bank's right to act in proceedings before the court as provided for in Article 237(f) of the Code of Civil Procedure. In so far as the appeal on points of law concerned the entry of the first extension of the compulsory administration in the Companies Register, the Supreme Court pointed out that section 29 of the Act as in force at the time when compulsory administration had been imposed provided that compulsory administration became effective on the date on which the relevant entry was made in the Companies Register, the functions of the statutory body of the bank being suspended by the appointment of a compulsory administrator until the compulsory administration ended. In the present case, on 30 September 1993 the statutory body of the applicant bank had been replaced by the compulsory administrator, who alone was entitled to appeal in the proceedings concerning the proposal for an entry concerning the extension of compulsory administration to be made in the Companies Register. However, the appeal against the District Court's ruling of 30 March 1994 had been lodged by Mr Choděra who had acted on the basis of a power of attorney issued by Mr Moravec, chairman of the applicant bank's Board of Directors, on 9 February 1994. 36. On 30 November 2000 the Supreme Court likewise declared inadmissible the applicant bank's appeal on points of law against the Municipal Court's ruling of 13 October 1994. It stated, inter alia, that Article 237(b) of the Code of Civil Procedure provided that an appeal on points of law was admissible if the person who acted as a party to the proceedings lacked the capacity to be the party to those proceedings. The applicant bank claimed that the compulsory administrator had not had the capacity to be the party to the proceedings. The Supreme Court stated that in the present case the applicant bank had the capacity to be a party to the proceedings; another question was who could act on its behalf before the court. The Supreme Court then examined the conditions of admissibility of the applicant bank's appeal on points of law under Article 237(f) of the Code of Civil Procedure. It stated that according to the law then in force, compulsory administration became effective on the date on which the relevant entry was made in the Companies Register; on that date the statutory body of the bank was replaced by the compulsory administrator. Article 200(b) § 2 of the Code of Civil Procedure provided that the court decided on the contents of the entry in the Companies Register without holding a hearing. It specified the date of the entry in its decision. The entry had to be effected within one month after the decision had been taken. The Supreme Court underlined that the date of the entry in the Companies Register was not to be confused with the date on which the decision authorising the entry was delivered, with the date of its notification, or with the date on which the court approved the decision by issuing the certificate of legal validity. The court concluded that the compulsory administrator alone was entitled to appeal in the proceedings concerning the proposal to make an entry in the Companies Register of the second extension of the period of compulsory administration. However, the appeal against the District Court's ruling of 30 June 1994 had been lodged by Mr Choděra who had acted on the basis of a power of attorney issued by Mr Moravec, chairman of the applicant bank's Board of Directors, on 9 February 1994. Consequently, the applicant bank had not had the right to have its appeal examined on the merits by the appellate court. 37. On 19 March 2001 the applicant bank, represented by Mr Choděra, lodged a fourth constitutional appeal, this time against two decisions of the Supreme Court, alleging a violation of Article 6 § 1 of the Convention. 38. Until 29 July 1994 compulsory administration proceedings were governed by the Banks Act (No. 21/1992) (“the Act”). Section 26(1)(a) of the Act provided that compulsory administration was a measure which the Czech National Bank (“the CNB”), as an administrative authority under section 1(3) of the Czech National Bank Act (No. 6/1993), could impose upon a bank if it did not comply with the conditions laid down in its banking licence and/or if it infringed the law. Under section 27, the CNB was empowered to impose compulsory administration on a bank if the bank's financial situation and liquidity failed considerably or repeatedly to satisfy the conditions laid down in the Act, and previous measures or sanctions had not remedied the situation. Under section 29(1), compulsory administration became effective on the date of the relevant entry in the Companies Register, the CNB not being required to notify the bank of its decision to place it in compulsory administration. Before registration, the decision to impose compulsory administration was published in the Commercial Bulletin. Section 29(2) provided that the functions of the bank's statutory body were suspended by the appointment of a compulsory administrator until the end of the compulsory administration. Under section 30, the compulsory administrator was entitled to take measures necessary to restore the stability and liquidity of the bank concerned, including closure of its branches or other administrative units. Under section 33, compulsory administration could be terminated by: (a) revocation, if there were no longer any reasons for its continuance; (b) expiry of the period originally fixed by the CNB, if that period had not been extended; and (c) withdrawal of the bank's banking licence. The Banks Act did not oblige the CNB to notify its decision concerning the imposition of compulsory administration to the bank concerned. It did not specify the maximum period of compulsory administration, did not contain any reference to the application of administrative law to compulsory administration proceedings, did not specify the parties to the proceedings and did not indicate any remedy against a decision imposing compulsory administration. 39. Compulsory administration proceedings were modified by Act No. 156/1994 (“the Act as amended”) which entered into force on 29 July 1994. It was applied to all cases in which compulsory administration had been imposed before that date. Pursuant to the new section 26(4), administrative law applies, inter alia, to proceedings concerning the imposition and withdrawal of compulsory administration, unless the Banks Act provides otherwise. The bank is the sole party to the proceedings (section 26(5)) which can also be institute by the notification of the decision (section 26(6)). Pursuant to the new section 26(7), the CNB shall notify a member of the bank's Board of Directors (představenstvo) or a member of its Supervisory Board (dozorčí rada) or a person empowered to direct the bank of its decision imposing compulsory administration on the bank. The bank can lodge an administrative complaint (rozklad) against such a decision. The complaint does not have suspensive effect (section 26(8)). Pursuant to section 29(1), the functions of all organs of the bank are suspended upon the notification of the compulsory administration decision. The compulsory administrator assumes the functions of the statutory organ. Section 33(c) limits the maximum period of compulsory administration to twenty-four months. 40. Article 14 of the Code of Administrative Procedure (Act No. 71/1967) recognises as a party to proceedings any person whose rights, obligations or interests protected by law are to be dealt with, or whose rights, obligations or interests protected by law may be directly affected by an administrative decision. Article 61 provides that any administrative decision taken by a central State administrative authority at first instance may be contested by an administrative complaint lodged within 15 days from the date on which the administrative decision was served. 41. Certain provisions of the Code of Civil Procedure were also applied in the present case. Article 167 provides, inter alia, that “unless otherwise provided by law, the court shall decide in the form of a ruling (usnesení)”. Article 168 § 2 provides, inter alia, that “the court shall serve a ruling on the parties if such ruling may be appealed against or an appeal on points of law is filed ...” Article 171 § 2 provides, inter alia, that “if the ruling does not impose a duty of performance, it becomes enforceable (vykonatelný) as soon as it is served”. Article 200(b) provides that “(1) In proceedings concerning an entry in the Companies Register, the court shall examine whether all the conditions required by the statutory provisions for making such entry are met. (2) The court decides on the content of a particular entry by a ruling without holding a hearing. The verdict in the ruling shall state the date of the entry. The entry is to be made within one month of issuing the decision on the content of such entry. (3) The provisions on disciplinary fines shall apply if a company fails to comply with the court's request to notify the court of the facts, or to submit the documents, required for making an entry under Article 200(a) § 2.” Article 237 provides that “An appeal on points of law (dovolání) is admissible against a decision of an appellate court if: ... (b) a person who acted as a party in the proceedings lacked the capacity to be such party; ... (f) a party to the proceedings was deprived from acting before the court through a faulty procedure applied by the court.” Article 241 § 2(d) provides that an appeal on points of law may be filed “if a decision was based on incorrect legal consideration of the case.” Chapter II of the Code governs the conditions for the review of decisions of administrative authorities (správní žaloba). Article 247 provides: “(1) The provisions of this Chapter shall apply to cases when an individual or a legal entity claims that his or its rights were curtailed by a decision of an administrative authority and a request for review is filed with the court seeking a review of that decision from the viewpoint of its legality. (2) Regarding a decision issued as part of administrative proceedings by an administrative organ, the provisions of this Chapter shall only apply to a review of that decision in respect of which all ordinary legal remedies admitted by law have been made use of and the decision in question has become final. Article 250(b) § 1 provides that the request for review shall be filed within two months of the notification of the decision of the administrative authority in the last instance, unless the law provides otherwise. Under Article 250(i) § 1, the facts at the time when the decision in question was given are decisive. No examination of evidence takes place. Article 250(j) § 1 provides, inter alia, that the court, upon finding that the decision in question has been made in accordance with law, shall reject the request for review. Article 250(j) § 2 provides, inter alia, that the court, upon finding that the administrative authority did not consider the matter correctly from the legal point of view or that the facts on which it founded its decision were contrary to the content of the file, shall quash the decision and may return the matter to the indicated administrative authority for further proceedings. The court shall also quash a decision when it emerges during a hearing that the decision cannot be reviewed because it is incomprehensible or because of lack of reasons. 42. Finally, Article 27 § 2 of the Commercial Code (Act No. 513/1991) provides that the facts entered in the Companies Register become effective with respect to everyone from the date on which the entry is made. | 1 |
train | 001-88421 | ENG | GBR | ADMISSIBILITY | 2,008 | NAYLOR v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Frank Naylor, is a British national who was born in 1942 and lives in Skelmersdale. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 2 July 1995. His claim for widows’ benefits was made on 14 September 2000 and was rejected on 18 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 2 October 2000 the applicant made a request for reconsideration and on 31 October 2000 the previous decision was upheld. 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 applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-99172 | ENG | POL | CHAMBER | 2,010 | CASE OF WOJCIECH NOWAK v. POLAND | 4 | No violation of Art. 8 | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1966 and lives in Zawiercie. 6. In 1993 the applicant married A.N. In 1994 they had a son, D. Subsequently, the applicant and A.N. separated. Since their separation, they have been living in the same town and in the same street. 7. On 3 September 1996 the Zawiercie District Court issued an interim contact order. According to its terms, the applicant was allowed to visit the child every Tuesday and every first Saturday and third Sunday of the month, between 4 p.m. and 6.30 p.m. 8. Between 29 September 1996 and 5 October 1997 the Zawiercie police intervened on 12 occasions in order to facilitate the applicant's contact with his child. These interventions took place at A.N's place of residence and it would appear that on all these occasions the applicant was able to see the child. 9. On 27 May 1997 the Katowice Regional Court dissolved the applicant's marriage. It awarded parental rights to A.N., limited the applicant in the exercise of his rights and ordered that D.'s permanent residence be with his mother. The applicant was allowed to participate in decisions about the child's education and health. 10. On 1 September 1997, 5 May 1998 and 18 May 1999 the applicant made applications for fines to be imposed on A.N. under Article 1051 of the Code of Civil Procedure. He subsequently withdrew the applications. 11. On 4 March 1998 the District Court modified the access arrangements to allow the applicant to take his son for two weeks' holiday between 1 and 15 July. 12. Between 1 June 1998 and 28 January 1999 the Zawiercie police intervened on nine occasions in order to facilitate the applicant's contact with D. It appears that only on one of these occasions was the applicant unable to see D., as the child stated that he had not wished to see his father. 13. On 15 April 1999, on the applicant's motion, the Zawiercie District Court ordered A.N to allow the applicant's contact with the child on pain of a 100 PLN fine. 14. Between 18 April 1999 and 8 June 1999 the police intervened on eight occasions in order to enforce the applicant's contacts with his son. 15. On 9 December 1999 the applicant and his ex-wife concluded a court settlement concerning the applicant's visiting right. According to its terms the contacts were to be enforced under supervision of a court appointed guardian in order to protect D.'s well-being. 16. However, the mother failed to comply with the access arrangements. On 5 January 2000 the applicant asked the Zawiercie District Court to impose a fine on A.N. for failure to comply with the settlement. On 9 March 2000 the District Court ordered A.N. to make the child available for a visit (by 1 May 2000), on pain of having to pay a fine. 17. On 28 April 2000 the applicant lodged yet another request for a fine to be imposed on A.N. On 19 December 2000 the District Court dismissed that request. The court obtained reports from two experts including a psychologist and heard evidence from several witnesses. It considered that A.N had not turned the child against his father. It noted that the child had not wished to attend the meetings with his father. Moreover, because of the forced contacts, in particular the two-week holiday in 1998, D. started suffering from anxiety and fear. The court also made reference to the fact that the applicant had proposed not to have any contacts with the child for 5 years if A.N did not claim maintenance payments for that period. The applicant's further appeal was dismissed by the Katowice Regional Court on 28 February 2001. 18. Meanwhile, on 21 February 2000 the applicant filed a motion for amendment of the divorce decree in the part relating to parental rights. On 18 October 2000 the Zawiercie District Court dismissed his application. 19. The applicant appealed, and on 28 December 2000 the Katowice Regional Court gave a decision granting custody to the applicant and ordering that D.'s permanent residence be with his father. The mother was allowed to participate in decisions concerning the child's education and choice of profession. 20. On 29 December 2000 A.N. filed an application with the Zawiercie District Court to be granted sole custody of D. 21. On 23 August 2001 the District Court returned the applicant's request to impose a fine on A.N. since he had failed to pay the required court fee. His subsequent interlocutory appeal was dismissed on 15 November 2001. 22. On 12 October 2001 the Zawiercie District Court modified the decision of 28 December 2000. The court held that A.N. should be granted full custody over D. and that D.'s place of residence should be with his mother. The applicant was allowed to decide jointly about the child's education and choice of profession. 23. A further appeal lodged by the applicant was dismissed by the Czestochowa Regional Court on 19 December 2001. The court held that the applicant had not had a good relationship with his child and that the boy was afraid of him. The court stressed that the applicant could not have successfully claimed custody over D. since his son fled from him whenever he had seen him. 24. Meanwhile, the applicant asked the court to hand D. over to him. On 27 June 2001 the District Court gave an interim decision and held that while the custody proceedings were pending the child should stay with his mother. On 31 January 2002 the District Court refused to hand D. over to the applicant. 25. On 15 March 2002 the Zawiercie District Court dismissed the applicant's motion to impose a fine on A.N. for obstructing his access to the child. 26. On 6 October 2005 the applicant again requested that D. be restored to him. On 14 October 2005 the Zawiercie District Court refused his request. The applicant did not appeal against that decision. 27. On 16 December 2005 the applicant filed an application to be granted full parental rights. His application was dismissed by the Zawiercie District Court on 28 July 2006. The court held that D. had been living with his mother, with whom he had very close relations, and it was in the child's best interest to leave him with her. The court referred to the child's (then 12 years old) own statements that his mother had not obstructed his contact with the applicant. It was D. himself who had avoided contact with his father. The court further noted that between 2001 and 2005 (when A.N filed a claim for increase of maintenance payments) the applicant had not attempted to contact his son and to exercise his visiting rights. Their contact was limited to occasional meetings on the street, since they lived nearby. The applicant's appeal against this decision was dismissed on 27 September 2006 by the Czestochowa Regional Court. 28. On 24 March 2006 the applicant asked the court to impose a fine on the mother for obstructing his contacts with D. On 22 June 2006 the District Court dismissed his request. The applicant did not appeal against that decision. 29. The relevant domestic law concerning the enforcement of a parent's visiting rights is set out in the Court's judgment in the case of P.P. v. Poland no. 8677/03, §§ 69-74, 8 January 2008. | 0 |
train | 001-81914 | ENG | BGR | CHAMBER | 2,007 | CASE OF PEEV v. BULGARIA | 3 | Violation of Art. 8;Violation of Art. 10;Violation of Art. 13+8 et 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award | Peer Lorenzen | 5. The applicant, who is a sociologist by training, was employed as an expert by the Criminological Studies Council at the Supreme Cassation Prosecutor's Office (see paragraph 27 below). He was a close friend of Mr N.D., a prosecutor at the Supreme Administrative Prosecutor's Office, who had become widely known for his public accusations against the Chief Prosecutor, Mr N.F., and for his assertions that the Chief Prosecutor and his entourage were harassing him and exerting improper pressure on him, and who committed suicide on 24 April 2000, leaving a note which said that the Chief Prosecutor should resign. 6. Following this event, the applicant was considering resigning from his position. For this purpose, he had prepared two draft resignation letters, which he kept in a drawer of his office desk. However, he eventually decided that he would not resign. 7. On 11 May 2000 the applicant sent a letter to the daily newspaper Trud, the weekly newspaper Capital, and the Supreme Judicial Council. In that letter he made a number of allegations against the Chief Prosecutor, Mr N.F. He averred that the latter had groundlessly discontinued criminal proceedings against high-ranking persons from the executive branch, and had exploited the Prosecutor's Office for the purpose of reprisals against political opponents of the ruling party and his own opponents. The applicant also claimed that the Chief Prosecutor had created a fearful and morbid working atmosphere in the Prosecutor's Office by acting rudely and insultingly towards his subordinates, even, as rumour had it, occasionally physically assaulting them. He further claimed that, according to certain rumours, the Chief Prosecutor had heavily beaten his former wife and a female judge. According to the same rumours, the Chief Prosecutor was mentally ill and suffered from paranoia, for which he had undergone treatment in a psychiatric hospital. According to the applicant, all these rumours had to be verified by the Supreme Judicial Council. The applicant also alleged that the Chief Prosecutor had deliberately tried to wreck the Criminological Studies Council by harassing members of its staff. The applicant further averred that the Chief Prosecutor and his entourage, who had repeatedly uttered threats against the late Mr N.D., were responsible for the latter's death. According to the applicant, that event had to be investigated with a view to determining whether the Chief Prosecutor had incited Mr N.D.'s suicide, which was a criminal offence. Finally, the applicant submitted that he had intended to resign because of the bad atmosphere in the Supreme Cassation Prosecutor's Office, but had eventually decided that the more proper thing to do was to continue performing his work and opposing the nuisance generated by the Chief Prosecutor from within. 8. The letter was published in the 13 May 2000 issue of Trud under the heading “[N.F.] finished [N.D.] off” and the subheading “Fear and evil reign in the Prosecutor's Office”. The 13 May issue in fact came out during the evening of 12 May, in accordance with the practice of Trud's publishers. 9. At approximately 9 p.m. on Friday 12 May 2000 S.D., a prosecutor from the Supreme Cassation Prosecutor's Office, ordered the police officer who was on duty at the entrance of the Courts of Justice building in Sofia to let him enter in order to seal off the applicant's office. A few minutes later he came back and handed the police officer a written order to not allow the applicant into the building on 13 and 14 May 2000, stating that the latter had been dismissed. 10. At approximately 10 a.m. on Saturday 13 May 2000 the applicant tried to enter the Courts of Justice building in order to go to his office, but was stopped by the police officer at the entrance. 11. At 8 a.m. on Monday 15 May 2000 the applicant went to the Courts of Justice building, accompanied by an editor from Trud and other journalists. He tried to enter his office, but could not, as the door was locked and his key did not fit in, the lock having apparently been changed. He then went to the office of a prosecutor from the Supreme Cassation Prosecutor's Office, where he was informed that his resignation letter (see paragraph 6 above) had been brought to the attention of the Chief Prosecutor and that the latter had accepted it. 12. At 3.10 p.m. on 15 May 2000 the applicant was handed an order for the termination of his employment on the basis of Article 325 § 1 (1) of the Labour Code (see paragraph 28 below), signed by the Chief Prosecutor and effective immediately. The applicant objected that he had never in fact tendered his resignation and that the termination was therefore contrary to that provision. 13. The same day the applicant requested the Sofia City Prosecutor to inquire into the events (in particular, an alleged search of his office) and, if justified, to open criminal proceedings for abuse of office against the officials who had committed the alleged acts. 14. On 23 May 2000 a commission consisting of the head of the administrative department of the Supreme Cassation Prosecutor's Office, the head of the Chief Prosecutor's administration and the Chief Prosecutor's secretary inspected the applicant's office. It drew up a very detailed inventory of the items that it found in his desk drawers and filing cabinets, which included medicines, compact discs with personal material, notes, notebooks, diplomas, personal photographs, books and personal documents, including medical ones. On 25 May 2000 the same commission inspected the contents of the hard disk of the applicant's computer and drew up an inventory of its findings. 15. On 25 May 2000 the applicant and his brother went to the applicant's office to collect his personal belongings. They found that all the cabinets and the applicant's desk had been sealed, that the cabinets and the desk drawers had been rummaged in, and that the draft resignation letters which the applicant had prepared (see paragraph 6 above) were missing, as were his letter of 11 May 2000 (see paragraph 7 above) and his office computer. 16. In an order of 15 June 2000 the Sofia Regional Military Prosecutor's Office, to which the applicant's complaint of 15 May 2000 (see paragraph 13 above) had been referred, refused to open criminal proceedings. It reasoned that in refusing to allow the applicant to enter the Courts of Justice building on 13 May 2000 the police officers at the entrance had acted lawfully. 17. The applicant appealed, arguing, inter alia, that the order was incomplete, because his complaint had included allegations of official misconduct by prosecutors of the Supreme Cassation Prosecutor's Office, who, according to the relevant rules of criminal procedure, could be investigated only by a specially appointed prosecutor from the same office. His complaint should therefore also have been brought to the attention of the Supreme Cassation Prosecutor's Office. In an order of 3 July 2000 the Military Appellate Prosecutor's Office upheld the refusal of the Sofia Regional Military Prosecutor's Office to open criminal proceedings against the police officers. However, it agreed that the remainder of the applicant's complaint fell within the competence of the Supreme Cassation Prosecutor's Office and referred it to it. 18. In a decision of 10 July 2000 a prosecutor from the Supreme Cassation Prosecutor's Office refused to open criminal proceedings. He briefly reasoned that in his complaint the applicant had not named particular persons and had not identified the specific provisions of the Criminal Code that had allegedly been breached by them. Having studied the file, the prosecutor had not found any evidence of a publicly prosecutable offence relating to the refusal to allow the applicant access to his workplace or relating to his resignation letter. 19. In the meantime, on 5 June 2000, the applicant had brought a civil action against the Prosecutor's Office. He alleged that the termination of his contract had been unlawful and sought reinstatement and compensation for loss of salary. He averred, inter alia, that the climate in the Supreme Cassation Prosecutor's Office had deteriorated as a result of the actions of the Chief Prosecutor. After the death of Mr N.D. he had decided to resign and had prepared a draft resignation letter, but had eventually decided not to and instead to make public his observations about the atmosphere in the Supreme Cassation Prosecutor's Office. In consequence, he had written a letter to Trud, Capital and the Supreme Judicial Council. Later, access to his office had been impeded and his employment had been terminated on the basis of a resignation which he had never in fact tendered. 20. In a judgment of 5 March 2002 the Sofia District Court declared the termination of the applicant's employment unlawful, ordered that he be reinstated in his position, and awarded him 2,419.20 Bulgarian levs, plus interest, for loss of salary for the six months following the termination of his employment, in line with Article 225 § 1 of the Labour Code (see paragraph 29 below). In the facts part of its judgment it described in detail the events set out in paragraphs 7, 9, 10 and 11 above. After analysing in detail the evidence, the court found that there was no indication that at any point in time the applicant had in fact tendered his resignation. On the contrary, it was evident from the facts that his draft resignation letter had been taken from his office by a person having access to it during the period from 12 to 15 May 2000 and had been submitted by that person to the Chief Prosecutor. This made the termination of the applicant's employment by ostensible mutual agreement unlawful, as Article 325 § 1 (1) of the Labour Code (see paragraph 28 below) required proof of both parties' actual intention to terminate the employment. 21. The Prosecutor's Office appealed to the Sofia City Court, arguing that the applicant had in fact tendered his resignation. 22. In a judgment of 7 July 2004 the Sofia City Court upheld the lower court's judgment. It likewise described in detail the events set out in paragraphs 7, 9, 10 and 11 above, and held, like the court below, that the available evidence did not indicate that the applicant had in fact tendered his resignation. Therefore, in the court's view, the termination of the applicant's employment had been unlawful. 23. The Prosecutor's Office appealed on points of law to the Supreme Court of Cassation. It argued that the lower court had erroneously assessed the evidence and established the facts. 24. In a final judgment of 25 September 2006 the Supreme Court of Cassation upheld the lower court's judgment. It fully agreed with its finding that, on the basis of the available evidence, there was no indication that the applicant had in fact tendered his resignation. Therefore, one of the key requirements of Article 325 § 1 (1) of the Labour Code (see paragraph 28 below) had not been complied with, which made the termination of the applicant's employment unlawful. 25. The applicant was not reinstated in his former position, as in 2003 the Criminological Studies Council at the Supreme Cassation Prosecutor's Office had been abolished. However, during the pendency of the proceedings, again in 2003, a similar body was established at the Ministry of Justice and on 1 April 2003 the applicant was appointed there, apparently independently of the court order for his reinstatement. He has been working there to this day. 26. Section 112 of the Judicial Power Act of 1994 („Закон за съдебната власт“) provides that the Prosecutor's Office is unified and centralised, that each prosecutor is subordinate to the relevant senior prosecutor, and that all prosecutors are subordinate to the Chief Prosecutor (the last-mentioned aspect is also provided by Article 126 § 2 of the Constitution of 1991). The Chief Prosecutor may issue directives and give instructions relating to the Prosecutor's Office's activities (sections 111(3) and 114 of the Judicial Power Act of 1994). The Chief Prosecutor oversees the work of all prosecutors, and the prosecutors of the appellate and regional prosecutor's offices oversee the work of their subordinate prosecutors (section 115(1) and (2) of the Judicial Power Act of 1994). Higher prosecutors may perform any acts which are within the competence of their subordinate prosecutors. They may also stay or revoke their decisions in the cases provided for by law (section 116(2) of the Judicial Power Act of 1994). The higher prosecutors' written orders are binding on their subordinate prosecutors (section 116(3) of the Judicial Power Act of 1994). 27. Until 2003 the Criminological Studies Council was an agency attached to the Supreme Cassation Prosecutor's Office (section 111(3) of the Judicial Power Act of 1994, as in force at the relevant time). 28. Article 325 § 1 (1) of the Labour Code of 1986 provides that an employment contract may be terminated by the parties without notice by mutual agreement expressed in writing. 29. By Article 225 § 1 of that Code, an unlawfully dismissed employee is entitled to compensation amounting to his gross salary for the time during which he has remained unemployed, but not for a period exceeding six months. | 1 |
train | 001-87132 | ENG | RUS | CHAMBER | 2,008 | CASE OF RYABIKIN v. RUSSIA | 3 | Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 7. The applicant was born in 1953 and currently lives in St Petersburg. 8. The applicant was born and lived in Ashkhabad, Turkmenistan. He is of Russian ethnic origin and has family members in Russia. In Turkmenistan he headed a limited liability company called Argamak, which was engaged in the construction business and trade. 9. According to the applicant, between 1997 and 1999 Argamak performed works under a government contract. The applicant submitted that certain officials from the Ministry of Finance of Turkmenistan had refused to honour their obligations under the contract and to pay for the work performed unless the applicant paid a bribe in the amount of 10,000 United States dollars (USD). The applicant further submitted that in May 2000 he had applied to the Ministry of the Interior’s Department for Economic Crime and complained about two inspectors from the Ministry of Finance, S. and D. Both inspectors, according to the applicant, were of Turkmen ethnic origin. The Department for Economic Crime allegedly supplied the applicant with specially marked banknotes and S. was detained during the transfer of the money. Following a criminal investigation, the case against S. and D. was referred to a court, which after two days of hearings ordered an additional investigation. It appears that the applicant participated as a witness. The applicant, who submitted that he did not speak Turkmen, was not provided with an interpreter, although the proceedings were conducted in Turkmen. The applicant was not aware of the outcome of the criminal case. 10. After May 2000 the applicant allegedly came under pressure from the law-enforcement bodies. According to him, officers of those bodies threatened him with revenge and demanded that he change his position in the criminal case. The applicant submitted that in October and November 2000 he had been called in for questioning at the transport police department for organised crime about 25 times, that is, almost every day. He also received threats from D. and the relatives of S. Also in October and November 2000 the applicant was allegedly questioned on several occasions by the Turkmenistan State Security Committee about his economic activities and was asked to become an informant. When the applicant refused he received further threats. 11. As a result, the applicant submitted that he feared for his life and for the lives of his relatives. The applicant felt that he had become a target, in particular because he belonged to the Russian minority, and decided to leave Turkmenistan. 12. On 1 December 2000 the applicant applied for Russian citizenship at the Russian embassy in Ashkhabad. The applicant submitted that all the required documents had been collected and registered at the embassy and that he had received notification that his case file had been registered as no. 22850. 13. On 15 December 2000 the office of the Russian Federal Migration Service at the embassy in Turkmenistan supplied the applicant with a document entitled “Permission to Repatriate from Turkmenistan to Russia and the Granting of Migrant Status”. The document was based on the bilateral treaty on resettlement. 14. On 28 December 2000 the applicant received an exit visa from Turkmenistan valid for three months. On 21 January 2001 the applicant travelled to the United Arab Emirates on a private invitation. 15. On 13 May 2001 the applicant was issued with an entry visa by the Russian embassy in the United Arab Emirates, with the purpose of entry indicated as “permanent residence”. 16. On 9 June 2001 the applicant went to Moscow by plane. On 17 June 2001 he travelled to St Petersburg, where his brother lives, and from then on resided at his brother’s address. 17. The applicant submitted that in June 2001 he had visited the office of the Federal Migration Service in St Petersburg, where he was advised that he should not apply for refugee status because he already had migrant status, and that he should proceed with his application for Russian citizenship. 18. On several occasions between 2001 and 2003 the applicant contacted the Russian embassy in Turkmenistan, the Presidential Commission on Citizenship Issues and the Ministry of the Interior, enquiring about the progress of his application for citizenship. He submitted that he had not received any relevant response. 19. On 9 July 2003 the applicant again applied to the St Petersburg office of the Federal Migration Service and asked in writing to be granted refugee status. On 23 September 2003 the applicant was interviewed and submitted that he feared persecution in Turkmenistan and that he was the subject of a criminal investigation. The applicant submitted all the necessary documents to the migration service, including his national passport. 20. On 24 October 2003 the St Petersburg office of the Federal Migration Service rejected the applicant’s application for refugee status, and on 27 October 2003 the applicant was notified of this in writing. The letter of rejection stated that the applicant had not met the criteria for refugee status, and that the real reason for his arrival in Russia was most probably an attempt to escape the criminal proceedings against him. The decision stated that in 2001 the applicant had obtained migrant status in the Russian embassy for himself and for his family; however, his family had continued to reside in Turkmenistan. The applicant had travelled first to the United Arab Emirates on business, and had arrived in Russia only in June 2001. Since his arrival the applicant had failed to obtain legal status in Russia and had not applied for a residence permit or registration at his place of residence. The decision further stated that the St Petersburg Regional Department of the Interior had confirmed that the applicant had been wanted by the Turkmen authorities since April 2001 and in Russia, further to a request by the Turkmen authorities, since December 2002. The letter also informed the applicant that he could appeal to a district court against the decision and that he should leave Russia if he had no other legal grounds for remaining. 21. On 24 November 2003 the applicant appealed to the Kuybyshevskiy district court of St Petersburg against the refusal of his application. On the same day the case was registered by the court and the first meeting between the parties was scheduled for 15 December 2003. At the same time, the judge requested the applicant’s file from the St Petersburg office of the Federal Migration Service. 22. On 15 December 2003 the hearing was scheduled for 2 February 2004. On 2 February 2004 the judge decided that a request should be sent to Turkmenistan asking about the applicant’s participation as a witness in the criminal case against S. and D. The next hearing was first scheduled for 30 March 2004 and then postponed until 10 June 2004. 23. At the same time, the applicant again contacted various bodies in relation to his application for citizenship. On 28 January 2004 the Presidential Commission on Citizenship Issues informed the applicant that his application for citizenship had been returned to the Russian embassy in Turkmenistan for further processing. 24. In January 2004 the applicant wrote to the Ministry of the Interior. He stated that he had applied for Russian citizenship in December 2000, and that consideration of such applications should take between six and twelve months. He had received no reply to his application. On 21 January 2004 the Passport and Visa Service of the Ministry of the Interior informed the applicant that his application had been forwarded to the St Petersburg Department of the Interior and that it would inform him of the results. 25. The applicant’s family – his wife, daughter, son and two grandchildren – remained in Turkmenistan. After the applicant had arrived in Russia, his wife informed him that she had been summoned to the State Security Committee on several occasions and questioned about her husband’s whereabouts. She also told him that a criminal case against him had been opened and that part of his property had been confiscated. 26. On 12 February 2004 the applicant was summoned to the Passport and Visa Service of the St Petersburg Department of the Interior to discuss “issues relating to the granting of Russian citizenship”. 27. On 25 February 2004 the applicant went to the Department’s premises, where he was arrested. He was told that his detention related to a criminal case in Turkmenistan. 28. On 26 February 2004 the prosecutor of the Central District of St Petersburg issued an order for the applicant’s arrest on the basis of international search warrant no. 1207, issued by Turkmenistan in 2001. The order listed details of the charges brought against the applicant, which included the embezzlement of about USD 139,000 in 2000 and 2001, when the applicant had been the director of a Turkmen-US joint venture. He was charged with offences under Article 228, part 4, of the Turkmen Criminal Code. On 4 April 2001 he had been declared a wanted person in Turkmenistan, and on 26 April 2001 a prosecutor in Turkmenistan had issued an arrest warrant. The Prosecutor General of Russia had been informed of the applicant’s detention. The prosecutor requested the Kuybyshevskiy district court of St Petersburg to authorise the applicant’s detention. 29. On 27 February 2004 the applicant was brought before the Kuybyshevskiy district court. He was represented by a lawyer. The prosecutor requested the court to detain the applicant and stated that he had been wanted in Turkmenistan since April 2001 for an offence under Article 228, part 4, of the Turkmen Criminal Code. The Prosecutor General’s Office had been informed of the applicant’s arrest. The court ordered the applicant’s detention pending his extradition to Turkmenistan. The court did not specify the term of his detention. 30. The applicant’s lawyer appealed to the St Petersburg City Court. The motion stated that the applicant’s appeal concerning his refugee status was pending before the same court. It referred to his pending application for Russian citizenship. It further stated that the applicant had been detained unlawfully, as there had been no decision by the competent prosecutor to detain him with a view to his deportation. 31. On 3 March 2004 the head of the Ashkhabad criminal police requested the Kuybyshevskiy district court to authorise the applicant’s detention on charges of embezzlement on a large scale, an offence punishable under the Turkmen Criminal Code by eight to fifteen years’ imprisonment. The letter stated that the question of extradition would be immediately resolved through the prosecutor generals’ offices of the two countries. 32. On 3 March 2004 the applicant asked Ms Tseytlina to represent him. The applicant submitted that Ms Tseytlina had been denied access to the documents that had served as a ground for his detention, including information about the criminal proceedings in Turkmenistan and the decision of the Prosecutor General to detain him with a view to his extradition. On 9 March 2004 the lawyer submitted a written complaint to the President of the Kuybyshevskiy district court. On 11 March 2004 the lawyer was informed that she could have access to the documents in question if she submitted a written request to the judge. In reply to her written request the President of the Kuybyshevskiy district court postponed the hearing from 11 until 12 March 2004. 33. On 9 March 2004 the Office of the United Nations High Commissioner for Refugees (UNHCR) in Moscow issued a letter stating that the applicant’s appeal concerning his refugee status was pending before the Kuybyshevskiy district court and that his extradition to Turkmenistan prior to determination of his appeal might be in violation of section 10 of the Refugees Act and Article 33 of the 1951 UN Convention relating to the Status of Refugees, to which Russia was a party. 34. On 9 March 2004 the European Court, under Rule 39 of the Rules of Court, requested the Russian authorities not to extradite the applicant to Turkmenistan until further notice. 35. On 12 March 2004 the St Petersburg City Court, in the presence of the applicant’s lawyer, upheld the decision of 27 February 2004. The City Court noted that the applicant was on the international wanted list and that on 26 February 2004 [this should read 2001] the deputy prosecutor of Ashkhabad had ordered his arrest. In the absence of a decision by a foreign court to detain the applicant the Russian court was competent to do so at the prosecutor’s request. The decision of the City Court did not specify a term for the applicant’s detention. 36. On 17 March 2004 the Prosecutor General’s Office received a request from Turkmenistan for the applicant’s extradition. The Russian Government referred to this document but no copy was submitted to the Court. The applicant and his lawyer submitted that they had not seen the document. 37. On 24 March 2004 the Russian Government informed the Court that the applicant had been detained in accordance with Article 466 of the Code of Criminal Procedure (CCP) and that no decision to extradite him had been taken. The Government further submitted that all proceedings in Russia would be suspended until further notice from the Court. 38. On 25 May 2004 the Prosecutor General of Turkmenistan addressed the following letter to the Deputy Prosecutor General of Russia: “The General Prosecutor’s Office of Turkmenistan presents its compliments to the Prosecutor General’s Office of the Russian Federation and issues a guarantee that Aleksandr Ivanovich Ryabikin will face criminal prosecution only in respect of the crimes committed by him (embezzlement on a large scale) and [that he] will not be subjected to, and has never been subjected to, persecution on political, religious or ethnic grounds.” 39. On 27 August 2004 the Kuybyshevskiy district court dismissed the applicant’s complaint concerning his refugee status on the ground that the applicant had failed to substantiate the allegations regarding his fear of ethnic or religious-based persecution in Turkmenistan. 40. On 4 November 2004 the St Petersburg City Court upheld the decision of 27 August 2004. Both courts noted that the applicant had not submitted any specific information about his alleged persecution on ethnic or religious grounds. They concluded that his fear of being returned to Turkmenistan was based mainly on the criminal proceedings initiated against him and that he had used the refugee status procedure as a means of evading those proceedings. 41. In the meantime, on 8 September 2004, the Deputy Prosecutor General had submitted a request for supervisory review (надзорное представление) to the Presidium of the St Petersburg City Court. In it he challenged the procedural fairness of the decision of 12 March 2004 on the ground that the applicant’s presence had not been secured. 42. On 29 September 2004 the Presidium of the City Court quashed the decision of 12 March 2004 in the supervisory review proceedings and referred it back for re-examination. On 12 October 2004 the City Court again upheld the decision of 27 February 2004 to detain the applicant. The applicant participated by video link. 43. After March 2004 the applicant appealed against his detention on several occasions. Since he had been arrested in the Central Administrative District of St Petersburg, he complained to the three courts operating in the district, namely the Kuybyshevskiy, Smolninskiy and Dzerzhinskiy district courts. He also submitted appeals to the Kalininskiy district court, which has jurisdiction in respect of pre-trial detention centre IZ-47/4, where he had been detained. 44. Before the domestic courts the applicant submitted that in accordance with the Code of Criminal Procedure his detention could be authorised only for two months, and that after 27 April 2004 it had became unlawful. 45. In addition, the applicant applied on numerous occasions to various prosecutors’ offices in relation to the issue of the lawfulness of his detention. 46. A summary of these proceedings is set out below. 47. On 3 May 2004 the applicant, and on 19 May 2004 his lawyer, submitted complaints to the Kuybyshevskiy district court, alleging that the authorisation for his detention which that court had given on 27 February 2004 had expired on 27 April 2004 and had not been extended. 48. On 26 May 2004 the Kuybyshevskiy district court informed the applicant’s lawyer that the complaints had been transferred to the St Petersburg prosecutor’s office. 49. The applicant’s lawyer appealed against the court’s actions to the St Petersburg City Court on 3 June 2004, both directly and via the district court. On the same day the Kuybyshevskiy district court informed the applicant that his complaint had been forwarded to the city prosecutor’s office. 50. On 14 June 2004 the applicant’s lawyer again complained to the St Petersburg City Court, challenging the Kuybyshevskiy district court’s refusal to consider the complaints. 51. In reply, on 23 June 2004 the St Petersburg City Court forwarded the applicant’s complaint to the city prosecutor’s office. 52. On 29 June 2004 the Kuybyshevskiy district court replied to the applicant that his complaints to the City Court had been forwarded to the St Petersburg prosecutor’s office, which he should contact in the future if he wished to apply to have the measure of restraint imposed on him changed. 53. On 13 July 2004 the President of the Kuybyshevskiy district court informed the applicant’s lawyer that no decision had been taken by that court, and that therefore no appeals were possible. 54. On 4 June 2004 the applicant complained to the Smolninskiy district court of the unlawfulness of his detention. On 15 June 2004 the authorities in the detention facility returned the complaint to the applicant, with a letter from a judge of that court stating that it had no jurisdiction to consider it. 55. On 24 June 2004 the applicant, and on 25 June his lawyer, wrote to the Smolninskiy district court, complaining of the applicant’s unlawful detention and requesting it to adopt a formal decision on his complaint. On 25 June the applicant’s lawyer also complained to the St Petersburg City Court. 56. On 9 July 2004 the St Petersburg City Court returned to the applicant’s lawyer her complaints concerning the actions of the Kuybyshevskiy and Smolninskiy district courts without examining them, and stated that she could appeal against the Kuybyshevskiy district court’s decision of 27 February 2004 by means of supervisory review. 57. On 12 July 2004 the Smolninskiy district court returned the complaints to the applicant and stated that he could not appeal against a forwarding letter and that no decision had been taken on his complaint for lack of jurisdiction. All questions relating to extradition fell within the competence of the Prosecutor General’s Office, to which he should apply. 58. On 2 June 2004 the applicant complained of his unlawful detention to the Dzerzhinskiy district court. On an unspecified date that court returned his complaint without examining it and stated that since no investigation was pending in respect of the applicant in the Central Administrative District of St Petersburg, it had no jurisdiction with regard to his detention. The court informed him that he should challenge the lawfulness of his detention before the Kalininskiy district court, which was responsible for the detention centre where he had been detained. 59. On 15 July 2005 the applicant appealed against that decision to the City Court through the district court. On an unspecified date the court returned the applicant’s complaint and stated that since no investigation was pending in respect of him in the Central Administrative District, he should appeal against his detention to the authority responsible for his extradition. 60. On 19 July 2004 the applicant’s lawyer again contacted the Dzerzhinskiy district court, requesting it to review the substance of the complaint. On 13 August 2004 the court ordered an oral hearing in the applicant’s case and requested the city prosecutor’s office to send it all the documents relating to his extradition and detention. 61. On 18 August 2004 the Dzerzhinskiy district court held an oral hearing in the presence of the applicant and his lawyer and refused to consider the complaint on the merits for lack of territorial jurisdiction. The court stated the following: “The applicant’s reference to Article 109 of the CCP is unfounded because Chapter 54 of the CCP, which regulates extradition on criminal charges, does not provide for a procedure for extending a person’s detention. Persons arrested under Article 466 of the CCP may remain in detention until extradited to the foreign State. The law on criminal procedure links the term of detention only to the pre-established date set by the parties for transfer of the detainee (Article 467 § 1 CCP). The law contains no reference to application of Article 109 by analogy; therefore, the obligation on the investigators to seek an extension of the detention does not apply to this category of persons. Neither the European Convention on Extradition (13 July 1957) nor the Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, as amended on 28 March 1997 (Article 62), contains any provision corresponding in meaning to Article 109 of the CCP. The court does not question the fact that Mr Ryabikin, who is being kept in detention, has the right to judicial protection as guaranteed by the Constitution of Russia. However, the court considers that he and his lawyer can exercise this right by challenging the actions of the officials concerned through civil proceedings, by submitting a complaint to a competent court at the location of the St Petersburg prosecutor’s office or the Prosecutor General’s Office, which is the body on which Russian criminal procedural law confers responsibility for issues relating to extradition.” 62. The applicant’s lawyer appealed against this decision on 25 August 2004. She argued that the provisions of Article 109 of the CCP should apply in the applicant’s case and that the courts should be competent to review the lawfulness of his detention. She stated that Russian law provided that all issues relating to application of the provisions of criminal and criminal procedural law should be resolved in the manner provided for by the CCP and not through civil proceedings. 63. On 25 November 2004 the St Petersburg City Court dismissed the appeal and upheld the decision of 18 August 2004. In addition to the conclusions of the district court, it stated that the applicant could appeal to a court against the prosecutor’s actions under Article 125 of the CCP. 64. On 30 April 2004 the applicant complained to the Kalininskiy district court, through the authorities in the detention facility, of the unlawfulness of his detention. On 5 May 2004 the head of the detention facility returned the complaint to the applicant, noting that the Kalininskiy district court had no jurisdiction to deal with it and that the applicant should apply to the St Petersburg City Court instead. 65. On 18 May 2004 the applicant’s lawyer wrote to the head of the detention facility and stated that the latter had exceeded his powers in refusing to forward the applicant’s complaint to the court. She also noted that the applicant’s continued detention was unlawful and requested his release. 66. On 19 May 2004 the applicant’s lawyer submitted a complaint concerning the applicant’s detention to the Kalininskiy district court. On 25 May the court refused to consider the complaint in substance because no investigation was pending in respect of the applicant in Russia, and the provisions of the CCP did not therefore apply to him. 67. On 3 June 2004 the applicant’s lawyer appealed against that decision to the City Court, which on 2 September quashed the order of 25 May 2004 and remitted the case to the district court. 68. On 27 October 2004 the Kalininskiy district court held a hearing in the case and requested the St Petersburg prosecutor’s office to submit documents justifying the applicant’s detention. Pending receipt of the documents, it adjourned consideration of the case until 23 December, and subsequently until 29 December 2004. On 29 December the hearing was adjourned until 13 January 2005, and subsequently until 16 February 2005. 69. On 16 February 2005 the Kalininskiy district court, at a public hearing in the presence of the applicant and his lawyer, reviewed the complaint concerning the unlawfulness of his detention. The court dismissed the complaint and ruled that the case should be transferred to the Kuybyshevskiy district court. 70. The applicant and his lawyer applied on numerous occasions to prosecutors at various levels, seeking to obtain his release. 71. On 14 April 2004 the St Petersburg prosecutor’s office informed the applicant, in reply to his request to be released, that the Prosecutor General’s Office was considering the request for his extradition, that he would be informed of the outcome and that there were no reasons to release him from detention. 72. On 25 May 2004 the Prosecutor General’s Office of Russia wrote as follows to the applicant’s lawyer: “[The applicant] was detained in St Petersburg in accordance with Article 61 of the [Minsk] Convention on Legal Assistance, as a person in respect of whom an international search warrant had been issued by the Turkmen law-enforcement bodies. Within 40 days the Prosecutor General of Turkmenistan submitted a request for the extradition of Mr Ryabikin. On that basis, on an application by the St Petersburg prosecutor’s office, the Kuybyshevskiy district court applied the preventive measure of detention under Article 446 § 1 of the CCP. The question of extending the detention of a person detained under Article 446 § 1 of the CCP is not dealt with by Russian legislation. According to the information provided by the Representative of the Russian Federation at the European Court of Human Rights, the decision of the President of the Chamber of the European Court to apply Rule 39 of the Rules of Court concerned only the expulsion/extradition/deportation, or any other forcible transfer, of Mr Ryabikin to Turkmenistan, and no decision to release him has been taken.” 73. On 8 and 21 June 2004 the St Petersburg city prosecutor’s office informed the applicant’s lawyer that her complaints of 12, 25 and 28 May and 7 July 2004 concerning the applicant’s release were unsubstantiated, because Article 466 of the CCP did not provide for the possibility of extending the detention of persons being held with a view to extradition. 74. On 8 July 2004 the Prosecutor General’s Office informed the applicant that his extradition to Turkmenistan had been stayed in view of the Court’s application of Rule 39 of the Rules of Court. His allegations concerning persecution in Turkmenistan on political and ethnic grounds were under consideration. The letter concluded that there were no reasons to change the preventive measure applied to him. 75. On 26 August 2004 the Prosecutor General’s Office replied to the applicant’s request to release him by a letter similar to that of 25 May 2004. 76. On 31 December 2004 the Prosecutor General’s Office replied to the applicant’s lawyer, stating that the applicant’s detention was lawful and that on 12 October 2004 the St Petersburg City Court had upheld the lawfulness of the decision of 27 February 2004. It further stated that the applicant’s complaint concerning the lawfulness of his detention had been accepted for review by the Kalininskiy district court. 77. The applicant and his lawyer also appealed directly to the head of detention facility IZ-47/4, requesting the applicant’s release and stating that his detention since 27 April 2004 had been unlawful. 78. On 1 June 2004 the applicant’s lawyer was informed that his continued detention was based on the court’s decision of 27 February 2004, taken in accordance with Article 446 of the CCP. 79. The applicant again complained to the head of detention facility IZ 47/4 on 2 and 28 September 2004. 80. The applicant submitted that his medical condition had deteriorated while he was in detention. 81. On 17 February 2005 the head of the facility replied to the applicant’s lawyer that the applicant had been diagnosed with coronary heart disease and arrhythmia, but that he had received medical treatment and did not require hospitalisation. 82. On 9 March 2005 the Kuybyshevskiy district court accepted for review the applicant’s complaint concerning the unlawfulness of his continued detention, in which he had also referred to the deterioration of his health. 83. On 14 March 2005 the Prosecutor General’s Office, in response to the request by the Kuybyshevskiy district court, stated that no decision concerning the applicant’s extradition to Turkmenistan had been taken and that his continued detention was lawful. 84. On 14 March 2005 the Kuybyshevskiy district court held a public hearing in the presence of the applicant and his lawyer and decided to release him. The court noted that no decision on extradition had been taken by the Prosecutor General’s Office, in view of the application of Rule 39 of the Rules of Court. It further noted that the CCP did not provide for the extension or alteration of a preventive measure in respect of a person arrested further to an extradition request. The district court directly applied Article 17 of the Constitution of Russia, which guarantees rights and freedoms in accordance with internationally recognised principles and norms of international law, and Article 5 of the European Convention on Human Rights, and concluded that the applicant should be released. 85. The Prosecutor General’s Office appealed against that decision, but on 14 April 2005 the St Petersburg City Court upheld it. 86. In their latest observations submitted in July 2007, the Government stated that on 22 April 2005 the Prosecutor General’s Office of Turkmenistan had provided guarantees to its Russian counterpart to the effect that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment in that country. The same letter also stated that the applicant would not be send to a third state without the consent of the Russian authorities; once the judicial proceedings were over and the applicant had served his sentence, he would be allowed to leave Turkmenistan without any hindrance. The Russian Government did not submit a copy of this letter to the Court. 87. In September 2005 the Court lifted the interim measure applied previously in respect of the applicant’s extradition. At the same time it requested the Government to inform it of any new developments regarding the extradition proceedings pending against the applicant. 88. The applicant submitted that he continued to be under threat of arrest and extradition to Turkmenistan. According to him, on 5 December 2005 two plainclothes policemen had visited his brother’s house in St Petersburg, looking for him. They did not produce any documents and said that the applicant should go to the City Department of the Interior. 89. On 7 December 2005 the applicant’s lawyer and his brother went to the Department’s offices and were informed that the interim measure had been lifted and that the applicant should report to the Department of the Interior. No documents were produced in respect of any proceedings. The officers also refused to clarify whether there had been a decision to extradite the applicant to Turkmenistan. On 8 December 2005 the applicant called the Department but again received no explanations as to the status of his extradition. He did not go there in person, fearing that he would again be arrested. 90. In January 2006 the Government informed the Court that “the Prosecutor General’s Office reverted to the examination of the question of the applicant’s possible extradition. Since the applicant’s whereabouts are not established, the ... Ministry of the Interior, acting on instructions of the Prosecutor General’s Office, is taking actions in order to apprehend the applicant.” In reply, the Court reminded the Government that they had been requested to submit updated information concerning the applicant’s extradition. No such information has been forthcoming. 91. The applicant submitted a number of reports on the situation in Turkmenistan, including documents issued by the OSCE, the European Parliament, the UN Commission on Human Rights, the US State Department, Amnesty International, Memorial, Human Rights Watch and the International Helsinki Federation for Human Rights. These documents speak of serious and continuing human rights violations occurring in Turkmenistan. In particular, they refer to persecution of ethnic minorities including Russians, violations of the principle of a fair trial, widespread use of torture, intolerable conditions of detention and lack of access to detainees by independent bodies, lawyers and relatives. 92. In particular, the OSCE Moscow Mechanism Rapporteur’s Report on Turkmenistan, issued by Prof. Emmanuel Decaux on 12 March 2003, stated: “Large-scale violations of all the principles of due process of law, like arbitrary detentions or show trials took place. Not only torture has been used to extract confessions, but the forced use of drugs was a means of criminalising the detainees, entailing lethal risks for them. A multiform collective repression fell on the ‘enemies of the people’, whereas forced displacement is announced in arid regions of the country, especially against people targeted on the ground of their ethnic origin. Even if the death penalty has been legally abolished, in practice, the survival expectancy of political detainees and displaced persons seems very low.” The Report recommended, inter alia: “Third States, and particularly the States parties to the European Convention on Human Rights, should refuse to extradite or to hand over Turkmen nationals who, in the current circumstances, are in danger of being subjected to torture or inhuman and degrading treatments. They should envisage the possibility of granting refugee status to all persons having a well-founded fear of persecution and co-operate with the UNHCR to this end.” 93. On 23 October 2003 the European Parliament adopted a resolution on Turkmenistan, which stated that “the already appalling human rights situation in Turkmenistan has deteriorated dramatically recently, and there is evidence that this Central Asian state has acquired one of the worst totalitarian systems in the world”. It called on the Turkmen government, among other things, to conduct impartial and thorough investigations into all allegations of torture and ill-treatment of persons held in custody, to allow the International Committee of the Red Cross access to prisoners and to ensure that independent observers were granted access to criminal trials. 94. Resolution 2003/11 of the Commission on Human Rights on the situation of human rights in Turkmenistan deplored “[t]he conduct of the Turkmen authorities with regard to the lack of fair trials of the accused, the reliance on confessional evidence which may have been extracted by torture or the threat of torture, the closed court proceedings, contrary to Article 105 of the Constitution of Turkmenistan... and the refusal to allow diplomatic missions or international observers in Ashkhabad access to the trials as observers”. 95. Resolution 2004/12 of the Commission on Human Rights on the situation of human rights in Turkmenistan expressed its grave concern “at the continuing failure of the Government of Turkmenistan to respond to the criticisms identified in the report of the Rapporteur of the Moscow Mechanism of the OSCE as regards the investigation, trial and detention procedures following the reported assassination attempt against President Niyazov in November 2002, as well as the failure of the Turkmen authorities to allow appropriate independent bodies, family members and lawyers access to those convicted, or to provide any kind of evidence to dispel rumours that some of the latter have now died in detention”. The Commission also called on Turkmenistan “[t]o grant immediate access by appropriate independent bodies, including the International Committee of the Red Cross, as well as lawyers and relatives, to detained persons, especially to persons detained following the events of 25 November 2002”. 96. The report of the UN Secretary-General on the situation of human rights in Turkmenistan of 3 October 2006 (A/61/489) concluded that “gross and systematic violations of human rights continued in the country”. Among the main areas of concerns identified were the repression of political dissent, the situation of minorities (including ethnic non-Turkmen), the use of torture and the absence of an independent judiciary. 97. Citing human rights concerns, the European Parliament in October 2006 adopted a resolution to stop further consideration of an interim trade agreement with Turkmenistan. The International Trade Committee resolution stated that the European Union would approve an interim trade agreement with Turkmenistan only if “clear, tangible, and sustained progress on the human rights situation is achieved.” It called on the Turkmen Government to release all political prisoners, allow the registration and free functioning of non-governmental organisations, permit the International Committee of the Red Cross to work freely in the country and grant United Nations human rights monitors “timely” access to Turkmenistan to monitor the situation. 98. The organisation Human Rights Watch in its 2007 World Report described Turkmenistan as “one of the world’s most repressive and closed countries,” where the authorities severely suppressed all forms of dissent and isolated the population from the outside world. Its human rights record in 2006 was described as “disastrous”. In particular, the report mentioned discrimination against ethnic and religious minorities in many important areas of social life, resort to torture and poor prison conditions. It also noted that “the government persisted in its refusal to grant international organizations access to prisons”. 99. Articles 108 and 109 of the CCP contain provisions relating to pre-trial detention. They provide that detention can be imposed by a judge on a reasoned request by the prosecutor, or an investigator duly authorised by the prosecutor, if no other measure of restraint can be applied. The decision of the court to impose detention can be appealed against within three days to a higher court, which must consider it within three days from the day of receipt of the appeal. Article 109 lays down the following terms of pre-trial detention. The initial term of detention cannot exceed two months. If the investigation continues, it can be extended to a maximum of six months by the court on an application by the prosecutor. After that, on an application by the regional prosecutor, it can be extended up to a maximum of 12 months. In exceptional circumstances, on an application by the Prosecutor General or his deputy, pre-trial detention can be extended up to a maximum of 18 months. 100. Article 125 of the CCP provides for judicial review of decisions by investigators that are liable to infringe the constitutional rights of the participants in the proceedings or prevent a person’s access to court. 101. Chapter 54 of the CCP regulates extradition on criminal charges. Articles 462 and 463 state that the decision to extradite a person further to a request from another country is taken by the Prosecutor General or his deputy. Such decision is subject to appeal to a regional court within 10 days from the date of notification of the decision to the person concerned. The complaint is reviewed at a public hearing, in the presence of the person in question, his representative and the prosecutor. The decision of the regional court can be appealed against to the Supreme Court. 102. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status. 103. Article 466 contains provisions relating to the detention of a person whose extradition is sought. Detention can be authorised by the Prosecutor General or his deputy upon receipt of an extradition request. If a foreign court has authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. The period of detention cannot exceed the normal terms of detention pending investigation laid down by the Code of Criminal Procedure for similar crimes. 104. Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the 1993 Minsk Convention), to which both Russia and Turkmenistan are parties, provides that the Parties communicate through their central, regional and other bodies. Its other relevant provisions are as follows: “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party ... 2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition. 3. A request for the search shall be accompanied by a certified copy of ... the detention order ... 4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.” “1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.” 105. On 4 April 2006 the Constitutional Court examined an application by Mr Nasrulloyev, who claimed that since the detention of a person pending extradition was not limited in time, the resulting legal situation was incompatible with the constitutional guarantee against arbitrary detention. The Constitutional Court declared the application inadmissible. It found that there was no ambiguity in the contested provisions because the general provisions governing measures of restraint were applicable to all forms and stages of criminal proceedings, including proceedings concerning extradition. The Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without judicial review, was not compatible with the Constitution. On 11 July 2006 the Constitutional Court refused to issue a clarification of that decision, noting that it was not competent to indicate specific legal provisions regulating the procedure and time-limits for application of a custodial measure in extradition proceedings, that being within the competence of the courts of general jurisdiction. 106. The Government referred in their submissions to two decisions by the Supreme Court. According to the Government, on 12 October 2005 the Presidium of the Supreme Court had stated in a case concerning extradition of an Azeri citizen that the provisions of Article 109 of the CCP were not applicable to the situation of detention pending extradition. Similarly, in the case of Mr A. concerning the latter’s detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no. 72-005-19, 8 June 2005): “The term of detention of a person who is to be extradited to the place of commission of an offence... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], a person arrested at the request of a foreign state may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).” | 1 |
train | 001-22711 | ENG | SVK | ADMISSIBILITY | 2,002 | LACKO AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicants are Slovakian nationals of Romany ethnic origin. The first applicant, Mr Ján Lacko, was born in 1976. The second applicant, Ms Júlia Demeterová, was born in 1956. They reside in Medzilaborce. The third applicant, Mr Miroslav Lacko, was born in 1968 and resides in Prešov. They were represented before the Court by Ms G.J. Garland and Mr B. Pleše of the European Roma Rights Center in Budapest as well as by Mr J. Hrubala and Mr J. Sidoriak, lawyers practising respectively in Banská Bystrica and Košice (Slovakia). The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. In 1981, seven Romani families, including the first and the second applicant, came to work in an agricultural co-operative located in the municipality of Krásny Brod. Shortly after their arrival, each of the families received permanent residence under Slovakian law in what are today the municipalities of Ňagov and Rokytovce. At the end of 1989 the agricultural co-operative in Krásny Brod ceased operations. As a result, the above Roma families lost their jobs. Since their living quarters at the co-operative were linked to their employment, they were compelled to leave them. The living quarters were subsequently destroyed. In May 1991 the first and second applicant and the other Roma returned to the municipalities of Rokytovce and Ňagov where they were legally registered. At various periods of time over the next six years they lived in temporary housing provided by local government authorities in the district of Medzilaborce. On several occasions, hostility towards the Roma on the part of local officials or non-Romani residents forced the Romani families to flee. Thus, between May and December 1991, the Medzilaborce District Department of Social Affairs reserved a trailer in Čabiny for the Romani families at a cost of 10,000 Slovakian korunas. Although the Roma raised the money to rent the trailer, the villages of Krásny Brod, Čabiny, Sukov, Rokytovce and Ňagov did not allow them to place the trailer on their territory. After the Roma had built temporary dwellings for themselves in Čabiny, the dwellings were torn down by non-Romani residents. For a period of six years the Roma were therefore moving frequently from one place to another, in search of a permanent and secure home. In the spring of 1997 the Romani families again established temporary dwellings on agricultural land located in the village of Čabiny. Local authorities, apparently responding to anti-Roma sentiment among the non-Romani majority, called a meeting on 30 May 1997, to deal with what they referred to as “the problem of Roma in the district of Medzilaborce.” The written record indicates that the meeting took place in the premises of the Medzilaborce District Office and that it was attended by the mayors of Čabalovce, Čabiny and Ňagov. The director of the Social Welfare Department of the Medzilaborce District Office and a representative of the Head of the District Office were also present. At the meeting, the director of the Social Welfare Department recounted the different attempts to solve the problem of the homeless Roma from the time of the destruction of their dwellings in the Sukov community in 1993. Noting the legal obligations of local authorities to address problems of shelter laid down in Slovakian law he observed, in particular, that there were Roma homeless in the register of Čabiny community and that those Roma had permanent residence in Ňagov, Rokytovce and Čabalovce. The mayor of Čabiny characterised as illegal the movement of Roma to the village of Čabiny and warned of the “very negative reaction of citizens in the community” who might try to “resolve this problem by expelling them forcibly or burning the cabins.” The mayor also noted that there had been several conflicts between Čabiny citizens and the Roma. He alleged that the surface water in a nearby river basin had been polluted by the latter and asked colleagues to resolve this problem as soon as possible. The minutes further indicate that the mayors of Čabalovce and Ňagov agreed to accommodate the homeless Roma, and the director of the Social Welfare Department undertook to visit the mayor of Rokytovce to explain to him the problem discussed. On 8 June 1997 an extraordinary meeting of the municipal council of Rokytovce adopted Resolution No. 21. Its relevant parts provide as follows: “The municipality representatives unanimously agree and declare that the Roma [concerned] are not the native inhabitants of Rokytovce, since they only moved to Rokytovce from the villages Rovné and Zbudské Dlhé. In 1981, one family moved into the village as the employees of the co-operative Krásny Brod, with the assistance of the former director of the co-operative ... In 1981 ... the deputy mayor in Krásny Brod gave the Roma permanent residence in Krásny Brod, since Rokytovce was only a part of Krásny Brod, and did not exist as a separate village. The family’s permanent residence was registered in a house, which is occupied. [The deputy mayor] awarded the Roma permanent residence because the year 1981 was an election year. In 1989 the Roma left Rokytovce and moved to the village Sukov to look for a job. After the separation [of Rokytovce and Krásny Brod] in 1990, the Roma neither resided in the village nor claimed their permanent residence here. Due to this, we do not consider them to be our inhabitants. According to the evidence from the house register, only two persons (out of five potentially returning to the village) have their permanent residence in Rokytovce: Júlia Demeterová and Valéria Demeterová. Finally, the municipal council declared that, in the event the Roma forcibly settle in the village, they would be expelled beyond the district of the village with the help of all inhabitants.” On 24 June 1997 a second meeting of the mayors was convened in the Medzilaborce District Office to address “the problem of Roma homeless in Čabiny community.” It was attended by the mayors of Čabiny, Ňagov and Čabalovce, a representative of the mayor of Rokytovce, the director of the Social Welfare Department as well as by the Head of the Medzilaborce District Office. According to the minutes, the director of the Social Welfare Department recalled that both Ňagov and Rokytovce municipalities had resisted providing accommodation for the persons at issue in Čabiny notwithstanding that the latter were entered in their housing registers. The mayor of Ňagov explained that the community had no place in its property where Roma could be placed. The delegate of the mayor of Rokytovce reasoned that, insofar as the village of Rokytovce had “inherited Roma” from the Krásny Brod co-operative, the problem should be solved by the co-operative. The mayor of Ňagov and the delegate of the mayor of Rokytovce offered to start negotiations with the management of the co-operative. The participants agreed to meet again on 21 July 1997. On 16 July 1997 the municipal council of Ňagov adopted Resolution No. 22, in which it forbade Romani citizens to enter the village of Ňagov or to settle in shelters within the territory of the village. The resolution provided that its effect was of permanent duration and that the mayor was responsible for its enforcement. On 21 July 1997 the dwellings built and occupied by the first and second applicant and the other Roma in the municipality of Čabiny were set on fire, burned and destroyed. The applicants submit that they have at their disposal no record indicating that the prosecution authorities have taken necessary measures with a view to investigating the offence. The Government maintain that the cabins had been built unlawfully and that the incident was not examined by the police as the persons concerned did not file a complaint. They further refer to statements by local inhabitants according to which the Roma involved had carried away all their clothes and valuable property before the cabins burned down. The inhabitants expressed the view that the Roma had probably set their cabins on fire deliberately with a view to forcing the public authorities to resolve their housing problem. In an interview published in the daily Korzo on 31 July 1997 the director of the Social Welfare Department of the Medzilaborce District Office expressed the view that the citizens of Čabiny had been able to solve the situation with violence which was not acceptable. He further explained that the State administration had no possibility of ordering the mayors to abide by the law. On 22 July 1997 a third meeting was convened in the Medzilaborce District Office. The minutes state that the above resolution of the Ňagov municipality was contrary to the relevant law because Roma homeless had permanent residence in that village. The minutes continued that “considering that the present illegal dwelling in the Čabiny community was terminated by the community, the Roma homeless were recommended to address themselves to municipal offices in the communities where they have permanent residence”. In late summer 1997, the Legal Defence Bureau for Ethnic Minorities of the Good Roma Fairy Kesay Foundation in Košice, Slovakia, (“the Košice Legal Defence Foundation”), where the third applicant was employed as a researcher, sent a letter to the General Prosecutor’s Office in Bratislava requesting an investigation into the legality of the above resolutions of the Rokytovce and Ňagov municipalities. The letter asserted that the resolutions were acts of public discrimination against Roma, and that they violated the rights to freedom of movement and residence and to protection against discrimination. On 19 September 1997 the General Prosecutor’s Office informed the Košice Legal Defence Foundation that the investigation had been assigned to the District Prosecutor in Humenné. In a letter dated 17 November 1997 the Košice Legal Defence Foundation provided the Humenné District Prosecutor with the names of five persons from Ňagov, including the first applicant, and four persons from Rokytovce, including the second applicant, and explained that they considered that their fundamental human rights had been violated by the above municipal resolutions. On 24 November 1997 the Košice Legal Defence Foundation submitted a petition to the Constitutional Court (Ústavný súd) pursuant to Article 130 (3) of the Constitution. It claimed that the above Ňagov and Rokytovce municipal resolutions be quashed as they violated Articles 12 (2), 23 and 33 of the Constitution. On 18 December 1997 the Constitutional Court dismissed the petition. The decision stated that, in view of its contents, the Constitutional Court had entertained it as a constitutional complaint under Article 127 of the Constitution. The Constitutional Court noted that the rights invoked by the petitioner were designed to protect only natural persons. Since the Košice Legal Defence Foundation was a legal person, it could not have suffered an infringement of those rights. The decision stated that individuals affected by the decisions in question were free to file a constitutional complaint alleging a violation of their fundamental rights or freedoms. On 29 December 1997 the Humenné District Prosecutor notified the Košice Legal Defence Foundation that, in view of the Constitutional Court’s ruling, it had suspended the investigation concerning the challenged resolutions. On 5 May 1998 the first and the third applicant filed, together with another person, a petition with the Constitutional Court pursuant to Article 130 (3) of the Constitution. They claimed that the Constitutional Court should find a violation of their rights under Articles 12, 23 (1) and 33 of the Constitution in that the Resolution No. 22 of the Ňagov municipal council unlawfully restricted the freedom of movement and residence of a group of people solely because they were Roma. They argued that all Roma in Slovakia suffered infringements in this respect. On the same date, the second applicant filed a separate petition to the Constitutional Court with reference to the Rokytovce municipal council’s Resolution No. 21 of 8 June 1996. She argued that the resolution violated her rights to freedom of movement and residence, freedom from racial and ethnic discrimination and freedom in the choice of nationality. By two decisions delivered on 16 June 1998 a different chamber of the Constitutional Court dismissed both petitions. As to the first and second applicant, the Constitutional Court held that they had not shown that the respective municipal authorities had applied the resolutions in question in a manner which would infringe the rights invoked by them. As regards the third applicant, the Constitutional Court noted that he had permanent residence outside the Medzilaborce district and found no evidence that he had tried to enter or move into the community of Ňagov, or that the community had tried to stop him from doing so. It concluded that the third applicant could not claim to be a victim of a violation of his constitutional rights. After the adoption of the resolutions in question the first and the second applicant, as well as their families, wanted to return respectively to Ňagov and Rokytovce. However, they did not return because they feared that the resolutions would be enforced, possibly by violence. On 10 September 1998 the Ňagov municipal council amended its above Resolution No. 22 of 16 July 1997 by declaring that it could not agree with the accommodation of Romani citizens within the village as the latter had no work and possessed neither property nor housing facilities in Ňagov, and did not come from there. On 22 March 1999 the Committee for human rights of the National Council of the Slovak Republic requested the Humenné District Prosecutor to review the lawfulness of the municipal resolutions in question and to take action which might be necessary. On 8 April 1999 the Humenné District Prosecutor participated at the respective meetings of the municipal councils in Ňagov and Rokytovce at which the contested resolutions were quashed by unanimous vote. In particular, the resolution of 8 April 1999 adopted by the municipal council of Rokytovce expressly stated that the resolution No. 21 of 8 June 1997 had not respected human rights and freedoms. On 8 November 2000 the Government passed a resolution by which it made available 3,300,000 Slovakian korunas with a view to resolving the housing problem of the Romani families from the area of Ňagov and Rokytovce. A housing facility in Medzilaborce was purchased and rebuilt for this purpose. As from 10 April 2001 it has been put at the disposal of the Romani families who had previously lived in wooden cabins situated in the area in question, including the families of the first and second applicant. Constitutional provisions The following relevant provisions of the Constitution were in force at the period under consideration. Article 12 (2) prohibits discrimination in the enjoyment of fundamental rights and freedoms. Article 16 (2) prohibits torture, inhuman or degrading treatment or punishment. Under Article 19 (2), every person has the right to protection against unjustified interference with his or her private and family life. Article 21 (1) guarantees the right to respect for one’s home. Article 23 (1) guarantees the freedom of movement and residence. Article 33 provides that no one may suffer harm on the ground that he or she belongs to a national or ethnic minority. Pursuant to Article 127, the Constitutional Court shall review the challenges to final decisions made by central governmental authorities, local governmental authorities and local self-governmental bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court. Article 130 (3) provides that the Constitutional Court may commence proceedings upon a petition (“podnet”) submitted by legal entities or individuals claiming a violation of their rights. The Constitutional Court Act of 1993, as in force at the relevant time Pursuant to Section 49, a constitutional complaint could be filed by individuals or legal persons alleging a violation of their fundamental rights or freedoms, by a decision of one of the authorities set out in Article 127 of the Constitution, unless the protection of such rights or freedoms fell under the jurisdiction of another court. Under Section 53 (3), a constitutional complaint was to be lodged within two months from the day when the decision in question became final or, as the case might be, from the moment when a person’s fundamental rights or freedoms were violated as a result of such a decision. Section 57 (1) entitled the Constitutional Court to quash the challenged decision when it found, in proceedings brought upon a constitutional complaint, that a person’s fundamental rights or freedoms had been violated. Practice of the Constitutional Court In its finding no. I. ÚS/93 of 15 June 1994 the Constitutional Court found, upon a constitutional complaint lodged pursuant to Article 127 of the Constitution, that a municipal council’s decision concerning a local vote had violated the complainants’ constitutional right to participate in the administration of public matters. In the same finding the Constitutional Court quashed the relevant municipal decision pursuant to Section 57 of the Constitutional Court Act of 1993. A similar Constitutional Court’s finding was delivered, in respect of a decision of a different municipality, on 19 March 1998 (no. I. ÚS 46/96). The Constitutional Court consistently held that, in the context of proceedings under Article 130 (3) of the Constitution, it lacked jurisdiction to draw legal consequences from its finding of a violation of a petitioner’s constitutional right. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. The Constitutional Court considered that it was therefore for the authority concerned to provide redress to the person whose constitutional rights were violated. Practice of the Committee on the Elimination of Racial Discrimination In its opinion adopted on 8 August 2000 the Committee on the Elimination of Racial Discrimination found, upon a communication concerning the same facts as the present case but submitted by a different person, that the municipal resolutions in question, while in force, had violated Article 5 (d) (i) of the International Convention on the Elimination of All Forms of Racial Discrimination which reads as follows: “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State;” The Committee further noted that the resolutions had been rescinded in April 1999 and invited the Slovakian authorities to take necessary measures to ensure that practices restricting the freedom of movement and residence of Roma under their jurisdiction be fully and promptly eliminated. | 0 |
train | 001-58235 | ENG | SVK | CHAMBER | 1,998 | CASE OF KADUBEC v. SLOVAKIA | 3 | Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | R. Pekkanen | 7. The applicant was born in 1943 and lives in Bratislava, Slovakia. 8. On 25 August 1993 the police intervened in an incident involving the applicant in a spa establishment in Piešťany, Slovakia. The police had to restrain and handcuff him. Subsequently the police notified the Piešťany local office (Obvodný úrad) of the incident (see paragraph 27 below). 9. On 30 November 1993 the local office found that the applicant had committed a minor offence (priestupok) against public order under section 47(1)(a) and (c) of the 1990 Minor Offences Act in that he had disturbed boarders in the spa establishment by his noisy behaviour and refused to obey police officers (see paragraph 22 below). He was fined 1,000 Slovakian korunas (SKK) pursuant to section 47(2) of the Minor Offences Act and ordered to pay SKK 150 in respect of costs. 10. The applicant filed an appeal against this decision with the Trnava district office (Okresný úrad). He maintained that his case had not been examined properly and that he was prevented from defending himself since the decision of the local office had been taken in his absence. He also requested that a witness be heard. 11. On 21 January 1994 the district office dismissed the appeal and upheld the decision of the local office. The applicant’s case was examined by the legal department of the district office which rejected his appeal in a decision signed by the head of that department. 12. On 18 March 1994 the applicant brought a complaint before the Constitutional Court (Ústavný súd). On 30 March 1994 he submitted proof of his indigence to the Constitutional Court and requested that a lawyer be appointed ex officio in order to assist him in the proceedings before it. On 6 April 1994 the Constitutional Court informed the applicant that the Constitutional Court Act did not provide for the ex officio appointment of lawyers and requested him to appoint a lawyer within twenty-one days. The applicant then approached the President of the Bar Association but was nevertheless unable to find a lawyer within the time-limit set by the Constitutional Court. 13. On 25 May 1994 the Constitutional Court dismissed the applicant’s complaint because of his failure to instruct a lawyer to represent him in the proceedings, as required by the Constitutional Court Act. 14. Article 46 § 2 of the Constitution guarantees to everyone who claims to have been denied his rights as a result of a decision made by a public administrative authority the right to appeal to a court of law and have the legality of the decision reviewed, unless otherwise provided by law. The review of decisions on matters of fundamental rights and freedoms may not be excluded from the jurisdiction of courts of law. 15. Article 121 entitles the Government to grant pardons in matters concerning minor offences. 16. Pursuant to Article 127 the Constitutional Court decides on complaints concerning final decisions made by, inter alia, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court. 17. At the time of the offence the legislation read as follows. 18. Section 1 of the Minor Offences Act defines its purpose in the following terms: “Administrative authorities of the Slovak Republic and municipal organs shall encourage citizens to respect legal rules and the rights of other citizens. They shall ensure, in particular, that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety.” 19. Section 2(1) provides the following definition of a minor offence: “A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this Act or another law, unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence.” 20. Section 11 entitles the competent authorities to impose sanctions (sankcie) on the perpetrators of minor offences. It reads as follows: “(1) The following sanctions may be imposed for a minor offence: (a) reprimand, (b) fine, (c) prohibition to exercise a certain activity, (d) confiscation of an object. (2) A sanction can be imposed either separately or in combination with another sanction; a reprimand cannot be combined with a fine. (3) It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator.” 21. Section 12(1), as relevant, provides: “When determining the type and amount of the sanction, the seriousness of the minor offence and, in particular, the way and the circumstances in which it was committed, its consequences, the degree of guilt, the motive and the character of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account.” 22. Section 47 governs minor offences against public order. Pursuant to section 47(1)(a) and (c), a person who disobeys a public officer acting in his official capacity or offends public decency commits a minor offence against public order. Under section 47(2) such a minor offence is punishable with a maximum fine of SKK 1,000. 23. According to section 51 the proceedings concerning minor offences are governed, unless otherwise provided, by the Administrative Proceedings Act. 24. Section 52 provides that the following administrative authorities are entitled to examine minor offences: (i) local offices, (ii) police authorities if a minor offence was committed in breach of the generally binding legal rules relating to the security of road traffic and (iii) other organs of State administration if a special law so provides. 25. Pursuant to section 58(4)(b) cases involving minor offences against public order are investigated by the police authorities subordinated to the Ministry of the Interior. 26. Section 59(1) provides that minor offences are to be investigated either on the basis of an investigation carried out by the competent police authority or upon a notification submitted by an individual, an organisation or an authority. 27. Under section 63(1) the police authority should submit to the competent administrative organ a report on the outcome of its investigation of a case. Such a report ought to comprise, inter alia, a description of the relevant facts and specify which minor offence they are alleged to constitute. 28. Section 73 reads as follows: “(1) A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her. Such a person shall be considered innocent until his or her guilt has been established by a final decision. (2) A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts, to present facts and evidence in his or her defence, make submissions and have recourse to remedies. He or she cannot be forced to make statements or to plead guilty.” 29. Section 77, as relevant, provides: “The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed, the finding of guilt, the type and amount of the sanction or, as the case may be, the decision not to impose a sanction...” 30. According to section 83(1) decisions on minor offences imposing a fine exceeding SKK 2,000, prohibiting the exercise of a certain activity for a period exceeding six months or confiscating an object having a value exceeding SKK 2,000 can be reviewed by the courts. In such cases the provisions of Articles 244 et seq. of the Code of Civil Procedure on administrative jurisdiction are applied. 31. Section 1(1) of Law no. 472/1990 on the Organisation of Local State Administration, as amended, empowers district offices and local offices to carry out local administration falling within the competence of the State. The exercise of local administration by the aforesaid authorities is managed and controlled by the government. 32. Under section 6(1) the head of a local office is appointed and dismissed by the head of a district office. 33. According to section 8(1) the head of a district office is appointed by the government on the proposal of the Ministry of the Interior. 34. The officers of local and district offices are subordinated to the heads of those offices and their contracts of employment are governed, as in the case of other salaried employees, by the provisions of the Labour Code. 35. In 1996 this Law was repealed and replaced by Law no. 222/1996 on the Organisation of Local State Administration. 36. Under the terms of Article 135 § 1 of the Code of Civil Procedure civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence, a minor offence or another administrative offence punishable under special rules has been committed. 37. Article 3 § 1 of the Criminal Code defines a criminal offence as an act which is dangerous to society and whose characteristics are laid down in the Criminal Code. However, according to Article 3 § 2, an act whose dangerousness is negligible is not a criminal offence even if it has its attributes. 38. According to Article 3 § 4 the degree of dangerousness of an act is determined, in particular, by the importance of the protected interest affected by that act, by the circumstances and the way in which the act was committed and its consequences as well as by the character of its perpetrator, the degree of his guilt and his motives. 39. Article 202 of the Criminal Code provides that a person who commits in public an act of gross indecency or causes a grave disturbance, in particular by attacking another person, profaning a cultural or historical monument or a grave, or who disturbs in a serious manner a meeting or a ceremony may be either fined or sentenced to a prison sentence not exceeding two years. 40. The Criminal Code refers to repressive measures imposed for committing a criminal offence as penalties (tresty). | 1 |
train | 001-115312 | ENG | LVA | ADMISSIBILITY | 2,012 | STAROVOITOVS v. LATVIA | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Vadims Starovoitovs, is a Latvian national, who was born in 1968 and lives in Rīga. He was represented before the Court by Ms J. Kvjatkovska, a lawyer practising in Rīga. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine, who was succeeded by Agent Mrs. K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 8 April 2004 the applicant was remanded in custody, suspected of having committed a number of robberies. 5. On 26 August 2004, before the Latgale District Court, the applicant pleaded guilty and, in a judgment of 30 August 2004, the court convicted the applicant and sentenced him to eight years’ imprisonment. The applicant submitted an appeal, which he later withdrew. The judgment of the lower court came into force on 20 April 2005. 6. The applicant states that in April 2004, when his detention order was adopted, he informed the judge that prior to his arrest he had worked for three years as a security guard in a private company. He asked to be placed in special detention facilities for former members of law-enforcement institutions. The judge dismissed his request because he was not able to prove that he had been employed by the Ministry of the Interior. 7. After his arrival at the Central Prison, and later in Valmiera Prison, he informed the prison guards about his former employment. 8. On 5 April 2005 his cellmates in the Central Prison found out about his former employment and therefore, after a conflict in the cell, the applicant was transferred to another cell. After other cellmates had found out about the applicant’s previous employment, and also the fact that, according to informal rules in the prison, he had the lowest “social status” (“левый” as stated by the applicant) during the night of 20 April 2005 he was ill-treated by them and in the morning he was transferred to another cell. On 30 April 2005 he was again transferred because his cellmates had refused to share a cell with an inmate of the lowest social status. 9. On 7 June 2005 the applicant was transferred to Valmiera Prison and placed in a common cell with other inmates. He states that during June and July he wrote several letters to the Governor of Valmiera Prison raising doubts about his safety in the prison, but that no measures were taken. In September 2005 the Prisons Administration dismissed a request submitted by the applicant’s mother for him to be transferred to another prison. 10. At the Government Agent’s request, the Ministry of Justice provided the following information, supported by copies of letters and decisions. 11. From 8 April 2004 to 7 June 2007 the applicant was held in detention in the Central Prison in Rīga. When the final judgment in the applicant’s criminal case took effect he was transferred to Valmiera Prison. 12. On 26 and 29 April 2005 the applicant and his mother asked the Prisons Administration to transfer the applicant to a prison in Rīga. The requests were motivated by the family situation, namely the mother’s poor health and the fact that the applicant had little opportunity to see his wife and child. In June 2005 the Prisons Administration dismissed the request. 13. On 29 July 2005 the applicant complained to the Prosecutor General about, inter alia, the potential threats he would face if other inmates found out about his former employment with a security company. 14. On 8 and 14 September 2005 the applicant and his mother repeatedly asked the Prisons Administration to transfer the applicant to Matīsa or Brasa Prison in Rīga. In addition to the reasons previously given, they cited the fact that the applicant had worked in a security company and therefore feared that other inmates might find out. The applicant stated, inter alia, that at the moment he was keeping the situation in his cell under control, but he feared that the situation might change after his transfer to a less lenient prison regime where he would have to share the common areas with other inmates. 15. On 16 September the Prisons Administration asked the security company to provide information about the applicant. On 20 September 2005 the Prisons Administration informed the applicant’s mother that once the details of the applicant’s previous employment with a security company had been established, the applicant ought to be transferred to specialised detention facilities intended for former members of law-enforcement establishments in Rīga. 16. On 10 October 2005 the head of the Security Department of the Prisons Administration, having analysed the information that from 1 March 2001 until 30 November 2003 the applicant had been employed by a security company, decided that for security reasons the applicant should be transferred to Matīsa Prison in Rīga. That decision was put into effect on 17 October 2005. 17. On 25 July 2005, following the murder of an inmate at Valmiera Prison, members of the Prisons Administration special forces unit began a search of all the cells in Valmiera Prison. During the search, the inmates were ordered to leave their cells and gather in the prison yard. 18. According to the applicant, the inmates were ordered to wait in an uncomfortable position for three hours in direct sunlight. All attempts to move resulted in the officers kicking the inmates and beating them with batons. After the search, the applicant returned to his cell, where everything had been turned upside down and some of his belongings were missing. 19. On 26 July 2005 he asked Valmiera Prison administration to explain on what basis special measures were being used against him. He also asked for his missing belongings to be returned. 20. On 29 July 2005 the applicant complained about the search to the Office of the Prosecutor General, and asked it to investigate the lawfulness of the measures used by the Valmiera Prison Administration. 21. On 4 August 2005 the prosecutor informed the applicant that his complaint had been forwarded to the Prisons Administration and that he would be informed of the results of the investigation in due course. 22. According to the applicant the administration of Valmiera Prison offered to transfer the applicant to another prison in Rīga in exchange for the applicant withdrawing his previous complaints about Valmiera Prison. In a letter dated 23 August 2005 the applicant informed the Prisons Administration that he had settled the matter with Valmiera Prison administration, which had compensated him for his lost belongings. 23. On 12 February 2006 the applicant again complained to the Office of the Prosecutor General about the search on 25 July 2005. 24. On 12 April 2006 the Prisons Administration informed the applicant that the Specialised Public Prosecutor’s Office had not found any violations by members of the special forces unit during the search on 25 July 2005. 25. According to the information the Ministry of Justice and the prosecutor’s office had provided to the Government Agent, after the search carried out by the special forces unit in Valmiera Prison, several inmates complained that the special forces had inflicted bodily injuries on them and that the medical unit had failed to provide prompt medical assistance. During the internal investigation launched by the Prisons Administration it was established that on the day of the search five inmates had asked for medical assistance and the next day eleven inmates had done so. The applicant was not among them. 26. In his letter of 29 July 2005 addressed to the prosecutor’s office (a copy of which has been provided by the Government) the applicant described the situation in Valmiera Prison during the search. He stated that he had observed from the window of his cell intolerable behaviour by members of the special forces unit and officers of Valmiera Prison. He also stated that he and his cellmates had voluntarily obeyed the orders given by the special unit but those who had disobeyed had been beaten and kicked. In general the applicant asked Valmiera Prison to investigate the activities of all those who had participated in the search. 27. On 5 August 2005 seven inmates (the applicant not being among them) submitted complaints to the prosecutor’s office concerning the activities of the special forces unit, and asked for criminal proceedings to be instituted. In September 2005 the prosecutor’s office dismissed the complaints but on 5 April 2006, at the Ombudsman’s request, the latter decision was quashed and criminal proceedings were instituted. At the time the Government observations were submitted the investigation was still ongoing. | 0 |
train | 001-70467 | ENG | RUS | CHAMBER | 2,005 | CASE OF ANDROSOV v. RUSSIA | 3 | Preliminary objection dismissed (Article 37-1 - Striking out applications);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);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);Pecuniary and non-pecuniary damage - award | Christos Rozakis | 7. The applicant was born in 1948 and lives in Zenzeli village, the Limanskiy District of the Astrakhan Region. 8. In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 and 1997 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly. 9. In 1999 the applicant brought proceedings against the Welfare Office of the Limanskiy District of the Astrakhan Region (Отдел социальной защиты населения Лиманского района Астраханской области - “the defendant”) for an increase in the compensation, for backdating the increase and recovering of the unpaid amount. The applicant considered that the amount of compensation had been determined incorrectly. 10. On 3 November 1999 the Limanskiy District Court of the Astrakhan Region established, upholding the applicant’s claim, that the applicant was entitled to a monthly compensation of 5,045.73 roubles (RUR). The court established that the debt accrued as a result of previous underpayment was RUR 108,892.07. It also awarded the applicant RUR 60,000.00 as a penalty payment. 11. By a decision of 14 December 1999 the Astrakhan Regional Court, acting on appeal, upheld the judgment as to the amount of the monthly payment and the principal debt, but reversed the penalty award. The judgment entered into force and enforcement proceedings were instituted. Both parties lodged requests for supervisory review of the courts’ decisions. 12. On 17 March 2000 the Astrakhan Regional Court stayed the enforcement proceedings, pending the consideration of the defendant’s request for supervisory review. 13. The defendant’s request for supervisory review was refused by the Supreme Court of the Russian Federation on 13 April 2000. 14. On 22 May 2000 the Limanskiy District Court of the Astrakhan Region resumed the enforcement proceedings. 15. By a decision of 15 August 2000 the President of the Astrakhan Regional Court refused the applicant’s request for supervisory review. 16. On 15 September 2000 the Limanskiy District Court of the Astrakhan Region granted a request by the Astrakhan Regional Office for Welfare Payments (Астраханский областной центр по начислению и выплате пенсий и пособий) to suspend the enforcement proceedings. The enforcement was stayed until 1 December 2000 to allow the authorities to “decide how to finance the court awards involving the recalculation of compensation to the victims of the Chernobyl catastrophe”. 17. On 17 October 2000 the Supreme Court of the Russian Federation refused the applicant’s request for supervisory review of the suspension order. 18. On an unspecified date, following a request made by the Astrakhan Regional Office for Welfare Payments, the President of the Astrakhan Regional Court brought an extraordinary appeal against the judgments of 3 November 1999 and 14 December 1999. 19. On 27 December 2000 the Presidium of the Astrakhan Regional Court examined the appeal and quashed both the judgment of the Limanskiy District Court of the Astrakhan Region dated 3 November 1999 and the judgment of the Astrakhan Regional Court dated 14 December 1999. The Presidium decided that the subordinate courts had wrongly determined the amount of monthly compensation. In particular, they had based all the calculations on the applicant’s salary as of October 1986. The Presidium held that the calculations should have been based on the applicant’s average earnings over the 12 months prior to the date on which the medical examination had established his disability. The case was remitted to the same District Court for a fresh examination. 20. On 27 February 2001 the Supreme Court of the Russian Federation, in response to the applicant’s complaint, refused to conduct a supervisory review of the decision of 27 December 2000. 21. By a judgment of 23 April 2001 the Limanskiy District Court of the Astrakhan Region, acting as a first instance court, awarded the applicant the monthly payment of RUR 3,336.99 and established that the debt accrued was RUR 114,466.01. No penalty was awarded. 22. On 24 July 2001 the Astrakhan Regional Court acting as an appeal instance reversed the judgment of the Limanskiy District Court of the Astrakhan Region of 23 April 2001. It pointed out that the District Court had applied the calculation mode incorrectly and that the amounts due had to be recalculated. The case was remitted to the same District Court for a new decision. 23. On 23 September 2002 the applicant filed a complaint with the Astrakhan Regional Court concerning the length of proceedings. He complained in particular that no decision had been taken in his case since 24 July 2001. 24. In reply dated 27 September 2002, the applicant was informed that on 22 November 2001, on his request, the proceedings had been stayed pending the Constitutional Court’s decision in a similar case. He was informed that the proceedings had been resumed after the Constitutional Court’s ruling of 19 June 2002, and that a hearing had been fixed for 7 October 2002. He was also informed that the hearings had not been fixed until 2 September 2002 on the applicant’s request due to his counsel’s absence. 25. On 4 November 2002 the Limanskiy District Court of the Astrakhan Region decided that the compensation payable to the applicant by the welfare authorities was RUR 45,640.94. The applicant was also awarded legal costs of RUR 1,300 and non-pecuniary damages of RUR 5,000. 26. The applicant appealed against this decision. He challenged the principal amount, the amount of non-pecuniary damages and the refusal of the penalty. 27. By an appeal decision of 14 January 2003 the Astrakhan Regional Court reversed the first instance judgment and remitted the case for fresh examination by the same court. 28. On 3 March 2003 the Limanskiy District Court of the Astrakhan Region awarded the applicant RUR 235,210.32 of the principal debt, future monthly payments of RUR 4,727.96 and the legal costs of RUR 500. 29. Both parties appealed against this judgment. 30. On 29 April 2003 the Astrakhan Regional Court upheld the first instance judgment. 31. On 5 August 2003 the awarded sums were transferred to the applicant’s bank account. 32. 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. 33. 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. 34. Under the Code of Civil Procedure of 1964, 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...” 35. 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.” 36. 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.” 37. 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. 38. 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. 39. 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. 40. 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...” 41. 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 | 001-96446 | ENG | SVK | CHAMBER | 2,010 | CASE OF LEXA v. SLOVAKIA (No. 2) | 3 | Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1961 and lives in Bratislava. Between 1995 and 1998 he was the Director of the Slovak Information Service (Slovenská informačná služba), the Slovakian intelligence service. In September 1998 he was elected as a member of the National Council of the Slovak Republic (the Parliament) for a four-year term. 6. The applicant was summoned to give an explanation to a police investigator on 5 December 2002. On that day the investigator arrested the applicant and issued a decision in which he accused him of incitement to commit murder, abuse of authority and the mishandling of information classified as a State secret. The decision stated that the applicant was suspected of having prevented the proper investigation of the offence of abduction of the son of the then President of Slovakia abroad (for further details concerning that case see also Lexa v. Slovakia, no. 54334/00, §§ 9-63, 23 September 2008). 7. In particular, the decision referred to an extensive investigation including several statements of experts, documentary evidence obtained from the Slovak Intelligence Service, the examination of 58 witnesses including 8 witnesses whose identity was not disclosed and other evidence. The information thus obtained sufficiently justified the conclusion that the applicant, in his capacity as Director of the Slovak Intelligence Service, had taken the action described below with a view to (i) preventing the offence of abduction of the President’s son in 1995 from being elucidated, (ii) threatening F., a former member of the Slovak Intelligence Service, who had confirmed the involvement of the secret service in that offence and who had later been forced to hide abroad and (iii) preventing witness R. from maintaining contact with F. and killing the former. The applicant was accused of offering 2 million Slovak korunas (SKK) to S. to kill R. In that context, the applicant was suspected of having arranged for the monitoring of several persons and had transmitted the information thus obtained to S. despite the fact that it had been classified as “strictly secret”. S. had asked at least five persons to kill R. After the first attempt had failed, the perpetrators had activated, in April 1996, an explosive device which had been attached to R.’s car. The car had caught fire and R. had died inside. The investigator’s decision referred to a different set of proceedings brought against two persons accused of having activated the device. 8. The applicant immediately filed a complaint against the decision which a public prosecutor dismissed on the same day. The public prosecutor requested that the applicant be remanded in custody pursuant to Article 67 § 1 (a), (b) and Article 67 § 2 of the Code of Criminal Procedure. 9. On 7 December 2002 the applicant, in the presence of two lawyers, was heard by a judge of the Bratislava I District Court. The applicant stated that he knew neither R. nor the persons allegedly involved in his killing. His deprivation of liberty was arbitrary. The evidence on which the investigator relied had not been obtained in accordance with the relevant provisions of the criminal law and, as such, it could not be used in proceedings before a court. The applicant also complained that the investigator had not allowed him or his lawyers to consult the file without relying on any relevant reason. The judge informed the applicant that he would not put the file at his disposal as, at that stage of proceedings, such action was within the power of the investigator. 10. On the same day the judge remanded the applicant in custody with effect from 5 December 2002. The judge did not accept that there was a risk of the applicant’s absconding or influencing witnesses within the meaning of Article 67 § 1 (a) and (b) of the Code of Criminal Procedure. However, the decision stated, with reference to Article 67 § 2 of the Code of Criminal Procedure, that the applicant was charged with an offence carrying a minimum prison sentence of twelve years. The court’s decision also stated that the investigator had violated the applicant’s right to be presumed innocent by holding that his actions had met the constituent elements of the offences in issue. 11. The applicant filed a complaint which he supplemented several times. He alleged that the District Court judge had not allowed him or his counsel to consult the case file and that the evidence available had not been obtained in accordance with the procedural requirements and did not justify his being accused of the offences in issue. The applicant also submitted that the relevant events had occurred in 1996 and that, subsequently, public authorities had influenced public opinion, indicating that the applicant was responsible for the events in question. Furthermore, the first-instance court had disregarded the applicant’s own position, namely that the prosecuting authorities were biased and had striven to remand him in custody by all means. The applicant relied on the Court’s case-law under Article 5 §§ 1 and 4 of the Convention. 12. On 7 January 2003 the applicant’s counsel requested permission to consult the file. The Bratislava Regional Court permitted them to do so from 9 to 12 a.m. on 14 January 2003. 13. The Bratislava Regional Court dismissed the applicant’s complaint against the decision on his detention on remand at a meeting held on 14 January 2003, apparently shortly after the applicant’s counsel had consulted the file. The court met in camera; the relevant law excluded both the applicant and the public prosecutor from attending. 14. The decision stated that the applicant had been remanded in custody in accordance with the applicable procedural rules and that his detention was justified under Article 67 § 2 of the Code of Criminal Procedure. As to the applicant’s argument that he had been accused of the offences in issue arbitrarily, the decision stated that the Regional Court had thoroughly examined the evidence included in the file. It noted that the criminal proceedings against the applicant were at the initial stage only and concluded that the evidence available at that time justified the suspicion that the offences in issue had been committed. The applicant’s detention was not arbitrary. As to the applicant’s objections to the conduct of the criminal proceedings, the Regional Court pointed out that they fell within the competence of the public prosecutor in charge of the case. 15. On 14 February 2003 the Bratislava I District Court dismissed the applicant’s request for release. 16. On 2 June 2003 a judge of the Bratislava I District Court refused to extend the applicant’s detention. The decision stated, inter alia, that there had been relevant reasons for the applicant’s detention on remand when the Bratislava I District Court had delivered the above decisions of 7 December 2002 and 14 February 2003. The file contained evidence both against the applicant and in his favour. The former type of evidence had been taken in 2000 in the context of criminal proceedings against two other persons. As such it could not be used in the context of the criminal proceedings against the applicant. It was not clear why the investigator had not re-examined the witnesses concerned in the context of the criminal proceedings against the applicant. The reliability of certain statements could be cast into doubt as they had been made by persons linked to organised crime. 17. The judge further held that in the period after 5 December 2002 no evidence had been obtained in support of the accusation against the applicant. Thus during the six months the applicant was detained the investigator and the prosecutor had failed to gather sufficient evidence capable of strengthening the suspicion that the applicant had committed the offence imputed to him. On the contrary, the evidence obtained in the course of the last four months was in favour of the applicant. The ground for his detention had therefore ceased to exist. 18. On 5 June 2003 the public prosecutor ordered the applicant’s release. 19. On 21 September 2006 the Special Prosecution Service at the General Prosecutor’s Office discontinued the criminal proceedings on the ground that the facts underlying the proceedings had not occurred. The decision stated, inter alia, that the file contained no relevant evidence indicating that the applicant had committed the offence imputed to him. There was no proof that the accused persons in the other set of proceedings had committed the offence which, according to the accusation, the applicant had allegedly incited them to commit. 20. On 5 December 2002 an extraordinary briefing was held at which the Minister of the Interior provided details concerning the arrest of the applicant. The Minister read out extracts from the decision by which the applicant had been accused. 21. On 6 December 2002 the daily Sme with nationwide distribution published an article about the case. It reported on the Minister’s statements at the above briefing. Reference was also made to a statement by a public prosecutor who had pointed out that the decision on the applicant’s guilt or innocence lay with a court and had expressed the view that the existing evidence was sufficient. 22. On 10 December 2002 Sme published an interview with the investigator who had accused the applicant of the above offences. The investigator stated that the police had had sufficient evidence, comprising both witness statements and documents, to bring criminal proceedings against the applicant. 23. On 14 December 2002 Sme reported on statements made by the public prosecutor in charge of the applicant’s case. According to those statements, one witness had confirmed that the applicant had offered him SKK 2 million for the killing of the person concerned. 24. Finally, on 16 December 2002 Sme published an article about the judge of the Bratislava I District Court who had remanded the applicant in custody. The article indicated that the judge had been aware that the applicant had been summoned to appear before a police investigator on 5 December 2002. At that time the judge had been on duty and he had had a premonition that “something would happen”. The judge expressed the view that the case had fallen to be dealt with by him by pure chance. The judge had had only one day to study the file, which comprised several hundred pages. The hearing of the applicant prior to his detention on remand had lasted 4 hours. The judge confirmed that, according to documents included in the file, one witness had confirmed that the applicant had asked him to eliminate a witness against him for SKK 2 million. 25. On 13 March 2003 the applicant filed a complaint with the Constitutional Court. He alleged a violation of his rights under Article 5 §§ 1, 3 and 4 and under Article 6 §§ 1, 2 and 3 of the Convention. He also relied on several constitutional provisions. 26. As regards the proceedings leading to the Bratislava I District Court’s decision to remand him in custody, the applicant complained that the judge had not allowed him and his counsel to consult the case file, indicating that such a decision was within the competence of the investigator. The applicant thus could not show that his accusation had been based on evidence which had been obtained by unlawful means and which, for that reason, could not be used in proceedings before a court. The judge had not examined whether relevant reasons for the applicant’s detention had existed. 27. The applicant further complained that the judge of the Bratislava I District Court had subsequently given an interview in which he had made comments on the applicant’s deprivation of liberty and disclosed details from the case file. The applicant affirmed that those statements had been made in the context of a campaign launched against him. His rights to a fair hearing and to be presumed innocent had thereby been violated. 28. As regards the decision given by the Bratislava Regional Court on 14 January 2003, the applicant complained that the principle of equality of arms had been breached as he had not had sufficient time, after his counsel had consulted the file, to supplement his complaint against the decision on his detention on remand. He had been accused on the strength of evidence obtained contrary to the relevant provisions of the Code of Criminal Procedure in that it had been taken previously within the framework of another set of proceedings. That had been a deliberate attempt to diminish his ability to defend himself. That evidence could not be used in proceedings before courts, including proceedings concerning his detention on remand. 29. On 16 April 2003 the Constitutional Court rejected the complaint. The decision stated that the Constitutional Court lacked the power to review the factual findings of ordinary courts in matters relating to detention on remand. The Constitutional Court found that in the context of the criminal proceedings brought against him the applicant risked a minimum prison term of twelve years. The material condition for his detention on remand under Article 67 § 2 of the Code of Criminal Procedure had therefore been made out. Both courts had examined the file and concluded that the evidence available justified the suspicion that the applicant had been involved in the offences concerned. However, a “reasonable suspicion” that a person had committed an offence did not require the existence of proof. In respect of this part of the applicant’s complaint the Constitutional Court concluded that it lacked the power to substitute the decision-making of the ordinary courts on the applicant’s detention on remand. 30. The Constitutional Court further declared manifestly ill-founded the complaints under Article 5 § 3 and Article 6 of the Convention. It noted that the applicant had been assisted by two advocates during his examination by the judge of the District Court. He had had an adequate opportunity to defend his rights. As to the alleged violation of Article 5 § 4 of the Convention, the Constitutional Court held that it had been open to the applicant to bring proceedings with a view to challenging the lawfulness of his detention on remand. However, he had not availed himself of that right. There was no causal link between the conduct of the ordinary courts in the proceedings in issue and the applicant’s right under Article 5 § 4 of the Convention. As regards the principle of equality of arms enshrined in Article 6 of the Convention, it was not applicable to proceedings in which the courts deprive a person of liberty for the purpose of his or her criminal prosecution. 31. Finally, the Constitutional Court noted that the applicant had filed his complaints under Articles 6 §§ 1 and 2 of the Convention about the statements made by the District Court judge more than two months after he had learned about the article in issue. In that respect, the statutory time-limit had not been respected. 32. Article 65 § 1 gives the accused person the right to consult the file with certain restrictions enumerated therein. Paragraph 2 provides that, at the pretrial stage, the public prosecutor or the police authority can only refuse a person access to a file concerning him or her for exceptional reasons. 33. Article 67 § 2 provides that an accused person can be remanded in custody where he or she is prosecuted for an offence punishable with a minimum prison sentence of eight years. 34. Article 74 § 1 provides that a complaint is available against a decision to remand a person in custody. 35. Under Article 163 § 1, where the facts established sufficiently justify the conclusion that a criminal offence was committed by a particular person, the investigator or police authority shall deliver a decision, without delay, accusing that person of the offence in issue. The accused is to be notified of the decision within three days and not later than at the beginning of his or her first examination. 36. In accordance with the Supreme Court’s practice (Rt 95/1999), when considering whether reasons for remanding a person in custody exist, the authorities may have regard exclusively to circumstances and findings which have their basis in the procedural steps aimed at the establishment of evidence and which are relevant for the conclusion that a statutory reason exists for detaining a person in custody. 37. In decision Tpj 3/95 of 23 October 1995 the Supreme Court held that the detention on remand of a person under Article 67 § 2 of the Code of Criminal Procedure is lawful where the accused person is prosecuted for an offence punishable with a minimum prison term of eight years provided that a justified suspicion exists that the person concerned committed the offence imputed to him or her. The above minimum prison term as such does not render an accused person’s detention mandatory in each case. Article 67 § 2 permits a decision not to remand such an accused person in custody where it is 38. In decision NtvI-20/02 of 10 January 2003 the Supreme Court expressed the view that the minimum prison term set out in Article 67 § 2 of the Code of Criminal Procedure could be the sole reason for a person’s detention only for a limited time, in particular at the initial stage of criminal proceedings. If a person was detained for longer, further relevant reasons were required. | 1 |
train | 001-115259 | ENG | FRA | ADMISSIBILITY | 2,008 | OOMS v. FRANCE | 3 | Inadmissible | Peer Lorenzen | The applicant, Mr Dirk Ooms, is a Belgian national who was born in 1961 and lives in Geel. He was represented before the Court by Mr Claude-André Chas, a lawyer practising in Nice. The French Government (“the Government”) were represented by their Agent, Mrs Edwige Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Until November 2001 the applicant was the managing director of Diet, a company incorporated under French law. The company ran a mail-order business selling food supplements designed to aid weight loss. Among these were a liquid product called Forskoline 500 and effervescent tablets called Sveltys-Lyghtyss. The applicant indicated that these had been purchased from “a laboratory with the normal accreditation for such products”, based in Monaco. The applicant added that the products in question had previously been marketed in Belgium and that “for this reason, the Belgian Federal Ministry of Social Affairs, Public Health and the Environment had, in accordance with the procedure in place in the country, authorised [their] release onto the market after verification of [their] conformity as a nutrient[s] within the meaning of Community legislation and in particular Directive No. 95/2/EC of 20 February 1995”. In that connection he provided, in particular, a document dated 28 September 2001, issued by the General Inspectorate of Foodstuffs, acknowledging receipt of a “notification file” and assigning a “plant number” to Sveltys-Lyghtyss. Advertising carried out for the marketing of these products in France attracted the attention of the Department for Competition, Consumer Affairs and Fraud Prevention, which consequently conducted a number of investigations (in 2001 and 2002). Noting that the Sveltys-Lyghtyss tablets contained sodium benzoate, they contacted the person who had taken over from the applicant as managing director of Diet – who passed them the above-mentioned document dated 28 September 2001 – and then contacted the General Inspectorate of Foodstuffs in Brussels. The latter responded in the following terms in a letter dated 8 July 2002: “... Further to your letter dated 11 June 2002 relating to non-compliance of the food supplement L[y]ghtyss with Directive No. 95/2 on food additives other than colours and sweeteners (unauthorised presence of sodium benzoate in a solid food supplement) ..., we have taken the necessary measures to compel the company DMS that markets this product in Belgium to comply with the directive within a period of one month. If the company fails to do so within the period we have allowed, we shall withdraw its notification number .... We thank you for this information ...” The applicant and the person who had succeeded him as managing director of the company Diet and the company itself were prosecuted in the criminal courts. They were charged with, inter alia, false advertising, firstly regarding the composition, essential qualities, content of active ingredients, mode of manufacture, properties and expected effects of food supplements with alleged slimming qualities, and secondly by featuring fictitious studies by researchers on the identity, qualifications or skills of the retailers of these products. They were also prosecuted for having (during 2001 and until 2 November 2002) displayed, marketed or sold foodstuffs to be used for human consumption which they knew to be adulterated, tainted or toxic, by marketing food supplements containing sodium benzoate (Sveltyss-Lyghtyss tablets), namely, an unauthorised product in non-liquid food supplements. By a decision of 5 March 2004, the Lille Criminal Court found the defendants guilty on those counts. It sentenced the applicant to six months’ imprisonment and a fine of 30,000 euros (EUR); the other defendants were sentenced to fines of EUR 10,000 and EUR 50,000 respectively. The Douai Court of Appeal upheld the Criminal Court’s ruling on these points. Its judgment, delivered on 10 March 2005, highlights the following points in particular: “... the Order of 2 October 1997 [which transposes into French law several EU directives on food additives, including Directive No. 95/2/EC of 20 February 1995], provides that ‘maximum levels indicated in Annexes III, IV and V refer to foodstuffs as marketed, unless otherwise stated; sodium benzoate (preservative E 211) appears in Annex III of this Order, which is permitted in food supplements up to a level of 2,000 mg per litre, but only in liquid food supplements. The Sveltyss-Lightyss tablets were sold in solid form, so it is immaterial whether they were effervescent or intended to be ingested in liquid form. Once the Belgian Government had acknowledged that the presence of sodium benzoate in solid tablets was such as to cause it to revise its previous position, the defendants could no longer rely on an authorisation they had obtained from the Belgian authorities; in any event, a decision taken by the authorities contrary to Community law does not create rights and cannot result in an acquittal of the defendants on these charges ...’ By a judgment of 21 March 2006, the Court of Cassation dismissed an appeal lodged by the convicted parties, rejecting the ground of appeal based, inter alia, on Article 7 of the Convention as follows: “It is apparent from the judgment appealed against and the documents in the proceedings that the company Diet and its two successive managing directors ... were prosecuted in the criminal court on a charge of selling and releasing for sale adulterated food products on the grounds that in 2001 and 2002 theysold food supplements in the form of effervescent tablets, called Sveltyss and Lightyss, containing an illegal additive: sodium benzoate; In finding the defendants guilty of the offence, the Court of Appeal held that the tablets were released for sale in solid form and that, consequently, the use of sodium benzoate was not permitted, since Directive No. 95/2/EC of 25 February 1995, transposed into national law by the ministerial order of 2 October 1997, restricts the use of this preservative to liquid food supplements; On these grounds alone, and since at the material time sodium benzoate could not be incorporated, either in France or Belgium, into solid food supplements, the Court of Appeal justified its decision with regard to the legal and Convention provisions relied on; ...” Article L. 213-3 of the Consumer Code is worded as follows: “Anyone who 1. adulterates foodstuffs for human or animal consumption, medicines, drinks, or agricultural or natural products intended for sale; 2. displays, markets or sells foodstuffs for human or animal consumption, drinks, or agricultural or natural products which they know to be adulterated, tainted or toxic shall be liable to the penalties provided for in Article L. 213-1 ...” The adulteration of a product may result from the addition of a substance deemed illegal under the applicable law (Cass. Crim., 5 September 2000, No. 99-85437) or, more generally, from “recourse to unlawful processing that fails to comply with the regulations in place, with the effect of altering the substance” (Cass. Crim., 23 January 2001, No. 00-82000). Directive No. 95/2/EC of the European Parliament and the Council of 20 February 1995 “on food additives other than colours and sweeteners” (Official Journal No. L 61 of 18 March 1995, p.1) stipulates that the additives listed in Annexes III and IV “may only be used in the foodstuffs referred to in [the said] Annexes and under the conditions specified therein” (Article 2, paragraph 4 of the Directive). Sodium benzoate appears in Annex III (Part A). Unlike “liquid” food supplements, “solid” food supplements are not mentioned in the list of foodstuffs for which they can be used. This Directive was transposed into French law by the Order of 2 October 1997 “on additives usable in the manufacture of foodstuffs intended for human consumption” (Official Journal No. 260 of 8 November 1997, p. 16265). | 0 |
train | 001-71359 | ENG | DEU | ADMISSIBILITY | 2,005 | SUSS v. GERMANY | 4 | Inadmissible | Mark Villiger | The applicant, Werner Süß, is a German national, who was born in 1940 and lives in Berlin. The respondent Government are represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s daughter F. was born on 29 November 1984. In August 1989 the applicant and G.S., his then wife, separated. Since then F. has been living with her mother, who was awarded custody of her. On 6 December 1992 the applicant had his last contact with F. On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court suspended the applicant’s access to F. This judgment was upheld by the Berlin Court of Appeal on 4 March 1997. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged against the latter judgment. In his first application (no. 40324/98) to this Court, the applicant complained, in particular, that the said court decisions suspending his access to F. amounted to a breach of his right to respect for his family life. He further claimed that the court proceedings concerned had not been fair. On 20 September 2001, the Court declared admissible these complaints. On 17 July and 13 August 1997 the applicant lodged a motion under Section 1634 § 3 of the Civil Code (see ‘Relevant domestic law’ below) to order G.S. to provide him with further information about their daughter F., notably her current place of residence. On 23 June 1998 the Zossen District Court, sitting in guardianship matters, dismissed the applicant’s motions. It rendered its decision following a hearing attended by G.S. and F., then aged thirteen. The applicant, who had been duly summoned, had not attended the hearing. In its reasoning, the District Court referred to its final decision of 20 January 1998 according to which the applicant was entitled to one photograph of F. each year together with the final school report in summer. Furthermore, G.S. had been ordered to supply the applicant with copies of the interim school report of 1997/98 and of any further final school reports or reports on subsequent professional training, respectively. The applicant was also entitled to information about his daughter’s health every six months and to immediate notice about any change in her state of health. The District Court found that the applicant was not entitled to be informed of his daughter’s place of residence and of the address of her school on the ground that such information was contrary to the child’s well-being. It noted that the applicant did not have custody of F. and therefore had no power of co-determination in school matters. His right of access to F. had been suspended. In the court’s view, the applicant claimed the information in question only in order to establish access to F., which was contrary to her best interests. Moreover, G.S. feared reprisals. The court further noted that F., having been heard by the Youth Office and in court on 23 June 1998, refused any contacts with her father. The District Court also dismissed the applicant’s request for coercive measures, noting that G.S. had complied with the court order of 20 January 1998. On 9 June 1999 the Potsdam Regional Court, having heard the applicant and G.S., dismissed the applicant’s appeal. The Regional Court considered that the District Court had not exceeded its margin of appreciation when deciding that no information about the child’s whereabouts should be disclosed. Having regard to the strained relations between the parents, this had been in the child’s best interests. The information requested was not of such an importance that it had to be disclosed against G.S.’s express will. The Regional Court took into consideration that in a decision dated 19 November 1998, the District Court had initiated measures to re-establish contacts between the applicant and his daughter cautiously. Following the entry into force of the amended Law on Family Matters on 1 July 1998, the applicant lodged a second request to be informed of his daughter’s place of residence on 11 August 1999. He argued that he needed F.’s address in order to be able to maintain a minimum of contacts with her, because having to send letters to her via the Youth Office was discriminating against him. On 26 October 1999 the Zossen District Court, sitting in family matters, dismissed the applicant’s request. It confirmed that the daughter’s interest to avoid the risk of contacts with the applicant outweighed the latter’s interest to be informed of her address pursuant to Section 1686 of the Civil Code (see ‘Relevant domestic law’ below). In this connection, the Zossen District Court noted that on 30 September 1999 it had decided in a different set of proceedings instituted by the applicant that his access to F. remained suspended. It had found in that judgment that F., then aged fourteen, had expressly refused any contacts with her father and was crushed between her parents’ conflicting interests. In the case before it, the Zossen District Court therefore had to avoid a deterioration of F.’s tense mental state, which had not least been caused by never-ending court proceedings and examinations by psychological experts. On 19 June 2000 the Brandenburg Court of Appeal dismissed the applicant’s appeal. Referring to its hearing of the parties on 19 May 2000 in the context of further proceedings concerning the applicant’s right of access, it observed that the relations between G.S. and the applicant remained strained. Therefore, the applicant was not entitled to information about his daughter’s whereabouts. It noted that since the suspension of access about five years ago, F. had only once, in May 1999, seen the applicant outside court. In these circumstances, any risk that the applicant would go to the house where G.S. and F. were living had to be avoided. On 14 July 2000 the applicant lodged a complaint with the Federal Constitutional Court, comprising two pages. He claimed that the decision of the Brandenburg Court of Appeal not to order the disclosure of his daughter’s address violated his right to respect for his family life, his right to be heard and the principle of equality. On 30 August 2000 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint. On 3 December 2001 the Zossen District Court ordered G.S. to pay a coercive penalty of 500 Deutschmarks for failure to comply with its order dated 20 January 1998 to supply the applicant with certain information about F.’ personal circumstances. On 17 May 2002 the Brandenburg Court of Appeal confirmed the judgment of the Zossen District Court delivered on 30 September 1999 that the applicant’s access to F. remain suspended. It found that it would be against the best interests of F., who had almost attained the age of majority, to order contacts against her firmly expressed will. On 29 November 2002 F. attained the age of majority. Before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning a parent’s right to information about his or her under age child born in wedlock was worded as follows: Section 1634 “3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s best interests. The guardianship court shall rule on any dispute over the right to information.” The relevant provision in force since 1 July 1998, Section 1686 of the Civil Code, provides as follows: “Each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interests. The family court shall rule on any dispute.” Proceedings in family matters are governed, inter alia, by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Sections 27 and 28 of that Act, as applicable to the proceedings concerning the applicant’s first request for information, a further appeal (weitere Beschwerde) to the Court of Appeal lay against a decision of the Regional Court. If an appellant wished to lodge his further appeal in writing, his submissions had to be signed by a lawyer (Section 29 § 1 of the said Act). | 0 |
train | 001-110305 | ENG | FRA | CHAMBER | 2,012 | CASE OF LAGARDÈRE v. FRANCE [Extracts] | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1961 and lives in Paris. 6. The applicant’s father, J.-L. Lagardère, was chairman and managing director of the Matra and Hachette companies. 7. On 29 December 1992 Lambda, a company representing certain shareholders in Matra and Hachette, lodged a complaint for misappropriation of corporate assets, together with an application to join the proceedings as a civil party. 8. By an order of 21 June 1999, J.-L. Lagardère was sent before the Paris Criminal Court on suspicion of having, between 1988 and 1992, as chairman and managing director of Matra and Hachette in Paris, knowingly fraudulently misused assets of those companies against their interest, in particular by letting them bear the full cost of an annual licence fee equal to 0.2% of the two companies’ turnover, only part of which was justified, for his personal gain or to help another company in which he had a direct or indirect interest. 9. Two agreements were signed for the purpose: one on 1 October 1988, between Matra and the Arjil Group, and the other on 1 November 1988, between Hachette and the Arjil Group. They were adopted by the general assemblies of Hachette and Matra on 20 June 1989 and 26 June 1989 respectively. 10. In a judgment of 22 June 2000 the Paris Criminal Court declared the prosecution against J.-L. Lagardère time-barred, the starting point for the purposes of limitation being fixed at 20 and 26 June 1989, the dates of signature of the agreements by the shareholders. As a result, the court declared the civil party action brought by Lambda inadmissible. 11. On 22 and 28 June 2000 Lambda and the public prosecutor at the Paris tribunal de grande instance appealed. 12. In a judgment of 25 January 2002 the Paris Court of Appeal confirmed the judgment in all its provisions. Lambda appealed on points of law. 13. On 14 March 2003 J.-L. Lagardère died. 14. In a judgment of 8 October 2003, after declaring that the prosecution had lapsed, this time as a result of the accused’s death, the Criminal Division of the Court of Cassation quashed and annulled the judgment of the Paris Court of Appeal concerning the civil action, considering that the moment at which time had started to run for the purposes of limitation was the presentation of the auditors’ special report to the general assemblies, which post-dated the signature of the disputed agreements. The case was sent before the Versailles Court of Appeal. 15. Jean-Luc Lagardère’s heirs, his widow E.P.L. and the applicant, challenged that court’s competence to judge the civil action. 16. In a judgment of 30 June 2005 the Versailles Court of Appeal dismissed that objection, considering that the civil action continued when the offender’s death occurred after a decision on the criminal prosecution had been given. 17. It declared the instances of misappropriation of corporate assets committed in 1988 time-barred, but not those committed in the financial years 1989 to 1992. 18. The court accordingly considered that it had first to determine whether the constituent elements of the offence of misappropriation of corporate assets were established in respect of Arnaud Lagardère’s late father. To do this it examined “the personal interest” in the signature and execution of the contracts in issue, “whether they were against the corporate interests of Matra and Hachette”, and whether J.-L. Lagardère had acted in “bad faith”. It concluded its reasoning in the following terms: “the system set in place ... at the request of Mr [J.-L.] Lagardère ... constitutes the offence of misappropriation of corporate assets to the detriment of Matra and Hachette.” 19. The Court of Appeal explained that the profit had been 94,100,000 French francs (FRF), or 14,345,452.52 euros (EUR), without any real added value for the injured companies. 20. In the operative part of its judgment the Court of Appeal held: “that the constituent elements of the offence of misappropriation of corporate assets to the detriment Matra and Hachette are established for that period against Mr Jean-Luc Lagardère.” 21. In view of that finding the Court of Appeal ordered E.P.L. and the applicant, as the heirs, to pay the civil party EUR 14,345,452.52 in damages. 22. The applicant, E.P.L., Lambda and the Principal Public Prosecutor at the Court of Appeal appealed on points of law. In support of his appeal the applicant argued that there had been a violation of Article 6 of the Convention because the criminal court had no authority to judge the matter after his father’s death. 23. In his opinion on the appeal the advocate-general at the Court of Cassation, having examined the different possible solutions and the relevant legal theory and case-law, concluded that the Versailles Court of Appeal had no authority to judge the civil action after J.-L. Lagardère’s death. He also justified his opinion on principle. First, he pointed out that whatever the place reserved for the victim in the criminal trial, the judgment of the civil action remained contingent on the outcome of the criminal proceedings as it required the prior demonstration of the existence of an offence of which a particular individual was guilty, which ruled out the possibility of continuing the action against the heirs. He cited a passage from an authoritative work (Précis de procédure pénale, by Professors Stefani, Levasseur and Bouloc, 19th edition): “in our modern law we no longer bring actions against the dead or the memory of the dead”. Next, he explained that the need for a violation of the criminal law which was inherent in any decision of the criminal courts justified the fact that, for the court even to rule only on the civil action, the accused had to be given a criminal trial that respected the “principle that hearings must be oral ... and the adversarial nature of the trial, which was an essential component of a fair trial. In other words, in order for the criminal court to be able to rule, in both the criminal and the civil proceedings, there is a condition: the effective participation of the accused in his trial”. This meant that in order for the criminal court to be able to examine the civil action alone, it would be necessary for the accused “at one time or another, to have had an effective opportunity to submit his arguments in full concerning the presence and the solidity of all the constituent elements of the offence with which he has been charged, and his responsibility in the matter”. 24. In a judgment of 25 October 2006 the Court of Cassation declared the Principal Public Prosecutor’s appeal inadmissible and rejected those lodged by the applicant and E.P.L. 25. Regarding the arguments submitted by the applicant, the judgment read as follows: “In overruling the objection that the criminal court had no authority to hear the civil action brought by the heirs of [J.-L. Lagardère] because no decision had been given on the merits in the criminal proceedings prior to the death of the accused, the judgment states, among other things, that the proceedings and the judgment found that the prosecution was time-barred before the accused died; furthermore, the criminal court to which the case was remitted by the Court of Cassation is the only court competent to determine whether the prosecution was time-barred and whether, having regard to the civil claim, the constituent elements of the offence of misappropriation of corporate assets have been made out; In pronouncing itself in those terms the Court of Appeal justified its decision; Trial courts before which action was lawfully taken before the criminal prosecution lapsed continue to have jurisdiction in the civil proceedings...” 26. Ruling on the civil party claim, it quashed and annulled the judgment of the Court of Appeal solely on the issue of the capitalisation of the interest on the sums owed by J.-L. Lagardère’s heirs. On that occasion it noted that the Court of Appeal had “found JeanLuc Lagardère guilty”. 27. The relevant provisions of the Code of Criminal Procedure read as follows: “Anyone who has personally suffered damage directly caused by a criminal offence may bring civil-party proceedings to seek compensation for such damage. ...” “Civil-party proceedings may be conducted simultaneously with the public prosecution and before the same court. Civil-party proceedings may be brought for any head of damage, whether pecuniary or physical or non-pecuniary, caused by the acts under prosecution” “Civil-party proceedings may also be conducted separately from the public prosecution, before a civil court. However, judgment in civil-party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution. Setting the public prosecution in motion does not suspend the other actions before the civil court, whatever their nature, even if the decision to bring criminal proceedings is likely to directly or indirectly influence the outcome of the civil proceedings.” “A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits.” “The public prosecution for the imposition of a penalty is extinguished by the death of the defendant or by limitation, amnesty, the repeal of the criminal law and res judicata.” “When civil action is taken before a criminal court, limitation is governed by the rules of public prosecution. When the action is taken before a civil court, limitation is governed by the Civil Code. When the court has made a ruling on the public prosecution, the investigative measures ordered by the criminal court on the civil claims alone are governed by the rules of civil procedure.” 28. When criminal and civil proceedings are brought simultaneously before the criminal court, the civil action is considered contingent on the outcome of the criminal prosecution (see, for example, Court of Cassation, Criminal Division, 19 May 1969, Bull. crim. no. 173). 29. The public prosecution is extinguished by the death of the accused during the appeal on points of law. When the Investigations Division of the Court of Appeal decides to discontinue the proceedings, the criminal courts can no longer rule on the criminal proceedings and therefore have no authority to examine the civil action (Court of Cassation, Criminal Division, 5 May 1998, Bull. crim. no. 149). If the accused dies before any decision is reached on the merits, the criminal court has no authority to examine the civil action (Court of Cassation, Criminal Division, 7 March 1936; 9 September 2008, Bull. crim. no. 177). 30. The criminal courts can rule on the civil action only where a decision has been reached in the criminal proceedings (Court of Cassation, Criminal Division, 9 September 2008, Bull. crim. no. 177). In that case, when death occurs during the appeal or the appeal on points of law, the public prosecution is extinguished but the Court of Appeal and the Court of Cassation can still examine the civil claims (Court of Cassation, Criminal Division, 18 February 1915; 29 May 1978, Bull. crim. no. 169; 13 March 1997, Bull. crim. no. 104; 15 June 1977, Bull. crim. no. 221; 8 April 1991, Bull. crim. no. 166; 13 March 1995, Bull. crim. no 100; 22 May 1995, Bull. crim. no. 181). The Court of Appeal remains competent if death occurs after cassation but before the accused is summoned to appear before the court to which the case has been remitted (Court of Cassation, Criminal Division, 3 February 1965, Bull. crim. no. 32). The Court of Cassation must examine the grounds of appeal concerning both the civil action and the criminal prosecution, the latter serving as the basis for the former (Court of Cassation, Criminal Division, 13 March 1995, Bull. crim. no. 100). | 1 |
train | 001-95460 | ENG | DNK | ADMISSIBILITY | 2,009 | PANJEHEIGHALEHEI v. DENMARK | 3 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Ashkan Panjeheighalehei, is an Iranian national who was born in 1981 and lives in Kastrup. He is represented by Mr Bjørn Elmquist, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 July 1997 the applicant, who was sixteen years old at the time, and his sister entered Denmark with their mother. The mother had a valid passport and a visa for ninety days to visit the applicant’s sister and brotherin-law, who had been granted permanent residence permits in Denmark in 1992 and 1996 respectively. Shortly thereafter, the applicant’s mother requested asylum. Her request also applied to the applicant and his sister who were minors at the relevant time. According to a registration report of 12 July 1997, the applicant’s mother submitted that she had been an active member of a monarchist organisation called Iran Javid. She had printed leaflets about the king and distributed them in her home town. In so far as her statement involved the applicant it concerned a demonstration in which she and the applicant had participated on 27 March 1995. The applicant, who at the relevant time was fourteen years old, had been arrested, detained and subjected to torture for two days. The applicant’s mother had never been convicted but feared being persecuted by the authorities because of the said activities. Allegedly, she had recently learned that all members of the organisation had been arrested. The following day, the applicant’s mother explained that she had been a member of Iran Javid since 1992. On 27 March 1995, due to their participation in the demonstration, the applicant was arrested, tortured and detained for two days. The applicant’s mother’s home was seized approximately one month after the demonstration, but thereafter the authorities had not made further contact with the family. When the applicant’s mother left Iran, the organisation had still been active, but subsequent to her entry into Denmark she had learnt that it had been uncovered, that its members had been arrested and that she was wanted by the authorities. The immigration authorities held further interviews with the applicant’s mother on 6 August 1997 and 3 July 1998, during which she elaborated on her personal situation. As to the applicant, she explained that he had been detained for ten days in connection with the demonstration in March 1995. The applicant’s mother also submitted various documents in support of her request for asylum. On 9 October 1998 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant, his mother and sister asylum, finding that the applicant’s mother lacked credibility and that the family did not fulfil the requirements for obtaining asylum. The applicant, his mother and sister appealed against the decision to the Refugee Board (Flygtningenævnet), before which the applicant confirmed that he had been arrested in March 1995 for ten days. On 11 January 1999 the Refugee Board upheld the refusal to grant the family asylum. It noted that the applicant’s mother had provided various divergent and unreliable versions of events and considered that she had failed to substantiate that the family had fulfilled the criteria to be granted asylum. On 22 January 1999, a representative for the applicant’s mother requested a re-opening of the proceedings which was refused by the Refugee Board on 29 January 1999. On 22 April 1999, having reached the age of majority, the applicant requested that the proceedings be re-opened. He alleged that he had been politically active in Iran and recently learnt that he was wanted by the authorities. By decision of 27 April 1999 the Refugee Board refused the applicant’s request finding that he had failed to add significant new information or viewpoints to the case. The applicant was deported the following day. By letter of 20 May 1999 a representative for the applicant informed the Refugee Board that the applicant had been picked up by two men in civilian clothing in Iran on 1 May 1999 and that nobody had heard from him since. Accordingly, the representative requested a re-opening of the proceedings, which was refused by the Refugee Board on 18 June 1999. Another request for a re-opening of the proceedings was lodged with the Refugee Board on 9 August 1999 and refused by the latter on 25 February 2000. A third request for a re-opening of the proceedings was lodged with the Refugee Board on 4 November 2002 and refused by the latter on 18 December 2002. On 20 March 2003 the applicant re-entered Denmark and applied for asylum. He maintained that, due to his previous political activities and asylum request, upon return to Iran he had been detained and subjected to torture for almost two years. According to medical statements, inter alia by the Rehabilitation and Research Centre for Torture Victims dated 25 June 2003, the applicant suffered from post-traumatic stress disorder (PTSD) and depression which, it was assessed, was consistent with his claim that he had been subjected to torture. By letters of 12 January and 23 February 2004 the applicant requested that the Refugee Board acknowledge liability in damages for the suffering inflicted on him as a consequence of the Refugee Board’s decision of 11 January 1999. By letter of 5 March 2004 the Refugee Board informed the applicant that it could not acknowledge such liability. On 2 December 2004, the Refugee Board granted the applicant asylum. It found that, although the applicant could not be considered to have been persecuted when he left Iran together with his mother and sister in July 1997, it could be considered a fact that the applicant had been arrested by the Iranian authorities shortly after his return to Iran at the end of April 1999 and that he had been detained for a long time. In addition, the applicant had left Iran illegally. Accordingly, the Refugee Board found that if returned again to Iran the applicant would have a well-founded fear of persecution because the Iranian authorities would incorrectly consider him to be involved in extensive political activities aimed at the regime. On 6 April 2005 the applicant brought an action for damages against the Refugee Board before the High Court of Eastern Denmark (Østre Landsret), requesting that the former be ordered to acknowledge that it was liable to pay compensation for pain and suffering in the amount of 450,000 Danish kroner (DKK) equal to approximately 60,800 Euros (EUR) since by decisions of 11 January and 27 April 1999 the Refugee Board had refused to grant the applicant asylum, although allegedly at the relevant time he had amply demonstrated the risk he would face upon return to Iran of being subjected to arrest and torture, which subsequently happened. Referring to section 56, subsection 8 of the Aliens Act (Udlændingeloven), according to which no appeal lay against decisions taken by the Refugee Board, the Refugee Board pleaded as a preliminary issue that the High Court should dismiss the case. The High Court decided to determine the preliminary issue separately and decided on 15 December 2005 that, despite the invoked provision of the Aliens Act, it had authority to examine the applicant’s compensation claim on the merits. The reasoning was as follows: “As established, most recently by the Supreme Court’s decision published in the Weekly Law Review (Ugeskrift for Retsvæsen 2004, p. 727), as a result of section 56, subsection 8 of the Aliens Act, according to which the Refugee Board’s decisions are final, the courts’ review of the Refugee Board’s decisions is limited to a review of legal questions, including shortcomings in the basis for the decision and illegal discretion. Consequently, the courts cannot determine claims for compensation in so far as the claim in reality is based solely on the assumption that the Refugee Board made a mistake in its concrete assessment of the evidence and its discretion. [The applicant’s] compensation claim concerns the treatment to which he was subjected in Iran upon his return in April 1999, and thus relates to the Refugee Board’s decisions of 11 January and 27 April 1999. [The applicant] has maintained, among other things, that the Refugee Board failed to decide on the [the applicant’s] risk of ill-treatment by the authorities resulting from his being returned [to his country of origin] after such a long period of absence. Consequently, [the applicant] has invoked arguments which do not relate to the Refugee Board’s concrete assessment of the evidence and discretion.” The Refugee Board appealed to the Supreme Court (Højesteret), submitting anew that the case should be dismissed. By judgment of 12 January 2007 the Supreme Court dismissed the applicant’s claim for compensation in its entirety with the following reasoning: “The circumstances which [the applicant] has submitted in support of his argument that the Refugee Board were liable and therefore must grant him compensation, presuppose a review of the Refugee Board’s decisions of 11 January and 27 April 1999. The Supreme Court agrees that such a review is limited to an assessment of the legality of the administrative decision in question, including shortcomings in the basis for the decision and illegal assessments, also in a case like the present [concerning a compensation claim]. In its decision to refuse to grant the applicant asylum, the Refugee Board took a stand on the main claim [submitted by the applicant, his mother and sister], namely years of alleged membership of an illegal organisation, its being uncovered and the applicant’s participation therein. Although not expressly stated in the decision, the Supreme Court finds no reason to assume that the Refugee Board did not make an assessment of [the applicant’s] personal conditions including his participation in a demonstration in March 1995 and his subsequent short term detention, which was clearly mentioned in the facts part of the decision. It must also be assumed that the Refugee Board did take into account whether [the applicant] and his mother and sister personally were at risk upon entry and stay in Iran due to the long absence from their country since 1997. Against this background, the Supreme Court finds that the applicant’s objections to the Refugee Board’s decisions in reality amount to a disagreement with the Refugee Board’s assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum.” Under section 26 § 1 of the Tort Liability Act (Erstatningsansvarsloven), a person who is responsible for an unlawful infringement of another’s freedom, privacy, honour or person, is liable to pay damages to the injured party. An action for damages in this respect may be instituted before the ordinary courts in accordance with the rules set out in the Administration of Justice Act (Retsplejeloven). By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is not subject to any instructions from the Danish Government. Pursuant to section 53 of the Aliens Act, the Refugee Board comprises a chairman, deputy chairmen (the Executive Committee) and other members. The chairman and the deputy chairmen must be judges and the other members must be attorneys or serve with the Ministry for Refugee, Immigration and Integration Affairs. The judges are appointed upon nomination by the Court Administration (Domstolsstyrelsen). The other members of the Refugee Board are appointed by the Executive Committee. The attorneys are appointed upon nomination by the Council of the Danish Bar and Law Society (Advokatrådet) and the other members are appointed upon nomination by the Minister for Refugee, Immigration and Integration Affairs. The members of the Refugee Board are independent and cannot accept or seek directions from the appointing or nominating authority or organization. The term of appointment is for four years. The members are eligible for re-appointment and the member will be re-appointed if he or she requests re-appointment. The office as member ceases when the member resigns by own wish; when the member no longer has the organizational affiliation on which the original appointment was based; or at the end of the month of the member’s 70th birthday. The members of the Refugee Board can only be removed by judgment under the rules applying to the removal of judges. The jurisdiction of the Special Court of Indictment and Revision (Den Særlige Klageret) relating to judges applies equally to members of the Refugee Board. Cases tried by the Refugee Board are heard by the chairman or a deputy chairman, an attorney and a member serving with the Department for the Ministry of Refugee, Immigration and Integration Affairs. Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board’s decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority. Article 63 of the Constitution read as follows: “1. The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.” The courts will normally confine the review to the question of deciding on the legality of the administrative decision, including shortcomings of the basis for the decision and illegal assessments, but will generally refrain from adjudging on the administrative discretion exercised. The question of the scope of the finality rule set out in section 56(8) of the Aliens Act has been brought before the courts several times (see, inter alia, the Supreme Court judgments of 16 June 1997, published in the Weekly Law Review (Ugeskrift for Retsvæsen), (UfR 1997, p. 1157), 29 April 1999 (UfR 1999, p. 1243), 26 January 2001 (UfR 2001. p 861), 28 November 2001 (UfR 2002, p. 406), 29 August 2003 (UfR 2003, p. 2405) and 2 December 2003 (UfR 2004, p. 727). Reference was also made to more recent Supreme Court judgments of 24 March 2006 (UfR 2006, p. 1831), four judgments of 15 February 2007 (UfR 2007, p. 1277; UfR 2007, p. 1286; UfR 2007, p. 1291/1; and UfR 2007, p. 1291/2), a judgment of 28 November 2007 (Supreme Court case No. 349/2005) and five judgments of 30 November 2007 (Supreme Court cases Nos. 576/2006, 5/2007, 6/2007, 7/2007 and 8/2007)). According to those judgments, judicial review of decisions issued by the Refugee Board is limited to a review of issues of law, including an inadequate basis for a decision, procedural errors and unlawful exercise of discretion. The Government have also referred to a judgment of 31 October 2006 from the Supreme Court, published in the Weekly Law Reports (UfR 2007, p. 262), which in their view illustrated that the Supreme Court does not interpret section 56, subsection 8 of the Aliens Act narrowly. In that case, the Supreme Court held that the Refugee Board was not entitled to make the granting of asylum status conditional upon the plaintiff being able to render probable that he was at a specific risk of having to carry out or assist in actions that might entail exclusion under international rules pursuant to Article 1F of the Geneva Convention relating to the Status of Refugees. The Supreme Court noted that: “the question of whether it is justified to set up these conditions, which relate to the disputed fact and the burden of proof as well as other issues, is an issue of law subject to judicial review regardless of the finality rule laid down in section 56, subsection 8 of the Aliens Act.” Thus, the Government pointed out, the national courts cannot substitute their own decision on the merits of a case embraced by section 56, subsection 8 of the Aliens Act for that of the Refugee Board. However, if a decision issued by the Refugee Board is appealed against to a national court, and if that court finds that the Refugee Board’s decision suffers from material defects of law, including an inadequate basis for the decision, procedural errors or unlawful exercise of discretion, the court may remit the case to the Refugee Board for reconsideration. This was done by the Supreme Court in the above-mentioned judgment (UfR 2007, p. 262.). | 0 |
train | 001-113273 | ENG | UKR | CHAMBER | 2,012 | CASE OF TITARENKO v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);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 - Rights of defence) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);Non-pecuniary damage - award | André Potocki;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1962 and lives in Debaltseve. 6. On 12 April 1996 the applicant (a former police officer) and a Mr B. were placed on the wanted list as suspects in the robbery of a certain Mrs A. 7. On 24 June 1996 five police officers arrived at a summer house outside the town of Svetlodarsk, in the Donetsk region, as it was believed that the applicant and Mr B. were hiding there. When the officers approached the house and identified themselves, they were shot at from a Kalashnikov assault rifle and hand grenades were thrown at them. As a result one police officer was killed and two sustained severe injuries. The perpetrators escaped. 8. On the same day the Artemiskiy District Prosecutor’s Office (hereafter “the Prosecutor’s Office”) instituted criminal proceedings for murder and attempted murder of police officers on duty. 9. On 3 July 1996 the Prosecutor’s Office charged the applicant in his absence with the above offences and ordered his arrest. On the following day he was placed on the list of wanted persons. 10. On 10 July 1996 the criminal proceedings against the applicant were suspended because of failure to establish the whereabouts of the applicant and his co-accused. 11. On 9 March 2000 the applicant was arrested in Greece under an international arrest warrant. 12. On 9 August 2000 he was extradited from Greece to Ukraine and the criminal proceedings against him were resumed. On the same day the Donetsk Regional Bar appointed lawyer R. to represent the applicant in the above proceedings from 11 August 2000. The applicant’s relatives signed a contract with lawyer R. for the applicant’s representation. 13. The applicant alleged that following his arrival in Ukraine he had been placed in police custody and beaten for three days until he incriminated himself. According to the domestic court’s findings in the judgment against the applicant (see paragraph 29 below), on 10 August 2000 police officers I.S. and D.S. visited the applicant in the police detention unit for a confidential talk (доверительная беседа) about unrelated matters, namely arms trafficking in the region. The officers did not ask him about the police officer’s murder, but the applicant himself told them that on the day of the murder he had been on the first floor of the summer house in question and that, when escaping, he had thrown a hand grenade, which had not exploded. Two other police officers, N. and A., also visited the applicant in connection with yet another unrelated crime. They stated that he had proclaimed his innocence but refused to make any official statement in the absence of his lawyer. All four officers denied any coercion towards the applicant. 14. On 11 August 2000 the applicant was presented with charges, amended to take account of evidence collected since June 1996. After being formally charged the applicant was questioned in the presence of his lawyer R. He confirmed his earlier confession statements. He did not complain of any ill-treatment. According to the applicant, after this interview he was not allowed to see his lawyer for fifteen days. According to the Government, on 29 August 2000 the applicant was questioned in the absence of his lawyer as he had expressed a wish to be questioned without a lawyer; on other days during this period the lawyer R. did not ask to see the applicant. 15. On 1 and 5 September 2000 an ambulance was called for the applicant in connection with renal colic. 16. On 4 September 2000 the applicant’s brother asked the investigator to allow lawyer K. to act as defence counsel in the case, as lawyer R. was busy in other proceedings. This request was allowed. 17. On 6 September 2000 the applicant, assisted by lawyer K., participated in an on-site reconstruction of the events of the crime. 18. On 8 September 2000 lawyer R. asked the investigator to allow him unlimited visits to the applicant during the investigation. On 11 September 2000 the investigator allowed him one visit to the applicant. On 28 September 2000 lawyer R. challenged the investigator’s decision before the Donetsk Regional Prosecutor’s Office. In October 2000 the Head of the Investigation Department of the Donetsk Regional Prosecutor’s Office allowed lawyer R. unlimited visits to the applicant. 19. On 22 September 2000 the Artemivsk District Prosecutor extended the applicant’s detention until 26 October 2000. On 14 October and 25 December 2000 the Donetsk Regional Prosecutor further extended the applicant’s detention until 26 December 2000 and 26 January 2001 respectively. On 11 January and 20 February 2001 the applicant’s detention was extended until 9 March and 9 June 2001 respectively by the General Prosecutor’s Office. 20. On 20 October 2000 the applicant’s mother complained to the General Prosecutor’s Office that the applicant had been ill-treated and that his access to his lawyer had been limited. By letter of 28 November 2000, the Donetsk Regional Prosecutor’s Office replied to this complaint. They noted, among other things, that there had been no evidence that the applicant had been ill-treated and the applicant himself denied any ill-treatment. They also noted that the applicant had been questioned in the presence of his lawyer R. on 11 August 2000 and that there had been no obstacles to communication between the applicant and his lawyer. All requests by lawyer R. for meetings with the applicant had been satisfied and the lawyer had obtained a permit to see the applicant at any time without limitation on the duration of his visits. 21. In November 2000 the applicant changed his evidence and claimed that his confessions had been extracted under duress. The applicant stated that he could not have been involved in the imputed offences to him, as he had been in Vladikavkaz (Russia) at the relevant time. The applicant alleged that, having learned from his relatives that the police were looking for him in relation to the shooting, he had decided not to return to Ukraine. 22. On 13 May 2001 the Donetsk Regional Prosecutor’s Office refused to institute criminal proceedings against the police officers for alleged ill-treatment of the applicant on the ground of lack of corpus delicti. 23. On 2 July 2001 the Prosecutor’s Office submitted to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) a bill of indictment against the applicant and his co-defendant, Mr B. They were to stand trial for the murder and attempted murder of police officers on duty and for illegal possession of firearms. 24. On 1 August 2001 a preparatory hearing was held before a judge of the Court of Appeal. Neither the applicant nor his lawyer was present. The judge considered that the case was ready for trial and decided, without giving any reasons, that the applicant was to remain in detention on remand. 25. The trial started on 19 September 2001 in the premises of the Debaltseve Local Court. During the court hearings the applicant was held in a metal “cage” in the court room. His lawyer sat in the courtroom at some distance from the “cage”. 26. On 10 January 2002 the applicant lodged an application for release. In a letter of 23 January 2002 the presiding judge informed him that this request would be examined at the next court hearing. That hearing took place on 11 April 2002, when the court examined the above request and refused to change the preventive measure imposed on the applicant on the ground that he could flee from justice or obstruct the investigation. The court took into account that the applicant was accused of serious crimes punishable by more than three years’ imprisonment, that he had no permanent residence or work on the territory of Ukraine and that he had been hiding in Greece with false documents and had been extradited from that country. 27. On 21 July 2002 the Court examined another application for release lodged by the applicant on 3 July 2002 and rejected it on the same grounds as on 11 April 2002. 28. During the trial the applicant and his mother requested family visits to the applicant on several occasions. By letters of 31 October 2001, 23 January 2002 and 5 August 2003 the Donetsk Regional Court of Appeal rejected their requests and informed them that under Article 345 of the Code of Criminal Procedure detained defendants could receive family visits only after a conviction. 29. On 6 April 2004 the Court of Appeal, composed of two professional and three lay judges (народні засідателі), found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The applicant’s conviction was based on his and Mr B.’s confession statements, given during the investigation in the presence of their lawyers, and on the statements of four police officers involved in the incident of 24 June 1996, two of whom had identified the applicant as one of the perpetrators. The trial court also took into account an airplane ticket issued in the name of the applicant, which had been found at the scene during the investigation, and the applicant’s passport, discovered in bushes near the perpetrators’ escape route. The court examined the applicant’s complaints about violation of his defence rights. It noted that the initial questioning of the applicant, his confrontation with one of the victims and the reconstruction of the scene of the crime, on which the court relied in its decision, had been conducted with the participation of the applicant’s lawyer. As to his questioning on 29 August 2000 without a lawyer, the court noted that the applicant had voluntarily agreed to make statements without his lawyer and had not complained on that date of any ill-treatment. The court also examined the applicant’s complaints of ill-treatment by the police, who had allegedly forced him to incriminate himself during the first days of the investigation. The court found that on the day after his arrest he had been informally questioned by four police officers on matters unrelated to his criminal case and had confessed to being at the scene of the crime without having been asked about this event (see also paragraph 14 above). The court noted that the applicant’s allegations had not been supported by any evidence and that the applicant did not complain about any ill-treatment in the presence of his lawyer on 11 August 2000. The court further noted that the prosecution had investigated the applicant’s complaints and refused to institute criminal proceedings against the police officers. The court agreed with the prosecutor’s decision and dismissed the applicant’s complaints. 30. On 6 April 2004 the court also allowed the applicant to see his parents. 31. The applicant appealed to the Supreme Court. In his appeal, among other things, the applicant challenged the bench that had delivered the judgment of 6 April 2004, alleging that, whereas section 65 of the Judiciary Act provided that lay judges were to be appointed from lists approved by the municipal authorities, the names of two out of the three lay judges who had participated in his trial did not appear in the list approved by the Debaltseve Town Council on 27 November 2003. 32. On 16 December 2004 the Supreme Court upheld the judgment of 6 April 2004. It noted, in particular, that the bench of the appellate court had been composed in compliance with law. 33. On his arrival from Greece on 9 March 2000 the applicant was placed in the Donetsk City Temporary Detention Centre (“the ITT”). He was subsequently detained in a number of other detention facilities, including the Donetsk Pre-trial Detention Centre (“the SIZO”) and the Debaltseve ITT. 34. In July 2002 the Court of Appeal held several hearings in his case in the town of Debaltseve. In consequence, he was transferred to the Debaltseve ITT, where he was held from 8 to 15 July 2002. During the court hearings, the applicant complained about the conditions of his detention. He alleged that the food supply was inadequate and that he had not been allowed to receive parcels from his relatives. He further complained that, in spite of the summer heat, the cell had no water supply, which rendered the sanitary conditions unbearable. 35. On 23 August 2002 the Donetsk Regional Prosecutor’s Office instructed the Debaltseve Town Prosecutor’s Office to investigate the applicant’s allegations that the applicant was not provided with food and not allowed parcels from his relatives during his stay in the Debaltseve ITT in the period May to June 2001. 36. On 27 August 2002 the Debaltseve Town Prosecutor’s Office issued a decision refusing to institute criminal proceedings against the officers of the Debaltseve ITT, for lack of evidence of a crime. The prosecution established that during his stay in the Debaltseve ITT the applicant had received three parcels from his mother and she had never made any complaint. The prosecution further referred to statements by ITT wardens, who alleged that the applicant had been provided with food regularly. The prosecution further noted that during the applicant’s stay in the ITT the Debaltseve Prosecutor’s Office carried out several inspections of the conditions and lawfulness of the applicant’s detention, following his complaints. 37. Whilst in the Donetsk SIZO the applicant was held in a cell designated for (former) law-enforcement officers. The applicant states that on 25 September 2002, he was transferred to a medical wing in a cell assigned to inmates infected with tuberculosis. He was then allegedly transferred to a cell with another inmate, who threatened him with violence on the ground that he was a former police officer. 38. From October 2002 the applicant filed a number of complaints with the Prosecutor’s Office concerning the above incident in the Donetsk SIZO and the conditions of his detention in the Debaltseve ITT; he also alleged that this detention was unlawful. 39. On 7 October 2002 the Deputy Prosecutor of the town of Debaltseve issued a certificate (довідка) concerning the hygiene norms in the Debaltseve ITT. The certificate stated that the representatives of the Prosecutor’s Office and the specialists of the Sanitary-Epidemiological Station had inspected the conditions of detention in the above ITT. They found that the ITT had six cells, equipped with sanitary facilities and a water supply. The toilets and wash basins were in order. Drinking water was supplied as per the schedule. The ITT had a shower which was also in order. The cells were equipped with bunk beds, a table and benches. The certificate further noted that the ITT had a sufficient quantity of mattresses and bed linen, but the inmates used their own bedding. The inmates were provided with three hot meals per day. It also noted that the applicant had complained about the conditions of his detention in the ITT during his stay there in 2001. During the prosecutor’s regular (every ten days) inspections of the conditions of detention in the ITT in 2002 the applicant had made no complaints to him. In conclusion, it was noted that no violation of the relevant legislation had been established. 40. In a letter of 22 October 2002 the Prosecutor’s Office stated that in September 2002 the applicant had been examined by a prison doctor and was diagnosed as suffering from chronic gastritis. The doctor recommended that he be moved to the medical wing. There was no indication that the applicant was ever placed in a cell with inmates suffering from tuberculosis. The medical wing did not have a cell designated for (former) lawenforcement officers. However, immediately after his request, the applicant was removed from the cell he was sharing with the person who had allegedly threatened him. 41. On 16 October 1996 the Ministry of the Interior, the Ministry of Justice, the General Prosecutor’s Office, the Supreme Court and the Security Service, by a joint order, approved the Instruction on the Procedure for Escorting Accused or Convicted Persons) to and from, or in, Courts at the Judicial Authorities’ Request. The relevant provisions of the Instruction read: “7. ...The area in the courtroom where defendants are held shall be equipped with a bench and a wooden barrier of one metre in height, which shall be fastened to the floor. In courtrooms located on the ground floor the windows shall be barred. In each court building, up to 50% of the courtrooms in which criminal cases are heard shall be equipped with stationary metal barriers separating the defendants from the judges’ bench and from others persons present in the room... The windows in these rooms shall be barred irrespective of the floor on which they are located.” “23. On an oral instruction by the presiding judge, the head guard shall allow the accused or convicted person to speak to his counsel, experts or public prosecutors and shall allow a doctor to examine the accused or convicted person; during such exchanges, however, the accused or convicted person shall continue to be guarded. Such talks are usually conducted in an available room designated for holding accused or convicted person during breaks in court hearings and may be conducted in any language...” 42. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case, depending on whether it is the investigation or the trial stage. 43. The relevant provisions of the Code of Criminal Procedure 1960 read: Article 162 Visiting a detainee “Visits by relatives or other persons to a detainee may be authorised by the person or institution which is dealing with the case. The duration of the visit shall be fixed from one to two hours. As a rule, visits may be authorised no more than once a month.” Article 345 Granting relatives permission to visit a convicted person “Prior to the entry into force of the judgment, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person, upon their request, permission to visit the detained convicted person.” Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005-II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 39-42, 4 March 2010). “b. Militia central holding facilities (ITT) ... 49. Despite the measures announced in the responses of the Ukrainian authorities to the recommendations made by the CPT in its two previous reports, the delegation could not identify any noticeable improvements in the conditions of detention of the ITTs visited... The Committee believes that it would be more useful to highlight the main deficiencies in the ITTs from an overall perspective, rather than to enter into an in-depth analysis of each ITT visited; indeed, the challenges facing ITT establishments are, to all intents and purposes, similar. 50. The majority of ITTs visited were overcrowded. For example, in Sebastopol ITT, up to 10 persons were being held in cells of 15 m² and in several cells there were more persons than beds. 51. In all the ITTs visited, access to natural light was obstructed by dense metal netting on the windows or jalousies and the artificial lighting was, in general, insufficient. Reading of any kind was a strain on the eyes. The ventilation was inadequate and the air in the cells visited heavy. The lack of ventilation was exacerbated by the fact that the cells tended to be fetid, detainees being provided with neither products for cleaning their cells nor the possibility of washing themselves other than in a basin of cold water. Only in Lytne ITT did all detainees have the possibility of a shower during their stay. Further, the sanitary facilities in nearly all the ITTs visited left something to be desired. A notable exception was Simferopol ITT, where the delegation noted the cells were clean and the detainees possessed basic hygiene products. In several ITTs there was an insufficient quantity of mattresses and blankets for all the detainees, while the cleanliness of those available was questionable. Further, with one or two exceptions, the ITTs visited did not possess outdoor exercise facilities. Nor was there any provision for activities; in many ITTs, detainees were not even permitted newspapers. 52. In most ITTs, the single daily meal was supplemented by food parcels from relatives. Those without relatives shared the food of others. Given the fact that the Militia are unable financially to provide sufficient food to detainees, food parcels should not be subject to undue restrictions. The CPT has already made its position clear ... as regards ready access to drinking water; it is concerned that detainees in Kyiv ITT were denied such access. 53. In the light of the unacceptable conditions referred to above, the CPT was all the more concerned to learn that a significant number of detainees were being held in ITTs for periods much longer than the 10 day legal limit. ... 57. The CPT has already welcomed the measures taken by the Ukrainian authorities in response to the immediate observation made by its delegation. Notwithstanding those measures, the Ukrainian authorities still have some way to go to fulfil their responsibility to detain persons deprived of their liberty under conditions fully consistent with human dignity. It is clear that, in order to achieve lasting improvements, the highest priority should be given to the objective of reducing overcrowding. Only then can the efforts made by the Ukrainian authorities be expected to bear fruit. However, certain steps must be taken in the interim in order to ameliorate the situation. Consequently, the CPT calls upon the Ukrainian authorities to take, without further delay, the following steps already identified in its two previous reports: - ensure that all persons detained in ITTs are: supplied with essential personal hygiene products and have the opportunity to wash every day; able to take a warm shower on arrival and at least once a week during their period of detention; given the necessary products to keep their cells clean and hygienic; authorised to receive parcels from the very outset of their detention. - ensure that detained persons, in all ITTs, are provided with reading matter (if the establishment does not have a library, detained persons should be authorised to receive newspapers or books from relatives); - review the regulations and practice concerning detainees’ contact with the outside world.” The relevant parts of the report read: “b. Militia central holding facilities (ITTs) ... 40. The follow-up visit to the ITT in Kyiv revealed certain improvements: the establishment was not overcrowded (100 detainees for 156 places); the third floor had been properly renovated and all the detainees on that floor had a bed; the ventilation system on the second floor had been improved. In addition, there were now two exercise areas. However, there were numerous allegations that access to those areas was limited to ten minutes or so. Mattresses and blankets (although dirty) were available. That said, the cell windows were still hidden by shutters and the other detention floors remained in a state of severe dilapidation (cf., inter alia, paragraph 48 of the report on the 2000 visit). 41. As regards the other ITTs visited, the CPT would stress that the best material conditions observed were in the Uzhgorod facility. The cells were well-lit, in part by natural light, clean, correctly equipped (bed, mattress, blankets, table, bench) and spacious (between 11 and 25 m²). There was, however, one important deficiency, namely the absence of an outdoor exercise yard. Elsewhere, material conditions were very mediocre. In reality, the descriptions in the previous reports still very much apply. While some efforts had been made by the authorities shortly before the CPT’s visit, such as repainting cells or ensuring that mattresses and blankets were provided (as in Zhytomyr or Odessa, for example), the cells still had no access to natural light, the artificial lighting was often of poor quality and the ventilation deficient. The toilets in the cells were not properly partitioned off, if at all, and the sinks were in a bad state of repair. As in the past, access to hygiene products was dependent on parcels received by the detained persons and there were no arrangements enabling them to maintain adequate personal hygiene. The situation was variable where food was concerned: in some ITTs, three daily meals were provided, whereas in others there were two or even just one per day. ... 43. In addition, there was rampant overcrowding: for example, an analysis of the detention registers revealed that the Mukachevo ITT, with an official capacity of 28 places, regularly held up to 42 persons, and the Khust facility, with a capacity of 22 places, held up to 35. ... 45. ...it further recommends that steps be taken to ensure: - without delay that, in those ITTs already possessing outdoor exercise areas, detained persons actually have access to them for one hour each day; - without delay that, in all ITTs, detained persons are supplied with a full set of clean bedding, which is cleaned at regular intervals; - without delay that, in all ITTs, detained persons are provided with essential personal hygiene products and are able to wash every day (this includes a hot shower once a week, throughout their detention); - without delay that, in all ITTs, detained persons are given food at appropriate times; - the proper and progressive partitioning off of toilets in cells; - that detained persons, in all ITTs, have access to reading matter; - that the official occupancy level of ITT facilities is not exceeded and that efforts are made gradually to reduce them; the objective should be to offer living space of at least 4 m² per person.” | 1 |
train | 001-112396 | ENG | NLD | ADMISSIBILITY | 2,012 | I. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr I., is an Afghan national, who was born in 1963 and lives in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 3). He is represented before the Court by Ms H.E. Visscher, a lawyer practising in Dordrecht. 2. The Netherlands Government (“the Government”) are represented by their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 25 September 1999, the applicant together with his spouse and their three children, the latter born between 1986 and 1995, applied for asylum in the Netherlands. On unspecified dates, the applicant’s spouse and children were granted asylum in the Netherlands. On 3 July 2001, a fourth child was born to the applicant and his wife. 5. On 26 September 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), rejected the applicant’s asylum request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. The Minister further decided, although the decision entailed that the applicant was no longer lawfully staying in the Netherlands and obliged to leave the country, that for the time being the applicant would not be expelled to Afghanistan as it could not be excluded that, if returned to Afghanistan, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention. 6. On 17 October 2003 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 4 February 2005, the Regional Court of The Hague sitting in Leeuwarden accepted the appeal, quashed the Minister’s decision of 26 September 2003 and ordered the Minister to take a fresh decision. Although it agreed with the Minister’s decision and pertaining reasoning to hold Article 1F of the 1951 Refugee Convention against the applicant, it also found – on the basis of rulings given on 2 June 2004 and 9 July 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) and noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention – that the Minister should also have examined whether the applicant had established that there was a sustained obstacle based on Article 3 of the Convention for his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete. 7. The applicant’s subsequent appeal to the Administrative Jurisdiction Division was rejected on 20 May 2005. It upheld the impugned judgment of 4 February 2005. No further appeal lay against this ruling. 8. On 5 April 2006, the applicant’s spouse and their children were granted Netherlands citizenship. 9. On 5 February 2008, the Deputy Minister of Justice (Staatssecretaris van Justitie) – the successor to the Minister for Immigration and Integration – took a fresh decision on the applicant’s asylum request. The Deputy Minister again decided to hold Article 1F of the 1951 Refugee Convention against the applicant. As regards Article 3 of the Convention, the Deputy Minister accepted that the applicant would run a real risk of being subjected to treatment prohibited in that provision if, given the current situation there, he were to be removed to Afghanistan. However, this did not automatically imply that on this basis, the applicant should be granted a residence title as this would be contrary to article 3.107 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). This meant in the applicant’s case that he was not eligible for admission to the Netherlands whilst no recourse would be had to the power to remove him to Afghanistan. As regards the question whether the Article 3 obstacle for his removal was of a sustained nature, the Deputy Minister held that the term “sustained” was to be interpreted as entailing a situation in which the alien concerned could not for many years be removed for reasons based on Article 3 without there being any prospects of a change in that situation within a not too long delay. If that were the case, and if resettlement in a third country – despite sufficient efforts to comply with the obligation to leave the Netherlands – was not possible and, in addition, the alien found him/herself in an exceptional situation in the Netherlands, there would be reason for the Deputy Minister to consider whether a continued withholding of a residence title was disproportionate. Noting that, at least until that moment, the applicant had been allowed to stay in the Netherlands, the Deputy Minister concluded that the applicant not yet found himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3. In addition, the Deputy Minister decided to impose an exclusion order (ongewenstverklaring) on the applicant. As to the applicant’s reliance on his right to respect for his family life within the meaning of Article 8 of the Convention in the Netherlands with his spouse and their four children, the Deputy Minister found that the exclusion order entailed an interference with the applicant’s rights under this provision but that the general interest outweighed the applicant’s personal interests. In this context the Deputy Minister considered, inter alia, that there was an objective obstacle standing in the way of family life being enjoyed in Afghanistan, but that no objective obstacles had appeared for the enjoyment of the applicant’s family life in a third country and that this was not altered by the fact that the applicant’s spouse and children had become Netherlands nationals. 10. On 12 February 2008, the applicant filed an objection (bezwaar) with the Deputy Minister against the decision to impose an exclusion order. As this order is immediately enforceable and the objection not having suspensive effect, the applicant also filed a request with the Regional Court of The Hague for the issuance of a provisional measure, i.e. an injunction on his expulsion pending the objection proceedings. On the same date, the applicant also filed an appeal with the Regional Court of The Hague against the decision to reject his asylum request. 11. On 27 May 2008, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Dordrecht granted the applicant’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him. 12. On 14 November 2008 the Deputy Minister rejected the applicant’s objection of 12 February 2008. The Deputy Minister noted that, on the basis of the rulings of 4 February 2005 and 20 May 2005, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that for that reason an exclusion order could be imposed. In this connection, the Deputy Minister pointed out that the Netherlands State attached great importance to the premise that the Netherlands does not become a safe haven for persons in respect of whom there are strong suspicions that they have committed crimes referred to in Article 1F of the 1951 Refugee Convention and that, in order to accomplish this, an exclusion order was imposed on persons against whom this provision had been held. As regards the question whether the Article 3 obstacle opposing the applicant’s removal to Afghanistan was of a sustained nature, the Deputy Minister held that the applicant did not find himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3 and, in this respect referred to a letter sent on 9 June 2008 by the Minister and Deputy Minister of Justice to the Lower House (Tweede Kamer) of Parliament on the application of Article 1F, stating inter alia that the notion of “a great number of years” meant in principle a period of at least ten years. The Deputy Minister further considered that it had not been established that there were no prospects of change in the situation where Article 3 opposed the applicant’s removal to Afghanistan, which country was undergoing a period of transition, comprising a complex reconciliation process which had the active support of the international community. The Deputy Minister lastly rejected the applicant’s arguments based on his rights under Article 8 of the Convention. As regards the question whether the applicant’s family life could only be enjoyed in the Netherlands, the Deputy Minister accepted that, in the current circumstances, the applicant could not return to Afghanistan but did not find it established that this family life could not be enjoyed in a third country. The Deputy Minister concluded that the interests of the applicant and those of his family were of insufficient weight to tip the balance in their favour. 13. On 1 December 2008, the applicant filed an appeal against this decision with the Regional Court of The Hague. By judgment of 20 April 2010, that court, sitting in Dordrecht, rejected the appeal. It held that, barring newly emerged facts or changed circumstances, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final with the ruling given on 20 May 2005 by the Administrative Jurisdiction Division. Referring to the Division’s case-law, it reiterated that under “newly emerged facts or changed circumstances” was to be understood facts or circumstances having occurred after the initial decision, i.c. after 26 September 2003, and which could not and therefore should not have been submitted before that decision was taken and that, even if that condition was fulfilled, such facts or circumstances nevertheless did not warrant a revision of the judicial assessment if it was excluded from the outset that such new submissions or arguments could alter the initial decision. The Regional Court did not find such newly emerged facts or changed circumstances in the applicant’s submissions. It further noted that it was not in dispute that Article 3 of the Convention had, as from the date of the applicant’s asylum request and until the date of the impugned decision, uninterruptedly opposed the applicant’s expulsion to Afghanistan. Noting that fewer than ten years had elapsed between the filing of the asylum request and the taking of the impugned decision, it further accepted that the Deputy Minister did not have to determine the question whether the continued withholding of a residence title to the applicant was disproportionate. It agreed that more than ten years had elapsed at the time of its own examination, but held that its scope for review was limited to the impugned decision. If the applicant wished to obtain an examination of the proportionality of the continued withholding of a residence title, he should file a request for a regular residence permit together with a request for the lifting of the exclusion order. As regards the applicant’s arguments under Article 8 of the Convention, the Regional Court held: “The appellant correctly points out that the existence of serious reasons for considering that he has committed offences as referred to in Article 1F of the 1951 Refugee Convention does not offer the same degree of certitude about his culpability as a criminal conviction of such crimes. This does not alter the fact that the Deputy Minister’s assumption, as accepted by the Regional Court, is founded on the [contents of the] official country assessment report which, in the opinion of the Administrative Jurisdiction Division, is carried by the underlying materials. As a general, the appellant has further exercised an important function under Dostam. In these circumstances, there exists a rather high degree of certainty that the appellant has committed the acts held against him which belong to the most serious crimes imaginable. In its ruling of 31 October 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] BG3842), the Administrative Jurisdiction Division considered that a person against whom Article 1F has been held by the international community is regarded as a danger to (international) public order and public safety. In the ruling cited the Administrative Jurisdiction Division found that the Deputy Minister, when considering that the aim of the exclusion order is to prevent that an alien against whom Article 1F has been held can obtain protection in the Netherlands – thereby rendering the Netherlands a host state for persons who have committed serious crimes – and to counter residence of that alien in the entire Schengen territory, has on good grounds and with sufficient reasoning adopted the position that interference in the alien’s family life is justified in the interest of public safety and security. The Regional Court concludes that the fact that the appellant has not been criminally convicted does not mean that the Article 1F objection gives insufficient cause for interference in his right to family life. When taking the impugned decision, the Deputy Minister proceeded on the basis of the existence of objective obstacles to family life being exercised in Afghanistan. The Regional Court sees no ground for holding that the Deputy Minister has incorrectly considered the interest of the appellant and his family to be of less weight than the interests served by the imposition of the exclusion order or that on this point the impugned decision lacks adequate reasoning. The appellant is indeed already for a long time involved in [residency] proceedings during which he has been allowed to stay in the Netherlands, but he has never held any residence title enabling him to exercise family life in the Netherlands. When the impugned decision was taken, his oldest child had come of age, whereas no special relationship of dependency between the appellant and this child has appeared. At that time, the other three children were, respectively, seventeen, thirteen and seven years old. It has not appeared that, if need be, these children could not appeal to their mother and the oldest child for aid and assistance. Moreover, it cannot be ignored that, for as long as the Deputy Minister considers that the appellant’s expulsion to Afghanistan is in breach of Article 3 of the Convention and the appellant takes no concrete steps to meet the obligation placed on him – irrespective of the exclusion order – to leave the Netherlands by actively attempting to obtain admission to another country, the appellant will in fact remain with his wife and children. [His claim] that not a single other country is willing to admit the appellant does not, without more, have to be accepted by the Deputy Minister, the less so as the appellant’s lawyer has stated during the hearing held on 16 February 2010 that persons holding a higher rank than the applicant have been admitted to Germany and that the appellant is examining the possibilities of admission to that country. The Regional Court concludes that the impugned decision does not violate Article 8 of the Convention.” 14. On 16 May 2010, the applicant filed an appeal against this judgment with the Administrative Jurisdiction Division. 15. In a separate judgment, also given on 20 April 2010, the Regional Court of The Hague sitting in Dordrecht declared inadmissible the applicant’s appeal against the Deputy Minister’s decision of 12 February 2008 to reject his asylum request. Referring to a ruling handed down by the Administrative Jurisdiction Division on 6 July 2006 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2006/347), the Regional Court held that the applicant did not have an interest in a determination of that appeal for as long as the exclusion order imposed on him had not been definitely lifted, as this order rendered him ineligible for any kind of residence title. Although a further appeal lay with the Administrative Jurisdiction Division, there is no indication in the case file that the applicant has lodged such an appeal. 16. On 12 October 2010, the Administrative Jurisdiction Division rejected the applicant’s appeal of 16 May 2010 and confirmed the judgment of the Regional Court of The Hague relating to the imposition of the exclusion order. No further appeal lay against this ruling. 17. To date, the applicant has not been prosecuted for the offence defined in article 197 of the Criminal Code (Wetboek van Strafrecht) and he has not made any attempts to resettle in a third country. 18. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act. 19. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia, - he or she is a refugee within the meaning of the 1951 Refugee Convention, or - he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. 20. If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which might have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000). 21. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings. 22. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security and/or that it is in the interests of the international relations of the Netherlands. An exclusion order entails a ban on residing in or visiting the Netherlands. 23. An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect. 24. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 7,600 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureursgeneraal) whether to prosecute or not. 25. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien. 26. The implementation as from 1 January 2012 of EU Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) has no consequences in respect of persons on whom an exclusion order has been imposed which has obtained the force of res iudicata. Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban (inreisverbod) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings. 27. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences: - the alien is no longer lawfully residing in the Netherlands; - he/she is required to leave the Netherlands within four weeks; - officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands. 28. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking). 29. Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000, an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health of pose a risk for third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth) or the provision of legal assistance to the alien concerned. 30. In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings. 31. A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention. 32. In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. It did however underline the legislator’s apparent wish to limit the size of this group as much as possible. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin,, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete. 33. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but who, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no act aimed at effective removal will be undertaken, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to Article 3 in the country of origin or to proceed with removal to a third State willing to accept the person concerned. 34. Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional. 35. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” | 0 |
train | 001-5199 | ENG | CHE | ADMISSIBILITY | 2,000 | A.B. v. SWITZERLAND | 4 | Inadmissible | Christos Rozakis | The applicant, a Swiss citizen born in 1939, is a pensioner residing in Basel. He is represented before the Court by Mr Joset and Ms Pauen, lawyers practising in Binningen in Switzerland. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 June 1994 the applicant entered voluntarily and for the 45th time the psychiatric university clinic in Basel on account of his mental illness. On 7 June 1994 he requested his release. In the subsequent proceedings the applicant was represented by a lawyer. On 9 June 1994 an expert member of the Psychiatric Commission (Psychiatrische Kommission) of the Canton of Basel-Stadt examined the applicant in hospital. As a result, the Psychiatric Commission authorised on 15 June 1994 his forced confinement in hospital (zwangsweise Hospitalisierung) until 21 July 1994. In its decision the Commission referred to the applicant's chronic illness, in particular his manic ideas (Wahnideen) and that he might endanger others. The Commission thereby relied on S. 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) concerning detention for welfare purposes (fürsorgerische Freiheitsentziehung; privation de liberté à des fins d’assistance; see below, Relevant domestic law and practice). On 20 July 1994 the psychiatric university clinic requested the applicant’s continuing psychiatric detention as his situation had not ameliorated. An expert member of the Psychiatric Commission again examined the applicant on 21 July 1994 and concluded that he suffered from a chronic mental illness. The expert noted that the applicant was ready to stay in the clinic until he had found a new apartment. On 25 July 1994 the Psychiatric Commission authorised, with reference to the expert’s examination of 21 July, the applicant's continuing forced confinement until he had found a new apartment or at the latest until 21 October 1994. On 5 August 1994 the applicant filed an appeal with the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt, requesting his immediate release from the clinic or at least a finding that his stay in the clinic had been unlawful. He submitted, inter alia, that he had not been properly heard by the members of the Psychiatric Commission. The Court of Appeal transmitted the appeal on 10 August 1994 to the Psychiatric Commission which, on 23 August 1994, filed its observations. The Commission noted that the applicant had agreed to stay in the clinic until he found a new apartment; he could move about freely and also leave the clinic though he returned at night to sleep. As long as he was under medicaments there was no danger of endangering others, though this could change immediately if the medicaments were taken belatedly, or not at all. On 7 September 1994 the applicant was released from the clinic. On 15 December 1994 the Court of Appeal declared the applicant's appeal inadmissible as he had meanwhile been released and therefore lacked interest in his appeal (fehlendes Rechtsschutzinteresse). The Court thereby referred to its constant case-law. To the extent that the applicant requested compensation in view of the alleged unlawfulness of his detention, the Court noted that he had the possibility of filing a separate civil claim according to S. 429a of the Swiss Civil Code (see below, Relevant domestic law and practice). The decision of the Court of Appeal was served on 16 January 1995. On 15 February 1995 the applicant filed a public law appeal (staatsrechtliche Beschwerde) and an appeal (Berufung) with the Federal Court (Bundesgericht), claiming that he had a legal interest in his complaints, and requesting legal aid. In his appeal, he furthermore addressed the unlawfulness of his detention, in his public law appeal he complained about the length of the proceedings. In a decision dated 2 March 1995 and issued in respect of the applicant's appeal, the Federal Court dismissed his request for legal aid and imposed advance court costs of 1,500 Swiss Francs (CHF) on the applicant. The Court found in particular that the appeal lacked prospects of success as the applicant had meanwhile been released. The Court thereby referred to its case-law as well as a previous case in which it had already explained this case-law to the applicant’s lawyer. As the applicant failed to pay the court costs, the Federal Court declared the appeal inadmissible on 29 March 1995. On 3 May 1995 the Federal Court rejected the applicant's public law appeal. Insofar as the applicant complained of the length of the proceedings before the cantonal authorities, the Court found that he lacked practical interest in his appeal as he had meanwhile been released. B. Relevant domestic law and practice Under the heading “Detention for Welfare Purposes” the Swiss Civil Code lists in Sections 397a-f the grounds and procedures leading to such detention, including psychiatric detention. For instance, S. 397f provides for a “simple and speedy” (einfach und rasch) judicial procedure in which the person is, if necessary, legally represented and, in first instance, there is an oral hearing. Under a separate heading “Responsibility of Guardianship Organs” the Civil Code lists in S. 426-430 liabilities and ensuing procedures in guardianship matters. Here, S. 429a , concerning “Detention for Welfare Purposes” provides, inter alia, that “Whoever has been damaged by an unlawful deprivation of liberty is entitled to damages and, if justified by the severity of the breach, to satisfaction.” According to the case-law of the Federal Court, a complaint about unlawfulness of such detention may be raised by means of a claim for damages, but not of a public law appeal or an appeal after release from detention. For instance, in a decision of 1983 the Federal Court held: “Il est de jurisprudence que le recours de droit public exige un intérêt actuel et pratique à ce que la décision attaquée soit annulée: le Tribunal fédéral doit trancher des questions concrètes, et non pas théoriques. L’intérêt actuel nécessaire fait défaut, en particulier lorsque l’acte de l’autorité a été exécuté ou est devenu sans objet ... Toutefois, le Tribunal fédéral renonce à faire d’un tel intérêt une condition de recevabilité du recours de droit public quand cette exigence empêcherait le contrôle de la constitutionnalité d’un acte qui peut se reproduire en tout temps et qui, en raison de sa brève durée, échapperait toujours à sa censure ... En l’espèce, l’internement de la recourante a duré du 13 au 17 juin 1982. La recourante n’a dès lors plus d’intérêt actuel, puisque la mesure critiquée a pris fin. Les circonstances exceptionnelles qui permettent de renoncer à cette exigence ne sont pas réalisées. En matière de privation de liberté à des fins d’assistance, le séjour dans un établissement approprié n’est pas légalement limité à un bref laps de temps : il peut se prolonger tant que l’assistance personnelle ne peut pas être fournie d’une autre manière aux personnes indiquées à l’art. 397a CC. L’intérêt actuel peut donc exister encore au moment où le Tribunal fédéral est saisi d’un recours de droit public. On ne saurait dire que celui qui a été relaxé après une mesure de privation de liberté à des fins d’assistance a encore un intérêt actuel à former un recours de droit public parce qu’il peut se prévaloir de l’illégalité du placement pour réclamer une indemnité. L’art. 429a CC donne droit à une indemnité à titre de dommages-intérêts et de réparation morale en cas de privation illégale de liberté ...” (Arrêts du Tribunal fédéral [ATF] 109 I a 170 et seq.). This case-law also applies to other types of detention (see ATF 110 Ia 140) and was confirmed in 1999 (ATF 125 Ia 394). In the last mentioned decision, the Federal Court furthermore generally found that a person who had been released from detention can, pursuant to Article 5 § 5 of the Convention, institute separate proceedings for damages in which all complaints may be raised about the unlawfulness of detention | 0 |
train | 001-88315 | ENG | GBR | ADMISSIBILITY | 2,008 | HURST v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Daniel Hurst, is a British national who was born in 1936 and lives in Nottingham. 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 16 February 1987. On 10 April 2002, the applicant made a claim for widows’ benefits. On 10 June 2002 the applicant was informed that his claim had been disallowed as he was not a woman. 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 | 001-81641 | ENG | HRV | CHAMBER | 2,007 | CASE OF TESTA v. CROATIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award | Christos Rozakis | 4. The applicant was born in 1965 and is presently serving a prison sentence in Požega Penitentiary. 5. On 24 April 2001 the Požega Municipal Court (Općinski sud u Požegi) convicted the applicant of fraud and sentenced her to eight months' imprisonment. The court also ordered her to pay 44,000 Croatian kunas (HRK) in damages to the injured party. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) on 21 November 2001. 6. The applicant served the sentence in Požega Penitentiary from 10 January until 29 August 2003, when she was conditionally released. Her conditional release expired on 10 September 2003. 7. On 22 November 2001 the Zagreb Municipal Court (Općinski sud u Zagrebu) convicted the applicant on eight counts of fraud, sentenced her to four years' imprisonment and confiscated HRK 210,782 from her, which it attributed to the proceeds from her criminal activity. The court also ordered her to pay HRK 359,416.17 in damages to various injured parties. The sixth count of the applicant's conviction was identical to the offence for which the applicant had been sentenced by the Požega Municipal Court on 24 April 2001. The judgment was upheld on 8 July 2003 by the Zagreb County Court (Županijski sud u Zagrebu), sitting as an appellate court. 8. On 6 April 2005 the applicant started to serve her sentence. 9. On 21 October 2005 the applicant lodged an application for a retrial, claiming that she had been sentenced twice for the same offence. On 15 February 2006 the Zagreb Municipal Court granted the application. On 12 April 2006 the Zagreb Municipal Court acquitted the applicant on the charge of fraud in respect of which she had already been convicted by the Požega Municipal Court and upheld her other convictions of 22 November 2001 the court sentenced her to three years' imprisonment and confiscated HRK 166,782 from her on account of her criminal activity. 10. The medical documentation submitted by the applicant shows that since 1996 she has been suffering from chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood). She has unsuccessfully undergone interferon treatment. Due to the effects of that disease her liver is damaged and her general health condition is very bad. People with hepatitis C usually suffer from constant exhaustion; pain in the abdomen, joints and muscles; general sickness and weakness; and often depression. A low-fat diet is required in order to reduce liver damage. The disease is potentially fatal. On an unspecified date the applicant also contracted hepatitis A. In addition to that, she suffers from endometriosis. 11. During her first stay in Požega Penitentiary, from 10 January to 29 August 2003, the applicant was put on a low-calorie diet as a punishment for her attempts to complain about the conditions in the prison. She was first given the job of handling dissolvent without any protection and later made to work full time on shovelling pebbles. As a consequence, she collapsed and was transferred to the prison hospital (Bolnica za osobe lišene slobode, hereafter “the hospital”) where she spent about two and half months. She was transferred in a van, accompanied by a driver, a nurse and a policewoman. The transfer took several hours and they had several coffee breaks and a lunch break, during which they left the applicant in a closed van, without food or water and with the windows shut. 12. In the hospital the applicant shared a hospital room with five other inmates, most of whom were suffering from various mental disorders or epilepsy. The room had no sanitary facilities. The common sanitary facilities were shared by male and female inmates of the same floor. There were six female and fifteen male inmates on the applicant's floor. Access to toilets was allowed only in the company of a prison warden. The prison wardens were all male. Requests to be accompanied to the toilet were often ignored for prolonged periods of time. There was no access to the toilet during the night and the inmates had to use a common chamber pot (one for six inmates). The rooms were unlocked for an hour per day when the inmates were allowed to go out into the corridor, take a shower or wash their clothes. If an inmate urinated or threw up in the room, it had to be cleaned by the other inmates. 13. After her return to Požega Penitentiary, the applicant was again given the job of handling dissolvent, without any protection. After she had collapsed again, she was assigned another job. 14. The applicant was discharged on 29 August 2003. Her conditional release expired on 10 September 2003. 15. Following a fresh criminal conviction, on 6 April 2005 the applicant was taken by police to Remetinec Centre for Psychosocial Diagnostics (Centar za psihosocijalnu dijagnostku Remetinec), a detention centre in Zagreb, where she stayed for two weeks. 16. According to the applicant, she had not been allowed to write to the Court. The prison authorities had repeatedly questioned her as to what she had written to the Court about her previous stay in Požega Penitentiary and the hospital. After she had refused to reply she had been transferred to Požega Penitentiary and placed in the high-security unit where she had been ever since. 17. Požega Penitentiary consisted of four buildings that were old and in a bad state of repair. The walls were damp, windows broken and the heating facilities old and insufficient. As a result, it was often very cold in the cells and in the other prison areas. On rainy days the water leaked through the roof into the bedrooms. The sewage and water installations often broke down and when this happened the inmates were deprived of running water for days. 18. Požega Penitentiary was divided into three sections: an open section with the lowest security regime, a semi-open section with a medium security regime and a closed section with the highest security regime. The applicant had been assigned to the latter one. She had been put in a cell measuring twelve square metres with five other inmates. The beds were old and partly broken, and the mattresses were torn and soiled. There were approximately two toilets on average for thirty inmates. The inmates were not allowed to use the toilets at night. The applicant had been put in the same cell as an inmate who took heavy sedatives and therefore soiled her bed almost every night, which created an unbearable smell in the cell. The penitentiary lacked sufficient sanitary facilities, so inmates were occasionally sent to take showers in the basement. The showers there were mouldy and there were often mice, cockroaches, rats and cats running around. The inmates were not allowed to wash their civilian clothes in the penitentiary laundry room but had to wash them by hand and dry them in a very small room, which created an unbearable smell. 19. Before every meal the inmates were lined up in the courtyard where, regardless of the weather conditions and often for a prolonged period of time, they waited to be allowed access to the canteen. The applicant found it increasingly difficult to bear such line-ups on account of her illness. 20. Inmates were made to work about fifteen hours per day. From 12 May to 25 November 2005 the applicant had not worked because of her health condition, but later on she had volunteered to work in order to earn at least some money to buy vitamins and some food. The applicant earned between HRK 300 and 400 per month, HRK 100 of which she was obliged to save. She worked as a seamstress. She was allowed one hour's rest in her bed per day. The bedrooms were locked for the rest of the day. If she needed more rest she had to seek the doctor's permission each time. The applicant found it almost unbearable not to be able to stay in her bed for longer periods during the day since she suffered from tiredness associated with hepatitis C. 21. Although a low-fat diet for her liver disease had been prescribed, the applicant was served food cooked in pig fat. In general the food served to the inmates was insufficient and of poor quality. The bread was often stale and the food had often gone off. Breakfast often consisted of a spoon of bare pig fat. 22. She had seen a doctor once, on 21 February 2006. The medical documentation stated only that the test for hepatitis C was positive and that her viremia was 2.556.220 units/ml of serum. Apart from that, the applicant had not been sent for any other medical check-ups despite having a serious disease which required regular tests and check-ups. Since her arrival at Požega Penitentiary the applicant had not been seen by a hepatologist. She stated that she had not asked to be sent to the prison hospital because the conditions there were even worse than in Požega Penitentiary. 23. All letters sent and received by the inmates were subject to censorship. On several occasions the applicant was told to shorten her letters addressed to her family and not to write about the conditions in the prison. Mail was received with up to twenty days' delay. Mail sent without a request for acknowledgment of receipt often did not reach its destination at all. The inmates had to bear all the postage costs. All telephone calls were screened. The inmates apparently had to bear the costs of the telephone calls they made. The applicant stated that she had not been informed that she was entitled to any visits. 24. According to the Government, the penitentiary had been built in 1915 and had been adapted to the life and accommodation of inmates so as to comply with the conditions set out in the relevant legislation. It was able to accommodate 157 inmates, yet on 5 October 2006 there had been 72 inmates. Each section comprised bedrooms, sanitary premises, a living room, a tea-kitchen, a smoking area, an area for leisure activities, a library with computer equipment and premises for religious worship. The inmates were allowed to use the toilet and other sanitary facilities at any time and for an unlimited period. Each living room was equipped with a television set and a DVD or video recorder. Inmates were allowed to watch television until 11 p.m. on working days and until midnight on Saturdays and Sundays. 25. As to the applicant's personal circumstances, the Government submitted that after her initial one-week stay at the Reception Unit, she had been placed in the high-security unit and assigned to a non-working group on account of her health condition. The applicant had been qualified as having minor adaptability problems as most of the time she had been without any obvious occupation, just listening to music. Occasionally she had got into arguments with other inmates. She had lacked the motivation for more active participation in her individual programme, remaining passive and inert, with no insight into her own behaviour and uncritical in respect of her criminal conviction. However, with time the applicant's attitude had altered for the better. She had expressed a higher level of motivation for completing her daily duties and had satisfactorily participated in her counselling sessions, distancing herself from negative events in the section, and concentrating on herself. She had also expressed a wish to work and, as of 23 November 2005, had been working in the laundry service where she had been given less demanding tasks. 26. As of 1 June 2006 the applicant had been labelled “successful”, which had resulted in her removal to a semi-open section from 2 August 2006. Ever since then she had benefited from the following privileges: unsupervised use of telephone in her free time; unlimited correspondence at her own expense; the right to receive a package once a month and during public holidays; an additional package once every two months; the right to supervised one-hour visits twice a month and during public holidays; and an unsupervised three-hour monthly visit. 27. As to the medical care provided to the applicant, they submitted that one doctor and three nurses were employed in the penitentiary. During her second stay in the penitentiary the applicant had been allowed to stop work until she herself had asked to work again. She was also prescribed a liver and vitamin diet and offered fresh cheese and dairy products. On 4 January 2006 she underwent a qualitative and quantitative test for chronic hepatitis virus and was informed of the results. Since 5 May 2005 she had seen the prison doctor on 43 occasions. 28. As to the applicant's right to respect for her correspondence, they submitted that she had been able to send and receive letters at her own expense without any limitation. During her stay in the high-security section she had had to hand over her letters – opened – while the letters addressed to a legal representative, State authorities and international organisations for the protection of human rights had to be handed over sealed. Packages could be sent any day. 29. It appears that the applicant complained to the prison authorities, the Ministry of Justice and the President of Croatia. She did not submit copies of the letters she had sent to these authorities, stating that she had not made any. However, she submitted a letter of 5 September 2005 sent to her by the Ministry of Justice, Central Prison Administration, the relevant part of which read as follows: “The Ministry of Justice, Central Prison Administration, has received your complaint of 17 August 2005 in which you expressed your dissatisfaction with the accommodation arrangements with other inmates, the approach of the prison officials, the health care and the manner of using your free time.” The applicant's complaints were declared unfounded. 30. Furthermore, the Government submitted a complaint lodged by the applicant in a letter of 28 September 2005, lodged with the Požega County Court judge responsible for the execution of sentences (Županijski sud u Požegi), alleging, inter alia, that she suffered from chronic hepatitis and that, on account of her illness, she was not able to comply with the prison regime. Although the judge held an interview with the applicant on 19 October 2005, he did not adopt a formal decision on her complaints. The interview and subsequent action had concentrated solely on giving advice to the applicant about applying for a retrial (see paragraph 9 above). 31. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides: “No one shall be subjected to any form of ill-treatment...” The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) - “the Act”) came into force on 1 July 2001, and the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows: “(1) Inmates shall have the right to complain about an act or decision of a prison employee. (2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...” “(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” “(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions. (2) Inmates shall as a general rule be accommodated in separate rooms... (3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room. (4) Every room ... must have daylight and artificial light... (5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so. (6) Inmates shall have drinking water at their disposal at all times.” “1. The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.” “3. Inmates shall be served at least three meals daily with a caloric value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.” “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...” “(1) Inmates shall have the right to unlimited correspondence at their own expense. ... (4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters...” 32. The relevant part of the Report on the Minister of Justice's visit to Požega Penitentiary on 7 April 2006, published on the Ministry of Justice official internet page, reads as follows: “...Minister of Justice was informed about the situation in the Požega Penitentiary by its director Slavko Orešković. 'Our needs are fairly high as the roof, outer walls and installations are in need of repair as well as the other things, for which we would need about two million kunas' said Orešković.” 33. The relevant part of the Government's Report on the State and Operation of Prisons, Penitentiaries and Correctional Institutions in 2005 submitted to Parliament on 21 December 2006 (Izvješće o stanju i radu kaznionica, zatvora i odgojnih zavoda za 2005. godinu, koji je predsjedniku Hrvatskoga sabora dostavila Vlada Republike Hrvatske, aktom od 21. prosinca 2006. godine) reads as follows: “... state of repair of the buildings of the Zagreb Prison Hospital and the Požega Women's Penitentiary is highly unsatisfactory as regards the mains installations (gas, water, electricity, canalisation/sewage), construction of buildings (unsafe static, woodwork falling apart, the state of repair of the roof) ...” | 1 |
train | 001-24059 | ENG | SWE | ADMISSIBILITY | 2,004 | NAJAFI v. SWEDEN | 2 | Inadmissible | Nicolas Bratza | The applicant, Mr Esmail Najafi, is an Iranian national who was born in 1960. He was represented before the Court by Ms M. Novosel Nyström, a lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden for the first time in February 1977 to visit his brother, who was studying in Sweden. Having failed to demonstrate that his brother was able to provide economic guarantees for his subsistence and return travel, he was expelled from the country. A few weeks later, on 8 March 1977, the applicant again entered Sweden and applied for a residence permit in order to study in the country. On 7 June 1977 his application was rejected by the National Immigration Board (Invandrarverket). Apparently, he thereafter remained in the country illegally. In February 1978 he again applied for a residence permit as a foreign student, submitting that he had been admitted to the Stockholm Technical Institute. On 24 April 1978 he was, on this basis, given a temporary residence permit, effective until 23 October 1978. In the autumn of 1978 the applicant returned to Iran. After re-entering Sweden in March 1979 he remained there without permission until he again returned to Iran sometime during the autumn of 1979. Between 1979 and 1982 he did his military service in Iran. He remained in Iran until 1984. In February 1984 the applicant was granted an entry visa to Sweden to visit his brother. In July the same year he married a Swedish citizen whom he had first met during his initial period of residence in Sweden, and in November he was granted a six-month temporary residence permit based on this relationship. Shortly before the expiry of this permit he again returned to Iran in April 1985 and remained there, without his wife, until March 1987. The applicant has submitted that he remained in Iran on account of family problems there and that he was in continuous contact with his wife through telephone calls. After coming back to Sweden, where now also his parents and his three brothers were living, he was granted a permanent residence permit in June 1988. In January 1989 and November 1993, respectively, two sons were born to the applicant and his wife. The sons are both Swedish citizens. In 1995 the couple divorced. Between 1988 and 1997 the applicant made several journeys to Iran, the longest of which lasted for six weeks. At visits made to Iran in 1995 and 1996 he apparently told relatives that he was considering a permanent return to his native country. In the course of the police investigation into the narcotics offences of which he was subsequently convicted, the applicant stated that before he came under suspicion he had in principle moved back to Iran. He had rented an apartment there for a year, and his intention was to go to Iran for two periods every year and to remain for five months each time. The remaining two months he intended to spend in Sweden in order to see his children. The applicant further stated that he had better job opportunities in Iran, as well as contacts with persons who could help him. He also had a higher standard of living in that country than in Sweden. The applicant’s views in this respect were confirmed at his trial, during which he stated, inter alia, that his intention was to move back to Iran. During his different periods of residence in Sweden the applicant has been convicted of several criminal offences. Thus, in April 1979 he was found guilty of, inter alia, making unlawful threats and was given a suspended sentence and ordered to pay a fine. In 1994 he was convicted of driving without a driver’s licence and engaging in unlawful commercial traffic and sentenced to four months’ imprisonment. In 1995 he was convicted of robbery and of carrying knives in a public place and sentenced to imprisonment for one year and three months. He was released on probation in October 1995. On 4 April 1997 the District Court (tingsrätten) of Sollentuna convicted the applicant and three co-accused of aggravated narcotics offences involving the transportation from Thailand and attempted importation into Sweden of about two kilograms of heroin in December 1996. The applicant was sentenced to ten years’ imprisonment. Moreover, the court considered that the offences were of such a character that each of the accused should be expelled from Sweden with life-long bans on their return. In his appeal against that judgment, the applicant, in regard to the question of expulsion, relied on his links to Swedish society and also submitted that there was a risk that he would be punished again in Iran for the narcotics offences of which he had already been convicted in Sweden. On 13 June 1997 the Svea Court of Appeal (Svea hovrätt) upheld the District Court’s judgment in its entirety. The applicant sought leave to appeal against the appellate court’s judgment. He again referred to his strong links to Swedish society, including his long period of residence in the country, his close relationship with his two young children, and the fact that both his parents and his three brothers were residing in the country. He also invoked a letter from his former wife, in which she stated, inter alia, that it would be impossible for her to finance any future visits to Iran and that the applicant’s expulsion would therefore be tantamount to depriving the children of their father. On 18 July 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. He started to serve his prison sentence on the same day. The applicant’s children visited the applicant in prison for the first time in April 1999. During his time in prison he met the children on a total of 36 occasions. During the applicant’s time in prison, three petitions have been made to the Government for a revocation of the expulsion order. They were rejected by decisions of 9 August 2001, 15 August 2002 and 24 April 2003 respectively. In support of his first request, the applicant submitted that he had no significant link to Iran and that his expulsion to that country would cause detriment to his children who were unable to accompany him. He also noted that his youngest son was receiving therapy at a child psychiatric clinic for the problems he was experiencing as a consequence of the expulsion. In support of his third request, made in January 2003, the applicant added that, following his divorce in 1995, he had maintained a good relationship with his former wife and his children and had visited them several times a week, and that they regularly came to visit him in prison. The youngest son had experienced the greatest problems as a result of the applicant’s absence and he was therefore regularly seeing a psychologist. On 17 October 2003 the applicant was released from prison on probation. By a decision of the Stockholm police authority he was placed in detention on the same day pursuant to chapter 6, sections 2 and 9 of the Aliens Act (Utlänningslagen, 1989:529), inter alia on the ground that there was reason to believe that he would otherwise abscond. On 29 October 2003 the County Administrative Court (länsrätten) in Stockholm upheld the detention order. By a judgment of 17 November 2003 the District Court of Stockholm, at the request of the applicant and his former wife, ordered that they should have joint custody of their children. Previously, the former wife had had sole custody. On 25 February 2004 the order for the applicant’s expulsion was enforced and the applicant deported to Iran. In an opinion of 24 March 2004 Ms Helena Bering, a qualified psychologist and psychotherapist at the Stockholm education administration stated, inter alia, the following. At a meeting with the two sons and their mother, the eldest son, who was aware of the applicant’s deportation, had said that he was depressed and found the whole situation hopeless. The youngest son had not been informed of the deportation, as the family feared that he would not be able to bear the pain. He had refused to attend school and was generally unhappy and afraid. He stated that he would commit suicide if his father were to be expelled to Iran. Pursuant to chapter 1, section 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence. Provisions on expulsion on this ground are laid down in the Aliens Act (Utlänningslagen, 1989:529). According to chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he must be convicted of a crime that is punishable by imprisonment. Secondly, he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he will continue his criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he ought not to be allowed to remain in the country. Furthermore, under chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his links to Swedish society. In so doing, the court shall pay particular attention to the living conditions and family circumstances of the alien and the length of time he has resided in Sweden. There must be a reasonable proportionality between the offence and the resulting consequences, and the stronger the links are between the alien and Sweden the more serious the offence must be in order to justify his expulsion. Thus, an alien who has been a holder of a permanent residence permit for at least four years when proceedings are initiated against him, or who at that time has been residing in Sweden for at least five years, may not be expelled unless there are exceptional reasons for his expulsion. As regards aliens who are considered to be refugees, special rules apply. | 0 |
train | 001-22390 | ENG | RUS | ADMISSIBILITY | 2,002 | ZHELEZOV v. RUSSIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Yevgeniy Zhelezov, is a Russian national, who was born in 1975. He is currently detained in the Severlokhi Prison in Russia. He was represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was suspected of having murdered his father on 7 August 1997. In particular, it was found that the applicant’s father had died from 41 wounds inflicted with a sharp object. The applicant was arrested and questioned by an investigator on the same day. During the interrogation the applicant wrote a confession whereby he stated that he had killed his father while under the influence of alcohol. The interrogation record of 7 August 1997 includes a typed description of the applicant’s procedural rights, including “the right to be represented by a lawyer from the moment of the arrest”. The record also contains the applicant’s statement that he “so far does not need a defence counsel”, confirmed by his signature. On 8 August 1997 the applicant was again questioned. During the questioning he confirmed his written confession of 7 August 1997 that he had killed his father. After the interrogation the applicant’s detention was authorised by a prosecutor on suspicion of his having committed aggravated murder. The investigating authorities requested the Bar to designate an official defence counsel to represent the applicant during the inquiry of 8 August 1997, in accordance with the relevant procedural requirements. The respondent Government state that an official counsel, PK, indeed represented the applicant during the interrogation. They have submitted a copy of an order by the Bar dated 8 August 1997 whereby PK had been nominated to represent the applicant at the interrogation on that same day. The detention order of 8 August 1997 also contains the applicant’s signature together with the signature of PK, confirming that they had access to the detention order. The applicant states that PK was “possibly” designated to represent him at the interrogation of 8 August 1997. He denies however that PK in fact appeared at the interrogation. On 13 August 1997 the applicant employed privately a representative who thereafter acted in the proceedings on his behalf. On the same day the applicant was charged with aggravated murder. On 2 June 1998 a jury of the Kirov Regional Court convicted the applicant of aggravated murder (Article 105 of the Criminal Code) on the basis of various testimonies by witnesses and experts, and the applicant’s own explanations at the stage of the pre-trial investigation. He was sentenced to 12 years’ imprisonment. In establishing the applicant’s guilt, the court took account of the applicant’s self-incriminating statements made at the interrogations of 7 and 8 August 1997. The court noted that on the date of the arrest, when submitting his written confession, the applicant had waived the right to be represented by a defence counsel. It further held that the domestic criminal procedure did not require obligatory legal representation of the applicant at the initial stage of the proceedings. The court rejected the applicant’s subsequent pleadings at the trial that he had acted in self-defence. The court also established that the applicant had committed the crime while being drunk. The applicant’s appeal against the first instance judgment was rejected by the Supreme Court on 25 August 1998. In dismissing the applicant’s pleadings that he had acted in self-defence, the Supreme Court took notice inter alia of the fact that during the interrogations of 7 and 8 August 1997 the applicant had not made such allegations. Article 48 § 2 of the Constitution states that an arrested person has the right to assistance of a lawyer from the moment of the arrest. Pursuant to Articles 47 and 52 of the Code of Criminal Procedure, a suspect, from the moment of his arrest, has the right to be represented by a defence counsel, if necessary to be paid by the authorities. | 0 |
train | 001-67556 | ENG | GBR | ADMISSIBILITY | 2,004 | BROWN v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Peter Brown, is a United Kingdom national, who was born in 1962 and lives in Leeds. He was represented before the Court by Mr S. Purchas, a solicitor practising in Leeds. In December 1997, the applicant was sentenced to eight years' imprisonment for supplying heroin. On 12 April 2002, at the two-thirds point of his sentence, the applicant was released on licence, pursuant to section 33 of the Criminal Justice Act 1991. The licence expiry date was set at 29 April 2003, the three-quarter point of his sentence (section 37 of the Criminal Justice Act 1991). The licence conditions included that he live “where reasonably approved by [his] supervising officer and notify him or her in advance of any proposed change of address”. A separate condition required him to live at his mother's address and not to live elsewhere without the prior approval of his supervising officer. The applicant owned a house in Oulton, Leeds. The licence condition was designed to reduce contact with his erstwhile partner A., a drug addict who lived at that address, with his daughter C. and her other daughter. He was allowed to visit his daughter C. at that address. In early November 2002, A. left the Oulton house and did not return. The applicant moved in to look after the children, there being insufficient room at his mother's home. On 25 November 2002, at his next probation appointment, the applicant informed his probation officer that he had moved. The applicant states that no action was taken or direction given that he leave the address. The applicant states that allegations of domestic violence were made by A. to her own probation officer, although not to the police. On the basis of these allegations, a request was made by senior probation officers (not including the applicant's) that he be recalled to prison for breach of his licence conditions. On 19 December 2002, the applicant was recalled to prison for breach of the residence condition in his licence by the Home Secretary under section 39 of the Criminal Justice Act 1991. In the document setting out the reasons for recall, it was stated that he was recalled because he had moved without prior approval and the risk that he posed because of his antecedents and his behaviour in moving meant that it was not right for him to remain on licence. On 23 December 2002, the applicant's solicitors made representations to the Parole Board which had the power to order his release, in which he inter alia denied the allegations of domestic violence and alleged that the decision to recall was based on insufficient information, largely an unreliable account of A. and without any investigations being carried out. On 15 January 2003, the applicant was informed that his representations had been rejected. The decision stated that the applicant had clearly breached the conditions of his licence by not residing at his mother's address as instructed, nor had he notified his supervising officer in advance of his proposed change of address. The condition had been specifically inserted in his licence to reduce contact with his ex-partner. This failure to comply with the licence conditions suggested that the objects of probation supervision had been undermined. The applicant instituted proceedings for judicial review, challenging that decision as unlawful, disproportionate or unreasonable and as following an unfair or unlawful process; he argued that both the common law and Articles 5, 6 and 8 of the Convention had been breached and sought damages. On 11 April 2003, the High Court judge refused permission, finding that the Parole Board had not revoked his licence because of allegations by A. or suspicions as to drug-taking. He noted that the reasons given were clear, that the applicant had notified the probation service after the event and the condition had been inserted to prevent/reduce contact with A. He held that the Board was entitled to regard the breach of the condition in those circumstances as justifying recall. The applicant's renewed application was rejected by a different High Court judge on 11 June 2003. He noted a report prepared for the Parole Board prior to his release which stated: “Although there are no current drug concerns it would be unrealistic to suggest that [the applicant] will not be 'at risk' post release. An additional licence condition to initially reside at his parents ... and not to move in with his partner Ms A. until he has demonstrated that he has remained drug-free for a significant period and she has overcome her own drug problem seems appropriate. Although such a condition would not prevent him seeing Ms A. and providing support to his children, it would allow the Probation Service to monitor the situation closely.” The judge found nothing unfair in the procedure whereby the Parole Board rejected the applicant's representations and held that although the decision was harsh it was impossible to say that it was arguably irrational: the Parole Board had known all the facts and the fact that the girl friend was not at the address when he moved there did not entitle him to breach his licence. On 22 September 2003, the Court of Appeal refused permission to appeal. The judge stated: “The procedure was fair. The Appellant broke a condition of residence which was important and of which he was well aware. He was given the opportunity to make representations and the representations he made were considered. The decision did not depend on the truth of the allegations made by Ms. A. and the Parole Board was right not to attempt any investigation of her allegations. The reasons given for the decision were adequate and ... rational. Even if it could be argued that it was harsh, it was not disproportionate.” Concerning the applicant's arguments under the Convention, the judge referred to domestic case-law on the point (see below). On 30 September 2003, the Legal Services Commission refused to fund a renewed application to the Court of Appeal. On 13 November 2002, R. (West) v. the Parole Board ([2003] Prison Law Reports 70, the Court of Appeal rejected, by two votes to one, the argument that the recall of a prisoner on licence who has been serving a determinate sentence amounted to a determination of a criminal charge for the purposes of Article 6 of the Convention. On 31 July 2003, in R. (Smith) v. the Parole Board ([2003] EWCA 1269), the Court of Appeal held that neither Article 5 nor the civil provisions of Article 6 were engaged by recall of a prisoner on licence serving a determinate sentence. | 0 |
train | 001-104706 | ENG | RUS | COMMITTEE | 2,011 | CASE OF KOSTIN v. RUSSIA | 4 | Violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Mirjana Lazarova Trajkovska | 4. The applicant was born in 1985 and lives in Voronezh. 5. On 11 April 2005 the applicant initiated civil proceedings against the local administration seeking formal acknowledgment of his entitlement to child benefits and the relevant arrears. 6. On 27 July 2005 the Sovetskiy District Court of Voronezh (“the District Court”) dismissed his claims finding that he was not eligible for the sought benefits. The applicant appealed against the judgment. 7. On 4 October 2005 the District Court summoned the applicant to appear at the appeal hearing fixed for 27 October 2005. There is no evidence that the summons was dispatched or that the applicant indeed received it. 8. On 27 October 2005 the Voronezh Regional Court examined and dismissed as unfounded the applicant’s appeal. The applicant was absent from the appeal hearing, and the appeal court did not examine the question of his due notification at the hearing. 9. According to the applicant, on 1 December 2005 he inquired about the date of the appeal hearing at the registry of the District Court and was told that the Voronezh Regional Court had already examined and dismissed his appeal. | 1 |
train | 001-88270 | ENG | RUS | ADMISSIBILITY | 2,008 | NOVIKOVA v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Ms Aleksandra Lavrentyevna Novikova, is a Russian national who was born in 1933 and lives in Klin, a town in the Moscow Region. She is represented before the Court by Mr A. Novikov, a lawyer practising in Klin. The Russian Government are represented by Mr P. Laptev and then by Mrs V. Milinchuk, the Representatives of the Russian Federation at the European Court of Human Rights. As a child, the applicant was imprisoned by the Nazis. In the 1990s she hoped to receive compensation from the “Foundation for Mutual Understanding and Reconciliation”, a charity set up by the Russian and German Governments. The Foundation refused compensation, and the applicant brought an action against it. On 20 December 2000 the Klinskoy District Court of the Moscow Region ordered the Foundation to: “[M]ake payments to [the applicant] in accordance with the Government’s Decree No. 899 of 2 August 1994 “On the adoption of the Rules on the conditions and procedure of the payment of compensation to victims of the Nazis”.” On 3 January 2001 the judgment became binding, but was not immediately enforced because at that time the Foundation lacked funds. On 24 January 2005 the Foundation informed the applicant that it was going to pay her the equivalent 649.34 euros converted into Russian roubles, and asked the applicant for her bank details. The applicant contested this offer, alleging that the amount was too small, and that currency conversion would make it even smaller. The applicant applied for a clarification of the judgment, but on 16 November 2005 the District Court rejected this request having found that the judgment was worded clearly. The applicant did not appeal against this decision. The Foundation for Mutual Understanding and Reconciliation operates on the basis of the Government Order no. 899 of 2 August 1994. According to section 10 of this Order, the amount of compensation is determined by the Foundation’s Experts’ Board. The Board’s decision may be appealed against to the Foundation’s Appeal Commission, whose decision shall be final. | 0 |
train | 001-23569 | ENG | AUT | ADMISSIBILITY | 2,003 | GRASSL v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Franz Grassl, is an Austrian national, who was born in 1975 and lives in Kallham, Austria. He is represented before the Court by Mr. Postlmayr, a lawyer practising in Mattighofen, Austria. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 1995 the applicant caused a road accident. On 17 August 1995 the Braunau District Authority (Bezirkshaupt-mannschaft) summoned the applicant as he was suspected of having driven a car in a state of drunkenness. However, he did not obey the summons. On 4 October 1995 he commented on the suspicion against him. On 23 January 1996 the District Authority issued an order imposing a fine of ATS 10,000 on the applicant for having driven his car in a state of drunkenness. A test carried out had shown that the applicant had had an alcohol level in his breath of 0.51 milligrams per litre (the legal limit is 0,25 milligrams per litre). On 12 February 1996 the applicant, who was assisted by counsel of his own choice, filed an appeal; he requested an oral hearing. On 16 September 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat - “the IAP”) served a summons for a hearing on 23 October 1996 on the applicant’s counsel. On 15 January 1997 the IAP, after having held a hearing on 23 October 1996, dismissed the applicant’s appeal. On 20 February 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). On 10 October 1997 the Constitutional Court quashed the IAP’s decision. It found that the decision was based on an unconstitutional provision which provided that Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) did not apply in road-accident proceedings. According to Section 20, if the extenuating circumstances outweigh the aggravating circumstances, the imposed fine may be reduced to the half of the statutory minimum fine. This decision was served on the applicant’s counsel on 5 November 1997. On 19 November 1997 the IAP, sitting with a single member, dismissed the applicant’s appeal. It found that the requirements of Section 20 of the Code of Administrative Offences were not met. On 12 January 1998 the applicant lodged a complaint with the Constitutional Court against this decision. He stressed that the IAP had failed to hold a hearing in the second set of the proceedings upon his appeal despite his request in his appeal of 12 February 1996. He also complained that the decision had not been pronounced in public. On 25 February 1998 the IAP submitted its observations in reply. It argued that the applicant had waived his right to a public hearing and a pronouncement in public as he had agreed at the end of the hearing of 23 October 1996 that no hearing for the pronouncement of the decision should be held. On 27 August 1998 the applicant amended his complaint, now stating that the composition of the IAP was unlawful as that member had already decided on his appeal in the first set of the proceedings. Therefore, he challenged that member of the IAP for bias. On 1 December 1998 the Constitutional Court refused to deal with the case for lack of prospects of success. On 19 March 1999 the applicant requested that the case be transferred to the Administrative Court and on 28 May 1998 he supplemented his complaint. On 14 July 1999 the IAP submitted its observations in reply. On 31 March 2000 the Administrative Court dismissed the applicant’s complaint. It found that there was no indication of bias of the member of the IAP. As regards IAP’s failure to hold a hearing in the second set of the proceedings it found that the applicant had failed to file a new request to hold a hearing. This decision was served on 2 May 2000. Section 51e of the Code of Administrative Offences (Verwaltungs-strafgesetz), as far as relevant, reads as follows: “... 2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal. 3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the beginning of the hearing. ...” Section 20 of the Code of Administrative Offences (Verwaltungs-strafgesetz), as far as relevant, reads as follows: “If the extenuating circumstances considerably outweigh the aggravating circumstances, or if the accused is under age, the minimum fine may be reduced to the half of the amount.” | 0 |
train | 001-59367 | ENG | CHE | CHAMBER | 2,001 | CASE OF H.B. v. SWITZERLAND | 3 | No violation of Art. 5-2;Violation of Art. 5-3;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award | András Baka | 7. The applicant, born in 1959, is a businessman residing in Küsnacht in Switzerland. 8. On 8 March 1993 the investigating judge (Untersuchungsrichter) of the Canton of Solothurn issued a criminal charge (Strafanzeige) against unknown persons on suspicion of having committed various criminal offences against the B. company, including forging documents and the improper use of funds obtained by increasing the company’s capital. On 10 March 1993 criminal investigations were opened against unknown persons. On 20 April 1993 the investigating judge heard A.W., who had been deputy director of the B. company until 31 December 1991. 9. On 26 April 1993 the investigating judge issued a warrant of arrest against the applicant and a certain R.B., both being members of the board and managers of the B. company, on suspicion of having committed the offences of forging documents, fraudulently obtaining a false document, disloyal management, and giving incorrect information as to commercial companies (Urkundenfälschung, Erschleichen einer Falschbeurkundung, ungetreue Geschäftsführung und unwahre Angaben über Handelsgesellschaften). 10. On 12 May 1993 the applicant was arrested and detained on remand in the municipality of Solothurn. 11. On the same day, the applicant was brought before the investigating judge who informed him orally of the grounds of his arrest and that he would not be allowed to contact his lawyer. The investigating judge issued a detention order, countersigned by the applicant, informing him of the grounds of his detention, as previously stated in the warrant of arrest. 12. Also on 12 May 1993 the investigating judge issued an order to search the B. company and the applicant’s house. The order stated that the applicant’s lawyer was not allowed to consult the case-file or to participate in the taking of evidence, and he was not to see or to speak with the applicant. 13. Still on 12 May 1993 the applicant filed with the Court of Appeal (Obergericht) of the Canton of Solothurn a handwritten complaint about his arrest and detention and that he had been refused contact with his lawyer. In his appeal, he referred, inter alia, to accusations concerning the B. company’s activities at the end of 1991, and to various reproaches formulated in 1992. He recalled that in 1992 he had offered the B. company’s co-operation with the prosecuting authorities, and that the latter had interrogated A.W. in 1992 and 1993. He pointed out that if he had wanted, he could have undertaken colluding activities as from December 1991. 14. On 14 May 1993 the applicant refused to reply when questioned. 15. On 15 May 1993 the investigating judge amended that part of his order of 12 May 1993 concerning the lawyer’s prohibition to see or speak with the applicant, as that part had been drafted erroneously under stress. 16. On 17 May 1993 the applicant was visited by his lawyer. He was also questioned by the police, though he refused to reply. He insisted that he should first duly be informed of the charges laid against him. 17. In the afternoon of 17 May 1993 the investigating judge informed the applicant that the charges against him concerned an increase of capital of the B. company in 1991, the balance sheet of 1991 and the accusation of disloyal management of the B. company. 18. On 18 May 1993 the applicant’s lawyer filed a complaint with the Court of Appeal against the applicant’s arrest and detention. He requested the applicant’s release, and the lifting of all restrictions of his defence rights. He further complained that there had been no concrete information about the offences laid against him. The applicant’s lawyer also complained that the applicant had not been heard by a "judge or other officer" as required by Article 5 § 3 of the Convention. 19. On 18, 19 and 22 May 1993 the applicant was again questioned. 20. On 22 May 1993 the applicant was released from detention on remand. 21. During the proceedings before the Court of Appeal the investigating judge filed observations in writing. The applicant in his reply dated 8 June 1993 pointed out that for one and a half year sweeping charges had been levelled against the B. company. For over a year the cantonal authorities had been threatening with proceedings in order to obtain documents. 22. As from 16 September 1993 the applicant and his lawyer were permitted to consult the case-file. 23. On 4 October 1993 the Court of Appeal struck the applicant’s appeals of 12 and 18 May 1993 off its list of cases as having lost their purpose. The Court referred to the case-law of the Federal Court (Bundesgericht) as to the requirement in such cases of an appellant’s legitimation according to S. 88 of the Federal Judiciary Act (Organisationsgesetz). The Court found that the applicant had meanwhile been released from detention and that he therefore lacked a practical interest in his appeal. 24. On 8 November 1993, the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court in which he complained that the Court of Appeal had struck the appeal off its list of cases. He also complained about his detention on remand, the limitations of his defence rights, and that the position of the investigating judge breached Article 5 § 3 of the Convention. 25. On 26 January 1994 the investigating judge filed observations with the Federal Court on the applicant’s public law appeal. With regard to the grounds of detention, he stated that, in view of the applicant’s previous contacts with other persons concerned, it could be assumed that the applicant, would with great probability have known quite clearly which charges were laid against him. 26. On 2 September 1994 the Federal Court dismissed the public law appeal, the decision being served on 21 September. In its judgment, the court examined, with reference to its own case-law, whether or not the applicant was entitled under S. 88 of the Federal Judiciary Act to file a public law appeal. The Federal Court refused to grant the applicant standing, noting, inter alia, that the Court of Appeal had itself stated that it would be able again to examine in a later case whether or not the investigating judge of the Canton of Solothurn complied with the requirements of Article 5 of the Convention. 27. On 13 February 1995 the applicant, R.B. and the B. company filed with the Federal Court, pursuant to S. 42 of the Federal Judiciary Act a civil action against the Canton of Solothurn, claiming compensation for unlawful detention. After hearing various witnesses the court gave its judgment on 13 April 1999. 28. In its judgment the Federal Court considered, inter alia, that the applicant’s detention on remand had been lawful in that the investigating judge had correctly assumed that there was a danger of collusion in the applicant’s case, and that he had duly conducted the investigations. 29. The Federal Court furthermore dealt with the applicant’s complaint that during his detention he had been refused contact with his lawyer. The court concluded that the complaint was well-founded and that compensation was due by the Canton of Solothurn. 30. The Federal Court also considered the applicant’s complaint under Article 5 § 2 of the Convention that he had not been duly informed of the reasons of his detention. The court reiterated the various points raised by the applicant in his complaint of 12 May 1993 from which it transpired that he had been informed orally by the investigating judge on that day. The Federal Court found that the investigating judge had duly informed the applicant of the various charges of which he was accused as well as of the object of the investigations. The court concluded that the applicant had had sufficient information to file a complaint against his detention on remand. 31. In its judgment the Federal Court replied to the applicant’s complaint that the investigating judge of the Canton of Solothurn did not comply with the requirements under Article 5 § 3 of the Convention. It noted that in principle the investigating judge was independent of the Public Prosecutor. After summarising its own case-law and that of the Court in the case of Huber v. Switzerland (judgment of 23 October 1990, Series A no. 188), the court concluded that the investigating judge qualified as an independent and impartial officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention, inter alia, on the following grounds: “In the Canton of Solothurn the investigating judge conducts the inquiries or the preliminary investigations ... He closes these proceedings by means of a final order and refers the matter according to S. 97 § 2 of the Code of Criminal Procedure in cases of jurisdiction of the District Court or the District Court President ... to that court “for examination”. In respect of the description of the facts of which an accused is reproached and of their assessment from the point of view of criminal law, the final order will serve as bill of indictment in the cases of jurisdiction of the District Court and the District Court President ... In cases appertaining to the Criminal Court and the Court of Appeal, the final order will contain an application to the Public Prosecutor to file an indictment, or to the Indictment Chamber to close the proceedings ... (T)he investigating judge does not himself represent the prosecution in the court proceedings which follow the preliminary investigations. In cases before the Criminal Court and the Court of Appeal the public prosecutor will be exclusively responsible herefor. In case of jurisdiction of the District Court or the District Court President, there will be no prosecuting authority acting as party. The investigating judge will have no standing in the proceedings ...; as a result, it is excluded that he makes an application in his final order as to the sentence ... This right pertains exclusively to the Public Prosecutor - even in cases where the law does not provide for indictment and representation of the prosecution ... It follows that the final order of the investigating judge only has declaratory, orienting character ...” 32. As a result, the Federal Court ordered the Canton of Solothurn to pay the applicant 3,000 Swiss francs (CHF) as well as 5% interest since 12 May 1993 as he had been refused contact with his lawyer during his detention. The remainder of the action was dismissed. On the other hand, the plaintiffs were ordered to pay CHF 7,490 as procedural costs, and to reimburse the Canton of Solothurn the amount of CHF 15,000. 33. S. 42 of the Federal Judiciary Act provides for actions concerning civil litigation introduced by private persons against Cantons before the Federal Court which will examine the action as the sole instance. 34. According to S. 88 of the Act, an applicant is entitled to file a public law appeal “in respect of those breaches of law, which they have suffered on the basis of laws or orders which are generally applicable or personally concern them”. 35ATF [Arrêts du Tribunal Fédéral] 110 [1980] Ia 140). 36. According to ATF 125 [1999] I 394, a person lacking the required actual practical interest to complain in a public law appeal about a breach of Article 5 of the Convention, may nevertheless claim damages based on Article 5 § 5 of the Convention and introduce an action for compensation. This decision referred to the possibility of cantonal proceedings as well as of filing an action according to S. 42 of the Judiciary Act (see above, § 33). The preceding summary referred to the decision as “stating the case-law more precisely”. 37. The Judiciary Act of the Canton of Solothurn (Gesetz über die Gerichtsorganisation) of 1977 provides in SS. 4 et seq. for the jurisdiction in criminal matters, inter alia, of the District Court (Amtsgericht), the District Court President, the Court of Appeal (Obergericht) and the Criminal Court (Kriminalgericht). Pursuant to S. 15, the District Court will examine offences not pertaining to the jurisdiction of the other courts or of the District Court President. According to S. 72 of the Judiciary Act, the Public Prosecutor will prepare a bill of indictment in cases to be tried by the Court of Appeal or the Criminal Court. He will prepare the bill of indictment before the District Court if it is so agreed with the District Court President or upon request of the accused. 38. According to S. 50 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton of Solothurn, a detained person must be released immediately if there is no longer a reason for his detention. SS. 83 et seq. provide that the investigating judge will conduct the investigations. S. 97 § 2 states that, if in cases before the District Court or District Court President the investigating judge decides to refer the case to court for examination, his final order shall contain a summary description of the facts, the legal description of the offence and the applicable criminal provisions. 39. As regards the relations between the Public Prosecutor’s Office (Staatsanwaltschaft) and the investigating judge, S. 75 of the Judiciary Act states that the Public Prosecutor will supervise the office of the cantonal investigating judge, and that he can issue instructions as to the conduct of business (Geschäftsführung). S. 13 § 2 of the Code of Criminal Procedure provides that in cases to be prosecuted ex officio the Public Prosecutor may at any time instruct the investigating judge to take evidence. S. 101 of the Code of Criminal Procedure provides that in cases before the Court of Appeal and Criminal Court the Public Prosecutor may, after the investigating judge has prepared his final order, order the investigating judge to undertake supplementary taking of evidence. | 1 |
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